Fessehaye, Hanna H. v. Gonzales, Alberto R.

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 03-3933

HANNA H. FESSEHAYE,

Petitioner,

v.

ALBERTO R. GONZALES,

United States Attorney General,

Respondent.

____________

Petition for Review of an Order of

the Board of Immigration Appeals.

No. A78-356-582

____________

ARGUED JANUARY 7, 2005—DECIDED JULY 8, 2005

____________

Before POSNER, RIPPLE and ROVNER, Circuit Judges.

RIPPLE, Circuit Judge. The Immigration and Naturalization

Service (“INS”) brought removal proceedings against

Eritrean citizen Hanna Fessehaye. She filed an asylum claim

and application for withholding of removal, but obtained no

relief. She then brought a motion to reopen her case. See 8

U.S.C. § 1229a(c). In pertinent part, she alleged changed

circumstances in that she had become a Jehovah’s Witness

and consequently feared persecution because of her reli-

gious affiliation if sent back to Eritrea. She also asserted

2 No. 03-3933

that, if returned to Eritrea as a failed asylum seeker, she

would suffer persecution. The Board of Immigration

Appeals (the “BIA” or “Board”) denied her motion to reo-

pen. In its view, she had failed to present sufficient evidence

to make out a prima facie case for relief. Ms. Fessehaye now

petitions for review of that decision. For the reasons set

forth in the following opinion, we grant the petition and

remand the case to the BIA for further proceedings.

I

BACKGROUND

A. Facts

Ms. Fessehaye was born in the Ethiopian province of

Tigray, but relocated to the province of Eritrea to work as a

teacher. In the 1990s, Eritrea became independent following

an internationally-monitored referendum. Ms. Fessehaye

became a citizen of Eritrea by voting in that referendum.

Tensions between the newly independent nation and

Ethiopia escalated into armed conflict between 1998 and

2000; animosity between the two countries continues to this

day.

On August 22, 1998, Ms. Fessehaye entered the

United States on a six-month tourist visa. She remained in

the country beyond the expiration date of that visa. In

October 1998, she married Ghebregziabher Ghebremedhin,

another Eritrean citizen who also had entered the United

States on a tourist visa and had remained beyond its ex-

piration. The couple has two children who are citizens of the

United States, a son born in 1999 and a daughter born in

2001.

In 1998, the INS brought removal proceedings against Mr.

Ghebremedhin; he conceded that he was subject to deporta-

No. 03-3933 3

tion, but sought asylum. His asylum application was based

on past persecution and a fear of future persecution because

he is a Jehovah’s Witness—a church that is subject to

widespread persecution and distrust in Eritrea. The Immi-

gration Judge (“IJ”) denied his asylum application, and the

BIA affirmed. Mr. Ghebremedhin appealed to this court.

Meanwhile, Ms. Fessehaye applied to the INS for asylum.

In her application, she claimed to have a well-founded fear

of persecution. She based this claim on the fact that her life

history involved connections with both Ethiopia and Eritrea,

two sovereign countries that have been at war and now co-

exist in an environment of continuing distrust.

Ms. Fessehaye claimed that she faced persecution if re-

turned to Ethiopia because she had voted in the Eritrean

referendum and had become an Eritrean citizen. Similarly,

she believed that she would be persecuted if returned to

Eritrea because she was a native of Tigray, a province that

remained part of Ethiopia. Following a hearing, the IJ

denied Ms. Fessehaye’s request for asylum and her petition

for withholding of removal in February 2001. The BIA

affirmed without opinion in November 2002.

B. Motion to Reopen

Ms. Fessehaye did not seek review of the BIA’s decision,

but instead filed a timely motion to reconsider; the Board

denied that motion. She then filed a timely motion to reo-

1

pen, see 8 U.S.C. § 1229a(c)(7), and included supporting

1

At the time Ms. Fessehaye filed her motion, the provisions gov-

erning motions to reopen were found at 8 U.S.C. § 1229a(c)(6).

Congress recently amended § 1229a(c), see Emergency

Supplemental Appropriations Act for Defense, the Global War on

(continued...)

4 No. 03-3933

evidence and an updated asylum application as required by

2

8 C.F.R. § 1003.2(c). In her motion to reopen, Ms. Fessehaye

essentially raised four grounds for reopening. We shall

discuss each of her submissions and the BIA’s resolution.

First, Ms. Fessehaye submitted that, in light of our deci-

sion in Nwaokolo v. INS, 314 F.3d 303 (7th Cir. 2002), her

1

(...continued)

Terror, and Tsunami Relief, Division B—REAL ID Act of 2005,

Pub. L. No. 109-13, § 101(d), 119 Stat. 231, and as a result the

provision governing Ms. Fessehaye’s motion presently is located

at 8 U.S.C. § 1229a(c)(7). The REAL ID Act did not change the

substance of the former § 1229a(c)(6), and we therefore cite to the

provision as currently numbered.

2

A petition to reopen “must be accompanied by the appropriate

application for relief and all supporting documentation.” 8 C.F.R.

§ 1003.2(c)(1) (emphasis added). Ms. Fessehaye attached an up-

dated asylum request in order to comply with this requirement.

See A.R. at 20 (“I am making this application as part of my

Motion to Reopen my first request for asylum.”). The application

attached to her motion to reopen does not differ materially from

her first asylum request, the only differences being that (1) the

more recent application is made on the October 2001 revision of

Form I-589, (2) the updated application includes the new infor-

mation that Mr. Ghebremedhin’s case is before the BIA and that

the couple’s children are citizens of the United States, and (3) the

updated application refers the Board to affidavits establishing the

new facts forming the basis of Ms. Fessehaye’s motion to reopen.

At the time of her motion, regulatory provisions governing

motions to reopen and to reconsider were codified at 8 C.F.R.

§ 3.2. A reorganization in 2003 placed the provisions in their cur-

rent location at 8 C.F.R. § 1003.2. There are no differences be-

tween the former section 3.2 and the current section 1003.2 that

affect Ms. Fessehaye’s appeal, and, for ease of reference, we cite

to the current regulations.

No. 03-3933 5

daughter would be subject to female genital mutilation if

she returned to Eritrea with her mother. In support of this

claim, Ms. Fessehaye attached the State Department report

on human rights practices in Eritrea, see A.R. at 43; U.S.

Dep’t of State, Eritrea, in Country Reports on Human Rights

Practices—2001 (2002) (“2001 Country Report”). The Board

rejected this claim on the ground that the asserted danger

was not new and had been available at the time of her

hearing. The Board further found no statutory basis to

maintain a claim based on the fear of future harm to a child

and thus determined that Ms. Fessehaye could not make out

a prima facie case on this asserted basis for asylum.

Second, she claimed that she had adopted her husband’s

religion and was a practicing Jehovah’s Witness. Because of

this conversion, she feared religious persecution—essen-

tially the same religious persecution that her husband had

asserted as the basis for his asylum claim. In support of her

motion to reopen, Ms. Fessehaye included her own affidavit

in which she stated that she had been an Orthodox Christian

before her marriage, but had decided to convert to Jeho-

vah’s Witness after her marriage and participation in her

husband’s religious events. The affidavit further stated that

Ms. Fessehaye had not completed the final ritual for full

membership in the faith, and thus the church elders could

not provide additional evidence of her conversion within

the ninety-day time limit for filing a motion to reopen. See

8 C.F.R. § 1003.2(c)(2). Her affidavit continued to detail the

persecution faced by Jehovah’s Witnesses in Eritrea, which

she feared would be visited upon her and her children if she

3

returned to the country. She cited the persecution of

3

In particular, Ms. Fessehaye—and her husband in his pro-

ceedings—submitted that Jehovah’s Witness beliefs regarding

(continued...)

6 No. 03-3933

Jehovah’s Witnesses described in the 2001 Country Report.

The BIA rejected this claim because it determined that Ms.

Fessehaye had failed to present sufficient evidentiary

materials in support of her conversion. In particular, the

Board found insufficient her single affidavit because, in its

view, affidavits from her husband or church elders attesting

to her Jehovah’s Witness faith could have been obtained

easily.

Third, Ms. Fessehaye contended that the State Department

had recognized—in a report unavailable at the time of her

asylum hearing—that Eritrean citizens who return to the

country after failed attempts to obtain asylum abroad are

subject to investigation and are allowed to enter only on a

“case-by-case basis.” A.R. at 11; see id. at 51; 2001 Country

Report § 2.d (“Applications to return from citizens living

abroad who have . . . been declared ineligible for political

asylum by other governments, are considered on a case-by-

case basis.”). She claimed that, because she had sought

asylum in the United States, she would be investigated

upon her reentry to Eritrea; this investigation would in turn

3

(...continued)

military service would run afoul of Eritrea’s compulsory national

service requirements. Jehovah’s Witnesses may not serve in a

nation’s armed forces, but, as detailed in an Amnesty Interna-

tional press release, A.R. at 64, persons refusing to serve in Eritrea

could face penalties of three years’ imprisonment or even death.

In addition, Jehovah’s Witness beliefs regarding the service of

earthly governments mean that practitioners cannot recognize the

legitimacy of any “government[ ] of men.” Id. at 23. Because of

the Witnesses’ refusal to recognize the Eritrean government, Ms.

Fessehaye claimed that government authorities deeply distrusted

Jehovah’s Witnesses, often refusing to issue passports, food

rations or government housing and frequently imprisoning

practitioners.

No. 03-3933 7

lead to her arrest or detention because it would reveal her

religious beliefs, as well as her criticism of the Eritrean

4

government for forcing her mother out of the country.

In addition to the 2001 Country Report, Ms. Fessehaye also

attached an Amnesty International press release that de-

tailed the treatment of former asylum seekers who returned

to Eritrea. In rejecting this contention, the Board believed

that the 2001 Country Report and the Amnesty International

press release were insufficient evidence that Ms. Fessehaye

faced persecution as a former asylum seeker.

Fourth, Ms. Fessehaye reasserted in her affidavit, although

not in her motion, a ground raised in her previous asylum

application: that Eritrean authorities maintained a policy of

arresting ethnic Ethiopians and deporting them to Ethiopia.

She argued that “new reports” continued to be published

detailing this practice. A.R. at 24. The BIA dismissed this

contention as mere speculation, unsupported by the country

reports or other evidence.

Ms. Fessehaye now seeks review of the denial of her mo-

tion to reopen. More specifically, she asks that we review

the Board’s decision with respect to her contentions that she

has a well-founded fear of persecution because of her

religious conversion, her failed attempt to seek asylum and

the possibility of further deportation to Ethiopia. She does

not challenge the BIA’s determination of her derivative

female genital mutilation claim.

Before oral argument in this case, our court rendered its

decision on Mr. Ghebremedhin’s appeal. Ghebremedhin v.

4

In her initial asylum application, to establish past persecution

under 8 C.F.R. § 208.13(b)(1), Ms. Fessehaye offered evidence that

her mother had been forced from the country by Eritrean

authorities. In her motion to reopen, she claimed to fear persecu-

tion for speaking out against her mother’s treatment.

8 No. 03-3933

Ashcroft (“Ghebremedhin I”), 385 F.3d 1116 (7th Cir. 2004). In

Ghebremedhin I, we noted that Mr. Ghebremedhin presented

evidence of persecution “so compelling that no reasonable

factfinder could agree with the BIA’s decision” denying him

asylum. Id. at 1120. We thus reversed the BIA and remanded

with instructions to the Board to grant his asylum applica-

tion. Id. We subsequently modified the opinion by remand-

ing to the agency for further proceedings consistent with

Ghebremedhin I. Ghebremedhin v. Ashcroft (“Ghebremedhin II”),

392 F.3d 241, 244 (7th Cir. 2004). Having determined that

Mr. Ghebremedhin presented evidence “so compelling” that

no reasonable factfinder would have denied his application,

we must now resolve his wife’s appeal.

II

DISCUSSION

A. Standard of Review

The Board’s authority to grant or deny a motion to reopen

is discretionary; we therefore review deferentially its

5

decision for abuse of discretion. Motions to reopen are

5

Prior to 1996, “the authority for [motions to reopen] derive[d]

solely from regulations promulgated by the Attorney General.”

INS v. Doherty, 502 U.S. 314, 322 (1992). Passage of the Illegal

Immigration Reform and Immigrant Responsibility Act

(“IIRIRA”) of 1996, Pub. L. No. 104-208, 110 Stat. 3009, 3009-546,

amended the Immigration and Nationality Act to include statu-

tory requirements for a motion to reopen. 8 U.S.C. § 1229a(c)(7).

Following IIRIRA, the INS amended its regulations to the

current form. Both the prior and current regulations emphasize

that the decision to reopen rests, within certain restrictions, with

the BIA. See Doherty, 502 U.S. at 323 (noting that 8 C.F.R. § 3.2

(continued...)

No. 03-3933 9

comparable to motions for rehearing or for a new trial, and

thus are “strongly disfavored.” Selimi v. Ashcroft, 360 F.3d

736, 739 (7th Cir. 2004) (citing INS v. Doherty, 502 U.S. 314

(1992)); see also Xu Long Lu v. Ashcroft, 259 F.3d 127, 131 (3d

Cir. 2001). “But granting deference to administrative tri-

bunals does not mean we have clothed their rulings with

5

(...continued)

(1987) required denial in certain circumstances but did not spe-

cify when to grant a motion to reopen, and “[t]he granting of a

motion to reopen is thus discretionary”); see also 8 C.F.R.

§ 1003.2(a) (“The decision to grant or deny a motion to reopen . . .

is within the discretion of the Board . . . .”). We have thus

continued to review the BIA’s decisions to reopen for abuse of

discretion after IIRIRA, as we did before. See Laboski v. Ashcroft,

387 F.3d 628, 631 (7th Cir. 2004) (citing Awad v. Ashcroft, 328 F.3d

336, 341 (7th Cir. 2003)); see also Pelinkovic v. Ashcroft, 366 F.3d

532, 536 (7th Cir. 2004).

Ms. Fessehaye submits that, in codifying procedures for a mo-

tion to reopen, IIRIRA changed the degree of deference that we

owe to the BIA’s decision, and for support she cites discussion in

Medina-Morales v. Ashcroft, 371 F.3d 520 (9th Cir. 2004). We cannot

accept this argument. The question presented in Medina-Morales

was whether the discretion to grant or deny motions to reopen,

vested in the Attorney General through 8 U.S.C. § 1229a(c)(7),

was such that the decision was unreviewable under 8 U.S.C.

§ 1252(a)(2)(B)(ii). Having found jurisdiction, the Ninth Circuit

proceeded to review the BIA’s decision for abuse of discretion.

Nothing in Medina-Morales indicates that we ought to modify our

review of the BIA’s discretion in this case. See, e.g., Guo v.

Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004) (“[O]ur review is highly

deferential: we review the denial of a motion to reopen for abuse

of discretion. Discretionary decisions of the [Board] will not be

disturbed unless they are found to be arbitrary, irrational, or

contrary to law.” (internal quotation marks and citation omit-

ted)).

10 No. 03-3933

that kind of power expressed in the maxim the ‘king can do

no wrong.’ ” Zhao v. United States Dep’t of Justice, 265 F.3d 83,

86 (2d Cir. 2001). A tribunal abuses its discretion when it

acts arbitrarily or capriciously and in such cases no defer-

ence is due. Id.

In reviewing Ms. Fessehaye’s claims, we are mindful of

the substantive and procedural changes to the immigration

laws recently enacted by Congress through the REAL ID

Act. See Emergency Supplemental Appropriations Act for

Defense, the Global War on Terror, and Tsunami Relief,

Division B—REAL ID Act of 2005, Pub. L. No. 109-13, 119

Stat. 231. As relevant here, the REAL ID Act modified the

standard of review for orders of removal, id. § 101(e), a

change that applies “to all cases in which the final adminis-

trative removal order is or was issued before, on, or after”

the date of passage, id. § 101(h)(3). We turn to that provision

to assess its impact on our review of Ms. Fessehaye’s claims.

Section 101(e) amends 8 U.S.C. § 1252(b)(4) by adding

the following sentence: “No court shall reverse a determina-

tion made by a trier of fact with respect to the availability of

corroborating evidence, as described in section 208(b)(1)(B)

[8 U.S.C. § 1158(b)(1)(b)], 240(c)(4)(B) [8 U.S.C.

§ 1229a(c)(4)(B)], or 241(b)(3) [8 U.S.C. § 1231(b)(3)], unless

the court finds, pursuant to section 242(b)(4)(B), that a rea-

sonable trier of fact is compelled to conclude that such

corroborating evidence is unavailable.” Given the language

employed by Congress in this section, we do not believe

that new provision applies to our review of the denial of

Ms. Fessehaye’s motion to reopen in its current posture. By

its terms, section 101(e)’s effect does not apply to review of

motions to reopen under § 1229a(c)(7). Furthermore, section

101(e) dictates the standard of review to be applied when

the “trier of fact” has made a determination as to the

No. 03-3933 11

necessity of corroborating evidence. However, the BIA does

not act as a “trier of fact” when it decides whether to grant

or deny a motion to reopen. Thus, the standard of review set

forth in the REAL ID Act has no direct application to our

present review.

B. Merits

Under 8 U.S.C. § 1229a(c)(7), an applicant may file, within

ninety days of the order of removal, a motion to reopen

asylum proceedings based on new facts. “A motion to

reopen seeks fresh consideration on the basis of newly

discovered facts or a change in circumstances since the hear-

ing . . . .” Charles Gordon et al., Immigration Law and

Procedure § 3.05[7][a] (2004); see Canaveral Toban v. Ashcroft,

385 F.3d 40, 45 (1st Cir. 2004). The statute provides little

guidance on the form or sufficiency of a motion to reopen;

it simply directs that the motion “shall state the new facts

that will be proven at a hearing to be held if the motion is

granted, and shall be supported by affidavits or other evi-

dentiary material.” 8 U.S.C. § 1229a(c)(7)(B). The applicable

regulations largely repeat this statutory language: “A mo-

tion to reopen proceedings shall state the new facts that will

be proven at a hearing to be held if the motion is granted

and shall be supported by affidavits or other evidentiary

material.” 8 C.F.R. § 1003.2(c)(1). The BIA may deny a

motion to reopen based on the petitioner’s “ ‘failure to es-

tablish a prima facie case for the underlying relief sought’ ”

and “ ‘failure to introduce previously unavailable, material

evidence.’ ” Awad v. Ashcroft, 328 F.3d 336, 341 (7th Cir.

6

2003) (quoting Doherty, 502 U.S. at 323).

6

The BIA also may deny a motion to reopen after “a determina-

tion that even if these requirements were satisfied, the movant

(continued...)

12 No. 03-3933

1.

We agree with the BIA that Ms. Fessehaye’s application to

reopen based on the Eritrean government’s policy of

deporting ethnic Ethiopians fails to “introduce previously

unavailable, material evidence.” The sole support for this

claim—which was not argued in the motion to reopen

itself—is a statement in the affidavit accompanying her

motion that “new reports continue to be published of the

government’s arrest of returning Eritreans and the contin-

uing deportation (repatriation) of Ethiopians from Eritrea to

Ethiopia.” A.R. at 24. She failed to attach such “new re-

ports” to her motion, and indeed the materials that she did

attach seem to indicate the opposite. See id. at 47; 2001

Country Report § 1.d (“By mid-August the Government had

repatriated more than 21,000 Ethiopians to Ethiopia; how-

ever, all of these persons were repatriated voluntarily . . . .”);

see also A.R. at 51; 2001 Country Report § 2.d (“The Govern-

ment stated publicly on several occasions that it had not

adopted a policy of deporting all Ethiopian nationals from

the country. After August 2000, forced, mass deportations

stopped . . . .”); A.R. at 52; 2001 Country Report § 2.d

(“There were no reports of the forced return of persons to a

country where they feared persecution.”).

2.

However, we reach a different conclusion as to the BIA’s

decision to deny reopening on Ms. Fessehaye’s religious

6

(...continued)

would not be entitled to the discretionary grant of relief which he

sought.” See Awad, 328 F.3d at 341. There is no indication in the

record that the BIA would have refused to grant asylum to Ms.

Fessehaye even if she had proven entitlement to that relief.

No. 03-3933 13

conversion claim. In determining that Ms. Fessehaye’s evi-

dence in support of her conversion was insufficient, the BIA

found

that her motion to reopen is not appropriately sup-

ported by affidavits from her husband or religious

leaders or any other evidentiary materials to support

her assertion that she is, in fact, a Jehovah Witness even

though such affidavits could easily have been obtained

and presented.

A.R. at 3. Although the Board’s decision thus makes clear

that it believed that Ms. Fessehaye’s submissions were in-

adequate, the decision does not explain why the Board

viewed her evidence as insufficient.

Ms. Fessehaye sought to reopen her case and to apply for

asylum based on her religious conversion. To be eligible for

asylum, Ms. Fessehaye had to demonstrate that she was a

“refugee” under 8 U.S.C. § 1101(a)(42)(A). See 8 U.S.C.

§ 1158(b)(1). Among other things, a refugee is a person

unable or unwilling to return to her country because of a

well-founded fear of persecution on the basis of religion. Id.

§ 1101(a)(42); Awad, 328 F.3d at 341. In asking the Board to

reopen its earlier determination, Ms. Fessehaye claims that

she had a well-founded fear of persecution because she was

a practicing Jehovah’s Witness.

The procedures for establishing eligibility for asylum

are described in 8 C.F.R. § 208.13. Whether Ms. Fessehaye

attempted to establish prima facie eligibility by demonstrat-

ing a well-founded fear of persecution under 8 C.F.R.

7

§ 208.13(b)(2)(i), or under the per se category in section

7

8 C.F.R. § 208.13(b)(2)(i) provides that:

(continued...)

14 No. 03-3933

8

208.13(b)(2)(iii), it is clear that she met most of the require-

ments. We already have noted the difficult circumstances

facing Jehovah’s Witnesses in Ethiopia. Indeed, in

Mr. Ghebremedhin’s case, we considered State Department

reports and his testimony and determined that no reason-

able factfinder could conclude that he lacked a well-

founded fear of persecution. Ghebremedhin I, 385 F.3d at

7

(...continued)

(i) An applicant has a well-founded fear of persecution if:

(A) The applicant has a fear of persecution in his or her

country of nationality or, if stateless, in his or her coun-

try of last habitual residence, on account of race, reli-

gion, nationality, membership in a particular social

group, or political opinion;

(B) There is a reasonable possibility of suffering such

persecution if he or she were to return to that country;

and

(C) He or she is unable or unwilling to return to, or avail

himself or herself of the protection of, that country

because of such fear.

8

As relevant here, 8 C.F.R. § 208.13(b)(2)(iii) limits the

Immigration Judge’s scope of review in certain cases. When an

applicant “establishes that there is a pattern or practice in his or

her country . . . of persecution of a group of persons similarly

situated . . . on account of race, religion, nationality, membership

in a particular social group, or political opinion,” id.

§ 208.13(b)(2)(iii)(A), and “establishes his or her own inclusion in,

and identification with, such group of persons such that his or

her fear of persecution upon return is reasonable,” id.

§ 208.13(b)(2)(iii)(B), “the asylum officer or immigration judge

shall not require the applicant to provide evidence that there is a

reasonable possibility he or she would be singled out individ-

ually for persecution,” id. § 208.13(b)(2)(iii).

No. 03-3933 15

9

1119-20. Ms. Fessehaye has demonstrated that, if she is a

practicing Jehovah’s Witness, she has good reason to believe

that she will be singled out for persecution upon her return

to Eritrea. See 8 C.F.R. § 208.13(b)(2)(i); Petrovic v. INS, 198

F.3d 1034, 1037 (7th Cir. 2000). She also has presented a

“pattern and practice of persecution of an identifiable

group, to which [s]he belongs, such that” her fear of per-

secution “is reasonable.” Capric v. Ashcroft, 355 F.3d 1075,

1094 (7th Cir. 2004); see 8 C.F.R. § 208.13(b)(2)(iii).

The qualification, “if she is a practicing Jehovah’s Wit-

ness,” thus remains the only issue in this case. In this

respect, we note that Ms. Fessehaye’s submission complied

with the evidentiary requirements of 8 C.F.R. § 1003.2(c)(1)

that she “state new facts” that are “supported by affidavits

or other evidentiary material.” On a motion to reopen that

is based simply on paper submissions, as opposed to in-

person testimony, “the BIA is required to accept the facts

stated in the alien’s affidavit unless they are inherently

unbelievable.” Ordonez v. INS, 345 F.3d 777, 786 (9th Cir.

2003).

In our view, Ms. Fessehaye clearly supplied evidence of

the quality and quantity that the Board reasonably could

expect. Ms. Fessehaye provided an affidavit regarding a

“new fact,” her decision to convert to her husband’s faith,

and also explained therein why “official” confirmation of

the conversion could not be submitted within the given time

limits. There is nothing inherently unbelievable about Ms.

Fessehaye’s claim to have adopted the religion of her

spouse. Nor is there some other basis on which to question

9

Mr. Ghebremedhin’s case is not the only one discussing a well-

founded fear based on Eritrea’s persecution of Jehovah’s Wit-

nesses. See Muhur v. Ashcroft, 355 F.3d 958, 959-60 (7th Cir. 2004).

16 No. 03-3933

the veracity of Ms. Fessehaye’s statements regarding her

conversion; for instance, Ms. Fessehaye’s affidavit does not

contain internal inconsistencies that call into question the

veracity of her statements, nor is the affidavit at odds with

other materials that Ms. Fessehaye submitted in support of

her motion to reopen.

Nevertheless, the BIA took the view that Ms. Fessehaye’s

uncorroborated affidavit failed to establish that she is a

practicing Jehovah’s Witness. We must conclude, however,

that, on this record, requiring corroboration of her faith

commitment in order to establish prima facie eligibility was

arbitrary and capricious and constituted an abuse of dis-

cretion. The regulations provide that, in deciding an asylum

application on the merits, “[t]he testimony of the applicant,

if credible, may be sufficient to sustain the burden of proof

without corroboration.” 8 C.F.R. § 208.13(a). Under the plain

language of the rule, there is no blanket requirement for an

asylum seeker to offer additional affidavits before her prima

facie burden is satisfied.

The question becomes what more could Ms. Fessehaye

reasonably have been expected to present to the BIA by way

of evidence to establish her conversion? In evaluating the

Board’s use of that criteria, we have made it clear that the

touchstone must be the reasonableness of such a criterion in

the circumstances presented by the particular case. See

Gontcharova v. Ashcroft, 384 F.3d 873, 877 (7th Cir. 2004);

Capric, 355 F.3d at 1085 n.4. We wrote in Balogun v. Ashcroft,

374 F.3d 492, 502 (7th Cir. 2004):

[T]he corroboration requirement should be employed

reasonably. It is always possible to second-guess the

petitioner as to what evidence would be most cogent,

and, consequently, there is a distinct danger that, in

practice, the corroboration requirement can slip into

No. 03-3933 17

“could have-should have” speculation about what evi-

dence the applicant could have brought in a text-book

environment.

To enable us to conduct our review, we have required that

the BIA explain its decisions to require corroborating

evidence. “Such an explanation should include, at a mini-

mum: (1) an explicit credibility finding; (2) an explanation

of why it is reasonable to expect additional corroboration;

and (3) an account of why the petitioner’s explanation for

not producing that corroboration is inadequate.”

Gontcharova, 384 F.3d at 877; see also El-Sheikh v. Ashcroft, 388

F.3d 643, 647 (8th Cir. 2004). In this case, the BIA made no

determination that Ms. Fessehaye lacked credibility. Nor did

it provide any explanation as to why it was reasonable to

expect additional affidavits beyond the conclusory state-

ment that “such affidavits could easily have been obtained.”

A.R. at 3. Ms. Fessehaye explained to the Board that she

could not obtain affidavits from church elders because she

had not completed the conversion process; the BIA failed to

come to grips with that explanation and failed to explain

10

why Ms. Fessehaye’s explanation was inadequate.

10

As noted above, we are not, in this review, bound by the new

standard of review set forth in the REAL ID Act that prevents a

reviewing court from reversing the determination of a trier of fact

with respect to the availability of corroborating evidence unless

this court finds that “a reasonable trier of fact is compelled to

conclude that such corroborating evidence is unavailable.” REAL

ID Act § 101(e). But if, upon reopening her application, it is

determined that Ms. Fessehaye must corroborate her conversion,

and she again fails to provide such corroboration, this court will

review that determination according to the Act’s strictures.

However, on the record before us, we fail to see what more Ms.

Fessehaye could provide to establish her spiritual adherence to a

(continued...)

18 No. 03-3933

We never have held that an applicant’s affidavit alone is

insufficient to establish membership in a certain group.

Indeed, one’s religion is inherently a “personal experience[ ]

not reasonably subject to verification,” In re S-M-J, 21 I. & N.

Dec. 722, 725 (BIA 1997), and we have expressed concern

about the Board’s requiring more evidence of conversion

than reasonably can be expected, especially in the absence

of a finding that the alien is not credible, Muhur v. Ashcroft,

355 F.3d 958, 960 (7th Cir. 2004) (noting that many authentic

believers, including members of churches with more

structure than Jehovah’s Witnesses, would fail a test based

on objective indicators like knowledge of church doctrine);

Bastanipour v. INS, 980 F.2d 1129, 1132-33 (7th Cir. 1992)

(holding that it was inappropriate to question a claimed

conversion from Islam to Christianity when there was no

reason to question the applicant’s sincerity and when

apostasy was itself an offense under Islam); cf. 8 U.S.C.

§ 1229a(c)(4)(C) (“There is no presumption of credibility,

however, if no adverse credibility determination is explicitly

made, the applicant or witness shall have a rebuttable

presumption of credibility on appeal.”). But see Najafi v. INS,

10

(...continued)

new faith. Her affidavit evidences the reasonable reluctance of

church elders to corroborate her conversion until she has

completed the church’s requirements. Under the circumstances

presented here, “a reasonable trier of fact [would be] compelled

to conclude that such corroborating evidence is unavailable.”

Moreover, although it is true that Ms. Fessehaye may be able to

present affidavits of other Jehovah’s Witnesses corroborating her

attendance at religious celebrations or related events, if the sin-

cerity of Ms. Fessehaye’s beliefs are not at issue—and there is no

evidence that the BIA questioned Ms. Fessehaye’s credibility—

those affidavits only could establish Ms. Fessehaye’s outward

actions, not the sincerity of her beliefs.

No. 03-3933 19

104 F.3d 943, 949 (7th Cir. 1997) (distinguishing Bastanipour

and noting that “word of conversion is not enough”).

There is no question that Mr. Ghebremedhin is a practic-

ing Jehovah’s Witness. Where, as here, the movant credibly

claims to have converted to her spouse’s religion, we see no

necessity, absent exceptional circumstances, for the Board to

require further corroboration. See Limsico v. INS, 951 F.2d

210, 213 (9th Cir. 1991) (requiring BIA to accept as true facts

in applicant’s affidavit unless statements were inherently

unbelievable). We must conclude that, in imposing such a

requirement on Ms. Fessehaye in this case, the Board abused

its discretion.

3.

Finally, Ms. Fessehaye argued for the reopening of her

case because she “feared that she may be arrested and de-

tained as a result of her 1) religious conversion, 2) because

of her criticism and opposition to the government of Eritrea

for forcing her mother from Eritrea, and 3) because she

applied for asylum in the United States.” A.R. at 11. Her

first argument fundamentally is a repeat of her claim to fear

persecution based on her new faith; for reasons considered

above, we hold that Ms. Fessehaye offered new evidence

and made out a prima facie case on this ground that

warrants reopening her case.

However, her second argument, that she fears persecution

as a critic of the Eritrean government, fails for two reasons.

First, her claimed religious conversion and status as a

former asylum seeker both arose after the BIA denied her

first asylum claim, but there is no evidence that her criticism

of the Eritrean government occurred after the BIA’s first

decision. Her claim therefore does not constitute “pre-

viously unavailable, material evidence.” Awad, 328 F.3d at

20 No. 03-3933

341. Indeed, Ms. Fessehaye did not mention her alleged

criticism of the Eritrean government in her initial asylum

application; rather, she introduced evidence of her mother’s

persecution to establish that the government had a pattern

of persecuting her family. Second, Ms. Fessehaye presented

no evidence with her motion to reopen establishing that she

actually criticized the government for its treatment of her

mother. Indeed, the only “evidence” she offered is a state-

11

ment in the motion and affidavit; unlike the religious

conversion claim, a claim both uniquely unsuited to second-

guessing by immigration officials and also corroborated by

her husband’s faith, there is no evidence that Ms. Fessehaye

was a government critic. She thus may not rely on her

claimed past criticism of the Eritrean government as a

ground for reopening.

The third argument, a fear of persecution because

Ms. Fessehaye unsuccessfully sought asylum, does raise

new ground. But to be eligible for asylum on this ground,

Ms. Fessehaye still must establish a prima facie case by

demonstrating a well-founded fear of persecution under 8

C.F.R. § 208.13(b)(2)(i). We may assume for the moment that

her status as a former asylum seeker qualifies her for

“membership in a particular social group” as described in

8 C.F.R. § 208.13(b)(2)(i)(A). However, Ms. Fessehaye’s

difficulty lies in establishing a “reasonable possibility of suf-

11

The only mentions of her criticism of the Eritrean government

are single statements in the motion and in her affidavit. See

A.R. at 11 (“Respondent fears that she may be arrested and de-

tained . . . because of her criticism and opposition to the govern-

ment of Eritrea . . . .”); id. at 24 (“I believe that on investigation

[the Eritrean government] will learn that . . . I object to the

policies of the Eritrean government, especially those which were

the cause of deporting my mother . . . .”).

No. 03-3933 21

fering such persecution” on this basis if she were to return

to her country. 8 C.F.R. § 208.13(b)(2)(i)(B).

She attempted to meet her burden under the “reasonable

possibility” prong by pointing to a statement in the 2001

Country Report indicating that the right of return for

Eritreans who “have been declared ineligible for political

asylum by other governments [is] considered on a case-by-

case basis.” A.R. at 51; 2001 Country Report § 2.d. She also

attached a press release from Amnesty International pur-

porting to offer further support. However, neither the 2001

Country Report nor the Amnesty International press release

establish Ms. Fessehaye’s prima facie eligibility. The

Country Report merely notes that Ms. Fessehaye’s situation

will be considered individually; it does not indicate a

“reasonable possibility” that she will be denied entry.

Additionally, the Amnesty International press release

does not provide support for this particular claim. The press

release notes only that 223 Eritreans were detained after

being deported from Malta, that the 223 were among a

group of 400 that arrived in Malta, and that about half that

number had applied for asylum. A.R. at 63. This does not

evidence a policy of detaining or denying entry to failed

asylum seekers. In fact, it appears from the press release

that the primary targets of detention in Eritrea are those

“who are suspected of opposition to the government or

having evaded military service.” Id. at 64. We are certain

that Ms. Fessehaye may not seek relief as a member of the

former of these two categories, as we have said that there is

no evidence that Ms. Fessehaye was an opposition leader.

But the press release’s mention of the persecution of those

who have evaded mandatory military service, in light of our

discussion of Ms. Fessehaye’s conversion and the tenets of

her faith, provides further evidence establishing Ms.

Fessehaye’s prima facie eligibility for asylum on that

ground.

22 No. 03-3933

Conclusion

The tendered evidence of religious conversion is “pre-

viously unavailable, material evidence” and makes out a

prima facie showing of eligibility, and Ms. Fessehaye is

entitled to a hearing. The Board clearly abused its discretion

in requiring more evidence before reopening

Ms. Fessehaye’s case. Therefore, we grant the petition for

review and remand to the BIA for further proceedings con-

sistent with this opinion.

PETITION FOR REVIEW GRANTED;

REVERSED and REMANDED

A true Copy:

Teste:

_____________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—7-8-05