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Giday v. Gonzales

January 5, 2006; as amended 24, 2006

SELEMAWIT F. GIDAY, PETITIONER,
v.
ALBERTO R. GONZALES, RESPONDENT.



Petition for Review of an Order of the Board of Immigration Appeals. No. A95-395-594.

The opinion of the court was delivered by: Rovner, Circuit Judge.

ARGUED JANUARY 11, 2005

Before POSNER, MANION, and ROVNER, Circuit Judges.

Selemawit Giday requests asylum in this country, claiming that the government of the country of Eritrea, where she was born and raised, persecuted her due to her mixed Ethiopian and Eritrean ancestry. An immigration judge deemed her testimony not credible and found, in the alternative, that she had failed to establish that she met the criteria for refugee status. The Board of Immigration Appeals (BIA) affirmed and adopted the opinion below rejecting Giday's appellate claim that the immigration judge below had denied her due process of law. Because, among other reasons, we find that the immigration judge's credibility determinations were not supported by cogent reasons bearing a legitimate nexus to the finding, we reverse and remand this case for further proceedings.

I.

Giday's tale of mixed ancestry is a familiar one. Having been born and raised in Eritrea, Giday considers herself Eritrean. During Eritrea's conflict with Ethiopia, however, Giday alleges, her partial Ethiopian ancestry (her mother is Ethiopian and her father Eritrean) subjected her to persecution by the Eritrean Government. Giday applied for asylum on January 23, 2002, approximately six months after arriving in the United States. The government initiated removal proceedings on March 25, 2002. At her removal hearing on May 22, 2002, she testified that she was born in 1979 in Asmara, Eritrea to an Eritrean father and an Ethiopian mother. After her father's death in 1985, when Giday was six, her Ethiopian mother supported Giday and her two brothers by operating a restaurant in Asmara, Eritrea. Giday performed one year and eight months' mandatory service in the Eritrean national service in 1996, and in June 1998, the national service provided her with an identification card noting her Eritrean nationality.

In 1998, heavy fighting broke out between Ethiopia and Eritrea. The government of Eritrea announced that people of Ethiopian ancestry could no longer operate businesses and had to leave the country. According to Giday, in May 1998, despite completing her earlier national service, government officials again called her to serve. She explained to the national service officers that she was attending school and soon to be married. The government officers told her, "when we need you, you should be able to go with us." She testified that she was able to avoid serving by moving from her mother's house to her fiance's house whenever she heard word that government officials were on their way.

Giday further testified that on September 12, 1999, the city police appeared at her Ethiopian mother's restaurant and ordered it closed. Within two weeks, the police, pursuant to an order by the Eritrean government, arrested Giday's mother and deported her to Ethiopia. Around the same time, Giday's brothers were conscripted into the national service and Giday stated that she has not heard from either her mother or brothers since that time.

In September 2000, the Eritrean government took Giday into custody and placed her in a detention facility for Ethiopians awaiting forced deportation. Giday initially testified that she was detained because her mother was Ethiopian and also because she had failed to serve in the national service a second time. She later testified that she was detained solely because of her Ethiopian ancestry. Her written statement, attached to her application for asylum does not identify specifically why she thought she was detained but states only that after she was arrested, she "was told that [she] would be deported and was placed in a jail with other Eritreans of Ethiopian descent." (R. at 210).

According to Giday, the detention center was crowded, hot, dirty, and the officers permitted Giday and her fellow detainees to use the bathroom facilities only two times a day. While there, she had no opportunity to present her case to a judge or otherwise to object to her detention and deportation. Giday's asylum application stated that she was beaten there, although during her hearing she testified only that she was "pushed around." Two days before she was scheduled for deportation, her husband-an Eritrean- managed to secure her release by bribing prison guards. Giday's husband secreted her into a waiting car, across the Sudanese border, and from there she entered the United States. She claims she has never been to Ethiopia, does not speak the language, and that she cannot return to Eritrea because the Eritrean government stripped her of citizenship when she was arrested and detained.

At the conclusion of her removal hearing, the immigration judge found Giday's testimony not credible. Even were it credible, he continued, she failed to bear the burden of demonstrating that she was a refugee-that is, that she had faced past persecution or had a well-founded fear of future persecution because of her mixed Ethiopian and Eritrean ancestry. Consequently, he found her removable as charged, denied her application for asylum, denied her application for withholding of removal and protection under the Convention Against Torture, and ordered her removal to Eritrea.

On appeal, the BIA adopted and affirmed the oral decision of the immigration judge and added its own findings regarding her claim. The BIA stated that "[a]lthough the respondent may have demonstrated that she experienced past persecution, we take administrative notice of the fact that conditions for most people of Ethiopian extraction have changed substantially for the better in Eritrea since the time of the respondent's experiences there," and found, consequently, that the presumption of future persecution had been rebutted. (R. at 2-3). In response to Giday's claim that the immigration judge had denied her due process with his frequent interruptions and badgering cross-examination, the BIA found that the judge had been assertive, but not offensive, and noted that Giday had made no record of protest during the proceedings below.

II.

Where the BIA affirms and adopts an immigration judge's order, the decision of the immigration judge constitutes the final agency determination for purposes of our review. Hussain v. Gonzales, 424 F.3d 622, 626 (7th Cir. 2005). In this case the BIA both affirmed and adopted the decision of the immigration judge and appended to that determination a ruling regarding Giday's due process challenge and its own statement regarding Giday's credibility and likelihood of future persecution. Consequently, we review both the immigration judge's decision and the additional reasoning of the BIA. See Voci v. Gonzales, 409 F.3d 607, 612-13 (3d Cir. 2005); Kataria v. INS, 232 F.3d 1107, 1112 (9th Cir. 2000).

Giday argues first that the immigration judge violated her right to due process when he engaged in abusive, sarcastic, and overbearing cross-examination. His questions, she argues, inhibited direct examination and hindered her from testifying fully and accurately. The question of whether an asylum hearing comported with the requirements of due process is purely a legal one which we review de novo. Rodriguez Galicia v. Gonzales, 422 F.3d 529, 536 (7th Cir. 2005).

The Fifth Amendment entitles aliens to due process of law in deportation proceedings. Reno v. Flores, 507 U.S. 292, 306 (1993). Due process requires that a court afford an applicant a meaningful opportunity to be heard and a reasonable opportunity to present evidence on her behalf. Rodriguez Galicia, 422 F.3d at 538. Recently we had the opportunity to consider what constitutes "a meaningful opportunity to be heard," and concluded that "we must determine whether, given the totality of the circumstances, the petitioner had a full and fair opportunity to put on her case." Id. at 538. In Rodriguez Galicia we expressed deep concern when the immigration judge frequently interrupted testimony, appeared to be hostile to the petitioner, and engaged in active, "de-facto cross-examination" as though he were counsel for the government rather than a neutral arbiter. Id. at 539. See also Kerciku v. INS, 314 F.3d 913, 918 (7th Cir. 2003) (finding that an applicant's due process rights were violated where the judge continually interrupted testimony and took over questioning); Podio v. INS, 153 F.3d 506, 510-11 (7th Cir. 1998) (concluding that the applicant was denied a fair hearing where the immigration judge frequently interrupted and took over questioning). The Rodriguez Galicia panel did not need to decide definitively whether the judge's overly-active role in the presentation of the testimony denied the asylum applicant due process of law, as the immigration judge had imposed other barriers to testimony that made clear the due process violation. Id.

Having reviewed the transcript of the hearing in Rodriguez Galicia, we note that the judge's active questioning in that case pales in comparison to the case before us now. In this case the immigration judge asked Giday approximately seventy-three questions. In comparison, her own attorney asked her approximately eighty-seven questions (only about 14 more) and the government lawyer only four.*fn1 Of course a large volume of questions alone does not create a due process violation, but in this case the immigration judge charged into the fray, cross-examining Giday about even the most mundane facts of her life story. For example, within the first few minutes of questioning the following confrontation occurred:

Q. by the immigration judge:

. . . how old were you when your father died, ma'am?

A: I was six years old.

Q: So, sometime ...


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