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Ferreira v. Lynch

United States Court of Appeals, Seventh Circuit

August 5, 2016

Ana Veronica Jimenez Ferreira, Petitioner,
Loretta E. Lynch, Attorney General of the United States, Respondent.

          Argued June 8, 2016

          Re-issued as Opinion August 5, 2016

         Petition for Review of an Order of the Board of Immigration Appeals No. A200 892 195.

          Before Bauer, Manion, and Kanne, Circuit Judges.

          PER CURIAM.

         Ana Veronica Jimenez Ferreira, a 40-year-old native and citizen of the Dominican Republic, applied for asylum and withholding of removal based on her membership in a social group that she describes as Dominican women in relationships they cannot leave. Jimenez testified in immigration court that she fled to the United States because the government of her home country would not protect her from her common-law husband, who had raped, beaten, and kidnapped her, and who continually stalked her and threatened to kill her and her two children. The immigration judge denied relief on the grounds that Jimenez was not credible and lacked corroborating evidence, and the Board of Immigration Appeals upheld the IJ's decision. The agency's adverse credibility determination was based largely on purported inconsistencies between Jimenez's testimony at the removal hearing and her earlier statements to an asylum officer during a "credible-fear" interview. We conclude that the agency erred by (1) failing to address Jimenez's argument that the notes from the credible-fear interview are unreliable and therefore an improper basis for an adverse credibility finding and (2) ignoring material documentary evidence that corroborates Jimenez's testimony. Accordingly, we grant Jimenez's petition for review and remand for further proceedings.

         Jimenez traveled from the Dominican Republic to the United States with the help of a human smuggler hired by her family. She left her home country in August 2010, first flying to Guatemala, then being smuggled north across Mexico on buses and trucks, and finally entering the United States on foot two weeks later in Laredo, Texas. Jimenez was immediately detained by border patrol and interviewed by an immigration officer. When asked whether she had any fear of returning to the Dominican Republic, she replied that she did not.

         Three weeks into her detention, Jimenez told an asylum officer that she had come to the United States to escape her common-law husband, Ramon Holguin, a man who had beaten and raped her, and who (after Jimenez left him) stalked and threatened her. Jimenez, who speaks only Spanish, disclosed this information through a translator during a telephonic credible-fear interview-an interview meant to determine whether she could potentially be eligible for asylum or withholding of removal. The asylum officer who interviewed Jimenez concluded that "[t]here is a significant possibility that the assertions underlying [her] claim could be found credible in a full asylum or withholding of removal hearing."

         Jimenez was released a few weeks later in November 2010, when bond was posted by her children's father-her first husband, Gerardo Marte, a Dominican citizen who now lives in Chicago and is a lawful permanent resident of the United States. In a motion filed before her removal hearing, Jimenez conceded that she was removable as an alien who lacked valid immigration documents, see 8 U.S.C. § 1182(a)(7)(A)(i)(I), but asserted that she sought asylum and withholding of removal. (She also sought protection under the Convention Against Torture but has abandoned that claim on petition for review.)

         Jimenez was the only person to testify at her 2013 removal hearing. Speaking through an interpreter, she provided the following account: She was living with Holguin in Santo Domingo when in 2007, despite his objections, she took her children to a Christmas party hosted by her ex-husband's family. When she returned from the party, Holguin beat and choked her in front of her son and threatened to kill her. He then forced her to the bedroom and raped her. Jimenez testified that after the attack she hid with her children at a friend's house and filed a complaint with the police. Holguin was arrested but released from jail after four days. (There is no indication in the record that he was ever prosecuted for the incident.) After his release from jail, Holguin went to Jimenez's office every day and told her that she "had to go back to him or else he was going to kill [her] and [her] children." To escape Holguin, Jimenez quit her job in Santo Domingo and moved back to her home town of Bonao (roughly 50 miles away), where she lived with her children and her mother.

         About a year after the move, in early 2009, Holguin forced his way into Jimenez's apartment. He beat Jimenez and threatened to kill her, but bolted when her mother called the neighbors for help. Two months later, Jimenez said, she was walking outside when Holguin grabbed her, forced her into his car, drove her to an isolated part of the woods, and raped her. Jimenez testified that she didn't report the attack to the police because she didn't "believe in the police any more." She stated that in Santo Domingo, where she had reported Holguin's first assault, "when you go report something to the police, the person turns up dead later because they don't help anybody. They don't help the women."

         After the mid-2009 kidnapping and sexual assault, Jimenez began receiving letters from Holguin in which he threatened to kill her and her children if she didn't come back to him. Believing that Holguin would eventually kill her if she stayed in the Dominican Republic, Jimenez fled to the United States. She explained that she left her children in the Dominican Republic because she couldn't bring them with her but said that she speaks to them "[e]very day" and that she plans to bring them to the United States if granted asylum. Since Jimenez left her home country, Holguin has been sending threatening letters to her mother, warning that if Jimenez doesn't return, "he's going to kill them all." Jimenez's mother has reported these letters to the police, but the police "don't do anything."

         The government attorney questioned Jimenez about a discrepancy between the notes of her credible-fear interview- which indicated that the last time Holguin raped her was in her bedroom -and her testimony that he had last raped her in the woods. Jimenez responded that, when interviewed by the asylum officer over the phone, she "was detained" and "had just crossed the border, " and that she "was confused and very nervous." When asked about other inconsistencies between her testimony and the credible-fear interview-inconsistencies regarding the timing and location of events, and whether Holguin had ever hit her son-Jimenez answered that her statements must have been "misunderstood" or "misinterpreted." During her testimony, Jimenez made clear that she was ashamed to tell others of the sexual abuse she had experienced.

         In support of her claims for relief, Jimenez submitted over 400 pages of documentary evidence, including several documents related to the 2007 sexual assault: the police complaint she had filed against Holguin; a doctor's report that noted bruises and scratches on Jimenez's body, as well as "visible signs and marks of a strangulation attempt" and a "torn inner and outer labia of the vagina, evidencing penetration by force or with resistance on the part of the victim"; and a psychologist's report that states that Jimenez "presents signs and symptoms of tension, worry, fear for her life and the lives of her family" and recommends "[t]hat she be referred immediately to group therapy" to "help her overcome the trauma." She also submitted an affidavit from her mother, accompanied by police complaints that the mother had filed against Holguin, affidavits from family members and friends, and numerous reports and articles documenting the epidemic of domestic violence and sexual assault against women in the Dominican Republic.

         The IJ concluded that Jimenez was ineligible for asylum and withholding of removal because she was not credible and lacked evidence to corroborate her testimony. The IJ stated that the adverse credibility finding was based largely on "glaring inconsistencies" between Jimenez's testimony before the IJ and her statements at the credible-fear interview regarding the timing and location of events-for example, whether Holguin last raped her in January 2010 or several months later, and whether that rape occurred in the woods or in her bedroom-and whether Holguin had hit her son. The IJ rejected Jimenez's explanation that her statements during the credible-fear interview were misinterpreted and that she was confused and nervous during the interview. The IJ was especially troubled by the fact that "[b]oth the police complaint and her credible-fear interview indicate that [Jimenez] was not attacked by Holguin after she returned from the dinner party on Christmas Eve, as she testified at her hearing, but that the violence occurred before she was able to go to the party when Holguin blocked her path as she was leaving." Because the IJ found Jimenez not to be credible, the IJ concluded that she could meet her burden of proof under the REAL ID Act, 8 U.S.C. § 1158(b)(1)(B)(ii) only by producing "additional evidence that corroborates her claim of past persecution." The IJ then found her corroborating evidence insufficient to meet her burden of proof because the affidavit from her mother ...

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