Feruz Y. Ememe v. John D. Ashcroft , Attorney General of the United States

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-1386
F ERUZ Y. E MEME ,
Petitioner,
v.
J OHN D. A SHCROFT , A TTORNEY G ENERAL
OF THE U NITED S TATES ,
Respondent.
____________
Petition to Review an Order of the
Board of Immigration Appeals.
____________
A RGUED D ECEMBER 5, 2003—D ECIDED F EBRUARY 12, 2004
____________
Before F LAUM , Chief Judge, and M ANION and W ILLIAMS,
Circuit Judges.
F LAUM , Chief Judge. Feruz Y. Ememe, a native and
citizen of Ethiopia, petitions for review of a final order of
removal issued by the Board of Immigration Appeals on
January 17, 2003, summarily affirming an immigration
judge’s order denying her application for asylum and
withholding of removal. The immigration judge rejected
Ememe’s testimony because he found that it was not sup-
ported by any corroborating evidence, and further because
he found it inconsistent with information she had given
at her credible fear interview. Ememe’s credible fear in-

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2 No. 03-1386
terview was conducted through a translator of Italian,
whereas her testimony before the immigration judge was
aided by a translator of Amharic, Ememe’s native language.
Yet, absent from the immigration judge’s assessment of
Ememe’s credibility was any consideration of Ememe’s
ability to comprehend the questions posed at the credible
fear interview. Because we conclude that a determination
of Ememe’s Italian language skills is of crucial import to
the disposition of her asylum and withholding of removal
applications, we remand for further proceedings.
I. Background
According to her testimony before the immigration judge,
Feruz Ememe is a twenty-seven year-old ethnic Oromo from
Ethiopia who claims to have been tortured while detained
by the Mengistu and Tigrian regimes. She seeks asylum on
the basis of her Oromo ethnicity and the Ethiopian govern-
ment’s alleged persecution of her family and herself.
Ememe testified that she was born in Addis Ababa,
Ethiopia into the Oromo tribe, and that she is a native
speaker of the Amharic language. She stated that she had
six years of formal education in Ethiopia. Ememe repre-
sented that her father was a supporter of the Oromo
Liberation Front (“OLF”), and that he was arrested for
fundraising for the OLF by the Tigrian Liberation Front
(“TLF”) government on February 21, 1990. The following
day, the police returned to arrest Ememe’s mother, but she
could not be found. Ememe testified that the TLF officers
arrested Ememe and her brother, allegedly because of their
Oromo ethnicity.
Ememe testified that she was detained for five months.
During the second month of her detention, she alleges that
she was raped by a police officer, rendering her uncon-
scious. Three weeks later, the police officer returned with
two other police officers, all of whom she claims raped

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No. 03-1386 3
her. Ememe stated that she became sick and was taken to
the prison hospital, where it was determined that she was
pregnant. She represented that she miscarried the preg-
nancy a few months later. Ememe’s mother eventually ar-
ranged for Ememe to be released from detention, according
to her testimony.
Ememe further testified that, upon her release from
prison, she learned that her father had been beaten to
death in prison, and that her brother’s whereabouts were
unknown. Ememe related that, in 1992, her mother was
arrested, and she decided to leave Ethiopia. Ememe fled
to Italy with the aid of her sister who was living there.
Shortly after arriving there, Ememe said she learned that
her mother had died in prison, and that her sister had a
heart attack and passed away upon learning of the death of
their mother. At her sister’s funeral, Ememe believes that
she saw one of the police officers who had raped her while
she was detained in Ethiopia.
Ememe testified that she worked as a housekeeper in
the home of an Italian woman during the seven years that
she spent in Italy. She explained that she rarely left her
employer’s home because she was depressed and scared. In
1999, Ememe’s Italian employer procured a fraudulent
Italian passport for her, and Ememe departed from Italy for
the United States. She arrived at O’Hare International
Airport on July 19, 1999. Upon arrival, Immigration and
Naturalization Services (“INS”) officers interviewed her
with the aid of an Italian translator.
Subsequently, on July 29, 1999, an asylum officer of the
INS interviewed Ememe to determine whether she had a
credible fear of returning to Ethiopia. Ememe was repre-
sented by counsel at the interview, and Ememe claims that
she asked her attorney to obtain an Amharic language in-
terpreter. When the attorney determined that no Amharic
interpreter was available from the INS telephone translator

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4 No. 03-1386
service, Ememe was furnished with an Italian translator.
Before the immigration judge, Ememe testified: “I was able
to explain myself in the Italian language . . . but I, I don’t
express myself as I do in my own language. That’s
a difficulty that I had [during the credible fear interview].”
Ememe also explained that “there are some mistakes, some
misunderstandings on the—either on my part, or on their
part, but it’s not correct that—what the statement has been
written.”
The transcript of this interview shows that the asylum
officer asked Ememe seventy-one questions, most of which
were pre-prepared. Ememe answered the majority of the
questions with one-word or short answers, although a few
of her answers consisted of one or two sentences. Relevant
selections from the transcript are excerpted as follows:
Q: What languages do you speak?
A: ITALIAN.
Q:What is the highest level of formal education that you
completed?
A: IN ETHIOPIA TWELVE YEARS OF SCHOOL.
Q: So far, have you been able to understand me?
A: YES.
Q: Are your parents alive?
A: NO, BOTH DEAD.
Q: Where is your family (spouse/children/parents)

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No. 03-1386 5
now?
A: NO FAMILY MEMBERS.
Q: What race or ethnicity are you?
A: AMHAERIC.
Q: Have you ever been arrested in your country?
A: NO.
Q: Have you ever been a member of any political party
or organization in your home country?
A: NO, BUT MY FAMILY WAS ACCUSED OF GIV-
ING MONEY TO OROMO ORGANIZATION AND THE
GOVERNMENT KILLED MY FATHER AND THEY
PUT ME IN JAIL FOR FIVE MONTHS WITH LITTLE
TO EAT. MY MOTHER BAILED ME OUT AND MY
SISTER HELPED ME ESCAPE TO ITALY WHERE
SHE LIVED. MY BROTHER WAS ALSO IN PRISON
BUT MY MOTHER COULD NOT BAIL HIM OUT. MY
MOTHER WAS SHORTLY PUT IN JAIL WHERE SHE
DIED IN PRISON.
Q: Why did you leave your country?
A: I WAS GOING TO SCHOOL AND DETAINED FOR
ONE DAY AND THEN I WAS PICKED UP AT HOME
BY FOUR POLICEMAN WITH THEIR FACES COV-
ERED AND TAKEN TO THE PRISON FOR FIVE
MONTHS.
Q: Why were you arrested?

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6 No. 03-1386
A: THEY DID NOT TELL ME.
Q: What happened to you in prison?
A: THEY PUT ME IN A SMALL ROOM AND FEED
[sic] ME ONCE A DAY WITH ONE GLASS OF WA-
TER.
Q: Do you think that anyone ever tried to coerce or
intimidate you into doing something you didn’t want to
do?
A: YES, THEY TRIED TO RAPE ME WHEN I WAS
PUT IN THE JAIL.
Q: Have your experiences affected you mentally or
emotionally?
A: YES, VERY HORRIBLE MEMORIES.
Q: Do you believe that you have suffered mental or
emotional torture?
A: YES, BECAUSE I LOST MY FAMILY, ESPE-
CIALLY LOOSING [sic] MY MOTHER.
The asylum officer determined that Ememe had a credible
fear of returning to Ethiopia and charged her as an alien
who attempted to enter the United States by fraud, and as
an alien who was not in possession of a valid immigrant
visa or other entry document. Ememe conceded her
removability before an immigration judge. Subsequently, on
July 30, 2001, Ememe testified before the immigration
judge.
At the hearing, Ememe chronicled the events that led

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No. 03-1386 7
to her arrival in the United States, as summarized above.
She submitted the following documentation in support of
her claim: an Amnesty International News Release from
November 1997 that reports a “government crackdown
against alleged supporters of the Oromo Liberation Front”;
the Amnesty International 1999 Ethiopia Annual Report;
the United States Department of State 1999 Country
Report on Human Rights Practices which states that the
“government continued to detain persons suspected of sym-
pathizing with or being involved with the OLF”; and a
letter from Reverend Alvorson, the head of the Lutheran
World Relief office in Chicago, attesting to a “flury” of
arrests, jailings, disappearances of Oromo people in 1997.
Ememe also submitted a diagnostic evaluation from the
Marjorie Kovler Center for the Treatment of Survivors
of Torture, which states that Ememe suffers from chronic
post-traumatic stress disorder, major depressive disorder
and headaches. Ememe attempted to admit into evidence a
birth certificate issued in 1997, but the immigration judge
excluded it on the grounds that it was fabricated, and that
it had not been presented to the credible fear officer.
Ememe testified that she had no documents to corroborate
her testimony regarding her seven years of employment in
Italy, her sister’s death or funeral in Italy, the death of
either of her parents, or her Oromo ethnicity.
The immigration judge concluded that three aspects of
Ememe’s claim warranted denial of her application. First,
the immigration judge found Ememe’s testimony not be-
lievable solely because of the perceived inconsistencies
between Ememe’s initial statement at the credible fear
interview and her testimony before him. Second, the immi-
gration judge noted that Ememe provided no documents to
corroborate her testimony. Lastly, the immigration judge
concluded that Ememe did not otherwise establish that she
had endured past persecution or had a well-founded fear of
future persecution. Thus, the immigration judge denied

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8 No. 03-1386
Ememe’s applications for asylum, withholding of removal,
and protection under the Convention Against Torture.
Ememe appealed the immigration judge’s decision to the
Board of Immigration Appeals (“Board”). The Board sum-
marily approved the immigration judge’s decision without
opinion, and Ememe now appeals.
II. Analysis
An alien seeking asylum must establish that she qualifies
for refugee status by showing that she is “unable or unwill-
ing to return to, and is unable or unwilling to avail [her]self
. . . of the protection of, that country because of persecution
or a well-founded fear of persecution on account of race,
religion, nationality, membership in a particular social
group, or political opinion.” Ahmad v. INS, 163 F.3d 457,
460 (7th Cir. 1999) (quoting 8 U.S.C. § 1101(a)(42)(A)). An
alien seeking withholding of removal must show that “it is
more likely than not that [she] would be subject to persecu-
tion on one of the specified grounds” should she return to
his native country. Id.
In this case, the Board summarily affirmed the immi-
gration judge’s order without opinion. Thus, the immigra-
tion judge’s decision constitutes the “final agency determina-
tion” for purposes of this Court’s review. See 8 C.F.R.
§ 1003.1(e)(4) (2003); Georgis v. Ashcroft, 328 F.3d 962, 966-
67 (7th Cir. 2003). We review the Board’s decision to deny
Ememe asylum and withholding of removal under
the highly deferential substantial evidence test, Mansour v.
INS, 230 F.3d 902, 905 (7th Cir. 2000), which requires us to
affirm the Board’s decision if it is “supported by reasonable,
substantial, and probative evidence on the record consid-
ered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481
(1992).
Ememe challenges the Board’s final order of removal

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No. 03-1386 9
on numerous grounds. First, she argues that the Board ab-
dicated its responsibility to review the decision of the
immigration judge when it affirmed that decision without
issuing a separate opinion. This Court, however, has held
that the “ability to conduct a full and fair appraisal of the
petitioner’s case is not compromised, and the petitioner’s
due process rights are not violated” by the streamlined
procedure. Georgis v. Ashcroft, 328 F.3d 962, 967 (7th Cir.
2003). Therefore, Ememe’s argument is unavailing.
Next, Ememe argues that the immigration judge improp-
erly rejected her testimony on the basis of the variances
between her credible fear interview and her subsequent
testimony at the final hearing. In his oral decision, the
immigration judge focused on the following inconsistencies:
(1) Ememe’s original statement of Amharic ethnicity, com-
pared to the later indication of Oromo ethnicity; (2)
Ememe’s initial testimony of twelve years of formal school-
ing, which she subsequently reduced to six years; (3)
Ememe’s first description of rape was limited to an at-
tempted rape, whereas Ememe later described multiple
rapes. The IJ found no convincing explanation for these
inconsistencies, despite Ememe’s testimony regarding her
difficulty communicating in Italian during her credible fear
interview and her belief that the transcript of the credible
fear interview represented translation errors.
Counsel for the INS questioned Ememe at length re-
garding each of these variances by juxtaposing the credible
fear interview transcript with the seemingly inconsistent
testimony Ememe provided on direct examination. The fol-
lowing exchanges between counsel for the INS and Ememe
are illustrative:
Q: “Question: what race or ethnicity are you? The ans-
wer: Amharic” [quoting from the transcript of the cre-
dible fear interview] . . . it does not say Oromo, it says
Amharic.
A: No, the question that she asked me was that—I

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10 No. 03-1386
didn’t know that she asked me my ethnicity. I thought
the language that I speak, I told her Amharic, but I’m
an Oromo, and—
Q: Today, you told me that you had six years of
school . . . It says, “What is the highest level of formal
education that you completed? Answer: In Ethiopia, 12
years of school.”
A: . . .I couldn’t complete 12 th grade on that age of my
life, and I, I think she misunderstood me when she
wrote 12.
Q: The question says, “Do you think that anyone ever
tried to coerce or intimidate you into doing something
you didn’t want to do? Answer: Yes, they tried to rape
me. . . .” Would you agree . . . there’s no place in this
document that says anybody ever raped you?
A: What I meant is that I was raped, not that I was
tried to be raped. It’s a language problem that she did
not understand me, neither I didn’t understand her
probably very well in Italian language.
It appears from the transcript of the credible fear inter-
view that Ememe’s interviewer did not respond to Ememe’s
language difficulties even when they were readily apparent.
For example, Ememe initially informed the interviewer that
she had not been arrested in her country, but moments
later stated that the Ethiopian government had detained
her for five months. The interviewer did not pause to clarify
the discrepancy. At oral argument, Ememe’s counsel
explained that Ememe believed the term “arrest” to imply
a legal infraction by the arrestee, whereas her claim of
asylum is based on the Ethiopian government’s lawless
detention of her on the basis of her Oromo ethnicity. The
interviewer also failed to ask follow-up questions that might

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No. 03-1386 11
have illuminated the issues that Ememe likely had diffi-
culty communicating. For instance, when Ememe merely
answered “Yes” to the question “Have you or any member
of your family ever been mistreated or threatened by the
authorities of the country where you may be returned,” the
asylum officer did not ask Ememe to elaborate on her one-
word answer in the affirmative. Rather, the officer skipped
to the next question regarding an unrelated matter.
Ememe’s testimony in Italian appears constrained when
read in conjunction with her rather verbose testimony
before the immigration judge, which was delivered in
Amharic. For example, at the credible fear interview, when
asked how her experiences had affected her emotionally,
Ememe responded “very horrible memories.” In contrast,
when asked “the result” of her imprisonment before the
immigration judge, Ememe gave a comprehensive account
of the mental anguish she suffered due to her imprison-
ment: “I wanted to commit suicide, I didn’t have any op-
portunity, and I could not eat, I could not do anything. I
was always in pain.” Ememe also substituted complete
sentences in Amharic for the one-word answers she had
provided in Italian to the credible fear interviewer. Her
relative unease in communicating in Italian is apparent.
It is not inconceivable that Ememe’s Italian proficiency
never progressed beyond basic comprehension despite her
seven years of living in Italy. Ememe may have had no need
to develop Italian language skills to accomplish her house-
keeping responsibilities, and the relative solitude of the job
may not have been conducive to language development.
Ememe claims that she had little opportunity to converse
with Italians because she was too fearful to leave her
employer’s home after she saw one of her rapists at her
sister’s funeral.
However, as the immigration judge made no assessment
of Ememe’s Italian language proficiency, we cannot eval-

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12 No. 03-1386
uate whether the variances in her testimony represent a
purposeful modification of her story, or merely the oppor-
tunity to better communicate it through her native lan-
guage. If Ememe’s testimony in Italian is not an accurate
record of what she wished to communicate, but is only a
rough approximation of what she believed herself to have
communicated, then the perceived inconsistencies speak
mainly to Ememe’s language skills, and not clearly to her
credibility. See He v. Ashcroft, 328 F.3d 593, 598 (9th Cir.
2003) (stating that “faulty or unreliable translations can
undermine the evidence on which an adverse credibility
determination is based”). Absent an evaluation of Ememe’s
language skills, the testimonial inconsistencies, alone, do
not provide adequate support for the immigration judge’s
conclusion that Ememe’s testimony was not credible. See
Balasubramanrim v. INS, 143 F.3d 157, 164 (3d Cir. 1998)
(finding that inconsistencies between a petitioner’s airport
statement and his testimony before an immigration judge
were not enough, standing alone, to support the immigra-
tion judge’s adverse credibility finding when the Board’s
assessment of the petitioner’s language skills at the time he
gave his airport statement was questionable).
This case is unlike Mansour v. INS, 230 F.3d 902, 906
(7th Cir. 2000), where this Court stated that “[w]ithout
a concrete explanation other than the language difficulty for
the discrepancy, we are given no other choice than to accept
the BIA’s adverse credibility determination.” In Mansour,
the petitioner denied before the immigration judge that he
had been beaten, arrested, and imprisoned when he
returned to Iraq after he had deserted the Iraqi army, in
direct contradiction of the statement that he had attached
to his application for asylum. Id. at 904. This denial not
only totally negated his prior statement, but also undercut
the persuasiveness of his claim for asylum. Mansour’s
asylum claim was based on his fear of retribution by the
Iraqi government because of his supposed desertion of the

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No. 03-1386 13
army; if Mansour had successfully returned to Iraq without
experiencing any retribution, then his claim was less
persuasive. In contrast, Ememe’s testimony before the
immigration judge did not directly contradict her state-
ments at the credible fear interview, but rather offered a
more fulsome explanation of the events that she had
previously described. The later testimony did not under-
mine her earlier statement that she had been detained
because of her Oromo ethnicity and her father’s political
support of OLF and that she had suffered sexual violence in
prison, but rather confirmed and expanded upon what she
had previously disclosed.
We conclude that, absent a conclusive determination of
Ememe’s Italian language skills, the immigration judge’s
characterization of her testimony as incredible is “not sup-
ported by reasonable, substantial, and probative evidence
on the record considered as a whole.” INS v. Zacarias, 502
U.S. 478, 481 (1992). Therefore, we remand this case for
additional investigation of Ememe’s ability to accurately
communicate in Italian at her credible fear interview. See
INS v. Ventura, 537 U.S. 12, 17 (2002). If Ememe’s testi-
mony before the immigration judge is later found to be
credible, then her failure to submit corroborating evidence
is not be fatal to her claim. See Georgis, 328 F.3d at
969 (“The testimony of the applicant, if credible, may
be sufficient to sustain the burden of proof without cor-
roboration.”). Thus, we need not address Ememe’s final
challenge to the immigration judge’s decision that she had
demonstrated past persecution and a likelihood of future
persecution in Ethiopia. All other arguments raised by the
petitioner are without merit and do not warrant discussion.
III. Conclusion
The petition for review is G RANTED , the order of the
immigration service is VACATED , and the matter is

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14 No. 03-1386
R EMANDED to the service for further proceedings consistent
with this opinion.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-12-04

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