Monday, July 11, 2005

Overturning denial of asylum claim for childhood rapes

The Third Circuit overturned the BIA and the immigration judge in Fiadjoe v. Atty Gen USA
Filed 06/17/05, No. 03-2917. The immigrant claimed asylum based on her experiences in Ghana, which included being a child rape victim. The immigrant had a tortured childhood experience of rape and incest from her father when she was 7 years old, her escape from those conditions, and the tragic resumption of the abuse 11 years later.

The IJ, however, "appeared unable to comprehend this sequence of events" such as interrupting the immigrant who was explaining she was raped at the age of seven with "Ma'am, you, you can cry, that's fine, but you're not making any sense, and the tears do not do away with the fact that your not making any sense to me. Now, rather than crying, just answer the question."

The Third Circuit also chided the IJ for questioning the immigrant in an extremely insensitive manner about topics such as the man she wanted to marry. The Third Circuit described the concluding part of the hearing as further demonstrating the IJ's continuing hostility toward the obviously distraught immigrant and "his abusive treament" of her.

The Third Circuit noted that the abusive tone adopted by the IJ could readily cause a rape victim to black out regarding details, to experience dissociation, and to break down. The repeated tone and improper questioning by the IJ was enough to justify setting aside the IJ's negative credibility determination.

The Third Circuit reiterated that inconsistencies between an airport statement and an asylum seeker's statement standing alone cannot support a BIA's finding that an asylum seeker is not credible. Airport interviews are hurried, language difficulties arise, the results may be inaccurately recorded, and the interviewed immigrant might not be completely forthcoming about past experiences. Here, the interview took place 19 days after arrival in a detention center. The Third Circuit ruled that the same dangers applied in the interview as apply at airport interviews.

The Third Circuit remanded and asked that it be given a different IJ.


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