On Petition for Review of Orders of The Board of Immigration Appeals Agency Docket No. A77-943-716
The opinion of the court was delivered by: Debevoise, Senior District Judge
Before: ROTH, SMITH, Circuit Judges and DEBEVOISE, *fn1 Senior District Court Judge
Petitioner, Lorraine Fiadjoe, petitions for review of orders of the Board of Immigration Appeals ("BIA") denying her application for asylum, withholding of removal and relief under the Convention Against Torture and denying her motion for reconsideration. With the exception of an eleven year interval, from 1978, when Ms. Fiadjoe was seven years of age, until her flight from her native Ghana to the United States in March 2000, Ms. Fiadjoe was held as a slave of her father, a priest of the Trokosi sect, who, in accordance with the tenets of the sect, forced his daughter to work for him and abused her physically and sexually. Ms. Fiadjoe sought asylum and other relief on the ground that if she were returned to Ghana she, as one of the women subject to the practices of the Trokosi sect, would likely once again become subject to her father's bondage and abuse, a consequence that Ghanian government authorities were unable or unwilling to prevent.
Both the Immigration Judge ("IJ") and the BIA found that Ms. Fiadjoe's testimony was not credible, and the BIA found that Ms. Fiadjoe failed to establish that the government of Ghana was either unwilling or unable to control her father's sexual abuse. We conclude that these findings are not supported by reasonable, substantial and probative evidence on the record considered as a whole. We will grant the petition and remand the case for a new hearing and development of the record before a different IJ.
On March 11, 2000, using a passport bearing the name of another person, petitioner, Lorraine Fiadjoe, entered the United States. She is a member of the Ewe tribe and a native and citizen of Ghana. She was detained as an arriving alien and interviewed. Upon her refusal to be sent back to Ghana, the immigration authorities transferred her to the York County [Pennsylvania] Prison.
On March 30 Asylum Officer James L. Reaves conducted an Asylum Pre-Screening Interview of Ms. Fiadjoe, after which he found that she had established a significant possibility of a claim for asylum based on her membership in a particular social group (unmarried women over 25 in Ghana). He also found that Ms. Fiadjoe had established a credible fear of persecution or torture.
On the same day the Immigration and Naturalization Service ("INS") *fn2 charged Ms. Fiadjoe with removeability under §§212(a)(6)(C)(i) and 212 (a)(7)(A)(i)(I) of the INA, 8 U.S.C. §§1182(a)(6)(C)(i), (a)(7)(A)(i)(I) (2003) and issued a notice to appear. At a June 1, 2000 hearing before an IJ Ms. Fiadjoe conceded that she was removable under §212(a)(7)(A)(i)(I) of the INA for being an intending immigrant not in possession of a valid visa or other entry document.
Ms. Fiadjoe filed applications for asylum, withholding of removal, and protection under the Convention Against Torture, Article 3 of the Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 39/46, Annex 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc. A/39/51 (1984) ("CAT"). The IJ, Donald Vincent Ferlise, held an evidentiary hearing on April 30, 2002, after which he denied Ms. Fiadjoe's application for relief and ordered her removed to Ghana.
Ms. Fiadjoe filed a timely appeal with the BIA. On June 6, 2003 the BIA dismissed the appeal. Ms. Fiadjoe filed a timely petition for review of the BIA's decision in this court and subsequently filed a motion with the BIA seeking reconsideration of the BIA's June 6 order. On February 18, 2004 the BIA denied the motion to reconsider. Ms. Fiadjoe filed a petition for review of the BIA's February 18 decision. That petition has been consolidated with the first petition.
II. Petitioner's Evidence
Ms. Fiadjoe's claims for relief stem from her assertion that from age seven until she fled from Ghana, with an eleven year interval from 1978 until 1989, her father held her as a slave, subject to physical beatings and frequent rape, pursuant to the tenets of the Trokosi religion, of which her father was a priest.
The nature and existence of the Trokosi practices are described in a number of documents that are in the record. The United States Department of State Country Report on Human Rights Practices in Ghana released in February 2001 (the "State Department Report" or the "Report") is one example. In a summary statement the Report states, "Violence against women is a serious problem. Traditional practices, including a localized form of ritual servitude (Trokosi) practiced in some rural areas, still result in considerable abuse and discrimination against women and children." The Report further noted that "[v]iolence against women, including rape and domestic violence, remains a significant problem. A 1998 study revealed that particularly in low-income, high-density sections of greater Accra, at least 54 percent of women have been assaulted in recent years," and that "[w]omen, especially in rural areas, remain subject to burdensome labor conditions and traditional male dominance."
The State Department Report described in some detail Trokosi practices:
Although the Constitution prohibits slavery, it exists on a limited scale. Trokosi, a traditional practice found among the Ewe ethnic group and in part of the Volta Region, is an especially severe human rights abuse and an extremely serious violation of children's and women's rights. It is a system in which a young girl, sometimes under the age of 10, is made a slave to a fetish shrine for offenses allegedly committed by a member of the girl's family. In rare instances, boys are offered. The belief is that, if someone in that family has committed a crime, such as stealing, members of the family may begin to die in large numbers unless a young girl is given to the local fetish shrine to atone for the offense. The girl becomes the property of the fetish priest, must work on the priest's farm, and perform other labors for him. Because they are the sexual property of the priests, most Trokosi slaves have children by the priests. Although the girls' families must provide for their needs such as food, most are unable to do so. There are at least 2,200 girls and women bound to various shrines in the Trokosi system, a figure that does not include the slaves' children. Even when freed by her fetish priest from the more onerous aspects of her bondage, whether voluntarily or as a result of intervention by activists, a Trokosi women generally has few marketable skills and little hope of marriage and typically remains bound to the shrine for life by psychological and social pressure arising from a traditional belief that misfortune may befall a Trokosi woman's family or village if she abandons her obligations to the shrine. When a fetish slave dies, her family is expected to replace her with another young girl, thus perpetuating the bondage to the fetish shrine from generation to generation.
In 1998 Ghana's Parliament passed legislation that, among other provisions designed to protect women, banned the practice of "customary servitude" (known as Trokosi). After passage of this legislation, the Report states, "[t]he CHRAJ and International Needs have had some success in approaching village authorities and fetish priests at over 316 of the major and minor shrines, winning the release of 2,800 Trokosi slaves to date and retraining them for new professions." However, as of the time of the report (2000), "[t]here are at least 2,200 girls and women bound to various shrines in the Trokosi system, a figure that does not include the slaves' children."
Despite the 1998 legislation, as of the year 2000, "[t]he Government has not prosecuted any practitioners of Trokosi, and in August 1999, a presidential aide criticized anti-Trokosi activists for being insensitive to indigenous cultural and 'religious' practices." The Statement Department Report recites at great length the terrible abuses committed by Ghana's police, noting that "[i]n recent years, the police service in particular has come under severe criticism following incidents of police brutality, corruption, and negligence." With respect to the police and their reaction to violence against women, the Report recites "[v]iolence against women, including rape and domestic violence, remains a significant problem... a total of 95 percent of the victims of domestic violence are women, according to data gathered by the FIDA. These abuses generally go unreported and seldom come before the courts. The police tend not to intervene in domestic disputes."
It is against this well-documented background that Ms. Fiadjoe's account of her own experiences unfolds. These events are described in her affidavit in support of her asylum application (Form I-589) and in her April 30, 2002 hearing testimony. They are described in the report of the psychologist who treated her for the trauma these events caused.
Ms. Fiadjoe was born a member of the Ewe tribe on March 17, 1971 in Accra, Ghana. When she was a young child her parents separated. She was too young at that time to remember her parents living together. Her mother remarried and remained in Accra. Her father, a farmer, also remarried and lived in a village called Veku outside of Anloga, a remote area of rural Ghana. Ms. Fiadjoe was sent to live with her father.
The father was a Trokosi priest, maintaining a shrine in his home where he and other members of the Trokosi cult conducted Trokosi rituals. In 1978 when Ms. Fiadjoe was seven years of age, her father, pursuant to Trokosi practices, sought to make her his slave, working for him and the shrine and submitting to him sexually. During an approximately three months period the father sexually abused Ms. Fiadjoe as part of the Trokosi tenets. Fortunately for Ms. Fiadjoe, her father's sister, Aunt Dela, objected to this abuse and took Ms. Fiadjoe to live with her family in Accra. There Ms. Fiadjoe no longer saw her father and was able to attend school and live the life of an independent young woman. She was a Christian, of the Baptist persuasion.
Sadly, in 1989 Aunt Dela was killed in an automobile accident. Her husband remarried and directed Ms. Fiadjoe to leave his house. She had nowhere else to go except to return to her father in Veku. There she once again became her father's slave subject to beatings and rape. Approximately a year after her return she described to her grandmother the torments to which she was being subjected. The grandmother reported the beatings to the police but did not mention the rapes because of the disgrace that such a revelation would bring upon the family. The police refused to intervene on the ground that only a domestic dispute was involved.
Ms. Fiadjoe attempted to escape from these conditions. She went to work selling fish in order to accumulate some money. When she had saved enough she moved out of her father's house and rented a room of her own. However, after returning to her room one evening her landlord returned her rent and told her she could not stay. He had been threatened by her father. Ms. Fiadjoe sought to escape through marriage and dated two men of her village, first Titi and then Agol, each of whom wanted to marry her. Her father would not allow a marriage and scared off each of these men.
In 1996 Ms. Fiadjoe met a Muslim man, Ahmed Kublano who lived with his parents in Anloga. His brother Rasheed lived nearby. Ms. Fiadjoe and Ahmed fell in love and wanted to marry. In order to persuade the father to consent Ahmed brought him gifts, but he could not bring his family because they were Muslims and opposed the marriage. Ms. Fiadjoe had informed Ahmed about the beatings but had not told him that her father periodically raped her. Ahmed persuaded her to leave her home and go with him to stay with his cousin in Nigeria.
The two fled to Nigeria and stayed with the cousin. They stayed there a week, but the cousin started to approach Ms. Fiadjoe sexually and they had to leave. Having no money it was necessary that they return to Ghana. Ms. Fiadjoe had no place to go other than her father's house. As she explained at her asylum hearing, she had to go back "because we [she and Ahmed] are not married and in Ghana before you can be free from your father, your father have to accept your marriage."
The father resumed beating Ms. Fiadjoe and poured boiling water over her because she had disobeyed him. The sexual abuse continued. She and Ahmed continued to see each other and still wanted to marry. It was a star-crossed relationship. As Ms. Fiadjoe stated in her affidavit: "My father hated Ahmed because he did not want me to be with anyone but him, and because Ahmed was a Muslim. My father was opposed to the marriage and he said that I can't marry Ahmed because I am a Christian. Ahmed's family did not approve of me and did not want us to marry because I am a Christian."
Ms. Fiadjoe became pregnant by Ahmed and hoped that this would persuade her father to agree to her marriage. When she told her father of her pregnancy he beat her until she miscarried. Ahmed continued to visit Ms. Fiadjoe. He did so on March 5, 2000, waiting in her bedroom before they went out together. Ms. Fiadjoe testified that at that point "I went to the shower to take a bath and then, when I came back, when I was coming out, I saw my father coming out of my room, but I knew Ahmed was in the room, so when I went there Ahmed was lying in blood... I hold [his] hand and he didn't talk to me, he was just lying in the blood and he didn't do anything, so to me I was thinking he's dead."
Ms. Fiadjoe started shouting and her father told her that if she didn't shut up he would kill her. She took the money she had saved and left the house. She proceeded to Ahmed's brother, Rasheed, to tell him what had happened. She then went to the roadside and took a car to Accra. There she went to her mother's house and told her what had happened. The mother did not want Ms. Fiadjoe to stay with her because she knew the father was dangerous. Ms. Fiadjoe then sought refuge with her Aunt Dela's husband, who did not even want her to sit down, or enter the house because he was afraid of the father.
Next Ms. Fiadjoe went to a person she had known for many years named Alfred who, for fear that the father would suspect that Ms. Fiadjoe was with him, took her to his girlfriend's house. As Ms. Fiadjoe testified: "When he took me to his girlfriend's house, he told me you can't stay here with this problem, you can't stay here, so, he took me to town, took passport size picture and then he gave me some clothes, I stayed there for about five days, I stayed with them for about five days, he gave me passport to just leave... The passport he gave to me, I'm going to Canada, if I go to Canada, I will meet somebody at the airport, they will be holding my name."
Ms. Fiadjoe gave five hundred thousand Ghanian cedis to Alfred and received from him $130 U.S. dollars and the passport which bore her photograph and the name Mercy Appiah-Kubi. Alfred drove her to the airport on March 10, 2000. She flew to JFK Airport in New York City, arriving on March 11. There she was taken into custody by INS officials.
INS officials questioned Ms. Fiadjoe that day and completed a handwritten Record of Sworn Statement in Proceeding under Section 235(b)(1) of the Act. Her answers made very little sense. In response to the question "Why did you leave your home country or country of last residence?", she responded, "I want to look after my mother." In response to the question "Do you have any fear or concern about being returned to your home country or being removed from the United States?" she replied, "Yes. I cannot look after my sisters and brothers." In response to the question "Would you be harmed if you are returned to your home country or country of last residence?", she responded "Yes... I can't stand the responsibilities."
After the INS transferred Ms. Fiadjoe to York County Prison, Officer Reaves administered an Asylum Pre-Screening Interview on March 30. Contrary to the facts as she later recounted them, Ms. Fiadjoe informed Officer Reaves that her father's beatings began three years ago, that her father tried to have sex with her but that she never allowed it.
In due course Ms. Fiadjoe was released from detention and took up residence at International Friendship House. She had great difficulty adjusting to her environment and neighborhood. Her then attorney referred her to Kathleen M. Jansen, M.S., C.T.S., a psychologist and adult therapist associated with the Victim Assistance Center of York, Pennsylvania, who first saw Ms. Fiadjoe on May 5, 2000. At the outset Ms. Jansen found that Ms. Fiadjoe was withdrawn and highly anxious, made almost no eye contact, kept her head down, spoke very softly and frequently dissociated. *fn3
Ms. Jansen's recital of the events of Ms. Fiadjoe's prior life coincided virtually identically with events as later described in Ms. Fiadjoe's asylum affidavit, which she executed on July 5, 2001, and her April 2, 2002 testimony. In three respects Ms. Jansen's report became a basis of the IJ's and the BIA's credibility determinations. First, it is apparent that she had no understanding of the Trokosi sect and its relationship to the torments to which Ms. Fiadjoe was subjected. In this regard Ms. Jansen wrote, "Ms. Fiadjoe describes her father as having a religious 'fetish' which I have come to believe refers to what we would call an addiction." Second, referring to Ahmed, Ms. Jansen wrote, "[h]e was aware of the sexual assaults by her father, but was powerless to stop them." Third, she described the death of Ahmed as if he had been shot, writing: "On the night before she left her father's home for the last time, she reports being in the 'shower room' when she heard noises. When she emerged, she found her boyfriend lying shot on the floor. He was still alive when she reached him, and died in her arms." (emphasis added).
Ms. Jansen described Ms. Fiadjoe's emotional status:
Work with Ms. Fiadjoe has been complicated by the long history of multiple traumas and the underlying fear of being returned home. As with many incest survivors, she has learned to endure trauma by dissociating, emotionally removing herself from her surroundings until the pain has subsided.
Each time I met with Ms. Fiadjoe, I see dramatic improvements. She has established eating and sleeping habits that are within normal limits. Her communication abilities have improved, although she continues to occasionally dissociate when discussing emotionally painful events. She is able to maintain reasonable eye contact and has a significantly greater range of affect. She is able to discuss many more difficult subjects without dissociating or breaking down. She remains extremely fearful of her father finding out where she is and of being sent back to Ghana and forced to return to his home.
Ms. Jansen's report thus described Ms. Fiadjoe's somewhat fragile emotional state as she proceeded towards her asylum hearing continuing "to occasionally dissociate when discussing emotionally painful events."
III. April 30, 2002 Hearing and Initial Oral Decision
Ms. Fiadjoe's asylum hearing on April 30, 2002 posed a challenge to her ability to discuss the difficult subjects of rape and incest without dissociating or breaking down. Her attorney, Mr. Piver, commenced by questioning her about her early years, her religion, Trokosi practices and the start of her father's sexual abuse when she was seven.
While Ms. Fiadjoe testified about the initial sexual abuse at age seven, the cessation of the abuse while she was in Accra with her Aunt Dela and its resumption eleven years later, the IJ, Donald V. Ferlise, appeared unable to comprehend this sequence of events and the following interchange between him and the witness took place:
Q: Well, how long, how long did this go on, that you were being raped and beaten?
A: We're getting to that?
Q: Well, I'm getting to it now.
A: It, when I left to Accra it stopped, but when I came back to my father again then, at the age of 18 it continued from there.
Q: All right, (indiscernible) at age seven, did your father beat or rape you at age seven?
Q: For how long of period of time did that go on?
A: For, til I was seven, I know my father was raping me.
Q: Ma'am, you're not making any
Q: - - Ma'am, you, you can cry, that's fine, but your 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. You said, your father raped you at age seven and he would beat you, correct?
A: Yes, but I didn't tell anybody.
Q: I don't care if you did or not. At age seven, how long did this go on that he was raping you and beating you?
A: In fact, he was doing that to me when I cried to my auntie, I want to
Q: - - Ma'am, I don't like it when someone beats around the bush, okay, when they don't answer me. Another thing I don't like is when somebody makes sounds as if their crying and their eyes stay dry, all right. It's a form of histrionics, stage (indiscernible), I don't like that. I want straight answers and I want straight answers right now. You said, your father beat you and raped you at age seven, how long did that go on while you were age seven?
A: In fact, it went until age seven and I left.
Although it had been established that Ms. Fiadjoe had been born in 1971, that her father's sexual molestation began when she was seven in 1978, that she left for Aunt Dela's home that year and returned to her father eleven years later when Aunt Dela died, the IJ hounded Ms. Fiadjoe because after the IJ's previous brow beating she could not testify as to the year when she returned to her father. This exchange ensued:
MR. PYVER (sic) TO MS FIADJOE
Q: Okay, did you, when you went back to live with your father, had you, did, strike that - -, when you went back to live with your father, how was your treatment at that time?
A. He tried to beat me and rape me again.
Q: Okay, how long did that start after you returned to his home?
Q: All right, when did you return to your father, what year?
A: (No audible response).
Q: Madam, please answer my question?
A: I don't remember the year, but I knew I was 18 years, I don't remember the year.
Q: You don't know what year it occurred in?
MR. PYVER (sic) TO MS. FIADJOE
Q: No, how, what year were you in
A: - - Wait a minute, please
Q: Do you know what year it, it occurred in?
Q: You know the question, please don't do this, don't beat around the bush, it's aggravating, you know the question, what year did you return to your father?
A: (No audible response).
All right, I find the respondent is non responsive to the question.
The IJ challenged Ms. Fiadjoe's testimony that her father maintained a room in his house which contained idols:
Q: Did you ever go into the room?
Q: How do you know what was inside the room if you were never in there?
A: Because I go there once a month.
A: - - To perform, in there performing, I see them performing rituals.
Q: Were you in the room or not?
Q: Well then how did you know what was in the room if you were never in there?
A: There's (indiscernible), I don't know, I know ...