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Bahta v. Lynch

United States Court of Appeals, First Circuit

August 24, 2016

LORETTA E. LYNCH, Attorney General of the United States, [*] Respondent.


          Derege B. Demissie and Demissie & Church on brief for petitioner.

          Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Civil Division, John S. Hogan, Assistant Director, Office of Immigration Litigation, and Andrea N. Gevas, Trial Attorney, Office of Immigration Litigation, U.S. Department of Justice, on brief for respondent.

          Before Thompson, Selya, and Lipez Circuit Judges.


         Petitioner Yordanos Araya Bahta, a native and citizen of Eritrea, seeks review of a final order of the Board of Immigration Appeals ("BIA") denying her application for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"). An immigration judge ("IJ") ordered Bahta's removal to her homeland after concluding that Bahta failed to remedy credibility problems in her testimony with persuasive corroborating evidence. The BIA affirmed this decision. Bahta asserts that the IJ and BIA erred, inter alia, in holding that her application was not adequately supported and relying on evidence outside the record. Finding these contentions unavailing, we deny the petition for review.


         On February 11, 2009, Bahta entered the United States on a nonimmigrant visa. She was authorized to remain in the country until May 10, but stayed beyond that date. In October 2009, Bahta filed an application for asylum, withholding of removal, and protection under the CAT, claiming that she was persecuted in Eritrea because of her Pentecostal faith.[1] In March 2010, Bahta was served with a Notice to Appear charging her with removability as an alien present in the United States beyond the time authorized. See 8 U.S.C. § 1227(a)(1)(B). She conceded removability, and a merits hearing was held in February 2013 on her petition for relief. Bahta was the only witness, and she provided the following account of her religious persecution.[2]

         In 1997, while Bahta was serving in the Eritrean military, a friend, Rosina Hadush, introduced her to the Pentecostal religion. Bahta converted and, in 1998, became a member of the Emmanuel Pentecostal Church in Asmara, the city where she lived. Bahta reported that members of the army were not allowed to follow the Pentecostal religion because the Eritrean government objected to it. Her superior officer reprimanded her for reading the Bible during her breaks, told her to stop doing so, and ordered her to attend Orthodox Church services. In her affidavit, Bahta states that the officer warned her that "it would be his duty to arrest me or otherwise punish me if he saw me again reading the bible or heard me invite anyone to come to church with me."

         After Bahta left the military in 2002, her continued participation in the Pentecostal Church led to two arrests. In 2003, she and others attending a prayer session at her friend's home were arrested and taken to the police station, where she and ten to fifteen persons, including other Pentecostals, were held in a small, metal cargo container for seven days. They were given only bread to eat and were allowed out of the container twice a day to use the restroom. Upon her release, Bahta was told that if she continued practicing her religion, she would be taken to the battlefront and killed. She thereafter practiced her religion in secret at her friend's house.

         In 2008, Bahta again was arrested, this time while delivering food and clothing to an imprisoned Pentecostal pastor, and detained for two days along with four other people. As a condition of release, she was ordered to report monthly to the police station. Shortly after this second arrest, Bahta's aunt, who lives in Saudi Arabia, secured a worker visa that enabled Bahta to go there and obtain a job as a babysitter.

         In February 2009, Bahta accompanied her employers to the United States on a tourist visa that the employers arranged for her, traveling from Saudi Arabia to Washington, D.C. In her affidavit, Bahta stated that she attended church while in Washington and, for the first time in years, "prayed without looking over my shoulders in fear of being arrested." She became concerned about returning to Saudi Arabia and, on the advice of an Ethiopian woman whom she met at the hotel, called a distant relative in Boston who urged her to travel to that city by bus. In early March, roughly two weeks after Bahta arrived in Washington, the Ethiopian woman took Bahta to the bus. Although Bahta asked her employers for her passport before she traveled, they refused to give it to her until she returned with them to Saudi Arabia. In Boston, she regularly attended the Ethiopian Evangelical Church, which she described as the local branch of the Pentecostal Church of Ethiopia.

         Bahta's testimony was supplemented by various documents: the asylum application itself, with its accompanying affidavit; a photocopy of her United States visa showing her employment as a "personal or domestic employee" of the Saudi family; country conditions reports and articles describing the treatment of religious minorities in Eritrea; hand-dated photographs of her family in Eritrea; translated letters from her mother and the friend whom Bahta said had influenced her to convert to the Pentecostal religion; and a letter from the pastor of her Boston church.

         In an oral ruling announced at the conclusion of the merits hearing, the IJ expressed "serious doubts" about Bahta's credibility and highlighted two discrepancies arising from Bahta's testimony. First, Bahta's asylum application stated that she entered the United States in Boston, although she testified that she came with her Saudi employers to Washington, D.C., and later traveled to Boston.[3] The IJ also questioned the timing of Bahta's move from Eritrea to Saudi Arabia, reviewing, in detail, an exchange that took place between Bahta and the representative of the Department of Homeland Security ("DHS") during cross-examination. Bahta was asked if the visa application completed by her employers stated that she had been their babysitter in Saudi Arabia for five years -- timing that would have overlapped with her reported arrest in Eritrea in 2008. Bahta responded, "That might be true, because they did everything." After stating that Bahta's explanation for the discrepancy "was not clear to the Court, " the IJ went on to note that "the respondent did not emphatically deny that she had worked for this family in Saudi Arabia for five years."

         Although the IJ refrained from making an explicit adverse credibility finding regarding Bahta's testimony, the judge examined whether Bahta's supporting documents provided "corroborating, objective, credible evidence to rehabilitate [her] testimony, " and concluded that the submissions fell short. The IJ stated that Bahta "offered no proof other than her own self-serving testimony that she was in Eritrea between 2004 and 2009[, ] . . . and specifically in 2008 when she is alleged to have been arrested for the second time." The IJ discounted the family photographs as evidence of Bahta's presence in Eritrea at the relevant time because there was no foundation provided for the handwritten dates on them.

         Further, the IJ noted that Bahta had not provided "any credible objective evidence that she actually was a member of the Pentecostal Church in Eritrea." Acknowledging Bahta's testimony that she could not get letters from the church because it had been closed by the government, the IJ questioned Bahta's failure "to obtain letters from any individuals or the testimony of any witnesses." The IJ also noted the absence of testimony or a letter from the relative in Boston whom Bahta said she contacted after she arrived in Washington. As for the country conditions reports, the IJ stated that "none of them mention the targeting of Pentecostals by the ...

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