2005 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-17-2005

Fiadjoe v. Atty Gen USA

Precedential or Non-Precedential: Precedential

Docket No. 03-2917

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PRECEDENTIAL

IN THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

Nos. 03-2917 & 04-1554

 

LORRAINE FIADJOE

Petitioner,

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent.

On Petition for Review of Orders of The

Board of Immigration Appeals

Agency Docket No. A77-943-716

 

Argued November 19, 2004
 The Honorable Dickinson R. Debevoise, Senior United *

States District Judge for the District of New Jersey, sitting by

designation.

2

 

Before: ROTH, SMITH, Circuit Judges and DEBEVOISE ,

*

Senior District Court Judge

(Filed: June 17, 2005)

DAVID E. PIVER, ESQ. (Argued)

W. JOHN VANDENBERG, ESQ.

The Law Office of David E. Piver

150 Strafford Ave., Suite 115

Wayne, PA 19087

PETER D. KESSLER, ESQ.

Assistant Attorney General

Civil Division

TERRI J. SCADRON, ESQ.

Assistant Director

JEFFREY J. BERNSTEIN (Argued)

LESLIE McKAY

Attorneys

U.S. Department of Justice, Civil Division

Office of Immigration Litigation

Ben Franklin Station

P.O. Box 878

Washington, D.C. 20044
3

 

OPINION OF THE COURT

 

Debevoise, Senior District 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.

I. Procedural Background
 The enforcement functions of the INS have since been 1

transferred to the Department of Homeland Security, pursuant to §441

ofthe Homeland SecurityAct of 2002, Pub. L. No. 107-296, 116 Stat.

2135 (Nov. 25, 2002).

4

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”) charged Ms. Fiadjoe with removeability 1

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
5

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
6

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
7

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.” 
8

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
9

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
10

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,
11

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,
 In psychology “dissociation” is “a defense mechanism in 2

which a group of mental processes are segregated from the rest of a

person’s mental activity in order to avoid emotional distress, as in the

dissociative disorder (q.v.), or in which an idea or object is segregated

from its emotional significance, in the first sense it is roughly

equivalent to splitting, in the second, to isolation.” Borland’s Medical

Dictionary, 27 Edition (1988). th

12

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 .

2

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
13

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
14

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?

JUDGE TO MR. PYVER (sic)

Q: What?

A: We’re getting to that?

Q: Well, I’m getting to it now.

JUDGE TO MS. FIADJOE

Q: How did this go on?

A: It, when I left to Accra it stopped, but
15

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?

A: Yes.

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 - -

A: - - For it went - -

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?
16

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
17

returned to his home?

A: After a year.

Q: After a year.

JUDGE TO MS. FIADJOE

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

JUDGE TO MS. FIADJOE

Q: Do you know what year it, it occurred in?

A: (Indiscernible).

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?
18

A: (No audible response).

JUDGE FOR THE RECORD

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:

JUDGE TO MS. FIADJOE

Q: Did you ever go into the room?

A: No.

Q: How do you know what was inside the

room if you were never in there?

A: Because I go there once a month.

Q: Well, how do you know - - 

A: - - To perform, in there performing, I see

them performing rituals.

Q: Were you in the room or not?

A: No.

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
19

know there is idols.

Q: How do you know that if you never went

in?

A: Because they have some of them outside,

outside, they have some of them outside.

Q: How can you tell me what’s in the room

if you were never there, explain that to

me?

A: I’m not allowed there because, I’m not

part of them and I see some of the idols

inside and outside the room, so that it is

why I’m saying their idols. And they

(indiscernible) in there particular days

and they (indiscernible), they go there to

perform rituals.

Q: So, it’s because there’s idols outside the

room, you think there’s idols inside the

room, although you’ve never seen them?

A: Yes, because they prepare food and a lot

of them outside, they take into the room.

The IJ pursued with extreme insensitivity a subject that

must have been particularly painful to Ms. Fiadjoe - the

murder of Ahmed:

JUDGE TO MS. FIADJOE:

Q: You told me, that you never told Ahmed,
20

that your father had sexually assaulted

you, but apparently, you told Ms. Jansen,

that you told Ahmed about the sexual

assaults, why is that?

A: In fact, I told, Ms. Jansen, that I let

Ahmed know that abuse, but I didn’t

clarify it today.

Q: Well, she’s stating here, that Ahmed was

aware of the sexual assaults by your

father, that’s pretty clear to me.

A: But, I did not tell her about the assault,

the beatings and all, I didn’t clarify it to,

Ms. Jansen.

Q: Well, is she, she a fortune teller, she can

read your mind without you telling her,

it’s clear here, she says that Ahmed was

aware of the sexual assaults by your

father, so, you must have told her. That’s

not what you told me today though, why

is that, why is there a difference between

what, Ms. Jansen, writes in her letter and

what you’ve told me?

A: Because, Ms. Jansen, is the one who let

me know it’s okay to tell, but I did not

explain that, I did not tell this part and

this part, I just say, abuse and say

(indiscernible), I did explain, clarify that

to her, but she let me know that it’s okay

to tell somebody so that you can, I can

feel okay, I can be healed (indiscernible).

Q: Yes, but your double talking me, it says
21

that, just answer my question, the letter

from Ms. Jansen says, that Ahmed knew

about the sexual assaults by your father,

you told me that Ahmed did not know, so

tell me why Ms. Jansen’s telling me one

thing, and why you’re telling me

something else?

A: (No audible response).

Q: I’m waiting for your answer.

A: Please, I don’t know, I don’t have answer

for that.

The concluding portions of the hearing further

demonstrated the IJ’s continuing hostility towards the

obviously distraught Ms. Fiadjoe and his abusive treatment of

her throughout the hearing. He had succeeded in returning

her to the condition which Ms. Jansen had enabled her to

overcome after repeated therapy sessions, breaking down and

dissociating. As reflected in the transcript:

JUDGE FOR THE RECORD

All right, let me go off the record and we’l (sic)

decision.

(OFF THE RECORD)

(ON THE RECORD)

JUDGE RENDERS ORAL DECISION

JUDGE TO MS. FIADJOE

Q: Ms. Fiadjoe, you’ve heard my decision,

you’ve heard what I’ve just said?

A: (No audible response).

Q: Oh, you were sleeping there, you fell

asleep didn’t you?
22

A: (No audible response).

Q: You fell asleep during my decision?

A: No, I’m feeling headache.

Q: Did you hear what I said or were you

asleep?

A: I wasn’t asleep.

Q: Did you hear what I said?

A: I thought that you (indiscernible), so I

didn’t. 

Q: Okay, all right, well, what I said was,

that first of all, I don’t believe your

testimony, I think that you were making

up your testimony as you were going

along. Your testimony is contradicted

by, much of it is contradicted by your

own witness, Ms. Jansen, her, her the

letter that she wrote, your testimony

generally doesn’t make any sense. I

further found, and I denied it, basically

because of that, I further found that if I

had found that you were credible, that

you were telling me the truth, I do not

find that - - 

(OFF THE RECORD)

(ON THE RECORD)

JUDGE TO MS. FIADJOE

Q: I don’t find that you have been

persecuted and on one of the five

statutory grounds. I don’t find, first of

all, there are relatively few women

involved in this movement, all right,

sexual slaves. They number by 2,200,

now you described it as, as a sexual
23

slave, I read from the State Department it

seems there’s, there’s some sexual

slavery involved with it, but it has a lot to

do with idiolatry and voodoo and fears

and just a lot of nonsense. I don’t find

that a group of 2,200 plus or minus

women would be particular social group,

it’s small group and it’s only in a certain

section of, of Ghana, around the

(indiscernible) region. Even if I found

that it was a particular social group, the

government is not persecuting anyone,

all right, and the government is not

allowing this to continue, they passed a

law in 1998 and they had, there trying to

abolish Trokosi and apparently according

to the State Department, they think that it

will be abolished in the, in the near

future. So, even if it were a particular

social group, that’s these women, a small

group of women, I don’t find that they’ve

been persecuted pursuant to definition of

persecution. And for that reason, I’ve

denied your application, do you

understand, now?

A: Yes.

Q: Okay, the answer is yes.

IV. The Sanitized Oral Decision

On the hearing date the IJ also delivered a sanitized

version of his original crude (and cruel) Oral Decision. It will
24

be referred to as the “IJ Decision”.

Having found that Ms. Fiadjoe was “inadmissible for

presenting a bogus passport to the Immigration authorities”

and also under Section 212(a)(6)(C)(i) (fraud on an

immigration official), the IJ set forth general legal principles

applicable to applications for asylum and for restriction on

removal.

Turning to the circumstances about which Ms. Fiadjoe

testified, the IJ rejected the evidence that Trokosi was a form

of religion, finding that “it does not appear to the Court that

this is a religion, it is rather a cult.”

The bulk of the opinion was devoted to the reasons

why the IJ found Ms. Fiadjoe totally incredible. As he stated

in his original oral decision “I don’t believe your testimony. I

think that you were making up your testimony as you went

along.” The first reason for this finding was Ms. Fiadjoe’s

inability to specify the year in which she returned to her father

after spending eleven years with Aunt Dela. The IJ wrote:
25

The respondent was asked when she returned to

her father and she was unable to tell the Court

when it occurred. If indeed this had transpired

in the respondent’s life and if indeed she was

living safely with her aunt for 11 years, it is

abundantly clear to the court that the respondent

would be able to tell me when she returned

home to that situation that she feared so much.

The second reason that the IJ gave for rejecting Ms.

Fiadjoe’s testimony was the inconsistency he perceived

between her testimony that she had never been in the room in

which her father and other participants performed rituals and

her testimony that there were idols in that room:

The respondent’s father told her that he wanted

her to be a Trokosi slave, she stated that the

father had a room inside his house in which she

was not permitted to enter, in which there were

idols. The Court asked the respondent if she

had never entered that room, how she knew

there was idols inside; and her answer was that

she presumed they were idols inside the room

that she had never entered since they were idols

outside the room. This line of thought on the

respondent’s part is not particularly persuasive.

The IJ found reason to doubt Ms. Fiadjoe’s testimony

in the fact that she returned to her father’s house after

returning with Ahmed from Nigeria:

Ahmed and the respondent in April of 1997,

traveled to Nigeria by bus to live with Ahmed’s

cousin. The cousin of Ahmed apparently made

sexual advances to the respondent, so that after

three weeks, she and Ahmed returned to Ghana
26

and the respondent returned to her father’s

home. The respondent was asked why, if she

had been beaten and raped at her father’s home,

did she return there. She states that she returned

there since she did not want her father to be

angered by the fact that she was with Ahmed. 

This absolutely is totally implausible and totally

nonsensical to the Court, insofar as the

respondent was returning to a situation where

she knew she was going to be raped and beaten. 

And I don’t believe that she would have any

fear that her father would be angered and if she

did have a fear, that fear would be a lesser fear

than the rape and the beatings that she knew

awaited her. As it turned out, when the

respondent did return, her father not only beat

her but poured hot water on her as a form of

punishment.

The IJ relied upon perceived inconsistencies between

Ms. Fiadjoe’s testimony and her statements to Ms. Jansen as

reflected in Ms. Jansen’s report. He found that Ms. Jansen’s

report cast doubt upon Ms. Fiadjoe’s testimony that her

abusive father was part of the Trokosi sect or that she was a

Trokosi slave:

The respondent submitted to the Court a

letter/report from Social Worker Kathleen

Jansen, which is found at Exhibit 6, tab 2. A

careful examination of Ms. Jansen’s letter

reflects nothing to the effect that the

respondent’s father was a member of the

Trokosi cult, nor that the respondent herself was

a Trokosi slave. The respondent was not able to

explain why what she told the Court, was not

told to the social worker.
27

The IJ found that Ms. Fiadjoe’s testimony that she only

told her grandmother about her father’s sexual abuse is

contradicted by Ms. Jansen’s report which recites that Ms.

Fiadjoe also told her mother about the sexual abuse. The IJ

found contradiction of Ms. Fiadjoe’s testimony that she never

told Ahmed about the sexual nature of her father’s abuse in

the statement in Ms. Jansen’s letter that Ahmed “was aware of

the sexual assaults by her father, but was powerless to stop

them.” Further, the IJ notes an inconsistency between Ms.

Fiadjoe’s statement that she does not know how her father

killed Ahmed and the statement in Ms. Jansen’s report that

“[w]hen she emerged [from the shower], she found her

boyfriend lying shot on the floor.”

The IJ also based his credibility evaluation on

statements that Ms. Fiadjoe made to immigration officials

when she was initially processed after her detention. At the

airport she did not disclose her reason for fleeing Ghana and

“told the Immigration Officer a rather benign reason for

coming here, the fact that she was not able to financially

provide for her siblings.” The IJ referred to the asylum prescreening interview document:

That document reflects on page 4, that the

respondent told the Immigration Officer that her

father started beating her three years ago. That

is three years ago prior to March 30 of 2000, th

consequently that would be March of 1997;

however, the respondent told the Court that she

was 7 years of age when the beatings began. 

Thus, again we have a diametric difference

between what the respondent told this Court and

what the respondent told the Immigration

Officer during the asylum pre-screening

interview.

Even more interesting is the fact that, again

according to this interview, the respondent told
28

the Immigration Officer that her father never

had sex with her. This totally undermines the

entire case in chief, since her entire case in chief

is based on her father using her as a sex slave. 

Whenever the Court sees such a diametric

difference between the testimony that the

respondent has given to the Court and the

testimony that the respondent has given another

member of the Immigration Service, the

credibility of the respondent and the case in

chief gravely suffer.

The IJ emphasized that “[t]he credibility of the

respondent is of extreme importance in assessing the

respondent’s claim . . .. The Court concludes that the

respondent is making up her testimony as she is going along,

she’s making up these scenarios and she is fabricating her

testimony to the Court. . . . the Court again states for the

record that this was a frivolous application and that the

respondent intentionally lied to this Court.”

The IJ provided alternative grounds for denying Ms.

Fiadjoe’s applications for relief. He quoted the State

Department Report describing the Trokosi cult, including the

practice of its priests of maintaining sex slaves at Trokosi

shrines. The IJ then held:

The Court finds that being a Trokosi slave or a

member of the cult, is being a member of a

relatively small group. According to the State

Department, it numbers approximately 2,200

people in a small area, in the southeast portion

of Ghana. The Court will not find that a

Trokosi slave constitutes a particular social

group, insofar as it is rather a minuscule part of

the general population of Ghana.

Had he found Trokosi slaves to be a particular social
29

group, the IJ held that he “would not find that the respondent

is being persecuted as being a member of that social group

and does not qualify for asylum, insofar as I find that this

practice is being stamped out by the government, according to

the State Department reports; and that it can be eradicated by

the government within a short period of time, with the

passage of a law which occurred in 1998.”

A rather confusing observation followed in support of

the IJ’s finding that Ms. Fiadjoe had not established a wellfounded fear of persecution. The IJ appeared to believe that

Ms. Fiadjoe was alleging that she was being persecuted

because she was a member of the Trokosi sect, when in fact

she was asserting that with the acquiescence of governmental

officials, the Trokosi sect was persecuting her, forcing her

into practices totally contrary to her Christian faith. The IJ

observed:

The government does not condone this slavery. 

It is perpetuated by a rather small number of

people following an ideology, some type of

voodoo religion or voodoo following, and the

Court does not find that it constitutes a

persecution of this group of women, even if

these women should be classified as a particular

social group. The Court considers the Trokosi

as an isolated aberration of the small segment of

the society in Ghana, but I do not find that it is a

ground for asylum. I do not find that members

of that group are being persecuted for one of the

five statutory grounds for a grant of such relief.

Consequently, for all of these reasons, the Court

finds that the respondent has not established

well-founded fear of persecution as defined, if

she were returned to Ghana. Accordingly her

application for asylum will be denied.
30

Based on the foregoing, the IJ determined i) it was

unnecessary to consider whether Ms. Fiadjoe merited relief as

a matter of discretion; ii) because Ms. Fiadjoe failed to

establish eligibility for asylum, she failed to meet the higher

standard of proof necessary for restriction on removal to

Ghana; and iii) Ms. Fiadjoe does not qualify for relief under

the CAT because she did not establish that she is more likely

than not to be tortured if she returns to Ghana.

The IJ entered orders denying Ms. Fiadjoe’s request

for asylum, for restriction on removal to Ghana and for

withholding removal under the CAT. He ordered that she be

removed from the United States to Ghana.

V. Proceeding before the BIA

On appeal from the IJ’s decision the BIA relied heavily

upon the IJ’s credibility determination: “In denying the

respondent’s applications for relief, the Immigration Judge

found that the respondent was not credible (IJ at 11-12). We

agree.” The BIA advanced two grounds for its credibility

determination - i) perceived inconsistences in her testimony at

the hearing before the IJ and ii) inconsistencies in her

statement at her Asylum Pre-Screening Interview.

With respect to Ms. Fiadjoe’s testimony, the BIA noted

that Ms. Fiadjoe made conflicting claims as to the age when

her Trokosi ritual sexual abuse by her father began, referring

to the following inconsistencies or supposed inconsistencies:

i) in her asylum application and during her testimony Ms.

Fiadjoe claimed that her father began to abuse her sexually

and attempted to rape her when she was seven years old; ii) in

further testimony she asserted that her father had in fact raped

her when she was seven; iii) in her statement given at her

Asylum Pre-Screening Interview she stated that the abuse

began approximately three years prior to her March 2000

interviews and claimed that she did not allow her father to

have sex with her, in contrast to later claims of on-going rape. 
31

The BIA concluded that “[b]ecause we have found that the

respondent’s testimony cannot be accepted as credible, it

follows that the respondent has failed to satisfy her burden of

proof and persuasion.”

Further, the BIA held that Ms. Fiadjoe’s claims must

be denied for failure to establish that the government of

Ghana was either unwilling or unable to control her father’s

ritual abuse. In support of this conclusion the BIA noted i)

Ms. Fiadjoe did not seek help of the Ghanian authorities; ii)

the grandmother when reporting the father’s abuse to the

police did not mention the sexual aspect of the abuse; iii) the

government outlawed Trokosi practices and ritual bondage in

1998 and a non-governmental organization had success in

liberating, counseling, and rehabilitating past victims of such

bondage.

The BIA found that Ms. Fiadjoe implicitly admitted

that she could escape her father’s abuse by moving to an

urban area, citing as support; i) Ms. Fiadjoe’s escape when

she fled to Nigeria; ii) her move into an apartment; and iii) her

unconvincing testimony about being impelled to return to the

father’s home after the abortive flight to Nigeria. The BIA

concluded “the respondent’s failure to pursue internal

relocation would likely be a negative discretionary factor even

if we had found that she had suffered past persecution on

account of a protected ground.”

Because the BIA had found that Ms. Fiadjoe had not

testified credibly and that she had failed to demonstrate that

the government of Ghana would be unwilling or unable to

protect her, it did not reach the issue of whether bondage as a

Trokosi slave would meet the definition of persecution on

account of membership in a particular social group or the

issue whether Ms. Fiadjoe, even if credible, had established

that she was, in fact, a Trokosi slave.

Finding that Ms. Fiadjoe had failed to establish the

lower burden of proof required for asylum, the BIA held that

she had failed to meet the higher standard for withholding of
32

removal and that she had failed to establish that it was more

likely than not that she would be tortured upon her return to

Ghana, thus requiring that her request for relief under the

CAT be denied.

With one member, Juan P. Osuna, dissenting, the BIA

dismissed the appeal on June 6, 2003. Ms. Fiadjoe filed in

this court a timely petition for review of the BIA’s decision. 

Ms. Fiadjoe also moved for reconsideration of the BIA’s

decision. One of the grounds for the motion to reconsider

was the failure of the BIA to consider certain evidence which

was not before the IJ but which Ms. Fiadjoe submitted in

support of her appeal. In particular she submitted an October

31, 2002 letter of Ms. Jansen which explained why certain of

the statements made in her earlier letter on which the IJ relied

to find that Ms. Fiadjoe lacked credibility constituted Ms.

Jansen’s mistakes or misunderstanding. Ms. Jansen’s October

31, 2002 letter also spelled out in considerable detail the

nature and consequence of the stress from which Ms. Fiadjoe

suffered from her father’s abuse and the effect this stress had

with respect to Ms. Fiadjoe’s responses to questions

concerning sexual abuse matters. The following are a few of

Ms. Jansen’s observations concerning Ms. Fiadjoe’s

emotional state:

It is my professional opinion that Posttraumatic

Stress Disorder, Ms. Fiadjoe’s own mannerisms,

and the Immigration Judge’s lack of awareness

of Ghanian culture contributed to Ms. Fiadjoe’s

responses to questioning by opposing counsel

and, in particular, to the Judge. It is

extraordinarily difficult for sexual abuse victims

to discuss specifics of their abuse experiences. 

Given the extreme shame that surrounds these

issues in general they are difficult for both men

and women to discuss. With the addition of the

cultural factors surrounding Ms. Fiadjoe’s

experiences in particular, it should be of no
33

surprise at all that she would be reluctant to

discuss these issues with anyone, most

specifically with a male or in the presence of

several males. It is very typical of victims of

sexual abuse to not be able to accurately recall

dates, ages, number of abuse occurrences and

time lines in general. In addition, I believe

cultural factors played a role. In many cultures

the specifics of dates, time, and ages are not

valued as significantly as they are in western,

industrialized cultures. The combination of

cultural factors and traumatic stress reactions

would be expected to impede one’s memory of

dates, times and ages.

...

I believe I also communicated in my initial letter

that because of her history of severe abuse,

under situations of duress she tends to

dissociate. This means that if she feels

threatened or endangered - physically or

emotionally - she will withdraw from the

situation, become confused, frightened, hesitant,

and may appear to have a blank look on her

face. This is a natural consequence of the

Posttraumatic Stress Disorder from which she

suffers.

...

The Immigration Judge believed that Ms.

Fiadjoe was fabricating her account of rape by

her father because he found inconsistencies. 

These inconsistencies are not evidence of
34

dishonesty in Ms. Fiadjoe’s case - they are

evidence of severe Posttraumatic Stress

Disorder. It is also noteworthy that at the time

of this hearing, Ms. Fiadjoe was approximately

seven months postpartum and, by history,

suffered a significant bout of Postpartum

Depression for approximately nine months after

the birth of her daughter. This condition would,

as well, affect both her memory and her

communication style. Similarly it does not at all

surprise me that upon initial questioning by INS

agents Ms. Fiadjoe would reference her father

attempting sexual abuse but deny that he had

had intercourse with her. Fear and shame

would more than explain that circumstance. 

Please note that she did disclose the sexual

assaults to her grandmother who immediately

told her it was shameful for her to discuss those

matters. Although the grandmother was willing

to report the physical abuse to the police, she

refused to report or permit Ms. Fiadjoe to report

the sexual violence. I can vehemently affirm

that once a sense of safety and a tentative

working relationship was established with Ms.

Fiadjoe she consistently and clearly disclosed

multiple incidents of violent rape by her father

during our counseling sessions. It is also

important to note that Ms. Fiadjoe’s recounting

of her experiences in her father’s custody never

wavered during our work together. As an

expert in assessing traumatic stress, and an

experienced provider of services to victims of

sexual violence I never saw any indication that

Ms. Fiadjoe was less than truthful with me or

that she was fabricating any of her experiences.
35

In addition to describing Ms. Fiadjoe’s emotional state,

Ms. Jansen took responsibility for creating what appeared to

be inconsistencies between statements contained in her

original letter, which was in evidence before the IJ, and Ms.

Fiadjoe’s testimony. Ms. Jansen explained her failure to use

the term Trokosi in her report, limiting her description of the

father’s behavior as being a “fetish”:

One of the shortcomings of my work with Ms.

Fiadjoe falls to my lack of understanding at that

time about the Trokosi religion and the

definition of a fetish priest. She spoke often of

her father’s fetish practices and interpreting her

words and their meaning was very difficult. 

She did state on many occasions that her father

would be intoxicated just prior to him raping

her, and based on my own cultural background I

connected the term “fetish” to her father’s abuse

of alcohol. I did not at that time investigate the

religious practices of fetish priests and was

unaware of the specifics of the Trokosi religion. 

Since that time, I have learned more about that

religion and its practices and it fits precisely

with the experiences she was relating to me. 

Again, my focus was on her immediate physical

and psychological well being and I failed to

investigate the cultural implications fully.

Addressing the statement in her original letter that Ms.

Fiadjoe had informed Ahmed of the father’s sexual abuse,

Ms. Jansen wrote:

There was some controversy over whether Ms.

Fiadjoe discussed these matters with her fiancé,

Ahmed. In reviewing my notes, I make

reference to the fact that Ahmed was “aware of

the abuse by her father”. When consulting my

notes to prepare the initial letter, I interpreted
36

them to mean both the physical and sexual

abuse. I cannot now independently recall

whether I specifically referred to the physical

and sexual abuse when discussing this matter

with Ms. Fiadjoe. It would not at all surprise

me that she would have told him about the

physical abuse but not the sexual abuse. Indeed,

noting the cultural taboos and shame involved,

it is very likely that she would not tell Ahmed of

the multiple violent rapes she endured at the

hands of her father.

Addressing the subject of the manner of Ahmed’s

death, Ms. Jansen explains that she merely inferred that he

had been shot and does not recall that Ms. Fiadjoe informed

her that he had been shot:

There appeared to be additional controversy

over Ms. Fiadjoe’s knowledge of the manner of

Ahmed’s death. Again, in reviewing my notes,

I documented that while in the “shower room”

Ms. Fiadjoe heard a “loud noise” and upon

entering her bedroom, found Ahmed dying on

the floor. I believe that it was my interpretation

of events that Ahmed had been shot. I

apologize for the confusion that interpretation

caused. I have no independent recollection of

Ms. Fiadjoe specifically stating the manner of

death. Recall, please, that the purpose of my

services was not an investigative one. When I

began seeing Ms. Fiadjoe she was not able to

eat properly, was not sleeping consistently, was

experiencing severe flashbacks and distressing

nightmares, and was attempting to adjust to an

extremely foreign environment. It was my

purpose to alleviate the immediate

psychological pain and suffering and to assist
37

her in adjusting to her new environment. The

exact manner of her fiancé’s murder was

inconsequential to the critical task at hand.

Apart from the failure of the BIA to consider this

additional evidence, Ms. Fiadjoe advanced four other grounds

for reconsideration; i) the BIA’s reliance upon Ms. Fiadjoe’s

statements to an INS officer upon arrival as a basis for a

negative credibility finding; ii) its finding that Ms. Fiadjoe

had failed to carry her burden that the government of Ghana

was unable or unwilling to assist her; iii) its finding that Ms.

Fiadjoe could have relocated to another part of Ghana; and iv)

the BIA’s failure to consider Ms. Fiadjoe’s persecution on

account of her religion as a Christian opposed to Trokosi and

her feminist political opinion that women should be educated

and not subjugated to men.

The BIA denied the motion for reconsideration stating

that Ms. Fiadjoe had not identified any change of law, new

legal argument or error in the BIA’s previous analysis that

would move it to reconsider its decision. It noted that the

inconsistent statements to an immigration officer upon which

it relied to support its credibility finding were not made at the

airport immediately after landing but were made some weeks

later during a fair and thoughtful interview, thus rendering

Ms. Fiadjoe’s reliance upon the cases cited in support of the

motion misplaced.

Ms. Fiadjoe filed in this Court a petition for review of

the denial of the motion for reconsideration. That petition has

been consolidated with the original petition for review.

VI. Discussion

A. Jurisdiction and Standard of Review: We have

jurisdiction to review final orders of the BIA under §242(a)(1)

of the Immigration and Nationality Act, 8 U.S.C. §1252(a)(1)

(1999). 

Both the IJ and the BIA made an adverse credibility

determination. The final order that we review is the decision
38

of the BIA, and normally we review the decision of the BIA,

not the IJ, Gao v. Ashcroft, 299 F.3d 266, 271 (3d Cir. 2002);

Abdulai v. Ashcroft, 239 F. 3d 542 545 (3d Cir. 2001). There

are exceptions to this rule. If, for instance, the BIA affirms

the IJ’s decision for the reasons set forth in that decision, the

IJ’s opinion effectively becomes the BIA’s, and, accordingly,

a court must review the IJ’s decision. Korytnyuk v. Ashcroft,

396 F.3d 272, 286 (3d Cir. 2005).

In the present case the BIA stated at the outset that it

agreed with the IJ’s finding that Ms. Fiadjoe was not credible. 

It then set forth a single paragraph devoted to the credibility

issue, listing two of the inconsistencies upon which the IJ had

relied. Thus, as in Xie v. Ashcroft, 359 F.3d 239 (3d Cir.

2004), we address the circumstance in which “the BIA both

adopted the IJ’s adverse credibility determination and

discussed some, but not all, of the underlying bases for the

IJ’s adverse credibility determination.” Id., at 242. In the

present case, in light of its expression of agreement with the

IJ’s credibility finding and its own sketchy credibility

analysis, the BIA must have relied upon the adverse

credibility finding of the IJ. We thus have jurisdiction to

review both the BIA’s and IJ’s opinions. Id., at 242; see also,

Miah v. Ashcroft, 346 F.3d 434 (3d Cir. 2003); Senathirajah

v. INS, 157 F.3d 210 (3d Cir. 1998). There is an additional

reason to review the INS decision and the hearing from which

the decision derived. Any adverse credibility determinations

based on the testimony must be viewed with great caution in

view of the abusive nature of the hearing.

Adverse credibility determinations are reviewed under

the substantial evidence standard. Under this standard, the

BIA’s adverse credibility determination must be upheld on

review unless any reasonable adjudicator would be compelled

to conclude to the contrary. Minor inconsistencies do not

provide an adequate basis for an adverse credibility finding. 

Xie, 359 F. 3d at 243.

Apart from its adverse credibility determination, the
 The BIA did not reach the issues of i) whether bondage as 3

a Trokosi slave would meet the definition of persecution on account

of membership in a particular social group; ii) whether if Ms.

Fiadjoe’s testimony were credible she had “established that she was,

in fact, a Trokosi slave;” and iii) whether Ms. Fiadjoe could escape

persecution by locating elsewhere in Ghana.

 Significantly, on this appeal the government made no 4

attempt to defend the credibility determinations of either the IJ or the

BIA.

39

BIA found that Ms. Fiadjoe failed to establish that the

government of Ghana was either unable or unwilling to

control her father’s ritual sexual abuse . We must uphold this 3

factual finding if it is “supported by reasonable, substantial,

and probative evidence on the record considered as a whole.” 

INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992). We should

find substantial evidence lacking only where the evidence

“was so compelling that no reasonable fact finder could fail to

find the requisite fear of persecution.” Id. at 483-84; see also

8 U.S.C. §1252(b)(4)(B); Abdille v. Ashcroft, 242 F. 3d 477,

483-84 (3d Cir. 2001).

B. The IJ Hearing and Credibility Finding : Prior to 4

the commencement of testimony before the IJ on April 30,

2002 the IJ identified the record in his possession. It included

Ms. Fiadjoe’s July 5, 2001 asylum affidavit (Form I-589)

which recited in full detail the circumstances that led to her

flight - the commencement of her father’s sexual abuse at age

seven, the resumption of her life as a Trokosi slave at age

eighteen and the continuing beatings and periodic rape

committed by her father. It recited her attempts to escape

from her father’s house, her flight to Nigeria, her return, her

father’s murder of the man whom she loved and hoped to

marry, and her second flight and inability to find someone in

Accra who would take her in.

Also in the record which the IJ possessed was Ms.
40

Jansen’s June 22, 2000 letter describing her therapy sessions

with Ms. Fiadjoe and Ms. Fiadjoe’s emotional state. Ms.

Jansen recounted how Ms. Fiadjoe’s emotional condition

improved markedly after sessions of counseling and that

although “[h]er communication abilities have improved,” she

nevertheless “continues to occasionally dissociate when

discussing emotionally painful events.” It was, of course,

necessary to testify about emotionally painful events at the

April 30, 2002 hearing.

The INS Guidelines entitled “Consideration for

Asylum Officers Adjudicating Asylum Claims from Women”

describe in general terms the phenomena that Ms. Jansen

observed in Ms. Fiadjoe. The Guidelines are as applicable to

an IJ credibility determination as they are to an Asylum

Officer’s credibility determination, e.g.,:

Women who have been raped or otherwise

sexually abused may be seriously stigmatized

and ostracized in their societies. They may also

be subject to additional violence, abuse or

discrimination because they are viewed as

having brought shame and dishonor on

themselves, their families, and their

communities.

...

Women who have been subject to domestic or

sexual abuse may be psychologically

traumatized. Trauma can be suffered by any

applicant, regardless, of gender, and may have a

significant impact on the ability to present

testimony.

The demeanor of traumatized applicants can

vary. They may appear numb or show
41

emotional passivity when recounting past events

of mistreatment. Some applicants may give

matter-of-fact recitations of serious instances of

mistreatment. Trauma may also cause memory

loss or distortion, and may cause other

applicants to block certain experiences from

their minds in order not to relive their horror by

the retelling.

In Anglo-American cultures, people who avert

their gaze when answering a question, or seem

nervous, are perceived as untruthful. In other

cultures, however, body language does not

convey the same message. In certain Asian

cultures, for example, people will avert their

eyes when speaking to an authority figure as a

sign of respect. This is a product of culture, not

necessarily of credibility.

It bears reiteration that the foregoing

considerations of demeanor can be the products

of trauma or culture, not credibility. Poor

interview techniques/cross-cultural skills may

cause faulty negative credibility findings.

From the outset of the April 30, 2002 hearing the IJ

took over much of the questioning of Ms. Fiadjoe, both on

direct and on cross-examination by the government. His tone

was hostile and at times became extraordinarily abusive. If

not by design, in effect, he produced the very atmosphere that

Ms. Jansen and the INS Guidelines anticipated would cause

memory loss, blocking, dissociating and breakdown.

Examining Ms. Fiadjoe concerning the highly sensitive

subject of her father’s sexual abuse at age seven, the IJ’s

questioning reduced her to tears (see transcript excerpt at.

pp.14-16, supra).
42

At that point in the proceedings Ms. Fiadjoe began

having difficulty responding to the IJ. She had been born in

1971. In response to her attorney’s questions she testified that

she went to live with her Aunt Dela in Accra when she was

seven, i.e., in 1978, thus bringing the sexual abuse to a

temporary halt. She further testified that she remained with

Aunt Dela eleven years and was 18 years of age when she

returned to her father’s home upon the death of Aunt Dela. A

rather simple calculation would have placed this in the year

1989, but under the IJ’s harsh questioning Ms. Fiadjoe was

unable to recall the year and was reduced to an inability to

respond (see transcript excerpt at pp 16-17, supra).

The bullying nature of the IJ’s questioning was further

evident in his interrogation of Ms. Fiadjoe about her

knowledge that her father kept idols in the room in which he

worshiped when she testified that she had never been in the

room. Ignoring the obvious point that Ms. Fiadjoe made, that

she could see into the room without entering it, the IJ

continued to badger her (see transcript excerpt at p. 17-18

supra).

Dealing with a subject that can only have been

extremely painful to Ms. Fiadjoe, her father’s murder of her

fiancé Ahmed, the IJ pursued an apparent inconsistency

between Ms. Fiadjoe’s testimony and Ms. Jansen’s report

concerning whether Ms. Fiadjoe had told Ahmed about the

sexual aspect of the abuse she had suffered. The IJ reduced

Ms. Fiadjoe to an inability to respond to his questions (see

transcript excerpt at pp 18-19 supra).

These are examples of the manner in which the IJ

treated Ms. Fiadjoe throughout the hearing. An examination

of the entire transcript discloses other instances of his extreme

insensitivity towards the witness and his failure to take into

account the abuses to which she had been subjected in Ghana. 

The IJ’s own concluding questions and remarks demonstrate

that he had reduced her to the emotional state against which

Ms. Jansen and the INS Guidelines had warned:
43

JUDGE TO MS. FIADJOE

Q: Ms. Fiadjoe, you’ve heard my decision,

you’ve heard what I’ve just said?

A: (No audible response).

Q: Oh, you were sleeping there, you fell

asleep didn’t you?

A: (No audible response).

Q: You fell asleep during my decision?

A: No, I’m feeling headache.

Q: Did you hear what I said or were you

asleep?

A: I wasn’t asleep.

Q: Did you hear what I said?

A: I thought that you (indiscernible), so I

didn’t.

Q: Okay, all right, well, what I said was,

that first of all, I don’t believe your

testimony, I think that you were making

up your testimony as you were going

along. Your testimony is contradicted

by, much of it is contradicted by your

own witness, Ms. Jansen, her, her, the

letter that she wrote, your testimony

generally doesn’t make sense. I further

found, and I denied it, basically because
44

of that, I further found that if I had found

that you were credible, that you were

telling me the truth, I do not find that - - 

(OFF THE RECORD)

As the INS Guidelines stated, “[p]oor interview

techniques/cross-cultural skills may cause faulty negative

credibility findings”. They most certainly did so in this case.

The conduct of the IJ by itself would require a

rejection of his credibility finding. Apart from that

consideration, the formal reasons he gave for finding “that the

respondent is making up her testimony as she is going along,

she’s making up these scenarios and she is fabricating her

testimony to the Court” do not withstand examination.

First, the IJ relied upon Ms. Fiadjoe’s inability to state

the year when she returned from Aunt Dela to her father’s

house. It is true that Ms. Fiadjoe, after being subjected to the

IJ’s brow beating, could not recall the year of her return. 

However, she testified that she was born in 1971, left for Aunt

Dela’s home when she was seven (1978) and returned after

eleven years when she was eighteen years of age. The

inability to recall during the stress of the hearing that the year

of return was 1989 does not affect credibility.

The IJ found that Ms. Fiadjoe’s testimony that her

father kept idols in the shrine room in his home was

inconsistent with her testimony that she never entered the

room. In spite of the badgering nature of the IJ’s questioning,

Ms. Fiadjoe fully explained that without entering she could

see into the room, that idols were also kept outside the room,

and that she observed other Trokosi adherents enter the room

to bring food to the idols and later leave. There was no

inconsistency in her testimony.

Referring to Ms. Fiadjoe’s testimony about her return

to her father’s home after her and Ahmed’s abortive attempt

to establish a residence in Nigeria, the IJ attributes to Ms.
45

Fiadjoe the statement that “she returned there since she did

not want her father to be angered by the fact that she was with

Ahmed.” The IJ found that “[t]his absolutely is totally

implausible and totally nonsensical to the Court, insofar as the

respondent was returning to a situation where she knew she

was going to be raped and beaten.” The IJ’s subsequent

observations make no sense: “And I don’t believe that she

would have any fear that her father would be angered and if

she did have a fear, that fear would be a lesser fear than the

rape and the beatings that she knew awaited her. As it turned

out, when the respondent did return, her father not only beat

her but poured hot water on her as a form of punishment.” In

the first place the IJ does not give an accurate recital of Ms.

Fiadjoe’s testimony. She did not want her father to attack

Ahmed but the reason she gave for returning to her father was

that “I don’t, my father, I don’t have anybody to go to,” a fact

that, as will be discussed in connection with the BIA’s

credibility finding, is fully supported by the record.

Next, the IJ found Ms. Fiadjoe lacked credibility

because “Ms. Jansen’s letter reflects nothing to the effect that

respondent’s father was a member of the Trokosi cult, nor that

the respondent herself was a Trokosi slave. The respondent

was not able to explain why what she told the Court, was not

told to the social worker.” The IJ’s premise that Ms. Fiadjoe

did not tell Ms. Jansen about the Trokosi sect is totally wrong,

even if reference is made only to the letter in evidence before

the IJ. Repeatedly throughout the asylum proceedings Ms.

Fiadjoe referred to her father’s Trokosi practices as his

“fetish.” In her June 22, 2000 letter Ms. Jansen writes, “Ms.

Fiadjoe describes her father as having a religious “fetish.” 

Ms. Jansen at that time did not understand what Ms. Fiadjoe

was telling her, a misunderstanding which she later overcame,

as explained in her October 31, 2002 letter, which will be

discussed further in connection with the BIA’s credibility

determination. In any event, the IJ was simply in error when

he stated that Ms. Jansen’s letter reflects nothing to the effect
46

that Ms. Fiadjoe’s father was a member of the Trokosi cult.

The IJ perceived two other inconsistencies between

Ms. Fiadjoe’s testimony and what appeared in Ms. Jansen’s

June 22, 2000 letter. He assumed Ms. Fiadjoe told Ms.

Jansen what was stated in the letter. First, Ms. Fiadjoe

testified that she never told Ahmed about the sexual assaults

upon her, whereas the letter states Ahmed “was aware of the

sexual assaults by her father, but was powerless to stop them.” 

Second, Ms. Fiadjoe testified that, not having seen her father

kill Ahmed, she did not know how he was killed, whereas the

letter states “[w]hen she emerged, she found her boyfriend

lying shot on the floor.” (emphasis added). As disclosed in

Ms. Jansen’s October 21, 2002 letter (which was not before

the IJ), these inconsistencies resulted from Ms. Jansen’s

erroneous assumptions, not from misstatements of Ms.

Fiadjoe. Even if there were such inconsistencies (which there

were not), they were minor in nature. In the entire flow of

events that afflicted Ms. Fiadjoe from age seven until she fled

from Ghana, it was immaterial whether Ahmed knew of the

sexual abuse as well as the other forms of abuse perpetrated

by the father and whether the father shot or stabbed Ahmed,

the only likely other means of killing him.

The IJ relied upon statements that Ms. Fiadjoe made to

Immigration officers upon her arrival in the United States and

upon the occasion of her Asylum Pre-screening Interview on

March 30, 2000, which are inconsistent with her asylum

affidavit, the information she provided Ms. Jansen and her

testimony. For reasons that will be set forth in the discussion

of the BIA’s credibility determination, these statements do not

constitute substantial evidence that would permit a finding

that Ms. Fiadjoe lacked credibility.

As the IJ expressed it, “[t]he credibility of the

respondent is of extreme importance in assessing respondent’s

claim.” No adverse credibility assessment derived from a

hearing conducted under the circumstances and in the manner

that the IJ conducted the April 30, 2002 hearing could survive
47

review. Further, even if the hearing were conducted in an

even-handed, fair manner, the reasons that the IJ gave for his

finding of lack of credibility are not supported by substantial

evidence.

C. The BIA’s Credibility Finding: Of necessity the

BIA had before it the transcript of the IJ hearing and the

documentary record. Ms. Fiadjoe’s asylum application, her

recital of events during her counseling with Ms. Jansen and

her testimony at the hearing were consistent in their detailed

description of the extended series of horrifying events that

occurred in her life from age seven until her flight from

Ghana after the murder of Ahmed. Despite the IJ’s

conclusion that “[she was] making up her testimony as [she

was] going along,” it is highly improbable that anyone could

consistently recount these events in detail on each of these

three occasions. 

The BIA, apart from its general agreement with the IJ’s

adverse credibility determination, relied upon two grounds for

its own adverse credibility determination: i) a purported

inconsistency in Ms. Fiadjoe’s testimony concerning the

nature of the sexual abuse that her father perpetrated upon her

at age seven, and ii) the inconsistencies in her sworn

statement before an Asylum Officer given approximately

nineteen days after she was taken into custody at the airport. 

Despite the critical nature of the issue and the extensiveness

of the record, the BIA devoted a mere twelve lines of its

opinion to set forth the reasons for its credibility finding.

As to the sexual abuse at age 7, the BIA decision

stated:

She claimed in her written asylum application

and during her testimony in immigration court

that her father began to abuse her sexually and

attempted to rape her when she was 7 years old

(Exh. 6-2 at 2; Tr. at 25). Shortly thereafter, she

modified her testimony somewhat and claimed

that her father had in fact raped her when she
48

was 7 (Tr. at 32).

In her asylum application (Exh. 6-2 at 2) Ms. Fiadjoe

stated, “[a]fter my parent’s [sic] separation, I lived with my

father and he began to sexually abuse me. This started when I

was 7 years old.” At her hearing (Tr. at 25) Ms. Fiadjoe

testified, “[a]t the age of seven, he’s tried to rape me and

abuse me and beat me up and want me to be part of Trokosi,

Trokosi.” At the point in the hearing when the IJ had reduced

Ms. Fiadjoe to tears and berated her for crying and “beating

around bush” he asked her how long her father beat or raped

her (Tr. at 32), to which she responded before dissolving into

tears “[f]or, till I was seven, I know my father was raping

me.” There is no necessary inconsistency in these statements. 

Sexual abuse during a three months’ period could plausibly

include both attempted rape and rape. Moreover, it is

unreasonable to expect a person to remember whether the

repeated sexual abuse she suffered at age seven constituted

attempted rape or actual rape. In the present case, in light of

what followed in the ensuing years, any imprecision in this

regard cannot rationally be a basis for an adverse credibility

finding.

As to the inconsistencies in the statement before the

Asylum Officer, the BIA decision stated:

However, the respondent stated in a sworn

statement before an asylum officer with the

Immigration and Naturalization Service (now

the Department of Homeland Security, DHS)

that the abuse began approximately 3 years prior

to her interview in 2000 (Exh. 6-9 at 4), when

she would have been 26 or 27. In fact, she

claimed in that interview that she never allowed

her father to have sex with her (id.), in stark

contrast to her later claims of on-going rape (Tr.

at 27-28, 76, 78-79).
49

On March 30, 2000 Asylum Officer James L. Reaves

conducted an Asylum Pre-Screening Interview. There can be

no criticism of the manner in which he conducted the

interview. He ensured that Ms. Fiadjoe had an interpreter in

the Twi language. His questions were concise. There is every

reason to believe that he, unlike the IJ, followed the INS

Memorandum on Considerations for Asylum Officers

Adjudicating Asylum Claims from Women, dated May 6,

1995.

With one exception, the answers Ms. Fiadjoe gave to

him were fully consistent with her subsequent asylum

application, her statements to Ms. Jansen and her hearing

testimony. They included information about her family, her

father’s beatings, her flight from home, the murder of her

fiancé, and her inability thereafter to find refuge with Aunt

Dela’s husband, her mother and stepfather and the friend in

Accra. Ms. Fiadjoe’s statement before Officer Reaves

departed from her asylum application, the information she

gave to Ms. Jansen and her hearing testimony in the following

respect:

Q: Have you ever been harmed in your

country by anyone?

A: Yes, by my father.

Q: What did your father do to you?

A: He abused me by beating me.

Q: When did this happen?

A: He started doing this about 3 years ago.

Q: Did you live with him at that time?

A: Yes, I was staying at home.

Q: How long did this continue?

A: This continued for 3 years, sometimes he

tried to have sex with me.

Q: Did you ever have sex with your father?

A: No, I never allowed it.

Q: When did this happen?

A: It happened many times during the three
50

years. When someone came to the house

to marry me he would reject them.

Q: When did this end?

A: It never ended until I ran away from

home. He wanted me to marry an old

man, I told him no. A friend came over

to my house. I went to take a shower and

when I returned the friend was dead. I

think my father killed my boyfriend. He

was 33 years old.

Q: Did your father kill this young man?

A: I was in the shower, when I came out my

father was coming out of my room. I

don’t know what he used to kill him.

To determine whether this discrepancy constitutes

substantial evidence to support the IJ’s and the BIA’s adverse

credibility determinations, it is necessary to examine the

circumstances in which the statement was given. Only

nineteen days previously, March 11, 2000, Ms. Fiadjoe had

arrived in this country traumatized by years of sexual

oppression, the March 5 murder of her fiancé and a desperate

but futile effort to find refuge from her father in Accra. On

her arrival at the airport she was questioned by an INS Officer

and gave nonsensical answers. For example, when asked why

she left her home country she responded “I want to look after

my mother.”

It is established in this Circuit that inconsistencies

between an airport statement and an asylum seeker’s

testimony before an IJ is not sufficient, standing alone, to

support a BIA finding that the petitioner was not credible. 

Balasubramanrim v. INS, 143 F.3d 157, 164 (3d Cir. 1998). 
51

Such an interview is likely to be hurried; language difficulties

arise; the results may be inaccurately recorded, and an

arriving alien who has suffered abuse in his home country

may be reluctant to reveal full information in his or her first

meeting with the government. Id., at 162-3. As we stated in

Senathirajah v. INS, 157 F.3d 210, 218:

By placing too much reliance on an airport

interview under the circumstances here, and

ignoring more detailed accounts in Form 1-589

as well as testimony at an asylum hearing, the

INS seriously undermined the reliability of the

administrative process.

The Asylum Officer’s interview of Ms. Fiadjoe was

not conducted at the airport shortly after her arrival; it was

conducted on March 30, 2002, approximately nineteen days

later, at the York County Prison. Yet conditions similar to,

and in many ways worse than, those at an airport interview

prevailed. Ms. Fiadjoe was still in a state of shock resulting

from the devastating experiences prior to March 11. Ms.

Jansen described Ms. Fiadjoe’s emotional state which existed

at the time of the Asylum Officer’s interview and thereafter

until she had undergone counseling with Ms. Jansen:

In the aftermath of her fiancee’s murder, Ms.

Fiadjoe was in a state of shock. She reports

symptoms that are textbook acute psychological

trauma. Without significant training in trauma

psychology, she would be very unlikely to

falsely report those symptoms much less

describe them in the details as she and I have

discussed them.

Finding herself in a strange place before a male officer

it is not surprising that Ms. Fiadjoe would be unable to

discuss the shameful and taboo incidents of incestuous rape. 

In both her letters Ms. Jansen described Ms. Fiadjoe’s
52

emotional state when she first saw her and recounted that it

was not until Ms. Fiadjoe had engaged in a number of therapy

sessions that she was able to discuss fully, even with her,

sexual abuses which her father had committed. Completely

consistent with the INS Memorandum concerning

considerations for adjudicating claims of women, Ms. Jansen

wrote in her October 31, 2002 letter:

It is extraordinarily difficult for sexual abuse

victims to discuss specifics of their abuse

experiences. Given the extreme shame that

surrounds these issues in general they are

difficult for both men and women to discuss. 

With the addition of the cultural factors

surrounding Ms. Fiadjoe’s experiences in

particular, it should be of no surprise at all that

she would be reluctant to discuss these issues

with anyone, most specifically with a male or in

the presence of several males.

Asked on cross examination why she had not informed

the INS Officer about what had happened, Ms. Fiadjoe

responded, “About sexual aspects, my father sleeping with

me, I don’t feel comfortable telling people . . ..” The BIA

considered none of these factors when rendering its decision.

As discussed above, the inconsistency in Ms. Fiadjoe’s

statement to the Asylum Officer is all that is left that reflects

on Ms. Fiadjoe’s credibility. None of the other reasons given

by either the IJ or the BIA support an adverse credibility

determination. By placing reliance on this interview under

the circumstances in which it was taken and “ignoring more

detailed accounts in Form 1-589 as well as testimony at an

asylum hearing, the INS seriously undermined the reliability

of the administrative process.” Senathirajah, 157 F.3d at 218. 

Neither the IJ’s nor the BIA’s adverse credibility

determination is supported by substantial evidence.

D. Government Protection: Under 8 U.S.C.
53

§1158(b)(1), the Attorney General may grant asylum to an

alien who is a “refugee” within the meaning of 8 U.S.C.

§1101(a)(42). Generally speaking, an applicant must show

that he or she:

is unable or unwilling to return to, and is unable

or unwilling to avail himself or herself of the

protection of [the country of such person’s

nationality or in which such a person last

habitually resided], 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 . . .

8 U.S.C. §1101(a)(42)(A). A showing of past persecution

gives rise to a rebuttable presumption of a well-founded fear

of future persecution. 8 C.F.R. §1208. 13(b)(1).

To establish persecution, an alien must show past or

potential harm rising to the level of persecution on account of

a statutorily enumerated ground that is committed by the

government or by forces the government is unable or

unwilling to control. See Gao v. Ashcroft, 299 F.3d 266, 272

(3d Cir. 2002).

The BIA found that Ms. Fiadjoe’s claim for asylum

must be denied for failure to establish that the government of

Ghana was either unable or unwilling to control her father’s

ritual sexual abuse. The BIA’s evidential support for this

finding is set forth in its entirety in a bare six lines of its

decision:

The respondent never sought the help of the

authorities in Ghana (Tr. at 66). The respondent

claimed that her grandmother told the police of

the respondent’s being beaten but that she

declined to tell the authorities about the ritual

sex abuse due to shame (Tr. at 29. The

respondent submitted evidence that the

government of Ghana outlawed Trokosi practice
 The dissenting opinion concludes that we have failed to 5

accord proper deference to the BIA’s finding on the issue of

government protection in Ghana. The lengthy quotation from the

State Department’s 2000 Country Report on Human Rights Practices

in Ghana to which the dissent refers does in fact set forth efforts of

the government and human rights organizations to end the Trokosi

practice, but the concluding portion of the quotation recites how

ineffective the government efforts have been despite limited success

54

and ritual bondage in 1998 and that a nongovernmental organization has had success in

liberating, counseling, and rehabilitating past

victims of such bondage. (Exh. 6-5).

In the context of the record viewed in its entirety, these

two snippets of information, both of them inadequately stated,

do not constitute substantial evidence to support the BIA’s

finding that Ms. Fiadjoe has failed to establish that the

government of Ghana was either unable or unwilling to

control her father’s ritual sexual abuse. The BIA totally

ignored the evidence in the record that establishes the deep

hold that the Trokosi religion has upon substantial elements of

the Ghanian people. For example:

Appalled by the practice, some Ghanians have

broken the fearful silence which surrounds

Trokosi. But their calls for it to be banned have

had little impact on the centuries old tradition

which has the blessing of some of Ghana’s most

powerful man. Jerry Rawlings, the country’s

charismatic if not exactly democratic, president

- himself an Ewe - has spoken of Trokosi as an

important part of Ghana’s cultural heritage.

Booker, Slave of the Fetish, the Independent - London (June

16, 1996) (R. 363) .

5
by NGOs:

The 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” beliefs and practices.

A local group, calling itself the “Troxovi

Institutional Council” (Troxovi is an alternate

spelling for Trokosi) declared that Trokosi, as

defined by CHRAJ and other human rights

groups to be a form of ritual servitude, does

not exist in the country. The group claimed

that the practice of “Troxovi” does exist but

neither enslaves nor exploits anyone. The

Council also listed 23 ‘genuine Troxovi

shrines’ in Ghana, describing them as

educational institutions and as part of the

“Afrikania religion.” The claims were widely

refuted by chiefs, the press, and NGOs.

AR:343-44 (emphasis added)

55

Nor is it easy to escape from Trokosi slavery. 

Speaking of his slaves, one Trokosi priest stated, “Their

families wouldn’t take them back. They’re too afraid of

angering the fetish.”

The BIA was incorrect when it stated that “[t]he

respondent never sought the help of the authorities in Ghana.” 

Ms. Fiadjoe did seek such help through her grandmother who

twice sought assistance from the police. It is true, as the BIA

states, that the grandmother was too ashamed to mention the

sexual aspect of the abuse, but the record is replete with

evidence that the police would have done nothing even if they
 The dissent finds Fiadjoe’s hearing testimony vague 6

concerning what her grandmother told the police. When evaluating

Ms. Fiadjoe’s testimony it should be kept in mind that it was given

during a hearing at which the IJ treated Ms. Fiadjoe with total

insensitivity throughout, causing her to break down, become confused

and ultimately to become reduced to silence. The BIA majority took

no account of this factor.

56

had been informed of that aspect of the abuse .

6

The most recent State Department Report covering

Ghana shows how futile resort to the police would have been. 

Multiple pages are devoted to the brutality and corruption of

the police and their refusal to prosecute sensitive crime, as

Trokosi sexual practices certainly were, particularly in a

village inhabited by believers in the sect. The Report notes

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. 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.”

Ms. Fiadjoe’s own experiences demonstrate that where

a Trokosi slave is involved the police will not intervene. She

had to flee to another country to escape from her father,

where, unfortunately she was unable to stay. When she

obtained her own room from a landlord in her neighborhood,

her father so terrorized the landlord that he turned her out. 

Surely if the landlord had thought he could have obtained

appropriate protection for himself and his tenant he would

have turned to the public authorities. Similarly, when Ms.

Fiadjoe fled to Accra after Ahmed’s murder, her own mother

did not dare to take her in, nor did her Aunt Dela’s husband,
 These facts, along with much other evidence, totally negate 7

the BIA’s statement that “respondent implicitly admitted that she

could escape her father’s abuse by moving to an urban area.” It is

unnecessary to rule at this time that this finding also is not supported

by substantial evidence because the BIA only advanced it in a

hypothetical context.

57

nor did an old friend. The old friend was so frightened that

the father would suspect that Ms. Fiadjoe had come to him

that he removed her to a girlfriend’s house, of which the

father was presumably unaware, and assisted her in obtaining

a false passport for flight out of the country. If the authorities

were willing or able to protect this Trokosi slave none of this

flight and fear would have been necessary .

7

The BIA selected two facts set forth in the State

Department Report: i) “the government of Ghana outlawed

Trokosi practice and ritual bondage in 1998" and ii) “a nongovernmental organization has had success in liberating,

counseling, and rehabilitating past victims of such bondage.” 

(emphasis added). This selective use of the State Department

Report is misleading and does not constitute substantial

evidence.

In the first place, the BIA ignored other evidence in the

record demonstrating continuation of Trokosi slavery and the

government’s unwillingness and inability to end it. The State

Department Report itself confirms this continuation despite

the 1998 legislation that banned “‘customary servitude’

(known as Trokosi)”.

The Ghanian Constitution had for a long time

prohibited such practices. “Every person has a right to

personal liberty.” Art. 14. “No person shall be held in

slavery and servitude or be required to perform forced labor.” 

Art. 16. These provisions had had no effect on the Trokosi

cult. Similarly the 1998 legislation outlawing Trokosi has not

succeeded in eliminating Trokosi slavery. While it is true that
58

certain organizations have succeeded in liberating and

retraining approximately 2,800 Trokosi slaves, the 2001 State

Department Report confirms that the practice remains very

much alive:

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

woman 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
 In light of the disposition of the case it is unnecessary to 8

consider Ms. Fiadjoe’s petition seeking review of the BIA’s order

denying her motion to reconsider its June 6, 2003 opinion.

59

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.

Human rights organization are hopeful that ultimately

Trokosi practices can be stamped out, but they persist, and

Ms. Fiadjoe has to live in the present, not in a more hopeful

future. Pertinent to the fact that she can expect no help from

the government authorities is the following observation

contained in the State Department Report but not addressed

by the BIA: “The 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’ beliefs and practices.”

In light of Ms. Fiadjoe’s own experiences and the

documentary evidence in the record, we conclude that the

BIA’s finding that Ms. Fiadjoe failed to establish that the

government of Ghana was either unwilling or unable to

control her father’s sexual abuse is not supported by

substantial evidence .

8

IV. Conclusion

The adverse credibility determinations of the IJ and of

the BIA are not supported by substantial evidence, nor is the

BIA’s finding that Ms. Fiadjoe failed to establish that the

government of Ghana was either unwilling or unable to

control her father’s sexual abuse supported by substantial

evidence.

We will grant the petition for review and remand the

case to the BIA for further remand to a different IJ for a new
60

hearing at which there may be received in evidence the

documents that accompanied Ms. Fiadjoe’s motion before the

BIA for reconsideration of its June 6, 2003 decision and

evidence, if available, of continuing Trokosi practices and

governmental attempts to eradicate them and to protect

Trokosi victims.
61

Fiadjoe v. Ashcroft, Nos. 03-1971, 04-1544

SMITH, Circuit Judge, dissenting:

While I would like to conclude otherwise, the majority’s

approach to its review of the BIA’s findings concerning

government protection in Ghana is, in my view, inconsistent

with the deferential approach we are required to take in these

cases. Accordingly, I must dissent.

Ms. Fiajdoe’s is a tragic story. She does not present the

typical claim for asylum, in which a refugee seeks protection

from her native government or from forces acting on the

government’s behalf. Instead, she recounts a history of physical

and sexual abuse suffered at the hands of her father, allegedly in

connection with her father’s activities as a traditional “Trokosi”

priest. Though the grant of asylum has traditionally been used

to protect immigrants fleeing government persecution, our laws

are sensitive to the plight of individuals such as Ms. Fiadjoe. As

the majority explains, a private incident that rises to the level of

persecution can create eligibility for asylum when it is

committed “by forces the government is either unable or

unwilling to control.” Gao v. Ashcroft, 299 F.3d 266, 272 (3d

Cir. 2002). My difficulty with this case is that, try as I might, I

cannot say - as the law requires us to say if we are to reverse the
Shortly before oral argument the government filed a motion 9

indicating that Fiadjoe had left the United States and gone to Canada,

and requested that her appeal be dismissed on the basis of the fugitive

disentitlement doctrine. See Arana v. INS, 673 F.2d 75, 77 (3d Cir.

1982) (per curiam). Letter briefs filed after oral argument indicate

that, while Fiadjoe apparently remains in Canada, she informed DHS

through counsel that she has “self-deported,” and in response to this

information the government withdrew its motion to dismiss the

appeal. 

62

BIA - that “any reasonable adjudicator would be compelled to

conclude” that the Ghanaian government is unable or unwilling

to control her father. I cannot say that here because there is

what I consider to be ample evidence in the record to support the

BIA’s conclusion that, if the government had been informed of

what Fiadjoe claims her father did, it would have been willing

and able to control him. The majority sidesteps this evidence in

favor of other information that may cast doubt on the efficacy of

Ghana’s anti-Trokosi efforts, and holds that the presence of such

evidence compels an opposite conclusion than that reached by

the BIA. It is simply not our charge to do that.9

To establish eligibility for asylum on the basis of past

persecution, an applicant must show: “(1) an incident, or

incidents, that rise to the level of persecution; (2) that is ‘on

account of’ one of the statutorily protected grounds; and (3) is

committed by the government or forces the government is either

‘unable or unwilling’ to control.” Gao v. Ashcroft, 299 F.3d

266, 272 (3d Cir. 2002) (emphasis added). Whether an
63

applicant has demonstrated past persecution or a well-founded

fear of future persecution is a factual determination reviewed

under the substantial evidence standard. See id. Where an

applicant seeks asylum based on private violence, whether the

applicant’s native government is willing and able to control the

alleged persecutors is a component of the broader persecution

inquiry. Thus, we must review the BIA’s finding that Fiadjoe

failed to show that the government of Ghana was unable or

unwilling to control her father’s abuse in order to determine if

that finding is supported by substantial evidence.

In Dia v. Ashcroft, 353 F.3d 228 (3d Cir. 2003) (en

banc), we elaborated on the nature of substantial evidence

review of an asylum claim:

Thus, the question whether an agency

determination is supported by substantial

evidence is the same as the question whether a

reasonable fact finder could make such a

determination based upon the administrative

record. If a reasonable fact finder could make a

particular finding on the administrative record,

then the finding is supported by substantial

evidence. Conversely, if no reasonable fact finder

could make that finding on the administrative

record, the finding is not supported by substantial

evidence.
64

Dia, 353 F.3d at 249. We emphasized that our deference to the

agency’s findings is conditioned upon support in the record, and

we indicated that if the agency’s conclusion “is not based on a

specific, cogent reason, but instead, is based on speculation,

conjecture, or an otherwise unsupported personal opinion, we

will not uphold it because it will not have been supported by

such relevant evidence as a reasonable mind would find

adequate. In other words, it will not have been supported by

substantial evidence.” Id. at 249-50. 

The law requires applicants such as Ms. Fiadjoe to bear

the burden of proof of establishing her eligibility for asylum.

See Gao, 299 F.3d at 272; Abdille v. Ashcroft, 242 F.3d 477, 482

(3d Cir. 2001). The BIA found that Ms. Fiadjoe failed to carry

this burden with respect to a critical element of her claim,

namely, that she had experienced persecution by forces the

government of Ghana was either unwilling or unable to control.

Our task in reviewing the BIA’s finding is not to

determine whether we would have reached the same conclusion

in the first instance. To the contrary, “the substantial evidence

standard of review is extremely deferential, setting a ‘high

hurdle by permitting the reversal of factual findings only when

the record evidence would ‘compel’ a reasonable factfinder to

make a contrary determination.’” Chen v. Ashcroft, 376 F.3d

215, 223 (3d Cir. 2004). We have further explained that for a

petitioner to prevail on a challenge to the BIA’s factual findings

under the Immigration and Nationality Act (“INA”), “the
65

evidence [on the issue in question] must be so strong in [the

petitioner’s] favor that in a civil trial [the petitioner] would be

entitled to judgment on the . . . issue as a matter of law.” See

Chen, 376 F.3d at 222 (citing INS v. Elias-Zacarias, 502 U.S.

478, 481 n.1 (1992)). 

Under this standard, I believe that the majority has failed

to accord proper deference to the BIA’s findings on the issue of

government protection in Ghana. In concluding that Fiadjoe had

not met her burden of proof, the BIA stated:

The respondent never sought the help of the

authorities in Ghana. The respondent claimed

that her grandmother told the police of the

respondent’s being beaten but that she declined to

tell the authorities about the ritual sexual abuse

due to shame. The respondent submitted evidence

that the government of Ghana outlawed Trokosi

practice and ritual bondage in 1998 and that a

non-governmental organization has had success in

liberating, counseling, and rehabilitating past

victims of such bondage. Therefore, the

respondent has not shown that the government of

Ghana would be unwilling or unable to protect

her.

AR 74. The majority disagrees with the BIA’s conclusions, but
66

in so doing it fails adequately to address the record evidence

supporting the BIA’s findings and places disproportionate

emphasis on anecdotal statements culled from various portions

of the record. 

The majority quotes the description of Trokosi practices

contained in the State Department’s 2000 Country Report on

Human Rights Practices in Ghana, which was also part of the

record before the BIA. The paragraph immediately following

the excerpt quoted by the majority details Ghana’s anti-Trokosi

efforts:

In 1998 Parliament passed legislation that banned

the practice of Trokosi in comprehensive

legislation to protect women and children’s rights.

Human rights activists believe that the goal of

eradicating the Trokosi practice is achievable with

the new law. NGO’s such as International Needs,

and government agencies like the CHRAJ, have

been campaigning against Trokosi for several

years and are familiar with the locations of the

fetish shrines and the numbers of women and

children enslaved. Activists know the community

leaders and fetish priests and, thus, know with

whom to negotiate. The 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
67

date and retraining them for new professions. The

organizations continue to work for additional

releases. The 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” beliefs and practices. A local group,

calling itself the “Troxovi Institutional Council”

(Troxovi is an alternate spelling for Trokosi)

declared that Trokosi, as defined by CHRAJ and

other human rights groups to be a form of ritual

servitude, does not exist in the country. The

group claimed that the practice of “Troxovi” does

exist but neither enslaves nor exploits anyone.

The Council also listed 23 ‘genuine Troxovi

shrines’ in Ghana, describing them as educational

institutions and as part of the “Afrikania religion.”

These claims were widely refuted by chiefs, the

press, and NGOs.

AR:343-44.

In light of this discussion, it is unclear to me how the

majority can hold that no reasonable factfinder could conclude

that the government of Ghana would be willing and able to help

Fiadjoe. The fact that the Parliament passed comprehensive

legislation to protect women and children’s rights, and that the

practice of Trokosi was banned pursuant to this legislation,

certainly provides evidence that the Ghanaian authorities

recognized the existence and nature of Trokosi and were willing
68

to take steps to combat it. The report’s statement that “human

rights organizations believe that the goal of eradicating Trokosi

is achievable with the new law” also provides support for the

BIA’s conclusion that invoking the aid of Ghanaian authorities

would not have been futile. There is no basis in the record to

believe that these human rights organizations were offering

anything less than an honest assessment of the situation, and if

as of 2000 they reasonably believed Trokosi could be eradicated,

then it is not for this Court to suggest that the BIA acted

unreasonably in giving weight to their views.

The State Department report also recounts empirical

evidence in support of the view that the Ghanaian government’s

anti-Trokosi efforts were having significant success.

Specifically, Ghana’s Commission for Human Rights and

Administrative Justice (“CHRAJ”), working with an NGO, had

secured the release of approximately 2,800 Trokosi slaves and

retrained them for new professions. According to the State

Department report, the CHRAJ is an autonomous government

commission established pursuant to the Ghanaian constitution.

Thus, contrary to the implications of the majority opinion, the

State Department report indicates that Ghana’s anti-Trokosi

efforts were being implemented by a government agency acting

in partnership with various NGOs. According to that report, this

collaborative effort relied heavily upon negotiation rather than

direct confrontation as a means of aiding the victims of Trokosi

practices. By ignoring the CHRAJ initiative, the majority

dismisses the BIA’s findings concerning Ghana’s anti-Trokosi
69

efforts, and wrongly equates the absence of criminal prosecution

with an absence of effective aid for women threatened by

Trokosi practices.

The majority also challenges the significance of the State

Department’s description of Ghana’s anti-Trokosi efforts by

quoting a portion of the report that addresses in a more general

sense the problem of violence against women in Ghana.

However, the concluding sentences of the paragraph quoted by

the majority provide further support for the BIA’s conclusion

that Fiadjoe had not shown that the government of Ghana was

unwilling or unable to protect her. The report states that 1998

legislation doubled the mandatory sentence for rape, and that in

late 1998

the police administration established a ‘women

and juvenile unit’ to handle cases involving

domestic violence, child abuse, and juvenile

offenses. Located in Accra and Kumasi, the unit

works closely with the Department of Social

Welfare, FIDA, and the Legal Aid Board. During

the year, the Accra Branch of this unit recorded

over 530 cases, including 181 defilement cases,

35 rapes, 6 cases of incest, 17 indecent assualts,

86 instances of assault and wife battery, 6

abductions, and 200 neglect cases.
In assessing the BIA’s findings, the majority chastises the 10

BIA for failing to address a June 1996 London newspaper article

entitled “Slave of the Fetish.” This article was submitted by Fiadjoe’s

counsel during the proceedings below, and was part of the

administrative record before the BIA. However, this article predates

by several years Ghana’s anti-Trokosi efforts described in the 2000

State Department report discussed above, and it consists primarily of

ambiguous statements that shed little light on whether Fiadjoe had

met her burden of showing that the Ghanaian authorities were

unwilling or unable to protect her. 

70

AR:341-42. The majority does not recite this evidence,

although it was part of the record before the BIA. It reinforces

my view that under the deferential substantial evidence standard,

the record as a whole contains adequate support for the BIA’s

findings concerning the issue of government protection in

Ghana. 

10

The majority also argues that Fiadjoe’s own testimony

shows that the government of Ghana would have been unwilling

or unable to help Fiadjoe. I do not believe Fiadjoe’s testimony

concerning her grandmother can bear the weight the majority

places upon it. Fiadjoe’s affidavit and testimony are vague

concerning what Fiadjoe’s grandmother told the police, and the

details that were allegedly provided could have left the police

believing that Fiadjoe’s situation involved a family dispute

concerning excessive corporal punishment. 

Fiajdoe’s hearing testimony regarding this issue consists
71

of the following exchange:

Q. Okay, did you ever try to go to the police yourself

to tell them what was happening to you?

A. No.

Q. Why not?

A. Because of how they were telling my

grandmother.

Judge to Ms. Fiadjoe

Q. Because of what, ma’am?

A. Because they always tell my grandmother that

he’s discipline and my grandmother, I full of

shame to tell anybody my father is sleeping with

me.

AR:251. Fiadjoe’s affidavit submitted in support of her asylum

application contains slightly more detail:

14. My grandmother told the police about these

beatings. My grandmother told me the police

only said that ‘your father is just trying to

discipline you.’

15. In 1997 my grandmother went to the police after

my father had poured boiling water on me when

I refused to take his abuse. Again, the police said

this was a father’s right to discipline his children.
72

16. My [grand]mother did not tell the police that my

father was sexually abusing me. It would shame

our family and she could not do that.

AR:317-18. 

In my view, particularly in light of the record evidence of

Ghana’s anti-Trokosi efforts, the limited information contained

in Fiadjoe’s affidavit and hearing testimony cannot reasonably

be relied upon as determinative of what the Ghanaian authorities

would have done had they been informed of Fiadjoe’s father’s

Trokosi-related abuse. The majority acknowledges that the

Ghanaian authorities were never informed of “the sexual aspect

of the abuse,” but fails to acknowledge the significance of this

fact. The most that can be extracted from Fiadjoe’s affidavit

and testimony is that the local police failed to investigate when

her grandmother twice told them that Fiadjoe was being

physically abused by her father. However, Fiadjoe has not

sought asylum simply because she was a victim of child abuse.

Fiadjoe’s brief, consistent with the requirements of the INA,

argues that she was persecuted “on account of” her membership

in a particular social group, which she defines as “Ghanaian

women from the Ewe tribe in the Volta Region who have been

subjected to or face being subjected to the practice of Trokosi

and who oppose this practice.” See 8 U.S.C. § 1101(a)(42)(A).

Thus, it is specifically the sexual aspect of her father’s abuse,

combined with its ostensibly “religious” motivation, that has

permitted Fiadjoe to seek asylum as one who has suffered

persecution “on account of” a protected ground. It seems

anomalous to hold, as the majority does, that Fiadjoe’s native

government would not protect her from persecution inflicted “on

account of” her social group, when the Ghanaian government

was not informed of Fiadjoe’s membership in this social group
I share the majority’s concern with what appears from the 11

transcript to have been the unnecessarily hostile demeanor of the IJ

during Ms. Fiadjoe’s hearing. However, the record as a whole

supports the BIA’s decision to accord limited weight to Fiadjoe’s

account concerning the interaction between her grandmother and the

Ghanaian police. Ms. Fiadjoe’s affidavit, prepared in advance of the

hearing with the assistance of counsel, contains little detail

concerning the specific information given by her grandmother to the

Ghanaian police, and the affidavit acknowledges that the police were

never informed of the alleged ritual sexual abuse that is the basis of

Fiadjoe’s claim for asylum. 

The majority also recounts Fiadjoe’s testimony concerning 12

her unsuccessful efforts to relocate away from her father, and asserts

that “Ms. Fiadjoe’s own experiences demonstrate that where a

Trokosi slave is involved the police will not intervene.” Maj. Op. 52.

This statement on its face seems to me inconsistent with the

majority’s own acknowledgment that the Ghanaian authorities were

never informed that Fiadjoe was a “Trokosi slave.” 

73

or of the nature and extent of the abuse that has given rise to her

claim for asylum.11

Notwithstanding any shortcomings in Fiadjoe’s

testimony, I am willing to assume arguendo that a reasonable

factfinder could rely on this testimony to conclude that Ms.

Fiadjoe had shown that the government of Ghana was unwilling

or unable to protect her. The majority, however, holds that a

reasonable factfinder would be compelled to take this approach.

Based on all of the record evidence discussed above, I simply

cannot agree, and thus I believe it is inappropriate to invoke

Fiadjoe’s testimony as the basis for displacing the BIA’s

judgment with our own.12

Ms. Fiadjoe’s account rightfully evokes our sympathies,
74

and I would be less concerned with the majority’s approach if

we had the luxury of deciding each case based solely on our own

assessment of the facts underlying a petitioner’s claim.

However, that is not an approach we are permitted to take as an

appellate court reviewing agency action, and I am concerned by

the implications of the majority’s approach for future

immigration appeals. Our Court has little precedential authority

evaluating asylum claims based upon alleged private persecution

that a foreign government is purportedly unwilling or unable to

control. I fear the majority’s approach sets us down the wrong

path for reviewing these difficult issues. By emphasizing only

what it finds in the record to cast doubt on the effectiveness of

Ghana’s anti-Trokosi efforts, the majority overlooks or

discounts the record evidence to the contrary. This approach

risks a deluge of claims from applicants who have faced private

violence and who can argue that a lack of resources constrains

the effectiveness of law enforcement efforts in their native

countries. It also raises the troubling specter of frequent judicial

pronouncements condemning the law enforcement practices of

foreign governments, an outcome our highly deferential standard

of review is designed to avoid. 

In my view, the majority’s approach is effectively one of

de novo review. The law forbids us from substituting our

judgment for that of the BIA, and it provides no exception for

cases where the BIA has had to address whether a foreign

government would be willing and able to protect one of its own

citizens. 

I respectfully dissent. 
75