In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 04-1962

SELEMAWIT F. GIDAY,

Petitioner,

v.

ALBERTO R. GONZALES,

Respondent.

____________

Petition for Review of an Order

of the Board of Immigration Appeals.

No. A95-395-594

____________

ARGUED JANUARY 11, 2005—DECIDED JANUARY 5, 2006

____________

Before POSNER, MANION, and ROVNER, Circuit Judges.

ROVNER, Circuit Judge. Selemawit Giday requests

asylum in this country, claiming that the government of the

country of Eritrea, where she was born and raised, persecuted her due to her mixed Ethiopian and Eritrean ancestry. An immigration judge deemed her testimony not

credible and found, in the alternative, that she had failed to

establish that she met the criteria for refugee status. The

Board of Immigration Appeals (BIA) affirmed and adopted

the opinion below rejecting Giday’s appellate claim that the

immigration judge below had denied her due process of law.

Because, among other reasons, we find that the immigration judge’s credibility determinations were not supported
2 No. 04-1962

by cogent reasons bearing a legitimate nexus to the finding,

we reverse and remand this case for further proceedings.

I.

Giday’s tale of mixed ancestry is a familiar one. Having

been born and raised in Eritrea, Giday considers herself

Eritrean. During Eritrea’s conflict with Ethiopia, however,

Giday alleges, her partial Ethiopian ancestry (her mother

is Ethiopian and her father Eritrean) subjected her to

persecution by the Eritrean Government. Giday applied for

asylum on January 23, 2002, approximately six months

after arriving in the United States. The government

initiated removal proceedings on March 25, 2002. At her

removal hearing on May 22, 2002, she testified that she was

born in 1979 in Asmara, Eritrea to an Eritrean father and

an Ethiopian mother. After her father’s death in 1985, when

Giday was six, her Ethiopian mother supported Giday and

her two brothers by operating a restaurant in Asmara,

Eritrea. Giday performed one year and eight months’

mandatory service in the Eritrean national service in 1996,

and in June 1998, the national service provided her with an

identification card noting her Eritrean nationality.

In 1998, heavy fighting broke out between Ethiopia and

Eritrea. The government of Eritrea announced that people

of Ethiopian ancestry could no longer operate businesses

and had to leave the country. According to Giday, in May

1998, despite completing her earlier national service,

government officials again called her to serve. She explained to the national service officers that she was attending school and soon to be married. The government officers

told her, “when we need you, you should be able to go with

us.” She testified that she was able to avoid serving by

moving from her mother’s house to her fiance’s house

whenever she heard word that government officials were on

their way.
No. 04-1962 3

Giday further testified that on September 12, 1999, the

city police appeared at her Ethiopian mother’s restaurant

and ordered it closed. Within two weeks, the police, pursuant to an order by the Eritrean government, arrested

Giday’s mother and deported her to Ethiopia. Around the

same time, Giday’s brothers were conscripted into the

national service and Giday stated that she has not heard

from either her mother or brothers since that time.

In September 2000, the Eritrean government took Giday

into custody and placed her in a detention facility for

Ethiopians awaiting forced deportation. Giday initially

testified that she was detained because her mother was

Ethiopian and also because she had failed to serve in the

national service a second time. She later testified that she

was detained solely because of her Ethiopian ancestry. Her

written statement, attached to her application for asylum

does not identify specifically why she thought she was

detained but states only that after she was arrested, she

“was told that [she] would be deported and was placed in a

jail with other Eritreans of Ethiopian descent.” (R. at 210).

According to Giday, the detention center was crowded,

hot, dirty, and the officers permitted Giday and her fellow

detainees to use the bathroom facilities only two times a

day. While there, she had no opportunity to present her

case to a judge or otherwise to object to her detention and

deportation. Giday’s asylum application stated that she was

beaten there, although during her hearing she testified only

that she was “pushed around.” Two days before she was

scheduled for deportation, her husband—an Eritrean—

managed to secure her release by bribing prison guards.

Giday’s husband secreted her into a waiting car, across the

Sudanese border, and from there she entered the United

States. She claims she has never been to Ethiopia, does not

speak the language, and that she cannot return to Eritrea

because the Eritrean government stripped her of citizenship

when she was arrested and detained.
4 No. 04-1962

At the conclusion of her removal hearing, the immigration

judge found Giday’s testimony not credible. Even were it

credible, he continued, she failed to bear the burden of

demonstrating that she was a refugee—that is, that she had

faced past persecution or had a well-founded fear of future

persecution because of her mixed Ethiopian and Eritrean

ancestry. Consequently, he found her removable as charged,

denied her application for asylum, denied her application

for withholding of removal and protection under the

Convention Against Torture, and ordered her removal to

Eritrea. 

On appeal, the BIA adopted and affirmed the oral decision of the immigration judge and added its own findings

regarding her claim. The BIA stated that “[a]lthough the

respondent may have demonstrated that she experienced

past persecution, we take administrative notice of the fact

that conditions for most people of Ethiopian extraction have

changed substantially for the better in Eritrea since the

time of the respondent’s experiences there,” and found,

consequently, that the presumption of future persecution

had been rebutted. (R. at 2-3). In response to Giday’s claim

that the immigration judge had denied her due process with

his frequent interruptions and badgering cross-examination, the BIA found that the judge had been assertive, but

not offensive, and noted that Giday had made no record of

protest during the proceedings below.
No. 04-1962 5

II.

Where the BIA affirms and adopts an immigration judge’s

order, the decision of the immigration judge constitutes the

final agency determination for purposes of our review.

Hussain v. Gonzales, 424 F.3d 622, 626 (7th Cir. 2005). In

this case the BIA both affirmed and adopted the decision of

the immigration judge and appended to that determination

a ruling regarding Giday’s due process challenge and its

own statement regarding Giday’s credibility and likelihood

of future persecution. Consequently, we review both the

immigration judge’s decision and the additional reasoning

of the BIA. See Voci v. Gonzales, 409 F.3d 607, 612-13 (3d

Cir. 2005); Kataria v. INS, 232 F.3d 1107, 1112 (9th Cir.

2000). 

Giday argues first that the immigration judge violated

her right to due process when he engaged in abusive,

sarcastic, and overbearing cross-examination. His questions, she argues, inhibited direct examination and hindered her from testifying fully and accurately. The question

of whether an asylum hearing comported with the requirements of due process is purely a legal one which we review

de novo. Rodriguez Galicia v. Gonzales, 422 F.3d 529, 536

(7th Cir. 2005).

The Fifth Amendment entitles aliens to due process of

law in deportation proceedings. Reno v. Flores, 507 U.S.

292, 306 (1993). Due process requires that a court afford an

applicant a meaningful opportunity to be heard and a

reasonable opportunity to present evidence on her behalf.

Rodriguez Galicia, 422 F.3d at 538. Recently we had the

opportunity to consider what constitutes “a meaningful

opportunity to be heard,” and concluded that “we must

determine whether, given the totality of the circumstances,

the petitioner had a full and fair opportunity to put on her

case.” Id. at 538. In Rodriguez Galicia we expressed deep

concern when the immigration judge frequently interrupted

testimony, appeared to be hostile to the petitioner, and

engaged in active, “de-facto cross-examination” as though
6 No. 04-1962

1 Toward the end of the proceeding the immigration judge

interrupted his questioning to allow for a tape change. When the

transcript resumes the judge says, “[t]his is tape four . . . . The

Government’s attorney was questioning the respondent.” (R. at

106). The transcript, however, reveals no previous questions from

the government—leading us to believe that some portion of the

hearing was not recorded by tape or transcript.

he were counsel for the government rather than a neutral

arbiter. Id. at 539. See also Kerciku v. INS, 314 F.3d 913,

918 (7th Cir. 2003) (finding that an applicant’s due process

rights were violated where the judge continually interrupted testimony and took over questioning); Podio v. INS,

153 F.3d 506, 510-11 (7th Cir. 1998) (concluding that the

applicant was denied a fair hearing where the immigration

judge frequently interrupted and took over questioning).

The Rodriguez Galicia panel did not need to decide definitively whether the judge’s overly-active role in the presentation of the testimony denied the asylum applicant due

process of law, as the immigration judge had imposed other

barriers to testimony that made clear the due process

violation. Id.

Having reviewed the transcript of the hearing in Rodriguez Galicia, we note that the judge’s active questioning in

that case pales in comparison to the case before us now. In

this case the immigration judge asked Giday approximately

seventy-three questions. In comparison, her own attorney

asked her approximately eighty-seven questions (only about

14 more) and the government lawyer only four.1

 Of course

a large volume of questions alone does not create a due

process violation, but in this case the immigration judge

charged into the fray, cross-examining Giday about even the

most mundane facts of her life story. For example, within

the first few minutes of questioning the following confrontation occurred:

Q. by the immigration judge:
No. 04-1962 7

 . . . how old were you when your father died,

ma’am?

A. I was six years old.

Q. So, sometime around 1985?

A. I would say, yes. I don’t remember exactly, but I

was, I was very young at that time when he died.

Q. You were born in 1979, correct?

A. Yes, I was born in ‘79.

Q. So, if you were six years old, would that have

been sometime around 1985 when your father

died?

A. It could be. Yes, it could be that time.

Q. What do you mean it could be? Don’t you know

when your father died? 

A. At that time, I was six years old when he passed

away.

Q. So that would have been around 1985?

A. Yes.

(R. at 76).

We do not find it nearly as odd as the immigration judge

did that Giday might remember precisely how old she was

when her father died, but not have the capacity to do the

arithmetic to calculate what year he died. This is precisely

the type of insensitivity to cultural differences or educational abilities about which we expressed concern in Iao v.

Gonzales, 400 F.3d 530, 534 (7th Cir. 2005).

Of course we recognize that it is primarily the immigration judge’s province to evaluate evasiveness. Korniejew v.

Ashcroft, 371 F.3d 377, 386 (7th Cir. 2004). Nevertheless,

the transcript makes clear that at times, Giday was not
8 No. 04-1962

2 We note that the transcript of the hearing is filled with

examples of grammatical errors and awkward word choice

indicating the likelihood of a less than perfect translation from

Giday’s native Tigrean to English. Translation is a complex and

tiring task; errors are bound to occur even in the best of circumstances with the most competent translators. Errors cannot be

avoided, but immigration judges must be sensitive to the complexities of receiving testimony through a translator and take into

account these difficulties when assessing credibility.

purposefully evading questions, but rather the problem lay

in translation error.2

 For example, when the immigration

judge asked, “[h]ow do I know your mother is Ethiopian?”

the following exchange of non-sequiturs ensued: “They do

know her that she’s somehow popular, she owns a restaurant, and people knows her who comes to her restaurant.

And, even though, during referendum even if they give

them an identification or a right to vote, after that they

start to find out who is Ethiopian and who is Eritrean.” (R.

at 81). The judge responded, “Maybe they know, but how do

I know?” Id. Similarly, when Giday became flustered by a

confusing question, the judge simply gave up and found

Giday not credible:

Q by Judge. Ma’am, I have played the tape back, and

you definitely stated that the reason they

arrested you, because they told you your

mother was Ethiopian, and they said you

did not serve in the national army. You

heard the tape I played back for you,

didn’t you?

A. Yes, I did.

Q. Do you have an explanation why you said

that that wasn’t what was told to you?

A. Which one?

Judge to Giday’s counsel: 
No. 04-1962 9

Q. I’m not planning to ask any further questions on this issue, counsel. The respondent has failed to explain the inconsistent

testimony. 

(R. at 95-96).

We have previously given impatient and inappropriate

judges a pass on the theory that “[a]n immigration judge is

permitted to interrogate, examine, and cross-examine the

alien and any witnesses.” See Diallo v. Ashcroft, 381 F.3d

687, 701 (7th Cir. 2004), citing 8 U.S.C. § 1229a(b)(1). An

immigration judge, unlike an Article III judge, is not merely

the fact-finder and adjudicator but also has an obligation to

establish the record. Hasanaj v. Ashcroft, 385 F.3d 780, 783

(7th Cir. 2004). But when the questioning becomes so

aggressive that it frazzles applicants and nit-picks inconsistencies, any benefit that the barrage of questions contributes to the development of the record may be lost in the

distortion it creates. And by the end of the hearing, Giday

became so distraught that the immigration judge was forced

to pause the proceedings to give “the respondent a chance

to collect herself, since the respondent is emotional.” (R. at

114). This case presents a close call and one we need not

make, for in any case this matter must be remanded to

rectify issues with the immigration judge’s credibility

determinations. We note, however, that the volume of case

law addressing the issue of the intemperate, impatient, and

abrasive immigration judges should sound a warning bell to

the Department of Homeland Security that something is

amiss. Diallo, 381 F.3d at 701, Hasanaj, 385 F.3d at 783,

Kerciku, 314 F.3d at 918, Podio, 153 F.3d at 510. As we

have said before, an immigration judge, like any judge,

must display the “patience and decorum befitting a person

privileged with this position.” Diallo, 381 F.3d at 701.
10 No. 04-1962

3 Section 101(a)(3) of Title I of the REAL ID Act of 2005, 8 U.S.C.

§ 1158(b)(1)(B), contains new standards for credibility determinations in cases involving applications for asylum. These standards

apply only to applications made on or after May 11, 2005 (the date

of enactment). See id. Since Giday applied for asylum more than

three years prior to the effective date of the Act, the new standard

does not apply.

A. Credibility Determination

Although we may overlook the immigration judge’s

intemperate questioning, we cannot affirm his adverse

credibility finding. An immigration judge’s credibility

determinations are accorded substantial deference and

should only be overturned under extraordinary circumstances. Korniejew, 371 F.3d at 382. Although this standard

of review of an immigration judge’s credibility determination is highly deferential, “we will not automatically yield

to the immigration judge’s conclusions when they are drawn

from insufficient or incomplete evidence.” Rodriguez

Galicia, 422 F.3d at 537 (citing Georgis v. Ashcroft, 328 F.3d

962, 968 (7th Cir. 2003)); Tabaku v. Gonzales, 425 F.3d 417,

421 (7th Cir. 2005) (same). We cannot uphold credibility

assessments unmoored from the record, based on nothing

but the immigration judge’s personal speculation or conjecture. Tabaku, 425 F.3d at 421. Instead, credibility findings

must be based on specific cogent reasons that bear a

legitimate nexus to the finding and that go to the heart of

the applicant’s claim. Rodriguez Galicia, 422 F.3d at 537;

Tabaku, 425 F.3d at 421 (internal citations omitted).3

The immigration judge gave four reasons for his adverse

credibility determination. First and foremost, he expressed

concern about inconsistencies in Giday’s testimony regarding her second call to serve in the national service of Eritrea

in May 1998. According to the immigration judge, Giday

testified first that she was “given a pass not to serve”

because she was getting married and attending school. The

immigration judge claims that she then changed her story
No. 04-1962 11

to mislead the court into thinking that she had to hide from

the government in order to avoid service.

Even with our thumbs on the deference side of the scale,

we cannot submit to an immigration judge’s determination

of inconsistent testimony when the record does not support

the finding. According to Giday, after she had already

satisfied her obligation for mandatory national service in

1995, she was again summoned for national service in

May 1998. The record does not reveal whether representatives of the national service came to her home or summoned

her by telephone or mail, but when asked to serve again,

Giday responded that she could not serve because she was

soon to be married and also because she was attending

school (R. at 85). The representative of the national service

responded, “well, when we need you, you should be able to

go with us.” (R. at 89). From that point forward Giday

avoided national service by hiding from the call—moving

back and forth between her mother’s house and her fiance’s

house. (R. at 86) (“I have been in a sort of hiding. They

could not trace me where I am. Sometimes I go to my

fiance’s house, sometimes I stay where I am.”); (R. at 88)

(“Your Honor, I was using my time that sometimes I go to

my fiance’s house, sometimes I go to my mother’s house in

order to pass that time when they needed, when they called

people just to kill that time. That’s what I have been using

not to be caught by them.”); (R. at 89) (“that’s what I have

been doing not to be traced where I am, so I had two places

where they can’t catch me.”); (R. at 91) (“whenever I get

information that when they are ready to pick people or to

take people to national service, I go to my boyfriend’s house

to hide.”). 

The immigration judge seemed quite concerned that

representatives from the national service never came and

took her to serve forcibly. Giday’s testimony, however,

explains that on her first encounter with the government

officers she was informed that she would be conscripted and
12 No. 04-1962

that when she was needed she would have to serve. She

successfully avoided this future obligation by continuing to

hide. The immigration judge found Giday incredible because

she “attempted to have this Court believe that she was in

hiding for her refusal to serve in the army when in fact she

was allowed an excuse not to serve in the army after May

of 1998.” (R. at 47). We can find nowhere in the record

where Giday testified that she was granted a pass based on

her marriage and school excuse. In fact, she notes that in

response to her marriage and school excuse, she was told

simply, “when we need you, you should be able to go with

us.” (R. at 89). It is true that the government agents did not

forcibly conscript her the day that they came calling, (R. at

87) (“I told them what my situation is, and they didn’t force

me.”), but neither was she “allowed an excuse not to serve

in the army” as the immigration judge alleged. (R. at 47). In

response to the immigration judge’s multiple questions

about how she avoided the consequences of dodging the call,

she continually and consistently stated that she avoided

service by hiding. (R. at 86), (R. at 88),(R. at 89), (R. at 90)

& (R. at 91). 

This, of course, was not the immigration judge’s only

credibility concern. He also pointed out that when Giday

was questioned by counsel as to why she was arrested, she

stated, “They came and took me, because they say that my

mother’s Ethiopian, and I didn’t serve under the national

service, and they didn’t want me to be in Eritrea.” (R. at

93). Subsequently, Giday testified that she was arrested

because her mother was Ethiopian. (R. at 98). Although the

subject matter is material, the discrepancy is minor and

easily explained. Adverse credibility determinations should

not be based upon easily explained discrepancies

or perceived discrepancies. Korniejew v. Ashcroft, 371 F.3d

377, 387 (7th Cir. 2004). Nor should they be based on

matters that do not go to the heart of the asylum claim. Id.

at 383; Uwase v. Ashcroft, 349 F.3d 1039, 1043 (7th Cir.
No. 04-1962 13

2003). The confusion is easily explained by Giday’s later

testimony. When the police initially arrested Giday, she did

not know why they had seized her: “They didn’t explain to

me why they took me, but, after they took me to their, to

the station where the Ethiopians were arrested, and I told

them that I’m not an Ethiopian, and my father’s Eritrean,

and, also, I did serve my national service, why are you

taking me?” (R. at 97). And because she spent so much time

evading the second draft, her first conclusion may well have

been that she was being arrested for dodging the call to

service. When she arrived at the detention center, however,

she observed that it was filled with persons of Ethiopian

ancestry whom the government planned to deport to

Ethiopia. (R. at 98). It is error for an immigration judge to

find an asylum applicant not believable based on such a

minor and easily explained discrepancy. 

The third alleged inconsistency involves the amount of

time that Giday spent in detention. On her application for

asylum and withholding of removal Giday states that “[i]n

September 2000, while my husband was away at school, the

police came and arrested me. I was held for three weeks

while being abused and beaten by authorities.” During her

testimony in front of the immigration judge, Giday repeatedly talked about the two weeks she spent in the detention

center. (R. at 99) (“on [sic] my case I was told that in two

weeks I should be able to leave.”); (R. at 100) (Q. by Judge:

So, total, you were in detention camp for two weeks?” A.

“Yes.”). When the immigration judge confronted her with

the inconsistency between her written and oral testimony

her only explanation was that “[t]he right one is three

weeks. I was not getting the [sic] right. It wasn’t two

weeks.” (R. at 106). We agree that her answer is a bit

unsatisfying. After all, she had mentioned the time frame

of two weeks at several points in her testimony. Again,

however, the discrepancy is easily explained. Giday’s oral

testimony was actually that she was held for two weeks and

two days: 
14 No. 04-1962

•“After my being there for two weeks, after two weeks,

they told us that you guys will be leaving in two

days.” (R. at 100); 

•“[A]fter my two weeks detention, and after I learned

that they are going to take me in two days, then after

they told us, I was lucky enough that I was helped by

God and my husband.” Id.;

•“[A]fter that, I was arrested for two weeks, and after

that they told that we’ll be deported in two days.” (R.

at 104).

Because Giday was detained for more than two and less

than three weeks, it is not odd that she might report the

duration as either two weeks or three weeks. Thus this

discrepancy, like the previous one, is easily explained.

Korniejew, 371 F.3d at 387. And in any case, it simply is not

material. We think it unlikely that the BIA would have

granted a request for asylum based on a twenty-one day

detention but denied it for a sixteen or seventeen day

detention with identical facts. This irrelevant inconsistency,

therefore, cannot form the basis of an adverse credibility

determination. Rodriguez Galicia, 422 F.3d at 537.

Furthermore, Giday does not base her claim of past

persecution on her detention, but on her forced deportation

from Eritrea based on her Ethiopian ancestry. Her detention, whether two weeks or three weeks, is additional

evidence of Eritrean animus toward and hostile treatment

of Ethiopians, but it is her forced deportation that forms the

crux of her claim of past persecution. 

The immigration judge’s final credibility concern centered

around Giday’s treatment in the detention camp. Giday’s

asylum application narrative states that “I was held for

three weeks while being abused and beaten by police

authorities.” (R. at 210). She also states, the police officers

abused us verbally and physically, while we were held in a

very dirty cell.” Id. At her hearing, the immigration judge
No. 04-1962 15

4 As we noted earlier, the transcript in this case abounds with

grammatical errors and awkward word choice. Immigration

judges must consider the possibility of translation errors or

misunderstandings when the credibility determination hinges on

inconsistencies that could be explained by word choice expressing

matters of degree (e.g., in this case “beaten” or “pushed around”).

See Iao, 400 F.3d at 534 (noting a frequent insensitivity to the

possibility of misunderstandings caused by the use of translators

in immigration cases).

asked her to explain what happened during her two weeks

in the camp, and she answered,

Well, in that two weeks, the place was, it wasn’t very

good, there was no air conditioning, it was very hot,

and, also the police who were the guards who are using

very bad language. They were accusing us, and they

didn’t give me a chance to explain that I’m Eritrean.

And, also, the facility was not good. We would not have

a chance to go out, and we, the place was really dirty. 

(R. at 104). The judge later confronted her with her written

statement about being beaten and says, “[o]ne second. I will

give you a chance on the next tape to explain.” (R. at 106).

The transcript resumes without any further mention of the

inconsistent statement regarding the beatings. (See footnote

1, supra). The immigration judge’s oral decision and order

states, “[t]he respondent was given the opportunity to

explain once again the inconsistency, and the respondent’s

explanation was that she was pushed around in the detention camp.” (R. at 49). Due to the incomplete transcript we

cannot review this alleged inconsistency. Nor can we

determine whether the term “pushed around” is the immigration judge’s summary of Giday’s testimony or her own

words. In any case, an inconsistency between being “beaten”

and being “pushed around” is simply a matter of degree and

could easily arise due to translation error.4
16 No. 04-1962

Nevertheless, we cannot disturb a credibility determination simply because an alternate finding could also be

supported by substantial evidence. Capric v. Ashcroft, 355

F.3d 1075, 1086-87 (7th Cir. 2004). But even were we

convinced that the inconsistency between being “beaten”

and “pushed around” was material and consequential, it

seems unlikely that the immigration judge would make the

same credibility determination based on one inconsistency

rather than the four he originally noted. See Georgis v.

Ashcroft, 328 F.3d 962, 970 (7th Cir. 2003) (“having found

that the other five reasons given by the IJ for discrediting

[the applicant] are either unsupported by the evidence in

the record or based on incomplete or improperly excluded

evidence, we are not inclined to defer to his credibility

determination on this remaining sixth ground alone.”) In

short, the credibility determination in this case is not

supported by cogent reasons bearing a legitimate nexus to

the finding, and the matter must be remanded for a new

hearing.

B. Persecution 

Although the immigration judge disbelieved the bulk of

Giday’s testimony, he went on to consider whether she was

entitled to asylum assuming the truth of her claims. He

concluded that she was not. To establish such a claim,

Giday had the burden of proving that she was a refugee—

a person who has endured past persecution or has a wellfounded fear of future persecution based on one of the

statutorily protected categories, including, nationality. See

8 U.S.C. § 1101(a)(42)(A); Diallo, 381 F.3d at 697. The

statute presumes that an applicant who has endured past

persecution has a well-founded fear of future persecution—a presumption that the Department of Homeland

Security may rebut by demonstrating a change in circumstances or a reasonable ability on the applicant’s part to
No. 04-1962 17

5 As noted above, where the BIA affirms and adopts the decision

of the immigration judge, we review the immigration judge’s

order. In this case it is unclear whether the BIA affirmed and

adopted the immigration judge’s decision on past persecution or

made an alternate finding. The BIA’s order states, “Although

respondent may have demonstrated that she experienced past

persecution . . . we find that the presumption of future persecution

is rebutted and that the respondent does not have a well-founded

fear of persecution in her native land at this time.” (R. at 2-3). The

government argues that the BIA’s statement is a mere “alternative holding” and does not reflect any disagreement with the

immigration judge’s finding of no past persecution. The language

of the BIA order certainly suggests disagreement with the

immigration judge’s finding of no past persecution. Furthermore,

had the BIA meant merely to adopt and affirm the immigration

judge it would have had no reason to write further on the subject.

We need not resolve this minor issue, however, as the decision on

past persecution must be revisited by the immigration judge on

remand for the reasons we describe at length below.

relocate within the applicant’s country. 8 C.F.R.

§ 208.13(b)(1); Diallo, 381 F.3d at 697. The applicant who

fails to demonstrate that she has faced past persecution,

can still establish a genuine fear of future persecution

based on credible, direct, and specific evidence that a

reasonable person in the same circumstances would fear

persecution if returned. Hernandez-Baena v. Gonzales, 417

F.3d 720, 723 (7th Cir. 2005).

The immigration judge found that Giday failed to establish that she faced past persecution or that she had a wellfounded fear of persecution should she return to Eritrea.5

We must affirm the decision of the immigration judge 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), and reverse only

where the evidence is so compelling that a reasonable factfinder would be compelled to reach an opposite conclusion.
18 No. 04-1962

Diallo, 381 F.3d at 695. This expansive level of deference,

however, does not require or permit us to affirm unreasoned

decisions. Ioa, 400 F.3d at 535.

We recently considered a claim of past persecution in the

mirror image of this case involving two ethnic Eritreans

who had been stripped of citizenship by Ethiopia. In that

case the immigration judge below concluded that the

petitioners had not been subject to past persecution when

the Ethiopian government stripped them of their citizenship, reasoning that a sovereign country has a right to

determine who is or is not a citizen. Haile v. Gonzales, 421

F.3d 493, 494 (7th Cir. 2005) (citing Faddoul v. INS, 37

F.3d 185, 189 (5th Cir. 1994) and De Souza v. INS, 999 F.2d

1156, 1159 (7th Cir. 1993)). On appeal, this court challenged the reasoning of the immigration judge, noting the

distinction between denying citizenship to a non-citizen

resident and stripping a person of citizenship already

attained. Id. at 496. We further suggested that a program

of denationalization and deportation would indeed seem to

constitute persecution, but left that final determination to

the BIA whose job it is to determine the meaning of the

term persecution. Id. The immigration judge’s decision

below simply ignores Giday’s claim of past persecution in

the form of forced denationalization and examines, instead

only her detention and her claims of feared future persecution. 

In examining Giday’s fear of future persecution, the

immigration judge first focused on the arrest and deportation of Giday’s mother. “Attacks on family members,” he

concluded, “do not necessarily establish a well-founded fear

of persecution absent a pattern of persecution tied to the

petitioner.” (R. at 52). Although this is an accurate statement of the law, it simply does not apply in Giday’s case.

Giday is not making a claim of derivative persecution, but

of direct past persecution. According to her story, Giday

herself was detained and threatened with deportation. And
No. 04-1962 19

but for her husband’s bold attempts to bribe the detention

camp guards, Giday would have been stripped of her

Eritrean citizenship and deported to Ethiopia. Her mother’s

adversity merely serves as evidence of the fact that Eritrea

was indeed deporting persons of Ethiopian nationality. In

discussing whether Giday’s story of detention and threatened deportation constitutes past persecution, the immigration judge made the odd observation that “the respondent

was able to leave detention after her husband bribed

officials.” It would be illogical indeed to deny asylum to the

refugee who narrowly escaped persecution, particularly

where escape came only by bribing corrupt, rogue government officers. It is an error of law to assume that an

applicant cannot be entitled to asylum if she has demonstrated the ability to escape persecution only by chance or

by trying to remain undetected. See, e.g., Muhur v. Ashcroft,

355 F.3d 958, 960 (7th Cir. 2004) (it is a clear error of law,

that one is not entitled to claim asylum on the basis of

religious persecution if one can escape the notice of the

persecutors by concealing one’s religion). There is no

guarantee that, should Giday return to Eritrea and be

threatened with deportation again, she will again be so

lucky to be detained by police officers amenable to pay-offs.

See, e.g., Garcia-Ramos v. INS, 775 F.2d 1370, 1374 (9th

Cir. 1985) (when an applicant “obtained his passport by

paying a bribe to a government official: his ability to obtain

a passport may have little or no relevance to his claim of

possible persecution.”)

Equally strange is the immigration judge’s notion that

Giday’s mandated service in the Eritrean army was evidence not only of the fact that Giday was considered a

citizen of Eritrea, but also that the government of Eritrea

somehow conferred benefits of citizenship upon her. The

immigration judge wrote, “[t]he respondent was considered

Eritrean enough that she was serving in the Eritrean Army

in 1995. The evidence reflects that this respondent has been
20 No. 04-1962

allowed to have all of the benefits as a national of Eritrea.”

(R. at 53). Giday would be shocked, we think, to learn that

her compelled national service was somehow a benefit of

citizenship. And in any case, the service to which the

immigration judge referred occurred in 1995— before the

major conflict erupted between Ethiopia and Eritrea. (R. at

138). As for the government’s attempts to compel her to

perform a second round of service in 1999, we do not

understand how compelled national service offers any

indicia of citizenship. In this country, for example, all male

persons between the ages of eighteen and twenty-six

residing in the United States, whether citizens or not, must

register with the selective service (although an exception is

made for aliens admitted as non-immigrants). 50 U.S.C.A.

app.§ 453. Resident aliens were drafted alongside United

States citizens during the Vietnam War. See Dunn v. INS,

419 U.S. 919, 921-22 (1974) (Stewart, J., dissenting from

denial of certiorari.) At times, various government regimes

have used the draft to persecute hated ethnic minorities by

sending them into battle unprepared or in the most hazardous of positions. Miljkovic v. Ashcroft, 376 F.3d 754, 756

(7th Cir. 2004). The immigration judge’s statement that “it

is well-settled that forced recruitment into the military and

prosecution for refusal to serve in the military are not

considered persecution” paints the legal landscape with too

broad a stroke. (R. at 54). Giday did not appear to argue

that she was singled out for service based on her Ethiopian

nationality, although her testimony that her brothers

disappeared after being drafted certainly raises the question of whether national service was particularly dangerous

or deadly for those of Ethiopian descent. In any case,

Giday’s claim of forced conscription is again backdrop for

her primary claim of past persecution—forced denationalization and deportation, a claim largely ignored by the

immigration judge below. 

This case, like our recent decision in Haile, demands a

remand not only to correct errors in the credibility determi-
No. 04-1962 21

6 We take judicial notice of the country conditions as they exist

currently. Medhin v. Ashcroft, 350 F.3d 685, 690 (7th Cir. 2003)

(taking judicial notice of current state department country report);

Dobrota v. INS, 195 F.3d 970, 973 (7th Cir. 1999) (taking judicial

notice of the State Department’s most recent country report on

Romania).

nations described above, but also for additional consideration of whether Giday’s threatened deportation constitutes

past persecution.

As for Giday’s well-founded fear of future persecution, the

BIA found that the government had successfully rebutted

any claim of a well-founded fear of future persecution by

demonstrating that the conditions in Eritrea had improved

substantially for people of Ethiopian extraction. (R. at 2).

Although the conditions for Ethiopians certainly have

improved since Giday escaped in 2000, according to the

State Department’s 2004 Country Report on human rights

in Eritrea (hereinafter “2004 Report”), Eritrea’s human

rights record remains poor.6

 Ethiopian nationals clearly face

continued human rights abuses in Eritrea. The government

singles them out for arrest when they are unable to renew

their residency permits every six months and they continue

to be detained in unknown numbers. 2004 Report at § 1(d).

They are still prohibited from living in certain provinces of

the Country. Id. at § 2(d) The Government continues to

repatriate Ethiopians to Ethiopia although the State

Department Report claims these repatriations—549 in

2003—are “voluntary.” Id. Even if Giday is still considered

an Eritrean National, it is uncertain whether she will be

allowed to return, as citizens who have been declared

ineligible for political asylum by another government may

not be permitted to return to Eritrea. Id. Furthermore, it is

unclear whether citizens who left without exit visas (as

Giday did) would be permitted to return without consequences. Id.
22 No. 04-1962

In particular to Giday, the government continues to

authorize the use of deadly force and torture against draft

evaders and deserters—including prolonged sun exposure

in temperatures up to 133 degrees Fahrenheit or the

binding of hands, elbows, and feet for extended periods of

time, and detention in conditions so dismal as to create

mental and physical stress. Id. at § 1(a),(c). Although it

might be true that sovereign governments do not engage in

persecution when they draft citizens in order to raise

armies or when they punish citizens for avoiding conscription (See Tesfu v. Ashcroft, 322 F.3d 477, 482 (7th Cir.

2003)), they are not given a free pass to torture and kill

citizens as a form of such punishment. Although the

Country Report states that efforts to detain women draft

evaders have generally decreased in 2003, there is no

evidence that they have ceased.

III.

On remand, the immigration judge will need to consider

the most recent version of the Country Report to determine

whether, in fact, Giday’s fear of future persecution should

be allayed. Then too, will the immigration judge be able to

re-assess the probability of persecution as required for a

determination on Giday’s request for withholding of removal and Convention Against Torture relief.

This matter is REVERSED and REMANDED for proceedings

consistent with this opinion.
No. 04-1962 23

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—1-5-06