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Office of the Circuit Executive U.S. Court of Appeals for the Ninth Circuit  
Case Name:
Case Number: Date Filed: 
98-70565 12/11/00 



NIGIST SHOAFERA,                                      No. 98-70565
                                                     INS No.
v.                                                    A72 439 539
SERVICE,                                              AMENDED
Respondent.                                           DISSENT

On Petition for Review of an Order of the
Board of Immigration Appeals

Argued and Submitted
March 7, 2000--Pasadena, California

Filed September 7, 2000
Amended December 11, 2000

Before: J. Clifford Wallace, Harry Pregerson, and
Sidney R. Thomas, Circuit Judges.

Opinion by Judge Pregerson;
Dissent by Judge Wallace

Gary Silbiger, Silbiger & Honig, Los Angeles, California, for
the petitioner-appellant.

Ann V. Crowley and Paul Kovac, Office of Immigration Liti-
gation, Department of Justice, Washington, DC, for the

The dissent to the opinion filed September 7, 2000 is
amended as follows:

1. Page 1077, following "substitute for substantial evi-
dence," change Abovian cite to read:"219 F.32 972, 979
. . . ." and change Chanchavac cite to read: "207 F.3d 584,
590 n.4, 592 . . ."

2. Paragraph beginning "Even assuming the majority
. . . ," delete quote marks from sentence beginning "Again,
personal . . . standard." Additionally, change Abovian cite to
read "219 F.3d at 978-79."

3. Page 1078, line 3, Abovian cite should read "219 F.3d
at 978-79."

4. Page 1078, paragraph beginning "We presume that an
alien . . . . . Ante at 1073-74" should read "Ante at 1074-75."

PREGERSON, Circuit Judge:

Nigist Shoafera, a native and citizen of Ethiopia, petitions
this court for review of a final order of the Board of Immigra-


tion Appeals ("BIA") denying her request for asylum and
withholding of deportation. We have jurisdiction pursuant to
8 U.S.C. S 1105(a), as modified by the "transitional rules"
under the Illegal Immigration Reform and Immigrant Respon-
sibility Act of 1996 ("IIRIRA"). See Section 309(c)(4) of
IIRIRA. We grant the petition and remand for further pro-
ceedings consistent with this opinion.


Shoafera, a thirty-one-year-old citizen of Ethiopia, is of
Amharic ethnicity. She entered the United States on a visitor's
visa in January 1990. On February 1, 1992, Shoafera filed an
application for asylum and withholding of deportation. On
December 22, 1995, Shoafera was placed in deportation pro-
ceedings under an Order to Show Cause. Shoafera conceded
deportability at that time, but renewed her request for asylum
and withholding of deportation.

A merits hearing was held before an Immigration Judge
("IJ") on October 9, 1996. At the hearing, Shoafera testified
that she fears that she will be persecuted if she is returned to
Ethiopia. Shoafera explained that when she was in Ethiopia
she worked for a man named Hagos Belay, a Tigrean, who
held a high-ranking position in her kebele.1 One night, after
a meeting of the kebele, Belay forced Shoafera to go to a local
park where he beat her and raped her at gunpoint. After the
rape, Belay left Shoafera in the park. She was physically
unable to get up and walk home. Eventually, some people in
the park found Shoafera and took her to the hospital. At the
hospital, Shoafera was treated by Dr. Ethiopia Fikru. In sup-
port of her asylum claim, Shoafera submitted a medical report
from Dr. Fikru that corroborated her testimony that she had
been raped.
1 A "kebele" is a community based organization affiliated with the Ethi-
opian government. See Getachew v. INS, 25 F.3d 841, 843 (9th Cir. 1994).


The hospital called Shoafera's brother, Berhanu, and
informed him what had happened. Berhanu came to the hospi-
tal and Shoafera begged him to report the incident to the
police. Initially he refused because he feared that if he
reported the rape to the police, Belay would kill Shoafera. But
Shoafera felt strongly that the rape should be reported and she
convinced Berhanu to do so. The police arrested Belay, but
released him from jail after only one month. Belay did not
receive any further punishment.

Shoafera testified that she believed that Belay raped her
because of her Amharic ethnicity. During her hearing, the fol-
lowing exchange occurred:

      [Q.] Now, with regard to the rape, do you have any
      idea -- and I know this is a difficult question, but do
      you have any idea why Hagos Belay did this to you?

      [A.] I just -- He probably was attracted to me. I
      don't know.

      Q. Aside from the fact that he may have been
      attracted to you, can you think of any other circum-
      stances or factors that might have made you an eas-
      ier target for him, or someone who he felt he could
      do this to?

      A. `Cause I'm an Amhara. If I was a Tigrean he
      wouldn't do it.

Shoafera's sister, Fere Hiuwof, a lawful permanent resident of
the United States, also testified that Belay raped Shoafera
because of her Amharic ethnicity.

While Belay was in jail, Shoafera continued to live at home
in her kebele. But after the police released Belay, Shoafera
moved to a different kebele, where she stayed with a friend.
She testified that she did not feel safe in the other kebele


because she learned that Belay was looking for her. Shoafera
further testified that she did not believe that there was any
protection for her in any part of Ethiopia. She testified that
several months after Belay was released from police custody
she left Ethiopia and came to the United States.

Belay currently works for the Tigry-dominated Ethiopian
government. He is in charge of the kebele where Shoafera
used to live. Belay continues to look for Shoafera and remains
angry at her for reporting the rape to the police. Shoafera
stated in a declaration, "I am sure that Hagos Belay will do
any harm to me if he finds me in Ethiopia. His power now is
more than what he had under the Mengistu regime."

Additionally, Shoafera and her sister both testified that
Belay has used his political power and influence to keep
Shoafera's brother, Berhanu, in prison. Berhanu was impris-
oned in 1994 after attending a demonstration as a member of
the All Amhara Peoples Organization ("AAPO"). The Ethio-
pian government never tried Berhanu for his alleged crime.
Other AAPO members who attended the same demonstration
have been released from prison. Shoafera's other brother,
Nakati, also believes that Belay has used his political influ-
ence to ensure that Berhanu is not released from prison.

As part of the administrative record, Shoafera submitted
materials documenting the conditions in Ethiopia. One report
confirmed that rape remains a "pervasive social problem" in
Ethiopia. Another document, the 1995 State Department
Report on Ethiopia, noted that there is discord among various
ethnic groups in Ethiopia and that some Amharas "have died
in ethnic clashes." The State Department Report also
acknowledged that "[a]t various times in recent years, ethnic
clashes occurred in many parts of Ethiopia."

Despite the uncontested testimonial and documentary evi-
dence, the IJ ruled that Shoafera was not eligible for asylum.
In making his ruling, the IJ did not question Shoafera's credi-


bility. In fact, the IJ stated, "The Court certainly finds that the
respondent's claim and testimony is credible in regard to the
incident which occurred to her." But the IJ concluded that
Shoafera did not establish that Belay raped her on account of
her Amharic ethnicity. Instead, the IJ concluded that Belay
raped Shoafera because he was "a man who believed that he
had the authority and impunity to carry out his sexual depravi-
ties." The BIA affirmed the decision of the IJ, concluding that
"[a]lthough the respondent testified that she was raped
because of her Amharic ethnicity, she did not adequately sup-
port this assertion." Shoafera timely petitioned this court for
review of the BIA's final order.


Where the BIA conducts de novo review, as it did here,
"our review is limited to the BIA's decision, except to the
extent that the IJ's opinion is expressly adopted. " Garrovillas
v. INS, 156 F.3d 1010, 1013 (9th Cir. 1998)."We will uphold
the BIA's denial of asylum if it is supported by reasonable,
substantial and probative evidence in the record. " Velarde v.
INS, 140 F.3d 1305, 1309 (9th Cir. 1998) (citing INS v. Elias-
Zacarias, 502 U.S. 478, 481 (1992)). Although review is lim-
ited to the administrative record, "we will consider the record
as a whole, including evidence which contradicts the BIA's
findings." Id. We accept Shoafera's testimony as undisputed
because the IJ found her testimony credible and the BIA did
not disagree. See Maini v. INS, 212 F.3d 1167, 1173 (9th Cir.
2000); Reyes-Guerrero v. INS, 192 F.3d 1241, 1244 (9th Cir.

[1] To establish eligibility for asylum, an alien must show
that he or she is a refugee within the meaning of 8 U.S.C.
S 1101(a)(42)(A). To establish refugee status, Shoafera must
show that she is unable or unwilling to return to her home
country "because of persecution or a well-founded fear of per-
secution on account of race, religion, nationality, membership
in a particular social group, or political opinion. " Id. "A well-


founded fear of future persecution may be established by
proving either past persecution or `good reason' to fear future
persecution." Navas v. INS, 217 F.3d 646, 654 (9th Cir.

[2] "It is well-settled law of this circuit that eligibility for
asylum may be based on past persecution alone, even absent
a well-founded fear of future persecution." Lopez-Galarza v.
INS, 99 F.3d 954, 959 (9th Cir. 1996) (citations omitted).
"Persecution" is defined as " `the infliction of suffering or
harm upon those who differ (in race, religion or political opin-
ion) in a way regarded as offensive.' " Id. (quoting Prasad v.
INS, 47 F.3d 336, 339 (9th Cir. 1995)). It is clear that rape or
sexual assault "may constitute persecution." Id.; see also
Lazo-Majano v. INS, 813 F.2d 1432 (9th Cir. 1987), overruled
on other grounds by Fisher v. INS, 79 F.3d 955 (9th Cir.
1996) (en banc). Here, Shoafera established that she suffered
past persecution because she was raped by a government offi-
cial, Hagos Belay. Thus, the issue in this case is whether
Shoafera established that she was persecuted on account of
race, religion, nationality, membership in a particular social
group, or political opinion. See Lopez-Galarza , 99 F.3d at
958. To do so, Shoafera "must present some evidence, direct
or circumstantial, of the persecutor's motive." Id.

[3] Shoafera contends that she suffered persecution on
account of her Amhara ethnicity.2 Shoafera testified that
Belay raped her, "[c]ause I'm an Amhara. If I was a Tigrean
2 Throughout this opinion we use the term "ethnicity" to designate the
ground on account of which Shoafera was persecuted. In the past, this
court has used the term "race,"although slightly different in meaning, in
lieu of the term "ethnicity." See Duarte de Guinac v. INS, 179 F.3d 1156
(9th Cir. 1999). In this case, we choose to use the more precise term "eth-
nicity," rather than "race." As we explained in Duarte de Guinac, the term
"ethnicity" describes "a category which falls somewhere between and
within the protected grounds of `race' and `nationality.' " 179 F.3d at 1159


he wouldn't do it." Because Shoafera testified credibly,3 and
3 The record does not support the dissent's characterization of the IJ's
finding as a "partial adverse credibility determination." Rather, the record
indicates that the IJ believed Shoafera's testimony, but simply ruled that
she did not establish her eligibility for asylum.

Moreover, the law of this circuit does not permit implicit adverse credi-
bility determinations. See e.g. Stoyanov v. INS , 172 F.3d 731, 736 (9th Cir.
1999); Garrovillas, 156 F.3d at 1013; Lopez-Reyes v. INS, 79 F.3d 908,
911 (9th Cir. 1996); Osorio v. INS, 99 F.3d 928, 931 (9th Cir. 1996); Har-
tooni v. INS, 21 F.3d 336, 342 (9th Cir. 1994)); Artiga Turcios v. INS, 829
F.2d 720, 723 (9th Cir. 1987). As we explained in Canjura-Flores v. INS,
784 F.2d 885, 888-89 (9th Cir. 1985), without an adverse credibility find-
ing we accept a petitioner's testimony as credible because "[a]ny other
rule would put us in the position of second-guessing the credibility of the
petitioner on appeal when no doubts have been raised by the Immigration
Judge or the Board." Consequently, the IJ "must have `a legitimate
articulable basis to question the petitioner's credibility," and must express
"a specific, cogent reason for any stated disbelief.' " Garrovillas, 156 F.3d
at 1013 (emphasis added) (quoting Osorio). Indeed, any such reasons for
doubting a petitioner's credibility must be "substantial and must bear a
legitimate nexus to the finding." Id. (citation omitted); Akinmade v. INS,
196 F.3d 951, 954 (9th Cir. 1999); Turcios v. INS, 821 F.2d 1396, 1399
(9th Cir. 1987). "Generalized statements that do not identify specific
examples of evasiveness or contradiction in the petitioner's testimony" are
insufficient. Garrovillas, 156 F.3d at 1013.

Here, IJ did not state that Shoafera failed to testify credibly or was eva-
sive. In fact, at no time did the IJ indicate that Shoafera said or did any-
thing to suggest that she was not testifying credibly. Nor did the IJ find
that Shoafera's testimony was contradictory or that her demeanor indi-
cated that her testimony was not truthful. Rather, the only statement that
the IJ made about Shoafera's testimony was that he found it "credible."

The dissent quotes a statement made by the IJ and asserts that in the
statement the IJ found Shoafera's testimony about the motivations behind
the rape not credible. But a closer look at the statement reveals that the
dissent reaches to find an adverse credibility determination where there is
none. In the statement the IJ explains why, despite Shoafera's credible tes-
timony (and the testimony of her sister), he concludes that she did not
establish that she is eligible for asylum. It is clear that an IJ can believe
that an asylum applicant is credible and still determine that the applicant
did not prove that he or she is eligible for asylum. To quote the IJ:

      The Court, therefore has considered the alien's claims, and
      although finding the alien's claims certainly to be credible, i.e.,


the government failed to produce any contradictory evidence,
all facts testified by the Shoafera "must be taken as true."
Velarde, 140 F.3d at 1312. See also Ladha v. INS, 215 F.3d
889, 900 (9th Cir. 2000) ("when an alien credibly testified to
certain facts, those facts are deemed true"); Yazitchian v. INS,
207 F.3d 1164, 1168 (9th Cir. 2000) ("Because the immigra-
tion judge found [the petitioners'] testimony credible, and the
BIA did not make a contrary finding, we must accept as
undisputed the facts as petitioners testified to them.").

[4] As noted above, the IJ explicitly found that Shoafera's
testimony was "credible," but denied her claim for asylum
because he ruled that her "speculations and conclusions [did]
not prove her claim." At the hearing, the INS and the IJ had
the opportunity to question Shoafera to establish whether her
testimony that Belay raped her because she is an Amhara was
merely "speculation." Indeed, the relevant statute states that
an IJ "shall administer oaths, receive evidence, and interro-
gate, examine, and cross-examine the alien and any witness-
es." 8 U.S.C. S 1229a(b)(1). Moreover, we have recently
noted that "the duty of the immigration judge is analogous to
that of the administrative law judge in social security disabil-
ity cases" and thus, the IJ "has a duty to`fully and fairly
develop the record.' " Jacinto v. INS, 208 F.3d 725, 732-33
(9th Cir. 2000) (citations omitted). But neither the IJ nor the
INS elicited any testimony from Shoafera demonstrating that
the nature or basis for her testimony was questionable. A bald
assertion that Shoafera's credible testimony was "speculation"
is insufficient. Some evidence or support for that conclusion
must be offered.
      are not fabricated or exaggerated, are claims that do not meet the
      requirements of the law, i.e., are not based upon race, religion,
      nationality, political opinion, or membership in a particular social

(Emphasis added).


[5] Furthermore, we have repeatedly emphasized that "asy-
lum applicants are not required to produce documentary evi-
dence" to support their claims of persecution. See Aguilera-
Cota v. INS, 914 F.2d 1375, 1380 (9th Cir. 1990); accord
Velarde, 140 F.3d at 1310 n.5; McMullen v. INS, 658 F.2d
1312, 1319 (9th Cir. 1981) ("[I]t is difficult to imagine what
other forms of testimony the petitioner could present other
than his own statement."). We have also emphasized that
"[b]ecause asylum cases are inherently difficult to prove, an
applicant may establish his case through his [or her] own tes-
timony alone." Garrovillas, 156 F.3d at 1016-17; Sangha v.
INS, 103 F.3d 1482, 1487 (9th Cir. 1997) (citing Bolanos-
Hernandez v. INS, 767 F.2d 1277, 1285 (9th Cir. 1984)).
Accordingly, we conclude that Shoafera's uncontroverted and
credible testimony is sufficient to establish that she was perse-
cuted on account of ethnicity. See e.g., Molina v. INS, 170
F.3d 1247, 1250 (9th Cir. 1999); Garrovillas, 156 F.3d at
1016; Sangha, 103 F.3d at 1487; Lopez-Reyes, 79 F.3d at 912.

Moreover, we note that Shoafera's testimony was not with-
out corroboration. Her sister also testified that Belay raped
Shoafera because she is an Amhara. And Shoafera submitted
documentary evidence which verified the ongoing ethnic con-
flict in Ethiopia and established that Amharas are often targets
of such violence.

We acknowledge that Shoafera also said that Belay might
have raped her because he thought she was attractive. That
Belay might have had more than one motivation for raping
Shoafera does not in itself defeat her asylum claim. An en
banc panel of this court recently explained that"[a]n applicant
for asylum need not show conclusively why persecution
occurred in the past . . . . the applicant [simply] must produce
evidence from which it is reasonable to believe that the harm
was motivated, at least in part, by an actual or implied pro-
tected ground.' " Borja v. INS, 175 F.3d 732, 736 (9th Cir.
1999) (en banc) (emphasis added) (citation omitted); see also
Matter of Fuentes, 19 I&N Dec. 658, 662 (BIA 1988) ("an


applicant does not bear the unreasonable burden of establish-
ing the exact motivation of a `persecutor' where different rea-
sons for actions are possible"). Given the evidence in the
record, including Shoafera's credible testimony and the testi-
mony of her sister, we conclude that Shoafera was persecuted,
in part, because of her Amhara ethnicity.4  See Borja, 175 F.3d
at 736.

[6] A finding of past persecution triggers a regulatory pre-
sumption that the applicant has a well-founded fear of future
persecution. See Surita v. INS, 95 F.3d 814, 821 (9th Cir.
1996). To rebut this presumption, the INS must show,"by a
preponderance of the evidence, that `since the time the perse-
cution occurred conditions in the applicant's country . . . have
changed to such an extent that the applicant no longer has
a well-founded fear of being persecuted if . . .[she] were
to return.' " Singh v. Ilchert, 69 F.3d 375, 378 (9th Cir.
1995) (per curiam) (quoting 8 C.F.R. S 208.13(b)(1)(i)).
" `[I]ndividualized analysis' of how changed conditions will
affect the specific petitioner's situation is required. Informa-
tion about general changes in the country is not  sufficient."
Borja, 175 F.3d at 738 (emphasis added) (citation omitted).

[7] Because the BIA did not consider Shoafera's applica-
tion in light of the presumption created by past persecution,
see 8 C.F.R. S 208.13(b)(1)(i), we remand to the BIA so that
it may undertake that inquiry.5See Osorio, 99 F.3d at 933 (9th
4 Because we find that Shoafera established that she suffered past perse-
cution on account of ethnicity, we do not address the other claims raised
in her brief on appeal.
5 Remand is not necessary in all cases similar to the present one. See
e.g., Chand v. INS, available at 2000 WL 1056081 (9th Cir. Aug. 2, 2000)
("remand is not appropriate where the record clearly shows that the coun-
try conditions material in the record will not serve to rebut the presump-
tion"); Navas, 217 F.3d at 662 (remand is unnecessary where past
persecution has been established "but the INS has failed to introduce the
requisite country conditions information and thus has failed to meet its
evidentiary burden on that issue. . . ."); Yazitchian, 207 F.3d at 1169 (cit-


Cir. 1996). The BIA is confined to examining the existing
record to determine whether the INS has carried its burden of
rebutting the presumption. See Navas, 217 F.3d at 662 (noting
that the "INS is required to make a complete record during the
administrative proceedings.").


We conclude that Shoafera suffered past persecution on
account of ethnicity, thus triggering a regulatory presumption
that she is eligible for asylum. This presumption can be over-
come only by an individualized analysis of Shoafera's situa-
tion which demonstrates that changed conditions in Ethiopia
have eliminated the basis for her individual fear of future per-
secution. See Osorio, 99 F.3d at 933. We remand to the BIA
to determine whether the INS has produced sufficient evi-
dence to overcome the presumption in Shoafera's favor and
for such further proceedings as are necessary to determine
Shoafera's immigration status.

Petition GRANTED. REMANDED to the BIA for further

WALLACE, Circuit Judge, dissenting:

The majority concludes that we must accept as credible
Shoafera's testimony concerning Belay's motivation for rap-
ing her, and that Shoafera's testimony, together with her sister
Hiuwof's similar testimony, is substantial evidence that com-
pels reversal. I disagree with both conclusions and, therefore,
I dissent.
ing Duarte de Guinac, 179 F.3d at 1164) (remand is unnecessary "where
the country conditions evidence supports rather than controverts the peti-
tioner . . . ."). We remand in the present case because it is unclear whether
the country conditions in the record serve to rebut the presumption.


We review a determination of ineligibility for asylum for
substantial evidence. Marcu v. INS, 147 F.3d 1078, 1080 (9th
Cir. 1998). This standard is "extremely narrow " and "highly
deferential" to the immigration judge (IJ) and Board of Immi-
gration Appeals (Board). Id. As the majority concedes, we
will affirm the Board if its decision is "supported by reason-
able, substantial and probative evidence in the record." Ante
at 15810. Before we grant a petition for review and reverse
the Board, however, we must be convinced that the petition-
er's evidence not only supports, but compels reversal. INS v.
Elias-Zacarias, 502 U.S. 478, 481 & n.1 (1992). In words
Judge Pregerson has several times written for the court to
explain the substantial evidence standard, "conjecture is not a
substitute for substantial evidence." Abovian v. INS, 219 F.3d
972, 979 (9th Cir. 2000), (citation omitted); Chanchavac v.
INS, 207 F.3d 584, 590 n.4, 592 (9th Cir. 2000) (citation
omitted); Lopez-Reyes v. INS, 79 F.3d 908, 912 (9th Cir.
1996) (citation omitted).

To succeed in her asylum application, Shoafera has the bur-
den to prove, among other things, that she has a well-founded
fear of persecution on account of a protected group: race, reli-
gion, nationality, social group, or political opinion. Fisher v.
INS, 79 F.3d 955, 960 (9th Cir. 1996) (en banc).

Even assuming the majority is correct on what testimony
the IJ and the Board found to be credible, an issue I will
address later, I disagree with the majority's holding that
Shoafera's and Hiuwof's unsupported testimony is substantial
evidence that compels us to reverse the Board's decision. Pre-
senting credible evidence that one is entitled to asylum does
not mean one has put forward substantial evidence that one
is entitled to asylum. See Diaz-Escobar v. INS , 782 F.2d
1488, 1492 (9th Cir. 1986). In addition, to overturn the Board
before our court, an alien must establish that her evidence is
not only substantial but compelling. Elias-Zacarias, 502 U.S.
at 481 n.1. Again, personal speculation and conjecture is not


sufficient to satisfy the substantial evidence standard.
Abovian, 219 F.3d at 978-79.

During Shoafera's asylum hearing, she was asked why
Belay might have raped her. Her immediate response was: "I
just -- He probably was attracted to me. I don't know." Only
after her attorney coaxed her further with an open-ended
question did she opine that she was raped " `Cause I'm an
Amhara. If I was a Tigrean he wouldn't do it." She also stated
that Belay might have taken advantage of her because she was
vulnerable inasmuch as there were no men in her family, like
a father or a brother, who lived close enough to protect her.
Hiuwof, Shoafera's sister, who was not present during the
rape, also testified that Belay raped Shoafera because "she's
Amhara and he doesn't like her." Neither Shoafera nor Hiu-
wof provided any support for their assertion of Belay's ethnic
animus -- neither claim that he said anything to Shoafera
about her being an Amhara, or that he was notorious for tar-
geting Amharas, or that he committed other crimes or
offenses against Amharas. Cf. Kozulin v. INS, 218 F.3d
1112,1116 (9th Cir. 2000) (upholding Board's finding that
physical assault was not politically motivated, in part, because
"no evidence suggests that the attackers in any way expressed
their motivation").

Even if we were to accept Shoafera's statement that she
was raped because, among other reasons, she was an ethnic
Amhara, it does not necessarily follow that this is substantial,
much less compelling, evidence. The result of the majority's
holding would be that any alien who has been raped by some-
one of a different ethnicity could testify in a deportation pro-
ceeding that she was raped because of her ethnicity and,
without stating more, successfully rest her case. Such a result
stretches beyond logic the requirement that an asylum appli-
cant prove "by credible, direct, and specific evidence," that
she has a well-founded fear of persecution on account of her
membership in a protected group. Fisher, 79 F.3d at 960.


Of course, Shoafera may rely upon her own testimony.
Ante at 15814. However, her testimony must be more than
mere speculation for us to accept it as compelling evidence.
Abovian, 219 F.3d at 978-79. In cases involving rape or the
threat of rape in which we have granted an alien's petition for
review and reversed the Board, the alien presented more than
just her opinion as to motive. For instance, in Lazo-Majano
v. INS, 813 F.2d 1432 (9th Cir. 1987), overruled on other
grounds by Fisher, 79 F.3d at 963, the asylum applicant testi-
fied that her rapist (her employer) had told both her and others
at various times that he imputed to her a different political
opinion ("subversive") than his own. Id.  at 1433, 1435. Like-
wise, in Lopez-Galarza v. INS, 99 F.3d 954 (9th Cir. 1996),
it was clear that the asylum applicant, who was thought to
support the Nicaraguan Contras, had been raped, imprisoned,
and beaten by the Sandinista military because of her political
opinion: among other things, her persecutors told her so ver-
bally and painted "Death to the contras" on her family's
home. Id. at 957. The asylum applicant in Surita v. INS, 95
F.3d 814 (9th Cir. 1996), a citizen of Fiji of Indian descent
and Hindu religion, was told directly by her ethnic Fijian per-
secutors to return to India and to leave Fiji for ethnic Fijians;
additionally, ethnic Fijians desecrated the Hindu temple
where she worshiped. Id. at 818.

In these cases, the asylum applicants rested on more than
mere personal speculation as to the cause of their persecution.
They supported their assertions with at least some direct evi-
dence that their persecutors antagonized them because they
were a member of a protected class. Such support is utterly
lacking in Shoafera's case. She had the burden to prove a
nexus between her persecution and her membership in a pro-
tected class. Fisher, 79 F.3d at 960. She did not do so. The
majority cannot properly blame the IJ or the Immigration and
Naturalization Service for this deficit: the burden of proof
does not magically more away from Shoafera. To use the
majority's language, Shoafera "had the opportunity . . . to
establish [that] her testimony that Belay raped her because she


is an Amhara was [more than] mere `speculation.' " Ante at
15813. But her attorney did not question Shoafera further on
this issue. This demonstrates Shoafera failed to meet her bur-
den of proof.

The majority makes no attempt to explain why speculation,
even if credible, suffices for substantial evidence in this case.
Not only does this show we should not grant the petition, but
the issue becomes conclusive when we look more carefully at
the credibility issue. Therefore, I now turn to a discussion of
the majority's holding that we must assume Shoafera's testi-
mony to be credible.

We presume that an alien testified credibly when the IJ
does not make an adverse credibility finding. Ante at 15810.
However, it is well established that "deference must be given
`to the immigration judge's express and implied determina-
tion concerning credibility where the record supports this
finding.' " Diaz-Escobar, 782 F.2d at 1492, quoting Saballo-
Cortez v. INS, 761 F.2d 1259, 1266 (9th Cir. 1984). The
majority asserts that this circuit "does not permit implicit
adverse credibility determinations." Ante at 15812 n.3. The
majority's citations in support of this proposition do not spe-
cifically reject the notion of implied adverse credibility deter-
minations at all but merely state that credibility
determinations "must have a legitimate articulable basis to
question the petitioner's credibility, and must offer a specific,
cogent reason for any stated disbelief." Garrovillas v. INS,
156 F.3d 1010, 1013 (9th Cir. 1998) (quotations omitted). As
will be seen later, the IJ did have a basis for an implied
adverse credibility finding and did give a reason for the find-
ing. Our statement in Diaz-Escobar quoted above ("implied
determination") -- itself a quotation from Saballo-Cortez --
demonstrates the majority's error. Unfortunately, in its enthu-
siasm to reverse the Board, the majority establishes an unnec-
essary conflict in our case law. In Shoafera's case, the IJ
made a partial adverse credibility determination, which the
majority simply ignores.


The IJ commented on Shoafera's credibility in his oral
decision. Regarding her testimony that she was actually raped
and that she thought it might be because she was attractive,
the IJ stated:

      The Court certainly finds that the respondent's claim
      and testimony is credible in regard to the incidents
      which occurred to her. . . .

       The respondent's testimony is clear to the Court
      that this individual, i.e., her sexual attacker, was one
      who was attracted to her as a young attractive female
      without someone to protect or defend her and took
      advantage of her through his authority and govern-
      ment position [and] use of a weapon . . . .

However, fatal to Shoafera's asylum application, the IJ also
found her testimony concerning the ethnic motivations behind
the rape to be without credibility:

       The respondent's claim separately, however, is
      that because she is an Amharic; an ethnic minority,
      and at least associated or at least participated at one
      time with the [All Amhara People's Organization],
      that she would be facing what she believes is politi-
      cal persecution, again from this individual. The
      respondent's speculations, however, and they are the
      Court believes speculations and conclusions, do not
      eprove her claim. The evidence she presents and the
      facts she presents are one of personal vendetta and
      revenge. One of sexual advances and abuses by a
      man who believed that he had the authority and the
      impunity to carry out his own sexual depravities.

       They were unrelated, the Court believes, to any
      ethnic, let alone political activities of the individuals
      . . . .


I read this passage from the IJ's decision to be a finding that
Shoafera's testimony concerning Belay's ethnic motivations
was not credible. The Board made the same finding. As is evi-
dent from the full quotation of the IJ's statement, the basis for
his finding was the ample evidence Shoafera presented con-
cerning Belay's power and desire for personal revenge.

We should invoke the presumption in favor of credibility
only when there is no adverse credibility finding. But here,
there was an adverse credibility finding by both the IJ and the
Board. The majority simply ignores the fact that the IJ and the
Board made a partial adverse credibility finding and rejected
Shoafera's testimony regarding the ethnic motivations of her

Even a cursory review of the record shows ample support
for the Board's finding that Shoafera was targeted for per-
sonal and not ethnic reasons. In testimony the IJ regarded as
credible, Shoafera stated that she was raped because she was
attractive. She and Hiuwof testified that rape typically goes
unreported in Ethiopia for social reasons. Because of this fact,
Belay apparently assumed he would not be brought to justice.
When Shoafera insisted that her brother report the rape, Belay
was imprisoned for one month. Hiuwof opined that upon his
release, Belay was "mad" because he had been reported and
imprisoned, and that he sought revenge against Shoafera.
These facts paint a picture of a man of power who raped
Shoafera because she was vulnerable and attractive, not
because she was an Amhara; a man who sought revenge when
she had his crime reported to the authorities. The fact that
Shoafera's brother, jailed for participation in a pro-Amhara
demonstration in 1994, is still in jail, purportedly because of
Belay's influence, while many of the other Amhara demon-
strators have been released further supports a conclusion that
Belay seeks revenge against Shoafera because she reported
the rape, not because she is an Amhara.

Rape is not a ground for asylum. It becomes relevant only
in those cases in which it was done on account of membership


in a protected group. Lopez-Galarza, 99 F.3d at 959. I do not
feel compelled to reverse the Board's view that Shoafera
failed to prove that her rape was ethnically motivated. I would
deny the petition.


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