UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
YESHWARED WOLDEMESKEL,
Petitioner,
v. No. 00-9516
(INS No. A29-910-501)
IMMIGRATION & NATURALIZATION
SERVICE,
Respondent.
ORDER
Filed October 1, 2001
Before TACHA, Chief Judge, McKAY, and CUDAHY,(1) Circuit Judges.
This matter is before the court on Ms. Woldemeskel's petition for panel
rehearing and petition for rehearing en banc. Upon consideration, the petition
for rehearing is denied. The panel, however, has determined that the opinion
should be revised. The last full paragraph of Part II.C, which begins "We
emphasize that," is deleted from the opinion. A copy of the revised opinion is
attached to this order.
The petition for rehearing en banc was transmitted to all of the judges of
(1) Honorable Richard D. Cudahy, Senior Circuit Judge, United States Court
of Appeals for the Seventh Circuit, sitting by designation.
--------------------------------------------------------------------------------
the court who are in regular active service as required by Fed. R. App. P. 35.
As no member of the panel and no judge in regular active service on the court
requested that the court be polled, that petition is also denied.
Entered for the Court
PATRICK FISHER, Clerk of Court
by:
Deputy Clerk
--------------------------------------------------------------------------------
FILED
United States Court of Appeals
Tenth Circuit
JUL 25 2001
PATRICK FISHER
Clerk PUBLISH
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
YESHWARED WOLDEMESKEL,
Petitioner,
v. No. 00-9516
IMMIGRATION & NATURALIZATION
SERVICE,
Respondent.
ON REVIEW FROM AN ORDER OF THE BOARD OF
IMMIGRATION APPEALS
(INS No. A29-910-501)
Kenneth H. Stern (Stephanie Goldsborough, with him on the briefs), Stern &
Elkind, Denver, Colorado, for Petitioner.
Erin Albritton, Attorney, Office of Immigration Litigation, Civil Division
(David W. Ogden, Assistant Attorney General, Civil Division, and David V.
Bernal, Assistant Director, Office of Immigration Litigation, with her on the
brief), United States Department of Justice, Washington, DC, for Respondent.
Before TACHA, Chief Judge, McKAY, and CUDAHY,(1) Circuit Judges.
TACHA, Chief Judge.
(1) Honorable Richard D. Cudahy, Senior Circuit Judge, United States Court
of Appeals for the Seventh Circuit, sitting by designation.
--------------------------------------------------------------------------------
The petitioner appeals the Board of Immigration Appeals' order denying
her request for asylum and withholding of deportation and granting voluntary
departure. Exercising jurisdiction under 8 U.S.C. . 1105a(a) (1995),(1) we deny
the petition for review.
I. Background
The petitioner, Ms. Yeshwared Woldemeskel, is a native and citizen of
Ethiopia. In October 1992, she entered the United States on a temporary visa
authorizing a six-month stay. Because she stayed longer than authorized by her
visa, the Immigration and Naturalization Service (INS) instituted deportation
proceedings against her, after which Ms. Woldemeskel applied for asylum and
withholding of deportation claiming that she endured past persecution and
feared future persecution in Ethiopia because of her ethnicity and political
opinion. In August 1994, the immigration judge denied her request for asylum
and withholding of deportation and granted voluntary departure, concluding
Ms. Woldemeskel had not established statutory eligibility for asylum. In an order
dated May 15, 2000, the Board of Immigration Appeals (BIA) affirmed the
immigration judge's decision and this petition for review followed.
During the asylum proceedings, Ms. Woldemeskel claimed that she was
the victim of past persecution under the Mengistu regime and that she feared
future persecution under the Transitional Government of Ethiopia (TGE), which
replaced the Mengistu regime in 1991. In 1977, at the age of seventeen, the
Mengistu authorities allegedly arrested and imprisoned Ms. Woldemeskel for
twelve months because she was believed to be a member of a political
opposition group called the Ethiopian People's Revolutionary Party (EPRP).
Ms. Woldemeskel testified that, during her first two months of imprisonment,
she was threatened often with a gun and tortured by prison authorities who
gagged her, tied her upside down, and whipped and hit her. When released from
prison, authorities warned she would be arrested again if she worked with
individuals opposing the Mengistu government.
From 1978 to 1990, Ms. Woldemeskel does not claim to have suffered
further persecution. During this time, she married and had two children. In
1991, Ethiopia experienced a change in government with the election of the
TGE, a group dominated by leaders of Tigrean ethnicity who belonged to the
(1) In 1996, 8 U.S.C. 1105a was repealed by section 306(b) of the Illegal
Immigration Reform and Immigrant Responsibility Act (IIRIRA), Pub. L. No.
104-208, 110 Stat. 3009. IIRIRA dramatically changed the scope and nature of
judicial review in exclusion cases. But because the INS commenced
deportation proceedings against the petitioner before IIRIRA's effective date,
April 1, 1997, and the final deportation order was entered after October 31,
1996, our review is governed by the pre-IIRIRA rules as amended by IIRIRA's
transitional rules. See IIRIRA 306(c)(1), reprinted as amended in 8 U.S.C.
1252 note; IIRIRA 309(a), (c)(1) & (4), reprinted as amended in 8 U.S.C.
1101 note. Under the transitional rules, 1105a remains in effect but for
minor procedural amendments.
--------------------------------------------------------------------------------
Ethiopian People's Revolutionary Democratic Front (EPRDF), the political
group currently in power in Ethiopia. Ms. Woldemeskel claims the leaders
of the TGE targeted Ethiopians of Amhara ethnicity, asserting that she and her
husband were fired as a result of their Amhara heritage. In addition, she and
her husband were members of a political opposition group called the All
Amhara People's Organization (AAPO). Because her husband led a group
protesting the firing of Amharas, he was allegedly arrested by the TGE in 1992.
She claims that authorities then threatened to arrest her too if she did not stop
protesting her husband's arrest. Shortly thereafter she obtained an Ethiopian
passport and left the country. Because she was unable to obtain visas for her
children, she had to leave them in Ethiopia with a friend.
II. Asylum
A request for asylum involves two steps. First, the asylum applicant has
the burden of proving her statutory eligibility by establishing refugee status. 8
C.F.R. . 208.13(a)(2); Kapcia v. INS, 944 F.2d 702, 706 (10th Cir. 1991). In
order to establish refugee status, the applicant must demonstrate either past
"persecution or a well-founded fear of [future] persecution on account of race,
religion, nationality, membership in a particular social group, or political
opinion." 8 U.S.C. . 1101(a)(42)(A). Although persecution is not explicitly
(2) Citations to the C.F.R. are based on the current version of the
regulations. Although 8 C.F.R. 208.13 was recently amended, see 65 Fed.
Reg. 76121, 76133-34 (Dec. 6, 2000), it did not change the substance of the
provisions applicable to Ms. Woldemeskel. In order to minimize potential
confusion, we cite to the most recent version.
--------------------------------------------------------------------------------
defined, we have observed that it requires the "infliction of suffering or harm
upon those who differ (in race, religion, or political opinion) in a way regarded
as offensive" and requires "more than just restrictions or threats to life and
liberty." Baka v. INS, 963 F.2d 1376, 1379 (10th Cir. 1992) (internal
quotation marks omitted). Analysis of a claim specifically based on a "well-
founded fear of [future] persecution" includes both a subjective and an
objective component. Kapcia, 944 F.2d at 706. The applicant must first prove
an objective basis by "`credible, direct, and specific evidence in the record, of
facts that would support a reasonable fear that the petitioner faces
persecution.'" Id. at 706-07 (quoting Aguilera-Cota v. INS, 914 F.2d 1375,
1378 (9th Cir. 1990)); see also 8 C.F.R. . 208.13(b)(2)(i)(B) (applicant must
prove "reasonable possibility" of future persecution). If an objective basis
exists, the applicant must show her subjective fear is genuine. Id. at 706.
If the applicant proves her eligibility for refugee status, the Attorney
General then exercises discretionary judgment in either granting or denying
asylum. Id. at 708. In general, the Attorney General's discretion at this second
step in an asylum claim is "extremely broad." Id. But if an applicant
demonstrates statutory eligibility based on past persecution, a rebuttable
presumption of a reasonable fear of future persecution arises. 8 C.F.R. .
208.13(b)(1); Nazaraghaie v. INS, 102 F.3d 460, 462 (10th Cir. 1996). In
order to rebut the presumption in favor of the favorable exercise of discretion,
--------------------------------------------------------------------------------
the INS must prove by a preponderance of evidence that the petitioner no
longer has a well-founded fear of persecution because country conditions have
changed. 8 C.F.R. . 208.13(b)(1)(i)(A); Kapcia, 944 F.2d at 709.
Alternatively, "the immigration judge or [the BIA] may take administrative
notice of changed circumstances in appropriate cases, such as where the
government from which the threat of persecution arises has been removed from
power." Id. (internal quotation marks and emphasis omitted).
In addition, when an asylum applicant shows she experienced "past
persecution so severe that repatriation would be inhumane," she may be eligible
for a discretionary, humanitarian grant of asylum even when no future danger of
persecution exists. Baka, 963 F.2d at 1379. According to the relevant
regulation, a humanitarian grant of asylum is appropriate when the "applicant
has demonstrated compelling reasons for being unwilling or unable to return . .
. arising out of the severity of the past persecution." 8 C.F.R. .
208.13(b)(1)(iii)(A).
A. Standard of Review
We apply a substantial evidence standard to the BIA's resolution of the
first step of an asylum claimÄwhether an asylum applicant has established
refugee status: "The BIA's determination that [the applicant is] not eligible for
asylum must be upheld if `supported by reasonable, substantial, and probative
evidence on the record considered as a whole.' It can be reversed only if the
--------------------------------------------------------------------------------
evidence presented by [the applicant] was such that a reasonable factfinder
would have to conclude that the requisite fear of persecution existed." INS v.
Elias-Zacarias, 502 U.S. 478, 481 (1992) (internal citation omitted) (quoting 8
U.S.C. . 1105a(a)(4) (1995)). We will not, therefore, "weigh the evidence or .
. . evaluate the witnesses' credibility." Kapcia, 944 F.2d at 707 (internal
quotation marks omitted). At the second step of an asylum claim, which
requires the exercise of agency discretion, we review the BIA's decision for
abuse of discretion. Rezai v. INS, 62 F.3d 1286, 1289 (10th Cir. 1995).
Recognizing the BIA's broad discretion, we will not substitute our judgment for
that of the BIA, but do require a "rational connection between the facts found
and the choice made." Kapcia, 944 F.2d at 708 (internal quotation marks
omitted).
B. Eligibility for Asylum
Ms. Woldemeskel argues she is eligible for asylum under any of the
approaches discussed above: (1) humanitarian asylum based on past persecution
by the Mengistu regime; (2) asylum based on the rebuttable presumption
created by past persecution; and (3) asylum based on her well-founded fear of
persecution under the current government. The immigration judge
concludedÄand the BIA agreedÄthat Ms. Woldemeskel was not entitled to
asylum under any of these approaches. We agree.
1. Past Persecution
--------------------------------------------------------------------------------
Concerning her request for humanitarian asylum, the BIA did not abuse
its discretion in deciding that the past persecution was not severe enough to
warrant a grant of asylum on humanitarian grounds. Ms. Woldemeskel's
imprisonment under the Mengistu regime occurred several years ago.
Afterwards, she lived in Ethiopia for many years free from harassment or
discrimination. Hence, the record shows a rational connection between the
facts in this case and the BIA's finding that the imprisonment was not
sufficiently severe.
Because the BIA simply stated that the past persecution alone did not
compel a grant of asylum, Ms. Woldemeskel argues that the BIA abused its
discretion by not engaging in an individualized review of the evidence.
Although we may, of course, review the BIA's order for "procedural
regularity," we have recognized the BIA need not "write an exegesis on every
contention." Panrit v. INS, 19 F.3d 544, 545 (10th Cir. 1994) (internal
quotation marks omitted). Instead, the BIA must "consider the issues and
announce its decision in terms sufficient to enable us, as a reviewing court, to
perceive that it has heard and considered the arguments rather than merely
reacted." Id. Given the BIA's detailed recitation of facts and its
acknowledgment that much time has passed since Ms. Woldemeskel's ordeal,
we are satisfied that the BIA heard and considered all the evidence and
arguments. Moreover, we note the governing regulation explicitly requires that
--------------------------------------------------------------------------------
the asylum applicant "demonstrate[] compelling reasons" for her unwillingness
to return, 8 C.F.R. . 208.13(b)(1)(iii)(A), in order to be eligible for asylum on
humanitarian grounds. Although the BIA appears to have exercised its
discretion in denying her humanitarian claim, Ms. Woldemeskel has arguably
failed to establish her eligibility by asserting compelling reasons for her
unwillingness to return.
Ms. Woldemeskel also argues the INS failed to rebut the presumption of
future persecution created by the evidence of past persecution. This argument
clearly fails because the record contains considerable evidence that conditions
in Ethiopia changed with the 1991 transition in power. Furthermore, both the
immigration judge and the BIA acknowledged the 1991 change in government
and concomitant change in country conditions. The presumption was clearly
rebutted, shifting the burden back to Ms. Woldemeskel to prove she is eligible
for refugee status because of a well-founded fear of persecution under the
TGE, rather than the Mengistu regime.
2. Well-Founded Fear of Persecution
Ms. Woldemeskel may prove a well-founded fear of persecution based on
her Amhara ethnicity or political opinion in one of two ways: she may
demonstrate that she would be singled out personally for persecution in
Ethiopia, or she may show she has a reasonable fear of persecution because of
her membership in a group subject to "a pattern or practice of persecution." 8
--------------------------------------------------------------------------------
C.F.R. . 208.13(b)(2)(iii)(A)-(B). The group must consist "of persons
similarly situated to [her] on account of race, religion, nationality, membership
in a particular social group, or political opinion." Id. . 208.13(b)(2)(iii)(A).
The BIA concluded she failed to meet her burden of proof under either
approach and we agree. Although Ms. Woldemeskel may subjectively fear
future persecution in Ethiopia, she has failed to meet her burden in proving an
objectively reasonable fear of persecution should she return to Ethiopia.
The BIA concluded the record does not support a finding that Ms.
Woldemeskel is a member of a group currently subject to a pattern or practice
of persecution. We agree with the BIA's conclusion because, although the
record does show continued political unrest and ethnic conflict in Ethiopia, it
does not show that members of the AAPO or people of Amhara heritage are
subject to a pattern or practice of persecution. A pattern or practice of
persecution has been defined as "something on the order of organized or
systematic or pervasive persecution." Makonnen v. INS, 44 F.3d 1378, 1383
(8th Cir. 1995). The record contains evidence that the EPRDP, the
organization that controlled the TGE and that is now in power, may be
responsible for various human rights violations, including extra-judicial
killings and torture, but the evidence does not support the conclusion that
certain groups suffer systematic or pervasive persecution. Some evidence
demonstrates that the EPRDF has imprisoned and harassed members of
--------------------------------------------------------------------------------
political opposition groups and that faculty members of Amhara ethnicity have
been dismissed from the university. This evidence, however, does not support a
finding of systematic and pervasive persecution.
Moreover, Ms. Woldemeskel failed to prove she is similarly situated to
individuals currently targeted for harassment and discrimination. The evidence
shows that many, if not all, of the victims of harassment and intimidation are
AAPO leaders and outspoken activists. For example, the 1994 State Report on
Ethiopia's country conditions acknowledges that AAPO activists believed by
the TGE to advocate violence or insurrection are often arrested, but regular
AAPO members have not been targeted. Ms. Woldemeskel has failed to prove
that her position in the AAPO is similar to those previously targeted by the
government. See, e.g., Feleke v. INS, 118 F.3d 594, 598 (8th Cir. 1997)
(requiring asylum applicant prove that his position in a political opposition
group was similar to those members of the group subject to persecution).
In addition to finding that Ms. Woldemeskel is not similarly situated to
individuals undergoing persecution, the BIA also concluded the evidence failed
to support Ms. Woldemeskel's claim that she will be personally singled out for
persecution. Even if she and her husband were fired because of their ethnicity,
this fact alone does not constitute persecution. As both the immigration judge
and the BIA noted, governmental employees are often replaced when a new
administration takes office. Furthermore, we have recognized that termination
--------------------------------------------------------------------------------
of employment or fear of unemployment does notÄwithout moreÄsupport a
grant of asylum. Baka, 963 F.2d at 1379 (citing Zalega v. INS, 916 F.2d 1257,
1260 (7th Cir. 1990) (requiring substantial economic detriment to support
grant of asylum)). In addition, like the BIA, we need not address whether her
husband's political opinions will be imputed to Ms. Woldemeskel because the
evidence in the record does not show clearly that he was arrested based on his
political opinion and activism. In order to prove a well-founded fear of
persecution based on her political opinion, Ms. Woldemeskel had the burden of
proving she fears particularized persecution targeted at her personally. Instead,
the record only supports a finding that she may experience political alienation
because she disagrees with the government's policies. See Safaie v. INS, 25
F.3d 636, 640 (8th Cir. 1994) (noting that an asylum applicant's disagreement
with repressive governmental policies is insufficient to establish refugee
status).
In support of her argument that she has a well-founded fear of
individualized persecution, Ms. Woldemeskel challenges the BIA's refusal to
consider an allegedly official Ethiopian document, which orders her arrest for
her political involvement with the AAPO. She claims this document proves the
government will seek to arrest her upon her return. The immigration judge and
the BIA, however, did not consider the document because it was not
--------------------------------------------------------------------------------
authenticated according to regulation, see 8 C.F.R. . 287.6(a)-(b),(3) and its
timing and content raise doubts about its credibility. The document
conveniently surfaced as Ms. Woldemeskel was preparing her asylum
application, having last been in the possession of her brother. In addition, it
contains self-serving information totally unnecessary for authorization of an
arrest but useful in preparing an asylum application, such as details regarding
Ms. Woldemeskel's friend, her political activity, and her departure from
Ethiopia. We may not weigh the evidence, and we will not question the
immigration judge's or BIA's credibility determinations as long as they are
substantially reasonable. Given the document's timing and content, the BIA
reached a reasonable conclusion supported by substantial evidence. In short,
the record supports the BIA's decision that Ms. Woldemeskel did not meet her
burden in establishing a well-founded fear of persecution.
C. Administrative Notice
Ms. Woldemeskel argues that the BIA violated her Fifth Amendment right
to due process by taking administrative notice of three facts contained in the
State Department's 1999 Country Reports on Human Rights Practices and not
providing her with an opportunity to respond to these facts. Because of their
specialized knowledge in certain specific subject areas, administrative agencies
may "take notice of technical or scientific facts that are within the agency's
area of expertise." Llana-Castellon v. INS, 16 F.3d 1093, 1096 (10th Cir.
1994) (internal quotation marks omitted). It is well established that the BIA
"may take administrative notice of commonly acknowledged facts, which may
include current events bearing on an applicant's well-founded fear of
persecution." Kowalczyk v. INS, 245 F.3d 1143, 1147 (10th Cir. 2001)
(internal quotation marks omitted). In addition, the BIA "may draw reasonable
inferences from the evidence which comport with common sense." Kapcia,
944 F.2d at 705 (internal quotation marks omitted).
The BIA may not, however, base its decision primarily on facts not
contained in the record without providing asylum applicants with notice and the
opportunity to rebut inferences drawn from those facts. See id. 705-06;
Kowalczyk, 254 F.3d at 1147-48. We have repeatedly recognized that
individuals subject to deportation are entitled to procedural due process, which
provides an "`opportunity to be heard at a meaningful time and in a meaningful
(3) Because the BIA did not rely solely on her failure to follow the
regulation, we need not address Ms. Woldemeskel's argument that, under prior
BIA decisions, her failure to comply with the regulation's procedures does not
automatically invalidate the document. Similarly, we need not discuss her
argument that she did not have to comply with the regulation because both the
INS and the immigration judge conceded that a copy was sufficient. Even if the
document had been authenticated under the regulation, the immigration judge
and the BIA remained free to assess its credibility.
--------------------------------------------------------------------------------
manner.'" See, e.g., Llana-Castellon, 16 F.3d at 1096 (internal quotation marks
omitted) (quoting Mathews v. Eldridge, 424 U.S. 319, 333 (1976)).
In Ms. Woldemeskel's case, however, the BIA did not base its decision
on the administratively noticed facts, which at most merely supplement the
BIA's conclusion that "[t]here is no basis in the record upon which to conclude
that persons similarly situated as the respondent are persecuted in Ethiopia
simply on account of their Amhara ethnicity or their membership in the
AAPO." In re Woldemeskel, No. A29 910 501, at 2 (BIA May 15, 2000). As
we have already discussed, the record lacks evidence showing Ms.
Woldemeskel had a well-founded fear of persecution based on her AAPO
membership or Amhara ethnicity. Ms. Woldemeskel would first have to meet
her burden of proof before the three facts from the State Department report
would have any detrimental effect on her case.
Even if she had established statutory eligibility, the administratively
noticed facts would have little impact on her case. The first fact recognizes
the establishment in 1992 of a special prosecutor's office committed to
vindicating human rights violations under the Mengistu regimeÄa detail also
included in the record. The second fact simply recognizes that the EPRDF
formally replaced the TGE in 1995, a fact with little significance because both
parties acknowledge that the TGE was dominated by the EPRDF; hence, the
BIA's recognition of the 1995 transition is at most an acknowledgment that
country conditions today are similar to those under the TGE. The final fact
notes that political opposition parties are anticipated to participate in the May
2000 elections. We recognize that this is a misstatement of the 1999 report,
--------------------------------------------------------------------------------
which indicates that opposition parties are expected to protest. But although
this is a rather disconcerting error, the reality that opposition groups planned
to protest does not help Ms. Woldemeskel prove her case for asylum.
III. Withholding of Deportation
An asylum application also includes a request for withholding of
deportation, which the Attorney General must grant if the statutory criteria are
met. An applicant is entitled to withholding of deportation if the Attorney
General "determines that [the applicant's] life or freedom would be threatened .
. . on account of race, religion, nationality, membership in a particular social
group, or political opinion." 8 U.S.C. . 1253(h) (1994 & Supp. 1995). The
burden of proof for withholding of deportation is, however, significantly higher
than that for asylum. In order to demonstrate eligibility for withholding of
deportation, the applicant must establish a "clear probability of persecution"
through presentation of "evidence establishing that it is more likely than not
that [the applicant] would be subject to persecution on one of the specified
grounds." INS v. Stevic, 467 U.S. 407, 429-30 (1984). Because substantial
evidence supports the BIA's decision denying the asylum claim, Ms.
Woldemeskel clearly did not carry her burden of proof under the more
stringent standard required for withholding of deportation. See, e.g.,
Nazaraghaie, 102 F.3d at 465; Kapcia, 944 F.2d at 709.
We accordingly deny the petition for review and AFFIRM the BIA's
--------------------------------------------------------------------------------
decision to deny asylum and withholding of deportation and to grant voluntary
departure.
|
Add to del.icio.us