Fasseha v. INS

• Court: Court of Appeals for the Tenth Circuit
• Decided: August 30, 1999
• Docket: 98-9537
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS AUG 30 1999 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk

RAY YOHANNES FESSEHA,

Petitioner,

v. No. 98-9537 (BIA No. A74-276-407) IMMIGRATION & (Petition for Review) NATURALIZATION SERVICE; JANET RENO, Attorney General of the United States,

Respondents.

ORDER AND JUDGMENT *

Before PORFILIO , BARRETT , and HENRY , Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. this petition for review. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The

case is therefore ordered submitted without oral argument.

Ray Yohannes Fesseha filed this petition for review of the decision of the

Immigration and Naturalization Service (INS) that he is not eligible for political

asylum or withholding of deportation. Following review of the administrative

record and consideration of the parties’ arguments, we conclude that the INS was

correct and deny review.

Petitioner arrived in the United States on July 30, 1990, as a nonimmigrant

visitor for pleasure. He obtained a nonimmigrant student visa on February 22,

1991. On September 25, 1995, the INS served petitioner with an order to show

cause as to why he should not be deported for failing to comply with the

requirements of his student visa. Petitioner conceded deportability, but sought

asylum, withholding of deportation, and voluntary departure. Following an

evidentiary hearing, the immigration judge (IJ) denied petitioner’s application for

asylum and withholding of deportation, but granted his request for voluntary

departure. On August 31, 1998, the Board of Immigration Appeals (BIA)

dismissed petitioner’s appeal of the IJ’s decision. 1

1 8 U.S.C. § 1105a was repealed by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub.L. No. 104-208, Div. C. Title III, § 306(b), 110 Stat. 3009. IIRIRA alters the availability, scope, and nature of judicial review in INS cases. The repeal of § 1105a is not effective in (continued...)

-2- The Attorney General has discretion to grant asylum to an otherwise

deportable alien who qualifies as a “refugee” within the meaning of 8 U.S.C. §

1101(a)(42)(A). In order to qualify for a grant of asylum, an alien must first

establish that he is eligible for refugee status. See Kapcia v. INS , 944 F.2d 702,

706 (10th Cir. 1991). If the alien establishes his status as a refugee, the Attorney

General must then exercise her discretion to grant or deny asylum. See id. at 708.

In order to establish refugee status, an alien must present specific facts

establishing either that he previously was persecuted in his native country or that

he has a genuine and reasonable fear of being persecuted if he returns there. See

id. at 707. The persecution the alien experienced or fears must be “on account of

race, religion, nationality, membership in a particular social group, or political

opinion.” 8 U.S.C. § 1101(a)(42). If the alien succeeds in establishing that he

was the victim of past persecution, a presumption of genuine and reasonable fear

of future persecution arises which the INS can rebut only by showing that

conditions within the country have changed, and therefore, the alien’s fear is no

longer reasonable. See Nazaraghaie v. INS , 102 F.3d 460, 462 (10th Cir. 1996).

1 (...continued) this case. See id. § 1101 Effective dates. Pub.L. No. 104-208, Div. C, § 309 (petitioner’s deportation proceedings commenced before April 1, 1997, and the agency’s final order was filed more than thirty days after IIRIRA’s date of enactment). Thus, the transitional rules apply to this case.

-3- To be eligible for withholding of deportation, an applicant must satisfy a

higher standard than that for asylum. “[T]he alien must demonstrate a clear

probability of persecution with objective evidence that it is more likely than not

that . . . [the alien] will be subject to persecution upon deportation.” Baka v. INS ,

963 F.2d 1376, 1380 (10th Cir. 1992) (quotations omitted). Because the asylum

standard is more lenient than that applied to withholding of deportation, we will

first consider whether the BIA erred in denying petitioner asylum.

Petitioner asserts that he fears returning to Ethiopia because of his

relationship to former officials of the Dergue government, his membership in the

Amhara tribe, his prior status as a member of the privileged class, and his

association with President Mengistu Haile Mariam’s son. Petitioner asserts that

his parents were high ranking officials in the Dergue government led by

Mengistu. According to petitioner, his family enjoyed wealth and privilege, and

he attended private school with Mengistu’s son. When petitioner was fourteen

years old, and it appeared that the Dergue government would topple, petitioner’s

parents sent him to an uncle in the United States. Petitioner asserts that his

parents disappeared before they could leave the country and have never been

heard from again. He asserts that members of the former Dergue government

have been arrested, persecuted, and killed by the current Ethiopian government.

Petitioner’s family believes this is the fate of his parents, and he believes that, as

-4- the child of former officials of the Dergue government, he would face the same if

he returned to Ethiopia. Moreover, he asserts that the new government’s

vengeance has spread to members of the Amhara ethnic group which comprised a

majority of the Dergue government.

In denying petitioner’s application, the IJ concluded that petitioner failed to

meet his burden of proof by failing to provide any evidence of his parents’

position in the Mengistu government, or evidence that the current Ethiopian

government is persecuting families of former officials of the Mengistu

government. The BIA agreed that petitioner had not presented any evidence

which would indicate a pattern or practice of persecution against former members

of the Mengistu regime. Moreover, the BIA determined that even if petitioner

had been the victim of past persecution, the evidence established that conditions

in Ethiopia had changed, thus rebutting the presumption that petitioner would be

persecuted upon his return.

Because the BIA reviews the IJ’s order de novo, we review only the

decision of the BIA and not that of the IJ. See Luna-Rodriguez v. INS , 104 F.3d

313, 315 (10th Cir. 1997). We review the BIA’s decision on issues of law de

novo, and its factual findings for substantial evidence. See Refahiyat v. INS , 29

F.3d 553, 556 (10th Cir. 1994). “[T]he administrative findings of fact are

conclusive unless any reasonable adjudicator would be compelled to conclude to

-5- the contrary.” 8 U.S.C. § 1252(b)(4)(B). Thus, “[e]ven if we disagree with the

[BIA’s] conclusions, we will not reverse if they are supported by substantial

evidence and are substantially reasonable.” Kapcia , 944 F.2d at 707.

First, petitioner alleges that the BIA failed to consider his argument that he

would be subjected to future persecution based upon imputed political opinion.

The INS asserts that petitioner failed to raise the claim of persecution because of

imputed political opinion before the BIA, and therefore this court should not

consider it. See Rivera-Zurita v. INS , 946 F.2d 118, 120 n.2 (10th Cir. 1991)

(holding that this court does not have jurisdiction to consider an unexhausted

claim). Petitioner asserted, and the BIA considered, his argument that he would

be subjected to persecution as a family member of former officials in the

Mengistu regime. Although not as clear an argument of imputed political opinion

as may be desired by the INS, this argument surely suffices to raise the issue of

whether petitioner, as the son of allegedly high ranking officials in the Mengistu

government, would be subjected to persecution due to imputed political opinion if

he returned to Ethiopia.

We need not address the issue of imputed political opinion as the basis for

refugee status, however, because our review of the record does not reveal any

evidence that petitioner has done or said anything that would cause the current

Ethiopian government to impute his parents’ political views to him. Petitioner

-6- does not claim that he harbored any firm political beliefs when he left Ethiopia at

age fourteen, nor has he joined or supported any political groups or causes since

that time. Moreover, he did not present any supporting evidence of his claim that

family members of Mengistu government officials were being mistreated by the

present regime.

Contrary to petitioner’s assertion, the BIA considered the information

submitted regarding the political situation currently existing in Ethiopia. The BIA

considered the 1995 United States Department of State Country Report on Human

Rights which indicated that former members of the Mengistu regime remained in

detention awaiting trial for crimes committed during the “red terror.” Cert.

Admin. R. at 3. While acknowledging that serious problems still exist in the

country, the BIA concluded that nothing in this report or any of the other

background evidence submitted by petitioner, indicated that family members of

former government officials were being detained or persecuted due solely to their

familial relationships. See Feleke v. INS , 118 F.3d 594, 598 (8th Cir. 1997)

(“Even attacks on family members, absent a pattern of persecution tied to the

applicant, do not establish a well-founded fear of persecution; nor do isolated acts

of violence.”). The BIA also rejected petitioner’s claim that the government

would be negatively interested in his childhood friendship with Mengistu’s son.

-7- Petitioner’s claim that he fears persecution due to his membership in the

Amhara tribe also is unavailing. Petitioner admitted to the IJ that although the

majority of officials in the Mengistu government were Amharic, and there is

evidence that these officials may have been persecuted after the change in regime,

there was no evidence that persecution would come about simply due to

membership in the Amhara tribe. See Cert. Admin. R. at 78-79. The INS argues,

and we agree, that petitioner failed to show an “organized or systematic or

pervasive persecution” of Amharas by the current Ethiopian government. Feleke ,

118 F.3d at 598. 2

Next, petitioner asserts that the BIA erred in requiring him to provide

evidence that other members of his family have been persecuted because of their

relationship to his parents. The BIA held that, even assuming that petitioner’s

parents were arrested because of their role in the Mengistu government, petitioner

did not establish that his parents were arrested in order to vicariously harm

petitioner. The petitioner contends that this holding inappropriately requires him

to show that other family members were persecuted. We do not agree with

2 Petitioner argues that the BIA erred in not considering his claim of persecution due to his Amhara heritage. We note, however, that we need not analyze the processes of the BIA as long as the ultimate decision is supported by substantial evidence. See Rezai v. INS , 62 F.3d 1286, 1289 (10th Cir. 1995). Here, the BIA denial of asylum relief was amply supported, and in light of this and petitioner’s admission before the IJ, we determine any error in omission to be harmless. See Nazaraghaie , 102 F.3d at 456.

-8- petitioner’s interpretation of the BIA’s statement. This statement was made in the

context of rejecting petitioner’s claim that the arrest of his parents constituted an

act of past persecution of petitioner. Therefore, we determine petitioner’s

argument to be without merit.

Next, petitioner alleges that the BIA erred in concluding that, even if it were

to find that the disappearance of petitioner’s parents was sufficient to establish he

was the victim of past persecution, the conditions in Ethiopia had changed and

therefore, petitioner no longer had a well-founded fear of persecution upon his

return to Ethiopia. We conclude that, because petitioner failed to establish that he

had been the victim of past persecution, the BIA was under no obligation to show

a change of conditions, and we need not address this claim of error. See

Nazaraghaie , 102 F.3d at 462.

Finally, petitioner argues that neither the IJ nor the BIA made an express

finding that his testimony, and that of his uncle, was incredible, and therefore,

both erroneously rejected his application for lack of corroboratory evidence.

Petitioner asserts that this placed a burden on him that was not sanctioned by

statute. We accord great weight to credibility determinations by the IJ and the

BIA provided the determination is supported by “specific, cogent reason[s]”

Figeroa v. INS , 886 F.2d 76, 78-79 (4th Cir. 1989) (quotations omitted). Although

the IJ did not make a specific finding of incredibility, he expressed a number of

-9- reasons to doubt the testimony of both petitioner and his uncle. He found the

testimony was “vague” with “discrepancies as to how the parents disappeared.”

Cert. Admin. R. at 54. He also pointed to discrepancies in the testimony as to the

occupations of petitioner’s parents and exactly what positions the parents held in

the Mengistu government. The IJ noted that if the parents were in the kind of

influential positions with the former government that petitioner alleged, there

should be some evidence of their whereabouts or fate. Moreover, the IJ

questioned testimony regarding petitioner’s sister, living in Germany, petitioner’s

lack of contact with her, and the absence of any evidence of her opinion of the

situation. Therefore, in essence, the IJ found the testimony of the two witnesses to

be incredible. See Rezai , 62 F.3d at 1289 (holding that inconsistencies can support

a finding of incredibility). The BIA noted the IJ’s findings of incredibility, but

based its decision on a determination that even if the petitioner’s testimony had

been credible, he had not proved his entitlement to asylum or withholding of

deportation.

A petitioner’s uncorroborated testimony has been held sufficient if it is

credible, persuasive, and specific. See Bolanos-Hernandez v. INS , 767 F.2d 1277,

1285 (9th Cir. 1985). When, as here, these factors are absent, the facts must be

supported by specific evidence. See Refahiyat , 29 F.3d at 556. In light of the

inconsistencies in the testimony before the IJ, we agree with the BIA that some

-10- corroborative evidence was necessary to sustain petitioner’s burden of proof. See

Rezai , 62 F.3d at 1289 (alien “must present specific credible evidence to support

his claim that he has been persecuted or will be persecuted if deported”).

In conclusion, we agree with the BIA that petitioner submitted insufficient

evidence regarding the situation in Ethiopia to support a well-founded fear that he

would be persecuted if he returned. Therefore, petitioner has not established

refugee status, and the BIA was correct in denying his application for asylum.

Because petitioner has not established eligibility for asylum, he cannot meet the

higher standard for withholding of deportation. See INS v. Cardoza-Fonseca ,

480 U.S. 421, 430-32 (1987). Therefore, we AFFIRM the BIA’s dismissal of

petitioner’s appeal of the IJ’s denial of his application of asylum and withholding

of deportation, and DENY the petition for review.

Entered for the Court

John C. Porfilio Circuit Judge

-11-