Gemeda, Aman T. v. Gonzales, Alberto

175 F. App'x 742
CourtCourt of Appeals for the Seventh Circuit
DecidedMarch 15, 2006
Docket05-1202
StatusUnpublished

This text of 175 F. App'x 742 (Gemeda, Aman T. v. Gonzales, Alberto) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gemeda, Aman T. v. Gonzales, Alberto, 175 F. App'x 742 (7th Cir. 2006).

Opinion

ORDER

Aman Gemeda, a native and citizen of Ethiopia and a supporter of the Oromo Liberation Front, sought asylum, withholding of removal, and relief under the Convention Against Torture. An Immigration Judge, after discounting Gemeda’s credibility, denied his application, concluding that the complained-of conduct did not rise to the level of persecution. The Board of Immigration Appeals affirmed. Gemeda appeals to this court. We DENY Gemeda’s petition for review.

I.

Aman Gemeda, who was born on July 14, 1973, in Bekoji, Ethiopia, is an ethnic Oromo. While enrolled in college in Alemaya, Ethiopia in the early 1990’s, Gemeda supported the Oromo Liberation Front (“OLF”), attending meetings and recruiting supporters. The OLF originally participated in the political process in Ethiopia. However, as elections approached in 1992, the OLF withdrew its support from the process, claiming its candidates were harassed and attacked. The OLF then declared war on the transitional Ethiopian government.

According to Gemeda, after the OLF declared war on the transitional government, the government sent troops to Alemaya in search of student supporters of the OLF. Gemeda claims that he and two other students were detained and interrogated for fifteen days, and that during their detention, they were beaten with gun butts to coerce them to admit their OLF membership. However, Gemeda was released after denying involvement in the OLF. Because of the incident, Gemeda stopped openly supporting the OLF. He then finished his studies at Alemaya University, graduated, and obtained a job, first with the Ethiopian Ministry of National Resources and later with the Ministry of Agriculture.

About three years later, while still working for the government, Gemeda claims that members of the rival political group, the Oromo People’s Democratic Organization (“OPDO”), watched him to see if he was spreading OLF ideology or was recruiting members for the OLF. Following several confrontations between the OLF and the government (none of which involved Gemeda), Gemeda sought a safer haven, leaving Ethiopia for Ireland, where he entered a Master’s degree program.

*744 While in Ireland, Gemeda claims that he began communicating with an OLF student studying in London and another living in the United States. He further claims that he tried to organize an OLF student organization but that too few Oromos attended his school, so these efforts failed. In June 2001, Gemeda returned to Ethiopia to conduct field research for his Master’s program. While there, Gemeda claims that the OPDO interrogated him for three days, during which time he was beaten. Two months later, on August 19, 2001, Gemeda returned to Ireland.

On January 27, 2002, Gemeda entered the United States on a non-immigrant temporary visa, which authorized him to remain here until February 28, 2002. On February 11, 2002, Gemeda filed an application for asylum, withholding of removal and for relief under the Convention Against Torture (“CAT”). On July 31, 2003, after hearing the above evidence, an Immigration Judge (“IJ”) denied Gemeda’s application for asylum, and withholding of removal and relief under the CAT. After noting that Gemeda’s claims of persecution were exaggerated and possibly false, the IJ concluded that even if he were credible, Gemeda was not entitled to asylum or withholding of removal because “the incidents, even if they are true, [did not] rise to the level [of] past persecution.” The IJ further concluded that because the conduct did not rise to the level of persecution, it did not satisfy the higher “torture” standard required for relief under CAT.

Gemeda appealed to the Board of Immigration Appeals (“Board”), arguing that the IJ erred in its credibility assessment and in its conclusion that Gemeda had not suffered past persecution for his support of the OLF. The Board concluded that it need not resolve the issue of credibility because, even assuming that Gemeda was credible, the conduct at issue did not rise to the level of persecution. Gemeda appeals.

II.

On appeal, Gemeda first argues that this court cannot review the Board’s decision and must instead remand the case for further proceedings because the Board did not review the IJ’s credibility determination or decide whether substantial evidence supported the IJ’s credibility findings. Gemeda’s argument is somewhat baffling. The IJ assumed that even if Gemeda’s testimony was credible, these facts did not rise to the lever of persecution. In reviewing Gemeda’s case, the Board likewise assumed that he was credible and fully accepted his version of the facts. Yet, even accepting as true Gemeda’s claims, the Board concluded that Gemeda did not establish past persecution. Under these circumstances, because Gemeda’s credibility is immaterial, there is no need to remand. Cf., Kayembe v. Ashcroft, 334 F.3d 231, 235 (3d Cir.2003) (holding that where the Board did not adopt the IJ’s credibility finding, an appellate court should review the Board’s decision with the assumption that the petitioner was credible.)

On the merits, the Board concluded that Gemeda was not entitled to asylum or withholding of removal because he did not establish past persecution. Specifically, the Board concluded that the conduct at issue did “not rise to the level of persecution, as [Gemeda] was not seriously harmed, was held for a relatively short time, and was released to finish his education.”

To obtain asylum, an alien must establish “that he is unable or unwilling to return to his home country because of past persecution or a well-founded fear of future persecution on account of race, religion, nationality, membership in a particu *745 lar social group, or political opinion.” Guchshenkov v. Ashcroft, 366 F.3d 554, 561 (7th Cir.2004). Withholding of removal is appropriate if an alien establishes “it is more likely than not” that he will be persecuted if forced to return to his native country. Prela v. Ashcroft, 394 F.3d 515, 519 (7th Cir.2005). This court reviews the Board’s decision denying asylum and "withholding of removal under the “substantial evidence” standard. Sivaainkaran v. I.N.S., 972 F.2d 161, 163 (7th Cir.1992). Under this highly deferential standard, we will uphold the Board’s determination if it is “supported by reasonable, substantial, and probative evidence on the record as a whole,” and we will reverse only if the evidence is so “compelling that no reasonable factfinder could fail to find the requisite ... persecution.” Id.

The question then is whether substantial evidence supports the Board’s conclusion that the complained-of conduct did not reach the level of persecution. Gemeda focuses on his detentions in 1992 and 2001 and his claims that he was beaten on both occasions. Gemeda, however, did not describe the nature of his confinement or any physical injury.

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