Wondimu v. Ashcroft

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 14, 2002
• Docket: 01-60296
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-60296

SINTAYEHU ABEBE WONDIMU,

Petitioner,

versus

JOHN ASHCROFT, U S Attorney General,

Respondent.

Petition for Review of an Order of the Board of Immigration Appeals (A73 725 353)

August 13, 2002

Before GARWOOD, JOLLY and DAVIS, Circuit Judges.

PER CURIAM:*

Ethiopian citizen Sintayehu Wondimu appealed the denial of his

petition for asylum and withholding of deportation, but the Board

of Immigration Appeals dismissed his appeal because conditions in

Ethiopia had changed such that his fear of future persecution was

no longer well-founded. The Board also disregarded the immigration

* Pursuant to 5TH CIR. R.47.5 the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. judge's negative credibility finding without itself awarding him a

positive credibility finding and it denied Wondimu's request for

asylum based solely on past persecution. Wondimu appeals all three

decisions to this court. Because the record contains no

substantial evidence supporting the BIA's finding of changed

country conditions, we vacate and remand.

Background

Sintayehu Wondimu is an Ethiopian citizen who first came to

the United States on a student visa in 1989 to attend Texas

Southern University in Houston, Texas. He left the university and

returned to Ethiopia in December 1993 after his father's death.1

Soon after Wondimu arrived, he joined the All-Amhara People's

Organization (“AAPO”), a group of ethnic Amharas who oppose the

present Transitional Government of Ethiopia (“TGE”). The TGE was

founded by the Ethiopian People's Revolutionary Democratic Front

(“EPRDF”), a group dominated by ethnic Tigrayans. Wondimu was not

a prominent member of the AAPO: he held no office and did not

publicly participate in AAPO activities.

A month and a half after he arrived in Ethiopia, Wondimu

married his wife, Nigat Bekele Abebe. Soon thereafter, he renewed

his United States student visa even though he claims he intended to

stay in Ethiopia. His reasons for doing so are not clear; he

1 In his application for asylum, Wondimu said he left the United States because “things didn't work out with going to college.”

2 claimed that it was to “express” to the United States that he was

in Ethiopia but he also admitted that the visa would provide an

escape route if the government continued persecuting Ethiopians who

had traveled to the United States.

On March 23, 1994, Wondimu was kidnapped from his home in the

middle of the night by people he identified as members of the EPRDF

because of their Tigrayan accents, their appearance and the focus

of their questions. He was confined for two and a half months,

during which time he was drugged, constantly handcuffed and

blindfolded, kept in unsanitary conditions, and interrogated daily

with beatings. The interrogations focused primarily on his time in

the United States and his reasons for going there. When his

captors were apparently satisfied that Wondimu was neither an AAPO

leader nor an information courier, they released him by throwing

him out of a moving car. His unsanitary imprisonment led to a

fungal skin infection and the violent method of release resulted in

an injured hip, although he did not seek medical care for either

ailment. After his release, Wondimu continued to live in Ethiopia

for two months though he and his family continued to be threatened.

On one occasion, his sister was slapped, detained and interrogated

for eight days.

On July 25, 1994, Wondimu's wife fled to India. Three days

later, Wondimu returned to the United States and entered at

Houston, Texas using his student visa. He completed an affirmative

3 application for asylum in December 1994, and the INS issued an

Order to Show Cause on March 1, 1995 based on his failure to attend

a university as required by the terms of his student visa.

At his hearing on June 19, 1995, Wondimu conceded his

deportability and attempted to establish eligibility for asylum or

withholding of deportation. Among the items of evidence introduced

at the hearing were State Department reports from 1994 and 1995,

reports from Amnesty International, Ethiopian news articles, and

letters from Wondimu's wife discussing his incarceration. The

immigration judge found Wondimu “not completely credible” due to

discrepancies in his story regarding the reason he left the United

States in 1993 and the government's treatment of his sister. In

addressing the evidence, the judge chose to rely on the State

Department reports instead of the more-pessimistic Amnesty

International reports and felt that the news articles were a mixed

bag of fact and opinion that failed to support Wondimu's story.

The judge also discounted the letters from Wondimu's wife under the

theory they were probably concocted solely for the purposes of his

asylum application. Accordingly, the judge held that Wondimu had

failed to carry his burden of demonstrating past discrimination on

account of his political convictions and denied the application for

asylum. The immigration judge permitted Wondimu to voluntarily

depart.

The Board of Immigration Appeals took up Wondimu's appeal

4 after an unexplained six year delay and finally affirmed the

decision on March 6, 2001. The BIA found the immigration judge's

adverse credibility finding unsupported by the record and refused

to defer to it, arguing that any inconsistencies relating to his

father's death were immaterial to the asylum application, as were

inconsistencies in Wondimu's description of his sister's treatment.

The Board added that it disagreed that the somewhat hurried

timeline of events cast doubt on Wondimu's story and found it

“inexplicabl[e]” that the immigration judge would reject the

letters from Wondimu's wife. Accordingly, the BIA refused to

“accord deference to the Immigration Judge's adverse credibility

finding.” At the same time, the BIA expressly refused to itself

find Wondimu credible, explaining instead that “this is a case

where we lack a firm conviction either way as to credibility.”

The BIA did not then decide whether Wondimu had established

past persecution by the TGE. The Board held instead that even if

Wondimu had suffered past persecution, conditions in Ethiopia had

changed to an extent that rebutted any presumption of a well-

founded fear of future persecution. Without using its power of

administrative notice to add to the record after the six-year

delay, the BIA cited statements in the 1994 and 1995 State

Department reports that the TGE had not increased violence against

low-level AAPO supporters, had included Amharas in the government,

and was not targeting Amharas for mistreatment. The BIA also

5 observed that the newspaper articles tended to show only that

certain political leaders were the ones being persecuted.

Accordingly, the BIA rejected Wondimu's application for asylum.

The Board also refused to grant Wondimu asylum for humanitarian

reasons, holding that his treatment was not “sufficiently severe.”

Accordingly, the appeal was dismissed. One Board member dissented

from this conclusion, explaining that she would have found Wondimu

credible. This member further argued that circumstances in

Ethiopia had not changed in a way that rebutted the presumption of

a well-founded fear of future persecution.

Wondimu timely appealed to this court. We have jurisdiction

under the modified form of 8 U.S.C. § 1105a set forth in section

309 of the Illegal Immigration Reform and Immigrant Responsibility

Act of 1996 (“IIRIRA”).2

Discussion

Wondimu argues that the BIA erred by holding that the

conditions in Ethiopia had changed in a way that rendered his fear

of future persecution no longer well-founded. “We review the

factual findings of the Board to determine if they are supported by

substantial evidence in the record.” Mikhael v. INS, 115 F.3d

299, 302 (5th Cir. 1997), citing INS v. Elias-Zacarias, 112 S.Ct.

812, 815 (1992). “We will reverse only when the evidence is so

2 Pub. L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996), as amended by Act of Oct. 11, 1996, Pub. L. No. 104-302, 110 Stat. 3656.

6 compelling that no reasonable factfinder could fail to find the

requisite fear of persecution.” Id. (quotation omitted). We

review only the order of the BIA, not the order of the immigration

judge. Id.

To be defined as a refugee, the necessary first step to be

eligible to receive the discretionary grant of asylum, a petitioner

must show past persecution or a well-founded fear of future

persecution on account of his race, religion, nationality,

membership in a particular social group, or political opinion. 8

U.S.C. § 1158(b)(1); 8 U.S.C. § 1101(a)(42)(A). A petitioner who

fails to carry this burden has necessarily failed to carry the

heavier burden required for withholding of deportation. Mikhael,

115 F.3d at 306. A petitioner who establishes past persecution on

account of one of these enumerated factors will be presumed to have

a well-founded fear of future persecution, except where “a

preponderance of the evidence establishes that since the time the

persecution occurred conditions in the applicant's country of

nationality or last habitual residence have changed to such an

extent that the applicant no longer has a well-founded fear of

being persecuted if he or she were to return.”3 8 C.F.R. §

3 The regulations have since been changed. Effective January 5, 2001, the regulations require that the change be “fundamental.” See 8 C.F.R. § 208.13(b)(1)(i)(A) (2002); 65 Fed. Reg. 76121, 76133 (Dec. 6, 2000). The regulation was changed to harmonize the application of the INA with the 1951 Convention Relating to the Status of Refugees and the United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining

7 208.13(b)(1)(i) (2000); see also In re N- M- A-, Int. Dec. 3368

(BIA 1998) (en banc) (interpreting the regulation as an evidentiary

presumption).

In this case, the BIA found that even if Wondimu suffered

persecution in the past, the circumstances in Ethiopia had changed

to a degree that defeated the presumption of a well-founded fear of

future persecution. The BIA based its finding on three points.

First, the Board noted that while the State Department reports

contained evidence of oppression of those AAPO leaders “actively

supporting insurrection,” there were no credible reports that the

TGE had increased violence against low-level AAPO supporters like

Wondimu. The Board also noted that Amharas were participating in

the government, and that in 1994 three cabinet members (the Prime

Minister, the Minister of Justice, and the Attorney General) were

Amharas. Finally, the Board held that the documentary evidence

submitted by Wondimu only supported a finding that AAPO leadership

was being oppressed.

Refugee Status. See 65 Fed. Reg. 76121, 76127 (Dec. 6, 2000). The INS intended this change to expand the scope of the inquiry to include changes in the petitioner's life as well as changes in the circumstances in the country. Id. Nevertheless, Wondimu cannot take advantage of this newer language. The regulation does not purport to be retroactive, and should not be applied to a hearing that occurred before it took effect. See Ladha v. INS, 215 F.3d 889, 898 (9th Cir. 2000) (applying the version of 8 C.F.R. § 208.13(a) in existence at the time of the hearing before the immigration judge); see generally Bowen v. Georgetown Univ. Hosp., 109 S.Ct. 468, 471-72 (1988) (discussing presumption against and requirements for retroactivity of administrative regulations).

8 We hold that no substantial evidence supports the Board's

finding. The Board must ask whether “since the time the

persecution occurred conditions in the applicant's country . . .

have changed to such an extent that the applicant no longer has a

well-founded fear.” 8 C.F.R. § 208.13(b)(1)(i) (2000). That is,

the INS must rebut the presumption of a future fear of persecution

by providing evidence that conditions in the country have “changed”

-- more specifically, that conditions have changed for the better.

While the evidence cited by the Board may show that conditions in

Ethiopia were not as bad as Wondimu claimed, that merely casts

doubt on Wondimu's veracity and does not show that conditions in

Ethiopia changed, much less that conditions improved. Only one

item cited by the Board even deals with changed conditions, and it

merely said that the TGE had not “increased violence against low-

level AAPO supporters” (emphasis added). This proves that

conditions hadn't worsened by 1995, but it fails to prove the

converse: that conditions have improved such that Wondimu should

have no fear of returning. On their face, the facts cited by the

Board fail to support its order.

Neither can we independently find substantial evidence in the

record. The December 1994 and June 1995 State Department reports

relied upon by the Board do indeed say that conditions under the

TGE are a “vast improvement” over the prior Mengistu regime.

United States Department of State, Ethiopia: Profile of Asylum

9 Claims and Country Conditions 5 (June 1995). That fact is

irrelevant, however, because the regulation focuses solely on

changes occurring “since the time the persecution occurred.” See

8 C.F.R. § 208.13(b)(1)(i) (2000). The Mengistu regime had been

out of power for nearly three years by March 23, 1994, when Wondimu

was kidnapped and detained until June 1994.4 The relevant question

must therefore be whether the TGE's treatment of AAPO members

improved after that date. Given this focus, the State Department

reports greatly support Wondimu's case over that of the INS. The

December 1994 State Department report explains that the TGE was

increasingly intolerant of political dissent. See United States

Department of State, Ethiopia: Profile of Asylum Claims and Country

Conditions 3-4 (December 1994). Moreover, the report noted that

“AAPO appeared in July, 1994 to be under increasing pressure from

the government” and the ability of AAPO members and officials to

“live and work without harassment . . . may now be changing, as the

TGE steps up its pressure on AAPO.” Id. at 7. The report also

takes a mixed view of political diversity, noting that the 1994

campaigning was generally fair yet the major opposition parties

4 The case thus stands in contrast to Woldemeskel v. INS, 257 F.3d 1185 (10th Cir. 2001), in which the Ethiopian petitioner requested asylum based in large part on her treatment by the Mengistu regime. See id. at 1190. Once the presumption of future persecution was countered by the evidence of changes since the fall of the Mengistu regime, the petitioner was required to establish refugee status due to the actions of the TGE alone. Id. She failed to do so. Id.

10 boycotted the election and other independent candidates failed to

make a strong showing. Id. at 9. Taken as a whole, the December

1994 report suggests that conditions for AAPO members like Wondimu

were getting worse since June 1994 and clearly does not support the

view that they were improving.

The June 1995 State Department report offers a similar picture

of Ethiopia. The report largely reprints the opinions of the

December 1994 report, although it adds a discussion about a failed

series of political negotiations. See United States Department of

State, Ethiopia: Profile of Asylum Claims and Country Conditions

8 (June 1995). The report also discusses the campaigning by

independent candidates, although this time the State Department

characterized these activities as proof that the “TGE's tolerance

of diverse political views has slowly been increasing.” Id. at 12.

This positive characterization represents the only evidence that

conditions for AAPO members improved from June 1994 to 1995, but

this evidence is undermined by the State Department's more guarded

opinion of the same events in its December 1994 report. Given the

State Department evidence that conditions were getting worse for

the AAPO, and the equivocal nature of the only evidence to the

contrary, we find that no significant evidence supports the Board's

findings.

The BIA did not decide whether Wondimu had carried his burden

of establishing past persecution. We therefore vacate the decision

11 of the Board of Immigration Appeals and remand for further

proceedings. In doing so, we stress that we express no opinion on

whether Wondimu has established past persecution. We also stress

that our opinion is based only on the evidence currently in the

record, mindful that other evidence may prove that conditions have

indeed improved in Ethiopia since June 1994. The Board has the

power to administratively notice “commonly acknowledged facts and

technical or scientific facts that are within the agency's area of

expertise.” Rivera-Cruz v. INS, 948 F.2d 962, 967 (5th Cir. 1991)

(some punctuation omitted). If it wishes, the Board may use this

power on remand to introduce additional evidence of changed country

conditions. Id.; see also Faddoul v. INS, 37 F.3d 185, 190-91 (5th

Cir. 1994) (examining Rivera-Cruz). If the Board does so, Wondimu

must be afforded the right to respond to these facts and introduce

additional evidence of his own through a timely motion to reopen.

See Rivera-Cruz, 948 F.2d at 968; Faddoul, 37 F.3d at 190-91.5 If

5 The circuits are split on the proper procedure for implementing this requirement of due process. Three circuits reached the same result we did. See Kaczmarczyk v. INS, 933 F.2d 588, 597 (7th Cir. 1991); Gebremichael v. INS, 10 F.3d 28, 38-39 (1st Cir. 1993); Gutierrez-Rogue v. INS, 954 F.2d 769, 773 (D.C. Cir. 1992). Another circuit has not gone quite so far, but may indirectly agree. See Francois v. INS, 283 F.3d 926 (8th Cir. 2002). On the other hand, two circuits have held that due process requires the INS to give the alien advance notice of the evidence and the opportunity to rebut it at the hearing, reasoning that the INS could deport the petitioner before a motion to reopen is heard. See de la Llana-Castellon v. INS, 16 F.3d 1093, 1099-1100 (10th Cir. 1994); Castillo-Villagra v. INS, 972 F.2d 1017 (9th Cir. 1992). The concern may have some validity. Because the petitioner is not guaranteed a stay of deportation pending the hearing and

12 the Board denies such a motion to reopen on Wondimu’s part, he may

appeal that denial to this court. Rivera-Cruz, 948 F.2d at 968-69.

Because we vacate the order of the Board of Immigration Appeals, we

need not address Wondimu's other two points of error on appeal.

Conclusion

Though the BIA held that Wondimu no longer had a well-founded

fear of future persecution due to changed conditions in Ethiopia,

neither the evidence they cite nor the other evidence in the record

supports their conclusion. Because the BIA did not decide whether

Wondimu suffered past persecution, we vacate and remand. In doing

so, we reiterate that we express no opinion on the past persecution

claim or on any evidence outside the record.

VACATED AND REMANDED.

appeal of the motion to reopen, “[v]indication of an applicant's procedural rights thus depends on the good faith of the Board in handling the motion to reopen.” Gebremichael, 10 F.3d at 39 n.29.