Alemu v. Gonzales
| Decision Date | 08 April 2005 |
| Docket Number | No. 03-3464.,03-3464. |
| Citation | 403 F.3d 572 |
| Parties | Martha Wondimu ALEMU, Petitioner, v. Alberto GONZALES, Respondent. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Peter D. Gray, argued, Minneapolis, MN (Kimberly R. Parker and Paul B. Kohls, on the brief), for petitioner.
Keith L. Bernstein, argued, Washington, D.C. (Peter D. Keisler and Emily Anne Radford, on the brief), for respondent.
Before LOKEN, Chief Judge, MAGILL and BENTON, Circuit Judges.
Petitioner Martha Wondimu Alemu is a citizen of Ethiopia. Ms. Alemu came to the United States in October 1999 to receive medical care for an eye condition. When she overstayed her six-month visa, the Immigration and Naturalization Service (now Immigration and Customs Enforcement) commenced removal proceedings. Ms. Alemu conceded she was removable and requested asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"), claiming past persecution and a well-founded fear of future persecution in Ethiopia because of her Oromo ethnicity and past support of the Oromo Liberation Front ("OLF"), a political group that has violently opposed the present government since 1992. The immigration judge ("IJ"), in a thorough opinion, denied relief after finding significant aspects of Ms. Alemu's testimony not credible. The Board of Immigration Appeals affirmed without opinion, making the IJ's decision the final agency order for purposes of judicial review. See 8 U.S.C. § 1252(a)(1). We deny Ms. Alemu's petition for review of that order.
The Attorney General has discretion to grant asylum to a "refugee." 8 U.S.C. § 1158(b)(1). A refugee is an alien who is unable or unwilling to return to her home country "because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1101(a)(42)(A). An applicant who establishes past persecution is entitled to a presumption that her fear of future persecution is well-founded. See 8 C.F.R. § 208.13(b)(1). We must affirm a decision denying asylum if it is "supported by reasonable, substantial, and probative evidence on the record considered as a whole." INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). To obtain reversal, Ms. Alemu must show "that the evidence [she] presented was so compelling that no reasonable factfinder could fail to find the requisite fear of persecution." Id. at 483-84, 112 S.Ct. 812. We defer to the IJ's credibility findings if they are "supported by a specific, cogent reason for disbelief." Perinpanathan v. INS, 310 F.3d 594, 597 (8th Cir.2002).
Past persecution. Ms. Alemu testified that her father, who died in 1984, was a founder of the OLF; that she joined the OLF in 1991 while in college and worked for the group until 1996; and that her brother has been fighting for the OLF against the Ethiopian government since 1993. After graduating from college in 1993, Ms. Alemu obtained a secretarial job with a government agency which she held until 1998, when her boss lured her to the office one weekend and raped her. She told no one but her mother of the rape but quit one week after the incident. To cover his misdeed, Ms. Alemu testified, the boss accused her of taking documents from the agency and giving them to the OLF. He had learned that Ms. Alemu supported the OLF after she refused to join the government-sponsored political party to which he belonged. The security police then arrested and imprisoned her for one month. Though never beaten or tortured in prison, she was questioned for two weeks about her family's activities in the OLF. She was released when she contracted typhoid fever from the unsanitary prison conditions, resulting in a significant loss of vision.
Ms. Alemu argued that she proved past persecution because the rape and subsequent arrest and detention were based upon her ethnicity and her support of and membership in the OLF. The IJ rejected this contention. Noting that Ms. Alemu's attorney had tried and failed to obtain corroborating evidence from human rights organizations active in Ethiopia, and from other sources, the IJ discredited her "general and meager testimony" regarding her claimed membership in the OLF, her detention in 1998, and her claims that her father was a founding member of the OLF and her brother is a fighter for the OLF army. The IJ noted some inconsistencies in Ms. Alemu's testimony about the rape and found, in any event, that Ms. Alemu After careful review of the record, we conclude that the credibility findings are supported by cogent reasons and the ultimate findings are supported by substantial evidence. Therefore, the denial of Ms. Alemu's claim of past persecution must be upheld.
Future Persecution. When an applicant fails to prove past persecution, she must prove a fear of future persecution that is both objectively and subjectively well-founded. See Tawm v. Ashcroft, 363 F.3d 740, 743 (8th Cir.2004). Ms. Alemu argues that she proved a well-founded fear based upon her testimony that she was a member of the OLF in Ethiopia who has continued to support the OLF since coming to the United States; her father was an OLF founder; her brother is in the OLF army; she was raped and detained on account of her political opinion; and her mother has twice been detained since she left the country.
The IJ found that Ms. Alemu failed to prove a well-founded fear of future persecution on account of her ethnicity or political beliefs. The IJ discredited Ms. Alemu's unsupported claim that her mother has twice been detained in recent years and discounted the testimony of OLF involvement. The IJ found it significant that Ms. Alemu held a government job for many years and obtained a valid passport and exit visa in February 1999 but did not leave Ethiopia to seek medical treatment in the United States until October 1999. Rather than establish a well-founded fear, the IJ found that Ms. Alemu "has made up, embellished, stories of OLF participation of her and her family members so as to create a claim for asylum in the United States."
On appeal, Ms. Alemu criticizes the IJ's adverse credibility findings and then assumes the truth of all her testimony in arguing that she proved a well-founded fear of future persecution. However, the IJ gave cogent reasons for discrediting Ms. Alemu's essentially unsupported claims of persecution or fear of persecution on account of her ethnicity...
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