Baltti v. Sessions

• Decision Date: 19 December 2017
• Docket Number: No. 16-1037,16-1037
• Citation: 878 F.3d 240
• Parties: Binyam Bekele BALTTI, Petitioner v. Jefferson B. SESSIONS, III, Attorney General of the United States, Respondent
• Court: U.S. Court of Appeals — Eighth Circuit

878 F.3d 240

Binyam Bekele BALTTI, Petitioner

v.Jefferson B. SESSIONS, III, Attorney General of the United States, Respondent

No. 16-1037

United States Court of Appeals, Eighth Circuit.

Submitted: December 19, 2017

Filed:¹ December 19, 2017

Benjamin Richard Casper Sanchez, Mary Georgevich, An Hoang, University of Minnesota, Law School, Minneapolis, MN, Lauren Schmoke, Kasaby & Nicholls, Omaha, NE, Jesus Torres Garza, Deleon & Nestor, Minneapolis, MN, for Petitioner.

Aimee J. Carmichael, Trial Attorney, Lisa Damiano, Trial Attorney, Karen Yolanda Drummond, Corey Leigh Farrell, Stefanie N. Hennes, Trial Attorney, Robert Markle, Senior Litigation Counsel, Carl H. McIntyre, U.S. Department of Justice, Civil Division, Office of Immigration Litigation, Washington, DC, for Respondent.

Before RILEY² and BEAM, Circuit Judges, and ROSSITER,³ District Judge.

PER CURIAM.

A former member of local government in his native Ethiopia, Binyam Bekele Baltti entered the United States in 2009 on a non-immigrant visitor visa after witnessing two government-sponsored massacres. Baltti now petitions for review of the Board of Immigration Appeals’ (BIA) denial of his application for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). We deny Baltti’s petition.

I. BACKGROUND

In 2009, Baltti entered the United States on a non-immigrant visitor visa. Baltti is a member of the Mejenger tribe of Gambella, a western region of Ethiopia. Baltti’s wife and two children currently reside in the capital city of Ethiopia, Addis Ababa. In 1995, Baltti joined the Gambella Regional Council, the governing body of his region, and was a tribal representative to the national House of Federation, which Baltti describes as "an elected body that represents each region in the federal Ethiopian government."

While Baltti attended a meeting of local leaders in Addis Ababa in 2002, Ethiopian government troops traveled to Gambella and murdered members of the Mejenger tribe and burned down Mejenger villages. According to Baltti, the massacre was retribution for the Mejenger tribe’s opposition to the government’s plan to force the migration of people currently residing in eastern Ethiopia into the Gambella region.

Baltti witnessed a second massacre in 2003. Ethiopian National Defense Force troops targeted educated members of another tribe, the Anuak tribe, in Gambella.⁴ After the massacre, the Ethiopian government collected Gambellan leadership, including Baltti, and detained them in a military camp for three months. According to Baltti, the detainees were prohibited from communicating with anyone or leaving the encampment. At his release, the government instructed Baltti to give only the "official" story regarding the massacre, that the violence was inter-tribal, and the government took no part in the killings.

Baltti claims he disregarded the government’s threats and began speaking in opposition to the massacres, but was not punished because his political position protected him from retaliation. In May 2008, Baltti joined a delegation of Gambellan officials on a brief trip to the United States with the then-president of the Gambella region, Omot Obang Olum. The purpose of the delegation was to meet with Gambellan expatriates who were currently living in the United States to promote the "official" government story of the 2003 massacre and to encourage the expatriates to return to Gambella.

At the delegation’s first meeting in Minneapolis, Baltti had a chance to speak before the approximately 300 Gambellan expatriates in attendance and went off-script, stating the 2003 massacre was perpetrated by the Ethiopian military with help from local Gambellan forces.⁵ Baltti feared being punished for his speech, and President Olum was "very angry" with him and prevented him from speaking at an additional delegation meeting. Immediately upon his return to Ethiopia, Baltti’s government passport was confiscated. Baltti was fired from his position on the Gambella Regional Council and, while he retained his position with the House of Federation, that position was stripped of all its power. Baltti lost his income and was forced to pay a $1,700 fine, and he and his family were evicted from their home and placed under surveillance. Believing he was at risk of harm if he was not re-elected to his political position, which would result in a loss of his political immunity, Baltti planned to move to the United States.

Baltti was granted a non-immigrant visitor visa and traveled to the United States in April 2009. In October 2009, just prior to the visa’s expiration, Baltti timely applied for asylum based on political opinion and for relief under the CAT, claiming both past persecution and a fear of future persecution. Baltti initially indicated he was also seeking asylum based on his social group but later amended his application to remove that ground. After the Department of Homeland Security charged Baltti with removability under 8 U.S.C. § 1227(a)(1)(B) as an alien who had overstayed his visa, Baltti conceded to removability as charged and resubmitted his application for asylum, withholding of removal, and CAT protection. See id. §§ 1158(b)(1)(A), 1231(b)(3)(A); 8 C.F.R. § 208.16(c).

The Immigration Judge (IJ) denied Baltti’s application. Determining Baltti was a credible witness and his application was timely, the IJ found the actions taken against Baltti did not amount to persecution and Baltti did not have an objectively reasonable fear of future persecution on account of his political opinion. Baltti appealed to the BIA, renewing his social group claim and asserting he "clearly suffered past persecution based on his membership in a particular social group," because he "personally observed the massacre of the Anuak tribe in Gambella in 2003." The BIA agreed with the IJ’s denial, determining Baltti’s stated group was "not a cognizable particular social group for immigration proposes [sic] because it lacks the requisite social distinction," and Baltti did not show any past persecution was on account of a protected ground. The BIA reasoned Baltti failed to demonstrate a well-founded fear of future persecution because it had been over a decade since the massacre had occurred and no similarly situated former elected officials were retaliated against for speaking out against the massacre. Baltti timely petitioned this court for review. See 8 U.S.C. § 1252.

II. DISCUSSION

A. Standard of Review

"We review the agency determination that an alien is not eligible for asylum, withholding of removal, or relief under the Convention Against Torture using the deferential substantial evidence standard." Osonowo v. Mukasey, 521 F.3d 922, 927 (8th Cir. 2008). The substantial-evidence standard is an "extremely deferential standard of review," Salkeld v. Gonzales, 420 F.3d 804, 809 (8th Cir. 2005), and requires "facts ‘so compelling that no reasonable factfinder could fail to find the requisite’ " determinations. Castillo-Gutierrez v. Lynch, 809 F.3d 449, 453 (8th Cir. 2016) (quoting Melecio-Saquil v. Ashcroft, 337 F.3d 983, 986 (8th Cir. 2003) ). "Where, as here, the BIA issues an independent decision without adopting the IJ’s conclusions, we review only the BIA decision." Constanza v. Holder, 647 F.3d 749, 753 (8th Cir. 2011).

B. Past Persecution Based on Baltti’s Social Group

To establish eligibility for asylum, an applicant must show he "is unwilling or unable to return to his 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.’ " Vonhm v. Gonzales, 454 F.3d 825, 827 (8th Cir. 2006) (quoting 8 U.S.C. § 1101(a)(42)(A) ). As an initial matter, we must determine whether we have jurisdiction to review Baltti’s claim based on his membership in a particular social group. Baltti claimed persecution based on only his political opinion before the IJ, but in his brief to the BIA claimed he experienced both past persecution and a well-founded fear of future persecution based on his social group, defined as those who "personally observed the massacre of the Anuak tribe in Gambella in 2003." The government urges us to find Baltti’s current description of his social group, "former elected officials who personally observed the government sponsored massacre of the Anuak and who spoke out against the government," is different than what Baltti argued before the BIA and thus not reviewable.

We have jurisdiction to review the BIA’s final order of removal only if Baltti "has exhausted all administrative remedies available to [him] as of right." 8 U.S.C. § 1252(d)(1). We have interpreted this provision as evidence of Congress’s intent "to require that an alien not only pursue all stages of administrative review, but also raise all issues before the agency." Frango v. Gonzales, 437 F.3d 726, 728 (8th Cir. 2006). When a petitioner attempts to "narrow his group," his argument for membership in that narrowed social group was "not clearly [raised] before the agency" and we lack jurisdiction to review it. Kanagu v. Holder, 781 F.3d 912, 917 (8th Cir. 2015). In his petition for review, Baltti attempts to narrow his social group from all witnesses of the 2003 massacre to just former elected officials who both witnessed the massacre and spoke out against the government. We do not have jurisdiction to review this newly defined social group. See id. ("Insofar as Kanagu attempts to further narrow his group on appeal, we lack jurisdiction to consider arguments not clearly made before the agency.").

Baltti does not ask us to review the BIA’s finding that the group Baltti did raise before the BIA—"witnesses who ‘personally observed the massacre of the Anuak tribe’ "—is not a cognizable social group. Thus we do not address the merits of this determination today. See id. ("As Kanagu does not appeal the agency’s finding that ‘individuals who are openly opposed to the Mungiki sect’ is not...