Bushira v. Gonzales

• Decision Date: 04 April 2006
• Docket Number: No. 05-2386.,05-2386.
• Citation: 442 F.3d 626
• Parties: Rewunda Mohammed BUSHIRA, Petitioner, v. Alberto GONZALES, Attorney General of the United States of America, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

442 F.3d 626

Rewunda Mohammed BUSHIRA, Petitioner, v. Alberto GONZALES, Attorney General of the United States of America, Respondent.

No. 05-2386.

United States Court of Appeals, Eighth Circuit.

Submitted: December 12, 2005.

Filed: April 4, 2006.

COPYRIGHT MATERIAL OMITTED

Diane B. Bratvold, argued, Minneapolis, MN (Marcia K. Miller, Minneapolis, MN, on the brief), for appellant.

Asheesh Agarwal, argued, Justice Dept., Washington, D.C. (Richard Evans and Kenneth W. Rosenberg, Dept. of Justice, Washington, D.C., on the brief), for appellee.

Before BYE, BEAM and GRUENDER, Circuit Judges.

GRUENDER, Circuit Judge.

Rewunda Mohammed Bushira, a thirty-six-year-old native and citizen of Ethiopia, petitions for review of a final order of removal of the Board of Immigration Appeals ("BIA"). The BIA affirmed, without opinion, the decision of the immigration judge ("IJ") denying Bushira's application for asylum, withholding of removal and relief under the Convention Against Torture ("CAT"). For the reasons given below, we remand to the BIA for further administrative proceedings.

I. BACKGROUND

Bushira entered the United States in August 2001 as a nonimmigrant visitor, remained beyond her authorized stay of three months, and then applied for asylum, withholding of removal and relief under the CAT. The Immigration and Naturalization Service ("INS")¹ commenced removal proceedings in July 2002. Bushira conceded removability but renewed her application for asylum, withholding of removal and CAT relief. Bushira declined to designate a country of removal. The IJ designated Ethiopia. Bushira's application alleged past persecution and fear of future persecution in Ethiopia because of her Oromo ethnicity and the participation of her family and her in political activities supporting the Oromo people.

Bushira was the only witness to testify at the hearing before the IJ on November 19, 2003. Bushira testified that she was born in Dilla, Ethiopia, and is of Oromo ethnicity. Bushira's application indicates that her father was imprisoned from 1986 to 1989. Bushira testified that in July 1992 her father was beaten and then imprisoned for one year because he supported the economic development and self-determination of the Oromos. Bushira's mother was beaten and then imprisoned for one week. Bushira's parents were released after they signed agreements not to participate in Oromo affairs. Bushira believes that her parents and five siblings are living in a refugee camp in Kenya, but the last time she communicated with her family was in 1994.

In 1992 Bushira joined the Oromo Music Band ("Band") in Ethiopia. The Band was organized by the Oromo Liberation Front ("OLF") with the goal of promoting the Oromo culture. Bushira sang and danced with the Band in approximately seven performances over a period of months. Although Bushira does not know the Oromo language, she memorized the songs. Bushira also testified that she was a registered member of the OLF and participated in other Oromo political meetings. However, she was not involved in political activities after she quit the Band.

Soldiers arrested Bushira at her home in August 1992, accusing her of circulating political pamphlets. Bushira testified that she was imprisoned in Dilla for two months in a dark, empty cell with a dirt floor. She was isolated from other prisoners but could hear them crying. For approximately two weeks, she was beaten. Bushira's affidavit states that she was hung upside down, beaten on the soles of her feet and silenced by pieces of cloth in her mouth. She also was raped several times by two soldiers. Bushira explained that upon her release, she had to agree not to participate in the Band or other Oromo activities and not to communicate with other Oromos. She also was forced to sign in daily at the police station in Dilla for six months, and sometimes the authorities followed her. Allegedly due to this surveillance, in January 1994 Bushira left Dilla without informing the authorities. She lived in hiding with her aunt in Addis Ababa, Ethiopia, located approximately 360 kilometers from Dilla.

In 1996 Bushira's aunt paid an employment agency to obtain a passport and exit visa for Bushira and arrange for Bushira to work in Saudi Arabia. The passport was issued by the Ethiopian government, and the Ethiopian Embassy in Saudi Arabia renewed the passport in 1998 and 2000. In Saudi Arabia, Bushira worked as a housemaid for the family of Ahmed Abdullah Mohammed. Bushira testified that there she was treated like a slave and raped by two men.

Bushira explained that she returned to Ethiopia twice in 1998 because of the way she was being treated in Saudi Arabia. The first time she stayed for about six weeks. Then after one month back in Saudi Arabia, Bushira visited Ethiopia again for approximately fifteen days. On these visits, Bushira stayed with her aunt in Addis Ababa. Bushira explained that she was able to travel from Saudi Arabia to Addis Ababa, Ethiopia, because the police were looking for her only in Dilla. However, Bushira's aunt sent her back to Saudi Arabia because her aunt was afraid for Bushira's life upon learning that the police from Dilla still were looking for Bushira.

In August 2001 Bushira entered the United States with her Saudi Arabian employer as a babysitter for the family's two daughters. Bushira's employer prepared her application for a nonimmigrant visa to the United States, and Bushira signed it. The application indicated that Bushira worked as a housemaid for an ambassador, but Bushira testified that she did not know whether Ahmed Abdullah Mohammed was an ambassador to Saudi Arabia. Bushira recounted that her employer kept Bushira's passport during their three days in New York and their subsequent stay in Minneapolis, Minnesota. Bushira found the passport and took it. She remained in Minneapolis, living with Oromos unrelated to her.

Bushira's aunt wrote a letter to her around August 2003, warning that Oromos were being tortured and killed and that if Bushira returned, she also would be imprisoned or killed. According to Bushira's testimony, there is no place in Ethiopia that would be safe for her because she left Dilla without telling the authorities and the government soldiers could find her anywhere and take revenge.

Following the evidentiary hearing, the IJ rendered an oral decision on January 20, 2004, denying Bushira's application for relief. Without first determining whether Bushira had suffered past persecution, the IJ found that Bushira lacked a subjectively genuine fear of future persecution in Ethiopia. The BIA summarily affirmed. Bushira petitions this Court for review of the denial of her application for asylum, withholding of removal and relief under the CAT.

II. DISCUSSION

Where the BIA affirms without opinion, the court reviews the IJ's decision as the final agency action. Hoxha v. Gonzales, 432 F.3d 919, 920 (8th Cir.2006). We review questions of law de novo, according substantial deference to the BIA's interpretation of the statutes and regulations it administers. Bernal-Rendon v. Gonzales, 419 F.3d 877, 880 (8th Cir.2005). We review factual findings for substantial evidence on the administrative record as whole. Alyas v. Gonzales, 419 F.3d 756, 760 (8th Cir.2005). Under this standard, we will uphold the BIA's denial of relief unless the evidence presented "was so compelling that no reasonable fact finder could fail to find the requisite fear of persecution." Abrha v. Gonzales, 433 F.3d 1072, 1075 (8th Cir.2006) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 483-84, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)).

The Attorney General has discretion to grant asylum to an individual who is a "refugee." 8 U.S.C. § 1158(b)(1). The asylum applicant must establish that she is a refugee. 8 U.S.C. § 1158(b)(1)(B)(i). A refugee is defined as an alien who is "unable or unwilling to return to . . . [the country of removal] 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). A well-founded fear of persecution is one that "is both subjectively genuine and objectively reasonable." El-Sheikh v. Ashcroft, 388 F.3d 643, 646 (8th Cir.2004).

The IJ set forth this legal framework at the outset of his decision. However, the IJ did not acknowledge that proof of past persecution entitles the asylum applicant to a presumption that she has a well-founded fear of future persecution if she returns to the country. See 8 C.F.R. § 208.13(b)(1); Awale v. Ashcroft, 384 F.3d 527, 529 (8th Cir.2004). If the applicant establishes past persecution, the burden shifts to the DHS to rebut the presumption of a well-founded fear of future persecution. 8 C.F.R. § 208.13(b)(1)(ii). The DHS may do this only by establishing by a preponderance of the evidence either that there has been a "fundamental change in circumstances" in the country such that the applicant no longer has a well-founded fear of persecution based on a protected ground, 8 C.F.R. § 208.13(b)(1)(i)(A), or that "the applicant could avoid future persecution by relocating to another part of" the country and it would be reasonable for her to do so. 8 C.F.R. § 208.13(b)(1)(i)(B), (b)(3)(ii).

Bushira argues that the IJ committed legal error in failing to make a finding on the issue of whether she suffered past persecution. As a result of this error, Bushira contends, she was not given the benefit of the presumption of a well-founded fear of future persecution to which she was entitled. The government asserts that the IJ concluded that Bushira failed to demonstrate past persecution and that this finding, along with the finding of no well-founded fear of future persecution, is supported by substantial evidence.

The IJ's denial of asylum was based solely on his determination that Bushira does not have a subjectively genuine fear of future persecution in Ethiopia. A...