Fesehaye v. Holder, 09-2799.

• Decision Date: 04 June 2010
• Docket Number: No. 09-2799.,09-2799.
• Parties: Saron FESEHAYE, also known as Ruth Balay, Petitioner,v.Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

607 F.3d 523

Saron FESEHAYE, also known as Ruth Balay, Petitioner,v.Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.

No. 09-2799.

United States Court of Appeals Eighth Circuit.

Submitted: May 13, 2010.

Filed: June 4, 2010.

Sarah E. Hudleston, argued, Minneapolis, MN, for Petitioner.

Anna Nelson, argued, Kelly Walls, on the brief, Washington, DC, for Respondent.

Before RILEY, Chief Judge, LOKEN and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

Petitioner Saron Fesehaye sought asylum, withholding of removal and protection under the Convention against Torture (CAT). The Immigration Judge (IJ) denied all three claims and was affirmed by the Board of Immigration Appeals (BIA). Fesehaye seeks review, arguing that the IJ and the BIA erred in denying the relief she seeks. We deny the petition.

Fesehaye testified that she is an Ethiopian native of Eritrean nationality. She entered the United States in 2005 from the Netherlands after her application for asylum there had been denied. She entered this country using a Dutch passport in the name of Ruth Balay. She then timely applied for asylum, withholding of removal, and relief under the CAT. Fesehaye conceded removability.

An immigration hearing was held before the IJ in March 2007. Fesehaye testified at the hearing that she was born in Addis Ababa, Ethiopia in 1985 to Eritrean parents. She was baptized into her father's Ethiopian Orthodox church. Feseyahe testified that at age five she underwent female genital mutilation (FGM) at the request of her father. She explained that the procedure was very painful and that she continues to suffer physical and emotional side effects as a result of her FGM.

Fesehaye testified that her family lived in Addis Ababa until 1991, when Eritrea won provisional independence from the Ethiopian government. Her family then moved to Asmara, Eritrea, where they lived for three years. Fesehaye testified that her family returned to Addis Ababa in 1994 because her mother's Jehovah's Witness faith precluded her from voting in the Eritrean independence referendum and not voting would have placed her mother at risk of persecution from the Eritrean government. Fesehaye testified that after returning to Ethiopia, she frequently witnessed police officers arrest and assault innocent Eritreans.

After her father passed away in 1996 due to illness, Fesehaye converted to her mother's Jehovah's Witness faith. In 1998 the border dispute between Ethiopia and Eritrea resurfaced, and Fesehaye testified that violence against Eritreans living in Ethiopia increased at that time. She stated that in June 1999, at age fourteen, she returned home one evening to discover her mother missing. She went to the police station to try to find her mother, but the police did not provide any help. Fesehaye alleged that she became upset and called the officers a “derogatory name” and that the officers responded by taping her mouth, tying her hands, physically assaulting her, and keeping her incarcerated for two days. Fesehaye testified that she was released when her uncle discovered her incarceration and paid for her release.

After staying with her uncle's friend for several months, Fesehaye fled to the Netherlands in October 1999. She immediately sought refugee status. Fesehaye was interviewed by immigration officials twice in the Netherlands. She was denied Dutch asylum in December 2004. Fesehaye testified before the IJ that she then attempted to get an Ethiopian passport, but was denied because she is Eritrean. She alleged that thereafter she was denied an Eritrean passport because she could not provide documentation showing she had voted for Eritrean independence in 1993. Fesehaye testified that she then purchased the false Dutch passport in the name of Ruth Balay and fled to the United States. Fesehaye stated during her hearing that she cannot return to Eritrea because the government will not allow her to practice her religion, and she fears she will be killed or incarcerated because of her Jehovah's Witness faith.

The IJ found Fesehaye not credible. She “lacked objective, credible documents” regarding her identity, nationality, and ethnicity. There were numerous inconsistencies between her testimony during her immigration hearing and her Dutch asylum application. Fesehaye's Dutch asylum application stated that her mother had been kidnapped in the middle of the night three days before Fesehaye left Ethiopia, not that Fesehaye returned home to find her mother missing several months before she left the country. The Dutch application also described how Fesehaye went to the police station to seek help in finding her mother, but it did not contain any mention that she was detained or abused by police officers. In addition Fesehaye listed the same Addis Ababa address in both asylum applications, but a Dutch investigation reported that the neighborhood or kebele where she claimed to have resided did not exist.

The IJ determined that based upon the adverse credibility finding and lack of corroboration, Fesehaye could not establish her identity, nationality, ethnicity, or citizenship. She thus had “failed to show a well-founded fear of persecution” based on a protected ground “that is subjectively genuine and objectively reasonable.” The IJ concluded that Fesehaye was not eligible for asylum, withholding of removal, or CAT protection. The BIA adopted and affirmed the IJ's decision due to the “striking inconsistencies” between Fesehaye's Dutch and current asylum claims. Fesehaye petitions for review of the BIA's decision.

Both immigration decisions will be reviewed together whenever “the BIA adopts and affirms the IJ's decision, but also adds reasoning of its own.” Chen v. Mukasey, 510 F.3d 797, 800 (8th Cir.2007). We will affirm the decisions if they are supported by substantial evidence, and will reverse “only if the petitioner demonstrates that the evidence is so compelling that no reasonable factfinder could fail to find in favor of the petitioner.” Bernal-Rendon v. Gonzales, 419 F.3d 877, 880 (8th Cir.2005).

Under our immigration law, “[t]he Attorney General has discretion to grant asylum to a refugee, defined as an alien who is unable or unwilling to return to her home country because of past persecution or a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” Onsongo v. Gonzales, 457 F.3d 849, 852 (8th Cir.2006). An asylum applicant “must establish that one of the five protected grounds was or will be at least one central reason” for the persecution. Averianova v. Mukasey, 509 F.3d 890, 895 (8th Cir.2007) (citing 8 U.S.C. § 1158(b)(1)(B)(I)).

An asylum applicant “bears the burden of satisfying the IJ that her testimony is credible.” Averianova, 509 F.3d at 895 (citing 8 U.S.C. § 1158(b)(1)(B)(ii)). Administrative findings of fact, including credibility determinations, are “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4); Singh v. Gonzales, 495 F.3d 553, 556 (8th Cir.2007). An applicant for asylum will not succeed “regardless of the reason for the alleged persecution” when there has been both “an adverse credibility finding and a lack of corroborating evidence.” Averianova, 509 F.3d at 895; Sivakaran v. Ashcroft, 368 F.3d 1028, 1029 (8th Cir.2004).

Fesehaye argues that the BIA erred in affirming the IJ's adverse credibility determination because it was not supported by substantial evidence. The IJ based its adverse credibility finding largely on a number of inconsistencies between Fesehaye's Dutch asylum application and her subsequent United States application. The applications contained significantly different descriptions about her mother's alleged abduction, about the treatment Fesehaye received from authorities when she sought help finding her mother at the police station, about the location of her birth, and about the periods of time she lived in Ethiopia as opposed to Eritrea. The IJ also noted that the record reflected that the neighborhood Fesehaye claimed to have resided in does not exist.

Fesehaye offers several explanations for the inconsistencies between her asylum applications.¹ She first states that the Ethiopian translator at her first Dutch asylum interview was biased against her and as a result did not accurately translate her...