Fesseha v. Ashcroft, 00-1610.

• Decision Date: 16 June 2003
• Docket Number: No. 00-1610.,No. 02-2047.,00-1610.,02-2047.
• Citation: 333 F.3d 13
• Parties: Senait FESSEHA, Petitioner, v. John ASHCROFT, Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

333 F.3d 13

Senait FESSEHA, Petitioner, v. John ASHCROFT, Attorney General, Respondent.

No. 00-1610.

No. 02-2047.

United States Court of Appeals, First Circuit.

Heard May 6, 2003.

Decided June 16, 2003.

COPYRIGHT MATERIAL OMITTED

Ilana Greenstein with whom Harvey Kaplan, Maureen O'Sullivan, Jeremiah Friedman, and Kaplan, O'Sullivan & Friedman, LLP were on brief, for petitioner.

Joan E. Smiley, Trial Attorney, Office of Immigration Litigation, with whom Robert D. McCallum, Jr., Assistant Attorney General, Civil Division, and Richard M. Evans, Assistant Director, Office of Immigration Litigation, were on brief, for respondent.

Before SELYA, Circuit Judge, CYR, Senior Circuit Judge, and LYNCH, Circuit Judge.

LYNCH, Circuit Judge.

Petitioner Senait Fesseha is an Ethiopian citizen who applied for asylum due to past political persecution, as well as a fear of future persecution based on her ethnicity as an Amhara. An Immigration Judge (IJ) denied her asylum application and the Board of Immigration Appeals (BIA) affirmed. Fesseha then moved to reopen, based on changed country conditions. The BIA denied the motion. She petitions for review of both the denial of asylum and the denial of her motion to reopen. We affirm both denials.

I.

A. Factual Background

The evidence submitted to the IJ is fairly summarized as follows. Fesseha was born in Addis Ababa, Ethiopia in 1965. She is an ethnic Amhara. Her family supported the government of Emperor Haile Selassie, who ruled Ethiopia from 1916 to 1974, excepting only a period of time during World War II, when Ethiopia was occupied by Italy. Fesseha's father was a colonel in the army under Selassie. In 1974, Selassie was overthrown in a coup d'etat by the Provincial Military Administrative Council, known as the "Dergue." In 1977, Dergue leader Colonel Mengistu assumed power, which he retained until 1991. At least two of Fesseha's cousins were members of the Ethiopian People's Revolutionary Party (EPRP), a group opposed to the Dergue regime. While Fesseha herself was not a member, she was also opposed to the Mengistu regime.

Fesseha's family suffered under Dergue rule. Her father was fired from his job when his company was nationalized, and in 1984 he was detained outside of his house. The government also took away land owned by Fesseha's mother in Addis Ababa. One of her cousins, a member of EPRP, was imprisoned in the late 1970s and is presumed dead. Another cousin, also an EPRP member, was arrested in the early 1980s and conscripted into the army, where he died. Fesseha also believes that a third cousin was killed by the government.

Fesseha herself has been detained and arrested several times by members of kebelles, which were local committees organized to police neighborhoods. In 1982 she was arrested and detained overnight.¹ In 1983 she was again arrested after she missed a kebelle meeting.² In 1985 she was arrested, detained overnight, and was forced to perform free labor at the kebelle office.³ After the third arrest, Fesseha fled the country.

Fesseha obtained a student visa to the United States and arrived in Boston on April 29, 1985 to attend Newbury Junior College, although she attended Massasoit Community College instead, only receiving the required authorization for the transfer after the fact. Contrary to the visa, she obtained a job in June 1985 as a housekeeper and later worked as a cashier in a market without proper authorization.

B. Asylum Claim

Fesseha applied for political asylum on August 8, 1988. Because Fesseha had a nonimmigrant student visa, she was authorized to remain in the United States only so long as she maintained her status as a student. On June 1, 1989, the Immigration and Naturalization Service (INS) charged her with deportability because she was employed without INS authorization, in violation of her visa. On August 14, 1989, during the first deportation hearing Fesseha admitted the allegations against her and conceded deportability but requested withholding of deportation. Deportation hearings were held in Fesseha's case on August 14 and December 8, 1989, July 19, 1991, November 10, 1992, and August 12 and September 17, 1993.

On October 10, 1992, Fesseha submitted a motion requesting that the IJ amend her application for asylum to include "nationality" as an additional ground. While the IJ never explicitly ruled on this motion, on November 10, 1992, he added the motion to the record and admitted into evidence her submission of more recent articles and documents regarding the current state of affairs in Ethiopia.

The IJ denied Fesseha's application for asylum and withholding of deportation on September 17, 1993. The IJ based his decision on both a negative credibility finding and a determination that Fesseha had not established a well-founded fear of future persecution. He relied in part on his finding that "conditions in Ethiopia have changed with the new government." The IJ granted Fesseha voluntary departure for a thirty-day period.

Fesseha timely appealed to the BIA. Seven years later, on April 13, 2000, the BIA upheld the decision of the IJ and reinstated the voluntary departure period. The BIA noted that Fesseha had lied about her claim that she was accused of being a member of the EPRP. But even accepting the rest of her testimony as true, it found she had not "demonstrated past persecution or satisfied the well-founded fear standard of eligibility required for asylum." Fesseha filed a petition for review of the BIA's decision with this court on May 12, 2000.

C. Motion to Reopen

On July 10, 2000, Fesseha also filed a motion to reopen with the BIA.⁴ That motion was based on a change of country conditions rooted in the 1991 overthrow of Mengistu's government.

With her motion Fesseha presented evidence tending to show the following. In May 1991, the Ethiopian People's Revolutionary Democratic Front (EPRDF), a coalition of ethnic-based insurgent groups dominated by the Tigray People's Liberation Front, defeated Mengistu's Dergue regime and seized power. Initially, the new government promised to be a more humane one. It disbanded the kebelles, though it created a similar system of "Peace and Stability Committees." The EPRDF government also ratified many international human rights conventions, incorporated human rights treaties into domestic law, and adopted a constitution which included human rights provisions.

Unfortunately, the EPRDF proved no more friendly to political opposition than the previous regime. As early as 1991 the EPRDF detained several EPRP activists and took other action to discourage opposition groups. When the government presided over elections in 1995, opposition groups claimed that the government took steps to prevent their participation. The State Department, in its 1999 country report for Ethiopia, concluded that "[p]olitical participation remains closed to a number of organizations," including the EPRP.

The EPRDF also has been accused of imprisoning more than ten thousand people for political reasons and of using heavy-handed tactics to disband opposition parties and human rights groups. Some regional political parties have even complained that the government has executed their members and supporters.

Fesseha's motion to reopen cited various accusations against the EPRDF regime by sources such as the State Department, the International Committee of the Red Cross, Amnesty International, and Human Rights Watch. Fesseha argued that due to the recent shift in power, and the resulting acceleration of oppression of opposition groups such as the EPRP, her asylum claim based on fear of political persecution had been strengthened.

On July 29, 2002, the BIA denied the motion to reopen. Fesseha timely petitioned this court for review of both the BIA's initial rejection of her asylum claim and its denial of her motion to reopen.⁵

II.

A. Denial of Asylum

1. Legal Standard

Determinations of eligibility for asylum or withholding of deportation are reviewed under the substantial evidence standard: the agency's decision must be upheld if "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) (internal quotation omitted); see Albathani v. INS, 318 F.3d 365, 372 (1st Cir.2003). This standard is a deferential one: the petitioner must demonstrate "that the evidence he presented was so compelling that no reasonable fact-finder could fail to find the requisite fear of persecution." Elias-Zacarias, 502 U.S. at 483-84, 112 S.Ct. 812; see 8 U.S.C. § 1252(b)(4)(B) (2000) ("[T]he administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary."); Oliva-Muralles v. Ashcroft, 328 F.3d 25, 27 (1st Cir.2003). Our review is of the entire record before the BIA, not merely of the evidence supporting the agency position, Albathani, 318 F.3d at 372, but we examine only the administrative record, 8 U.S.C. § 1252(b)(4)(A). See Gailius v. INS, 147 F.3d 34, 44 (1st Cir.1998).

The Attorney General may grant asylum to an alien who is otherwise inadmissible or deportable, but only if that alien is a "refugee." 8 U.S.C. § 1158(b)(1) (2000). A refugee is an alien "who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, [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." Id. § 1101(a)(42)(A) (2000). The burden is on the alien to prove refugee status. Civil v. INS, 140 F.3d 52, 55 (1st Cir.1998); 8 C.F.R. § 208.13(a) (2003).

Applicants must show either past persecution or a well-founded fear of future persecution. Id. § 208.13(b). "[P]ersecution encompasses more than threats to life or freedom, but less than mere harassment or annoyance." Aguilar-Solis...