Fessehaye v. Gonzales, 03-3933.

• Decision Date: 08 July 2005
• Docket Number: No. 03-3933.,03-3933.
• Parties: Hanna H. FESSEHAYE, Petitioner, v. Alberto R. GONZALES, United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

414 F.3d 746

Hanna H. FESSEHAYE, Petitioner, v. Alberto R. GONZALES, United States Attorney General, Respondent.

No. 03-3933.

United States Court of Appeals, Seventh Circuit.

Argued January 7, 2005.

Decided July 8, 2005.

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Mary L. Sfasciotti (argued), Chicago, IL, for Petitioner.

Karen Lundgren, Department of Homeland Security Office of the District Counsel, Chicago, IL, Michelle E. Gorden (argued), Department of Justice Civil Division, Immigration Litigation, Washington, D.C., for Respondent.

Before POSNER, RIPPLE and ROVNER, Circuit Judges.

RIPPLE, Circuit Judge.

The Immigration and Naturalization Service ("INS") brought removal proceedings against Eritrean citizen Hanna Fessehaye. She filed an asylum claim and application for withholding of removal, but obtained no relief. She then brought a motion to reopen her case. See 8 U.S.C. § 1229a(c). In pertinent part, she alleged changed circumstances in that she had become a Jehovah's Witness and consequently feared persecution because of her religious affiliation if sent back to Eritrea. She also asserted that, if returned to Eritrea as a failed asylum seeker, she would suffer persecution. The Board of Immigration Appeals (the "BIA" or "Board") denied her motion to reopen. In its view, she had failed to present sufficient evidence to make out a prima facie case for relief. Ms. Fessehaye now petitions for review of that decision. For the reasons set forth in the following opinion, we grant the petition and remand the case to the BIA for further proceedings.

I BACKGROUND

A. Facts

Ms. Fessehaye was born in the Ethiopian province of Tigray, but relocated to the province of Eritrea to work as a teacher. In the 1990s, Eritrea became independent following an internationally-monitored referendum. Ms. Fessehaye became a citizen of Eritrea by voting in that referendum. Tensions between the newly independent nation and Ethiopia escalated into armed conflict between 1998 and 2000; animosity between the two countries continues to this day.

On August 22, 1998, Ms. Fessehaye entered the United States on a six-month tourist visa. She remained in the country beyond the expiration date of that visa. In October 1998, she married Ghebregziabher Ghebremedhin, another Eritrean citizen who also had entered the United States on a tourist visa and had remained beyond its expiration. The couple has two children who are citizens of the United States, a son born in 1999 and a daughter born in 2001.

In 1998, the INS brought removal proceedings against Mr. Ghebremedhin; he conceded that he was subject to deportation, but sought asylum. His asylum application was based on past persecution and a fear of future persecution because he is a Jehovah's Witness—a church that is subject to widespread persecution and distrust in Eritrea. The Immigration Judge ("IJ") denied his asylum application, and the BIA affirmed. Mr. Ghebremedhin appealed to this court.

Meanwhile, Ms. Fessehaye applied to the INS for asylum. In her application, she claimed to have a well-founded fear of persecution. She based this claim on the fact that her life history involved connections with both Ethiopia and Eritrea, two sovereign countries that have been at war and now coexist in an environment of continuing distrust. Ms. Fessehaye claimed that she faced persecution if returned to Ethiopia because she had voted in the Eritrean referendum and had become an Eritrean citizen. Similarly, she believed that she would be persecuted if returned to Eritrea because she was a native of Tigray, a province that remained part of Ethiopia. Following a hearing, the IJ denied Ms. Fessehaye's request for asylum and her petition for withholding of removal in February 2001. The BIA affirmed without opinion in November 2002.

B. Motion to Reopen

Ms. Fessehaye did not seek review of the BIA's decision, but instead filed a timely motion to reconsider; the Board denied that motion. She then filed a timely motion to reopen, see 8 U.S.C. § 1229a(c)(7),¹ and included supporting evidence and an updated asylum application as required by 8 C.F.R. § 1003.2(c).² In her motion to reopen, Ms. Fessehaye essentially raised four grounds for reopening. We shall discuss each of her submissions and the BIA's resolution.

First, Ms. Fessehaye submitted that, in light of our decision in Nwaokolo v. INS, 314 F.3d 303 (7th Cir.2002), her daughter would be subject to female genital mutilation if she returned to Eritrea with her mother. In support of this claim, Ms. Fessehaye attached the State Department report on human rights practices in Eritrea, see A.R. at 43; U.S. Dep't of State, Eritrea, in Country Reports on Human Rights Practices—2001 (2002) ("2001 Country Report"). The Board rejected this claim on the ground that the asserted danger was not new and had been available at the time of her hearing. The Board further found no statutory basis to maintain a claim based on the fear of future harm to a child and thus determined that Ms. Fessehaye could not make out a prima facie case on this asserted basis for asylum.

Second, she claimed that she had adopted her husband's religion and was a practicing Jehovah's Witness. Because of this conversion, she feared religious persecution—essentially the same religious persecution that her husband had asserted as the basis for his asylum claim. In support of her motion to reopen, Ms. Fessehaye included her own affidavit in which she stated that she had been an Orthodox Christian before her marriage, but had decided to convert to Jehovah's Witness after her marriage and participation in her husband's religious events. The affidavit further stated that Ms. Fessehaye had not completed the final ritual for full membership in the faith, and thus the church elders could not provide additional evidence of her conversion within the ninety-day time limit for filing a motion to reopen. See 8 C.F.R. § 1003.2(c)(2). Her affidavit continued to detail the persecution faced by Jehovah's Witnesses in Eritrea, which she feared would be visited upon her and her children if she returned to the country.³ She cited the persecution of Jehovah's Witnesses described in the 2001 Country Report. The BIA rejected this claim because it determined that Ms. Fessehaye had failed to present sufficient evidentiary materials in support of her conversion. In particular, the Board found insufficient her single affidavit because, in its view, affidavits from her husband or church elders attesting to her Jehovah's Witness faith could have been obtained easily.

Third, Ms. Fessehaye contended that the State Department had recognized—in a report unavailable at the time of her asylum hearing — that Eritrean citizens who return to the country after failed attempts to obtain asylum abroad are subject to investigation and are allowed to enter only on a "case-by-case basis." A.R. at 11; see id. at 51; 2001 Country Report § 2.d ("Applications to return from citizens living abroad who have ... been declared ineligible for political asylum by other governments, are considered on a case-by-case basis."). She claimed that, because she had sought asylum in the United States, she would be investigated upon her reentry to Eritrea; this investigation would in turn lead to her arrest or detention because it would reveal her religious beliefs, as well as her criticism of the Eritrean government for forcing her mother out of the country.⁴ In addition to the 2001 Country Report, Ms. Fessehaye also attached an Amnesty International press release that detailed the treatment of former asylum seekers who returned to Eritrea. In rejecting this contention, the Board believed that the 2001 Country Report and the Amnesty International press release were insufficient evidence that Ms. Fessehaye faced persecution as a former asylum seeker.

Fourth, Ms. Fessehaye reasserted in her affidavit, although not in her motion, a ground raised in her previous asylum application: that Eritrean authorities maintained a policy of arresting ethnic Ethiopians and deporting them to Ethiopia. She argued that "new reports" continued to be published detailing this practice. A.R. at 24. The BIA dismissed this contention as mere speculation, unsupported by the country reports or other evidence.

Ms. Fessehaye now seeks review of the denial of her motion to reopen. More specifically, she asks that we review the Board's decision with respect to her contentions that she has a well-founded fear of persecution because of her religious conversion, her failed attempt to seek asylum and the possibility of further deportation to Ethiopia. She does not challenge the BIA's determination of her derivative female genital mutilation claim.

Before oral argument in this case, our court rendered its decision on Mr. Ghebremedhin's appeal. Ghebremedhin v. Ashcroft ("Ghebremedhin I"), 385 F.3d 1116 (7th Cir.2004). In Ghebremedhin I, we noted that Mr. Ghebremedhin presented evidence of persecution "so compelling that no reasonable factfinder could agree with the BIA's decision" denying him asylum. Id. at 1120. We thus reversed the BIA and remanded with instructions to the Board to grant his asylum application. Id. We subsequently modified the opinion by remanding to the agency for further proceedings consistent with Ghebremedhin I. Ghebremedhin v. Ashcroft ("Ghebremedhin II"), 392 F.3d 241, 244 (7th Cir.2004). Having determined that Mr. Ghebremedhin presented evidence "so compelling" that no reasonable factfinder would have denied his application, we must now resolve his wife's appeal.

II DISCUSSION

A. Standard of Review

The Board's authority to grant or deny a motion to reopen is discretionary; we therefore review deferentially its decision for abuse of discretion.⁵ Motions to reopen are comparable to motions for rehearing or for a new trial, and thus are "strongly disfavored." Selimi v. Ashcroft, 360 F.3d 736, 739 (7th Cir.2004) (citing INS v. Doherty, 502 U.S. 314, 112 S.Ct. 719, 116...