Francois v. I.N.S.
| Decision Date | 18 March 2002 |
| Docket Number | No. 01-1233.,01-1233. |
| Citation | 283 F.3d 926 |
| Parties | Sihin Hadera FRANCOIS, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Herbert A. Igbanugo, argued, Minneapolis, MN, for appellant.
Francis W. Fraser, U.S. Justice Dept., argued, Washington, D.C., for appellee.
Before: BYE, RICHARD S. ARNOLD and BEAM, Circuit Judges.
Sihin Hadera Francois, a native and citizen of Eritrea, petitions for review of an order of the Board of Immigration Appeals (BIA) dismissing her appeal from an Immigration Judge's denial of her request for asylum and withholding of deportation. For the reasons stated below, we deny the petition.
Francois entered the United States on October 7, 1987, as a nonimmigrant student to attend Brown Institute in Minneapolis, Minnesota. She was authorized to remain in this country until March 23, 1989. On December 8, 1988, however, Francois was placed in deportation proceedings by the filing of an Order to Show Cause with the Immigration Court. The Order charged that Francois was an alien who failed to comply with the conditions of the nonimmigrant status under which she had been admitted to the United States, namely, that she had never attended the Brown Institute.
At a July 13, 1993, hearing Francois admitted the factual allegations contained in the Order and conceded deportability, but requested an opportunity to apply for asylum and a withholding of deportation. At the conclusion of an immigration hearing held on December 16, 1993, an Immigration Judge denied Francois's applications for asylum and withholding of deportation, but granted her voluntary departure. Francois appealed the Immigration Judge's decision to the BIA, and on December 27, 2000, the BIA dismissed her appeal.
Francois contends she was subject to past persecution in Eritrea because of her religious beliefs and political opinion, and that she has a well-founded fear of future persecution if she returns because she is (1) a Christian, (2) a political opponent of the Mengistu regime, and (3) a member of the ELF (Eritrean Liberation Front), an opponent of the EPLF (Eritrean People's Liberation Front), which now rules Eritrea. Francois submitted evidence based on her individual and family experiences in Eritrea.
Francois belonged to the Catholic Youth Organization (CYO) and was involved in studying the Bible and teaching the Catechism. While attending Asmara University in Eritrea, she distributed pamphlets for the Eritrean Liberation Front (ELF); the last time she distributed pamphlets was in 1986. The ELF was a group that opposed the Marxist Mengistu regime. Francois was prepared to perform two years of government service in exchange for her free education at the university, but the government sent her to study Marxist-Leninist ideology in the Soviet Union for three years along with other Ethiopian students. She refused to cooperate in the study of that ideology because it denied the existence of God and was against her religion.
After her return from the Soviet Union, Francois underwent an interrogation by the Kedele, the local communist party. She told them she refused to cooperate in the study of Marxist-Leninist ideology because of her Catholic beliefs. She was then referred to another level of interrogation, the Keftegne, or Workers' Party, under the Mengistu regime, where she was interrogated every day for two months about her political beliefs in an effort to convince her to embrace their ideology. From there she was referred to Ethiopian military officials who asked her the same questions for a week and showed her pictures of people being tortured and killed. Francois was told that if she did not change her ideology, they were going to kill her father. She was never detained overnight or sent to jail during these interrogations and was allowed to return home every day. When asked if she was involved with the ELF, Francois always responded in the negative.
After these interrogations, Francois was accepted to Hull University in London, but was unable to attend because the Ethiopian government refused to issue her an exit visa. When the Ethiopian government began to imprison members of the CYO, Francois believed her life was in danger so she decided to leave Ethiopia, contacted her brother in the United States, and made plans to come to this country as a student. She admitted she never actually attended Brown Institute in Minneapolis because she wanted to study biology not electronics.
A week before the immigration hearing, Francois received a letter from her father in which he related incidents of terrorism and killing of former ELF supporters by former Mengistu sympathizers. In that letter, her father also indicated that one of her sisters was promoted by her employer and her other sister graduated from high school and was awaiting her college entrance exam results.
The Transitional Government of Ethiopia took power and overthrew the Mengistu regime in 1991. Eritrea became independent in 1993 and the new government of Eritrea is neither anti-Catholic nor pro-Marxist, but is dedicated both to democratic reform and freedom of religion. Francois has acknowledged these political changes. She also testified she is not opposed to the new government. She agreed the new government is engaged in reform and that her religious beliefs would not be persecuted. Francois stated she nevertheless fears persecution because the new government is incapable of protecting its own people from Ethiopian terrorists or controlling political violence.
Francois's father had been a judge on the Supreme High Court in Ethiopia for 44 years, but his duties ended when the Ethiopian government forced him to resign and replaced the court with military tribunals in 1986. He had also attempted to establish a Catholic University and write a newsletter on human rights issues. Francois's father still resides in Eritrea.
Francois's uncle had been a bishop in the Catholic church for 25 years until 1987, when his tenure ended under pressure from the government due to his involvement with the Eritrean independence movement. Her uncle was arrested in 1986 for giving a sermon during the feast of St. Anthony in which he discussed the oppression of the people, and was jailed for a week. He also wrote six or seven books on Catholic theology that were banned by the Ethiopian government.
Francois's oldest brother left Ethiopia in 1976 and presently lives in Germany under refugee status. He left Ethiopia because he was involved with the ELF and the Mengistu government was aware of this affiliation. Government soldiers descended upon his home and questioned his mother at gun point as to his whereabouts. After this incident, he left Eritrea. A second brother left Eritrea in 1986 because he had been forced by Ethiopian soldiers to fight against the Eritrean people. This brother was granted refugee status in the United States. Francois's third brother left Eritrea in 1977 because he was involved in distributing pamphlets for the ELF and several of his friends had been killed. This brother came to the United States in 1981 and was also granted refugee status. A fourth brother was imprisoned by Ethiopian soldiers in 1979 for three years because of his involvement with the ELF. He was released in 1982 and left Ethiopia because his friends started to disappear. This brother died in the Sudan of unknown causes. Francois also has two sisters who still reside in Eritrea.
The Immigration and Nationality Act authorizes the Attorney General, in his discretion, to confer asylum on any refugee. 8 U.S.C. § 1158(a). A refugee is defined as an alien who is unwilling to return to his or her home country because of "(1) past persecution or (2) 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). The "well-founded fear of persecution" standard contains subjective and objective elements. An alien may establish the subjective element with credible testimony that he or she genuinely fears persecution. Ghasemimehr v. INS, 7 F.3d 1389, 1390 (8th Cir.1993) (internal citations omitted). The objective element requires a showing of credible, direct, and specific evidence that a reasonable person in the alien's position would fear persecution if returned to the alien's native country. Id.
An alien will be presumed to possess a well-founded fear of future persecution if past persecution is established, and the burden then shifts to the Immigration and Naturalization Service (INS) to show by a preponderance of the evidence that "conditions in the applicant's country ... have changed to such an extent that the applicant no longer has a well-founded fear of being persecuted if he or she were to return." 8 C.F.R. § 208.13(b)(1)(i). Even if the INS carries this burden, "humanitarian asylum" may be granted based on past persecution alone if that persecution was particularly atrocious. See Cigaran v. Heston, 159 F.3d 355, 357 (8th Cir.1998) (citations omitted).
That BIA found that, even assuming Francois established past persecution, the INS had successfully rebutted the presumption of future prosecution by proving that conditions in Eritrea have changed. The BIA noted the State Department Country Reports for 1995 and 1999 indicate that Eritrea became an independent state in 1993, following an internationally-monitored referendum in which citizens voted overwhelmingly for independence from Ethiopia. It noted that Islam and Christianity are practiced and tolerated widely throughout the country with persons free to worship at the mosque or church of their choice. The BIA further noted that "[w]hen the EPLF...
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