Gebremichael v. I.N.S.

• Decision Date: 05 January 1993
• Docket Number: 93-1486,Nos. 92-1678,s. 92-1678
• Citation: 10 F.3d 28
• Parties: Tesfaye Aberra GEBREMICHAEL, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 28

10 F.3d 28

Tesfaye Aberra GEBREMICHAEL, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

Nos. 92-1678, 93-1486.

United States Court of Appeals First Circuit.

Heard Jan. 5, 1993.

Decided Nov. 23, 1993.

Eliza C. Klein, Boston, MA, for petitioner.

Donald A. Couvillon, Civ. Div., Office of Immigration Litigation, with whom Frank W. Hunger, Asst. Atty. Gen., Stuart M. Gerson, Asst. Atty. Gen., and Richard M. Evans, Asst. Director, Office of Immigration Litigation, Washington, DC, were on brief, for respondent.

Before TORRUELLA, SELYA and STAHL, Circuit Judges.

STAHL, Circuit Judge.

In these consolidated appeals, petitioner Tesfaye Gebremichael claims that the Board of Immigration Appeals (the Board or BIA) erred in finding him ineligible for asylum, withholding of deportation, and suspension of deportation. See 8 U.S.C. Secs. 1158(a), 1253(h), and 1254(a) (1988 & Supp. IV 1992). Petitioner's principal argument is that he is eligible for asylum as a result of the detention and torture visited upon him as a means of persecuting his brother. Petitioner also raises the vexing procedural issue of when the Board can take "official notice" of country conditions without giving an alien warning or a predecision opportunity to respond. After a careful review, we hold that petitioner is statutorily eligible for asylum and that he is entitled to a meaningful opportunity to respond to extra-record facts noticed by the Board.

I. BACKGROUND ¹

Petitioner is an Ethiopian alien of Amhara descent. He was born in 1960 in Addis In September 1982, the military authorities arrested petitioner's father and younger brother as they were participating in a Seventh Day Adventist service. ³ It is undisputed that the father and brother were persecuted, although it is unclear whether they suffered religious persecution, political persecution, or both. ⁴ In any case, petitioner's father was imprisoned for over two years before he was released. Petitioner's brother was also imprisoned but, following his transfer to a hospital in January 1983, he managed to escape to the family home. Petitioner then helped "smuggle" his brother out of the country. ⁵

                Ababa, where some family members continue to live.  In his early years he lived under the shadow of the repressive Mengistu regime, although he himself never suffered physical harm or a deprivation of liberty until he was older. 2  Petitioner was allowed to finish his education.  In 1981, he received an engineering degree from the University of Addis Ababa and was ordered to work at the Ethiopian Construction Authority
                

Shortly thereafter petitioner was arrested by the Dergue. Although the authorities did not have--and never obtained--any information linking petitioner to his brother's escape, petitioner was accused of aiding the escape of an enemy of the state. Petitioner was taken to the Central Investigation Center, controlled by the agency responsible for investigating anti-revolutionary activities and opposition to the government. Every day for two weeks Dergue personnel interrogated and tortured petitioner as they tried to force him to reveal his brother's hiding place. ⁶ Petitioner was then held for an additional three and a half months in a different section of the Center. He was no longer interrogated but was occasionally forced to crawl on sharp stones. In late June 1983, petitioner was released after the Dergue learned that his brother had left the country. Upon release Fearing additional mistreatment if the Dergue learned of his role in his brother's escape or his own opposition political activities, petitioner made plans to leave the country. He obtained an illegal passport and, through UNESCO, secured a student visa and scholarship to attend graduate school in Sierra Leone. He left Ethiopia in October 1983.

he was threatened with execution if he were to engage in any political or religious activities disfavored by the government. There is little evidence in the record that petitioner was ever formally charged, prosecuted, or convicted. ⁷

After completing his studies in June 1985, petitioner still feared persecution should he return to Ethiopia but believed he would not be allowed to remain in Sierra Leone. While it is not clear when petitioner decided to attempt to stay in the United States, he entered this country on June 23, 1985, with a six month visitor's visa. ⁸ Petitioner applied for asylum on December 12, 1985.

At a deportation hearing later that month, petitioner conceded deportability but moved for three forms of relief from deportation under the Immigration and Nationality Act (INA): political asylum, ⁹ withholding of deportation ¹⁰ and voluntary departure. ¹¹ 8 U.S.C. Secs. 1158(a), 1253(h), and 1254(e) (1988 & Supp. IV 1992). The IJ granted petitioner's request for voluntary departure but denied the other two applications. Petitioner then appealed to the Board, which received briefs in November 1989 and heard oral argument in March 1990. The Board did not issue a decision until two years had passed.

In the intervening time, conditions in Ethiopia had changed drastically. Mengistu fled the country in May 1991, the Dergue was quickly dismantled, and a multiparty transitional government was established to organize democratic elections. The transitional government declared that citizens in exile were welcome to return.

In its decision on March 25, 1992, the Board not only reviewed the record de novo but also looked beyond the record to take administrative notice of the political changes in Ethiopia as described in a state department report. The Board did not inform petitioner of its intention to notice these facts, nor did it give petitioner an opportunity to respond. Although it extended the time for voluntary departure, the Board affirmed the IJ's finding that petitioner was not eligible for either asylum or withholding of deportation.

The Board found petitioner ineligible for asylum for failure to prove either past persecution or a well-founded fear of future persecution. The Board reasoned that petitioner had not shown that the "reprehensible" detention and torture inflicted on him in 1983 were "to punish him for one of the five Petitioner then filed with the Board a motion to reconsider its denial of asylum and withholding of deportation as well as to reopen to allow him to apply for suspension of deportation. ¹² Concurrently, petitioner sought review in this court. ¹³

                grounds specified in the [INA] rather than to compel him to reveal the whereabouts of his missing brother."   In re Gebremichael, No. A26876916, slip op. at 3 (BIA Mar. 25, 1992) (Gebremichael I ).  The Board also found that petitioner had not demonstrated a well-founded fear of future persecution on any basis.  Additionally, the Board noted that the political changes in Ethiopia undercut petitioner's claims that he might be persecuted if he were repatriated.  Finally, the Board rejected the request for withholding of deportation, which requires an even greater showing of the likelihood of future persecution
                

In support of his motion to reconsider, petitioner offered an array of new evidence to bolster his proof of a well-founded fear of future persecution. Relying on affidavits and background material, petitioner claimed that persecution was once again part of the currency of political conflict in Ethiopia. There was evidence that the multiparty coalition that ousted Mengistu had fractured and that the government was dominated by Marxist members of the Tigray ethnic group who were increasingly intolerant of political and ethnic differences. There was also evidence that, should he return to Ethiopia, petitioner could face persecution based on his Amhara ethnicity, ¹⁴ his family's privileged social status before the 1974 revolution, and his expatriate political activity in opposition to the new government.

As part of his motion for rehearing, petitioner also moved to reopen so that he could apply for suspension of deportation on the ground that repatriation would constitute "extreme hardship" to him. While petitioner did not claim that he would be unable to make a living in Ethiopia, he argued that his departure would rupture important family ties, ¹⁵ deprive him of "the only safe home Reaching the merits of petitioner's claims, the Board stated that "none of the evidence presented by this respondent in any way changes our view of the respondent's asylum application." In re Gebremichael, No. A26876916, slip op. at 3 (BIA Apr. 20, 1993) (Gebremichael II ). Once again, without warning and without providing a predecision opportunity to respond, the Board took administrative notice of another state department report which suggested that there had been no widespread acts of persecution of minorities, including the Amharas. The Board then reaffirmed its finding that petitioner was ineligible for asylum or withholding of deportation.

[he] has known since he was fourteen years old," and aggravate his depression and anxiety, perhaps to the point of suicide.

Finally, the Board found that petitioner failed to present prima facie evidence of "extreme hardship" sufficient to qualify him for suspension of deportation. ¹⁶ To support its finding, the Board noted that petitioner (1) did not appear to be the primary financial support of any family member; (2) is a highly educated young man who could probably obtain employment anywhere he went; (3) has sizable bank assets which he could use to reestablish himself in Ethiopia; (4) did not present entirely credible evidence of the psychological consequences of repatriation; and (5) did not substantiate his claim that he would be targeted by the present government in Ethiopia.

Petitioner appealed the denial of the motion to reopen and reconsider and we consolidated the two appeals.

II. STANDARD OF REVIEW

The Board's determination of statutory eligibility for relief from deportation--a mixed question of law and fact--is...