Kebe v. Gonzales, 05-4437.

• Citation: 473 F.3d 855
• Decision Date: 19 January 2007
• Docket Number: No. 05-4437.,05-4437.
• Parties: Getu Hailu KEBE and Gedam Tesfaye Ayele, Petitioners, v. Alberto R. GONZALES, Attorney General of the United States, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 855

473 F.3d 855

Getu Hailu KEBE and Gedam Tesfaye Ayele, Petitioners, v. Alberto R. GONZALES, Attorney General of the United States, Respondent.

No. 05-4437.

United States Court of Appeals, Seventh Circuit.

Argued December 13, 2006.

Decided January 19, 2007.

Eric A. Oesterle (argued), Sonnenschein, Nath & Rosenthal, Chicago, IL, for Petitioners.

Jill E. Zengler, Erin R. Lewis (argued), Office of the United States Attorney, Indianapolis, IN, Karen Lundgren, Department of Homeland Security, Office of the Chief Counsel, Chicago, IL, for Respondent.

Before POSNER, MANION, and EVANS, Circuit Judges.

MANION, Circuit Judge.

Getu Kebe, an Ethiopian citizen, and his wife, Gedam Tesfaye Ayele, petition for review of the order of the Board of Immigration Appeals denying their motion to reopen their claims for asylum, withholding of removal, and relief under the Convention Against Torture. Kebe's original claim was that Ethiopian authorities imprisoned and beat him because of his membership in the Oromo Liberation Front (OLF). His wife filed a derivative claim for asylum. After the BIA affirmed the Immigration Judge's denial of all relief, Kebe and his wife moved to reopen alleging changed country conditions. Because, in denying the motion to reopen, the BIA failed to analyze Kebe's evidence that conditions for members of opposition political organizations like OLF had worsened since the BIA's original decision, we grant the petition and remand.

Background

Kebe, who is of Oromo ethnicity, has been a supporter of the OLF since the 1990's. The OLF is an opposition organization that supports Oromo nationalism and has been attempting to wage an armed struggle against the coalition that controls the Ethiopian government, the Ethiopian People's Revolutionary Democratic Front (EPRDF), which is dominated by the Tigrayan ethnic group.

Kebe's support for the OLF caused him to suffer serious mistreatment at the hands of the government. He was arrested in December 1998, held for twenty-four hours, and interrogated about his OLF ties. After his release, he was told to report to the police once a week. Kebe complied for several months but then stopped because the requirement was preventing him from running his business. After he stopped reporting, the authorities arrested him a second time in December 1999. This time authorities imprisoned him for two months, beat him with rubber truncheons, dragged him across the floor with his hands bound, and stuffed a sock in his mouth so he could not scream. The authorities again questioned him about his OLF affiliation and also about why he stopped reporting to the police. After being released from this second imprisonment, Kebe and his wife fled to Kenya in the summer of 2000 and then came to the United States in September of that year because Kenya does not grant asylum to Ethiopians.

Kebe claimed asylum in 2001 based on his support for the OLF and his Oromo ethnicity. The IJ found Kebe credible. However, she denied his asylum claim because she decided that Kebe's second arrest and the beatings were the result of his failure to report as required rather than his OLF membership. Furthermore, she decided that he did not have a well-founded fear of future persecution because the situation in Ethiopia had improved since elections in 1995, with the government becoming more receptive to the participation of opposition groups in politics. She also concluded that "[g]eneral efforts by a government to learn about OLF activities, especially when the OLF's goal is the violent overthrow of the current Ethiopian government, is not persecutory." There was no finding, however, that Kebe himself committed acts of violence. Finally, she pointed out that Kebe's six siblings and his mother were still in Ethiopia and had not been harassed despite their Oromo ethnicity. Kebe appealed, and the BIA affirmed without opinion in March 2004.

Kebe did not petition for review of this order. Instead, after retaining new counsel, he filed a motion in August 2005 to reopen proceedings based on the ineffective assistance of his former counsel and changed country conditions in Ethiopia. Only the latter claim — changed country conditions — is at issue in this appeal.

As evidence of the changed country conditions, Kebe submitted numerous human rights reports and news articles. These indicated that violence in Ethiopia against supporters of the political opposition had increased both before and after the opposition's unexpectedly strong showing in the most recent elections, held in May 2005. In particular, Kebe submitted news articles from the BBC and Agence France-Presse reporting on the government's alleged imprisonment, torture, and killing of members of the Coalition for Unity and Democracy (CUD), an umbrella organization of opposition political parties, in anticipation of the 2005 election. These articles also reported on the deaths of twenty-two Ethiopians which occurred after the election when police fired on people protesting government-sponsored election fraud.

Finally, Kebe has included with his appellate brief the most recent State Department Country Report on Ethiopia covering 2005. Although this report was not submitted with Kebe's motion to reopen (it had not been published at that time) we may take judicial notice of it. See Giday v. Gonzales, 434 F.3d 543, 556 n. 6 (7th Cir.2006). This report states that "[a]lthough there were some improvements, the government's human rights record remained poor and worsened in some areas." (Pet.App. Ex. C5 at 1.) For example, "in the period following the elections, authorities arbitrarily detained, beat, and killed opposition members . . ." and "[d]uring the year [2005] attacks by police, the army, and militia against members of the opposition and the general public escalated, particularly for demonstrations against the results of the May national elections." (Id. at 1, 11-12.) The report noted that although there were "numerous opposition rallies" prior to the 2005 elections, the government restricted the right to protest following the elections. (Id. at 11.) Finally, the report stated that the CUD umbrella coalition continued to report beatings and...