Kifleyesus v. Gonzales, 05-3304.

• Decision Date: 12 September 2006
• Docket Number: No. 05-3304.,05-3304.
• Citation: 462 F.3d 937
• Parties: Selamawit KIFLEYESUS, Petitioner, v. Alberto GONZALES, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

462 F.3d 937

Selamawit KIFLEYESUS, Petitioner, v. Alberto GONZALES, Attorney General of the United States, Respondent.

No. 05-3304.

United States Court of Appeals, Eighth Circuit.

Submitted: June 16, 2005.

Filed: September 12, 2006.

M. Audrey Carr, argued, Minneapolis, MN, for appellant.

Christine Pecora Luster, argued, U.S. Department Of Justice, Aviation and Admiralty Litigation, Torts Branch Division, Washington, DC, for appellee.

Before MURPHY, MELLOY, and COLLOTON, Circuit Judges.

MELLOY, Circuit Judge.

Selamawit Kifleyesus, an Eritrean citizen, petitions for review of an order of the Board of Immigration Appeals. In the order, the Board found that she was not credible; denied her application for asylum, withholding of removal and relief under the Convention Against Torture; and found that her application was frivolous. We deny the petition.

I. Background¹

The petitioner entered the United States at Detroit on July 6, 2000, on a 90-day nonimmigrant fiancé visa. She was authorized to stay in the United States through October 5, 2000. She did not marry her fiancé, and she overstayed her visa. On July 17, 2001, the INS served the petitioner with a notice to appear charging removability.

In a first hearing, on September 27, 2001, the petitioner conceded removability and sought asylum, withholding of removal, relief under the Convention Against Torture and, in the alternative, voluntary departure. The IJ designated Eritrea as the country of removal.

On January 7, 2004, the IJ held another hearing, received evidence, permitted the petitioner to amend her asylum application, and received testimony from the petitioner. The petitioner amended her asylum application regarding her education, employment, and places of residence in the United States. She then declared and swore that contents of the application were true. The petitioner did not amend several items on her asylum application even though she later admitted that these items were false.

In her testimony at the January 7, 2004 hearing, the petitioner described the following history. She is an Eritrean citizen who was born in an area of Ethiopia that eventually became Eritrea. She left the country with her family in 1978, at the age of eight, during a time of civil war. The family fled to Kassala, Sudan where the petitioner spent the remainder of her childhood and graduated from high school. She received her education in schools run by members of a political group, the Eritrean Liberation Front ("ELF"). Her parents were members of the ELF, and she eventually joined and became active in the group. In 1988, after high school, she moved to Khartoum, Sudan, received vocational training, and obtained a job as a secretary at a YMCA. She worked in that capacity for three years. The petitioner's family returned to Eritrea in 1992 when Eritrea obtained its independence from Ethiopia. The petitioner remained in Sudan.

While in Sudan, she met a man named Mehretab Abraha. Mr. Abraha moved to Egypt to attend college and eventually moved to the United States and became a United States citizen. The petitioner stated she remained in Sudan until November 1996, at which time she returned to Eritrea and lived in hiding until April 1998. She did not explain what she did between the time that she stopped working as a secretary in Khartoum and the time that she returned to Eritrea in 1996. She left Sudan for Eritrea in order to procure an Eritrean passport so she could travel to the United States to marry Mr. Abraha.

The petitioner claimed that while in Eritrea between 1996 and 1998, she lived in hiding because her active participation in the ELF made her a target of the Eritrean government. She did not, however, claim that her mother lived in hiding or was targeted for having previously been active with the ELF. The petitioner also claimed that she feared harm from the government of Eritrea and could not obtain an Eritrean passport or identification card due to her failure to participate in compulsory national service. She does not claim that she actually suffered any harm during that time.

She claimed that, in April 1998, she fled to Ethiopia where she lived in hiding for six months with an uncle and attempted to obtain an Ethiopian passport. Eventually, the uncle arranged for a passport and travel to Germany with a Somali businessman. She then traveled to Germany where she lived from September 1998 until July 2000. While there, she met other Eritreans and became active in a local branch of the ELF. She applied for an Eritrean passport at the Eritrean embassy, but her application was denied. She applied for and was denied asylum in Germany. She did not state why Germany denied her application for asylum. She claimed to have filed an appeal of the German decision but to have withdrawn the appeal in order to obtain German travel documents that would allow her to join Mr. Abraha, by then her fiancé, in the United States. The petitioner testified that she and Mr. Abraha originally had planned to marry in Germany before she traveled to the United States, but that he changed the plan after she arrived in Germany and decided instead to apply for a fiancé visa for her admission to the United States.

When she arrived in the United States, she stayed with Mr. Abraha's sister. She stated that Mr. Abraha refused to marry her and instead insisted that she marry his older brother. She claimed that when she refused to marry his brother, Mr. Abraha became angry, held her down, tied her in rope, demanded that she give him her documents and photos, and then forcefully took her photos and documents. In fact, she filed a domestic violence complaint against him and obtained a protective order from law enforcement in Minnesota. The immigration judge noted at the January 7 hearing that she had read the materials and the order arising from the domestic violence complaint.

The petitioner then stated that she was active in the ELF in Minnesota and had participated in numerous ELF events throughout the United States. She also described the basis for her fears of persecution if returned to Eritrea. She claimed her nephew lives in hiding with her mother and sleeps on the roof to avoid detection from officials who come looking for him every morning. She also claimed that her brother and brother-in-law were forced to participate in national service in Eritrea. She did not claim that only ELF members were forced into service. Instead, she admitted that all Eritreans within a certain age range are required to participate in national service. She identified national service as a reason she did not want to return to Eritrea. She stated that the government of Eritrea knew of her participation in the ELF outside Eritrea and that the government of Eritrea indefinitely detained and killed ELF members.

At the hearing, the IJ had in her possession letters and supporting evidence received from Mr. Abraha. These letters accused the petitioner of lying in the asylum application. In particular, the letters contradicted the petitioner's claims about her past countries of residence, her allegiance to the Eritrean government, and her claim that Mr. Abraha had called off the engagement. Mr. Abraha's letters stated that the petitioner had not lived in Sudan for the entire period claimed, but rather, had lived in Doha, Qatar from 1993 to 1998 under the assumed Islamic name Selma Hiyabu. Supporting documents included a cancelled check, envelopes from Selma Hiyabu, a "free of marriage" contract for the petitioner obtained from the government of Eritrea, and a birth record and census and civil status documents from Eritrea. Letters from Mr. Abraha accused the petitioner of refusing to marry him and of having an affair with an Eritrean man that she met in Germany. The letters stated that she traveled to Germany via Italy and Mr. Abraha had paid for her travel.

The IJ asked the petitioner if she had ever lived in Italy or Qatar or heard the name Selma Hiyabu. The petitioner answered no. The IJ then explained the letters and documents that were in the file. It was unclear whether the materials had any basis in fact or whether Mr. Abraha had submitted them as an act of vindictiveness in relation to the earlier domestic violence claim. Accordingly, the IJ continued the hearing to permit the petitioner time to review the materials.

At a third hearing, on March 18, 2004, the petitioner revised her claims regarding her personal history and admitted that aspects of her prior testimony and application were false. She stated she was raped in Sudan by a police officer when she was briefly incarcerated. She stated she felt unsafe after the rape and decided to leave Sudan. She did not report the crime due to fear of another assault by the police. Also, she told no one other than Mr. Abraha that the rape had occurred. She stated that she feared returning to Eritrea because of her affiliation with the ELF and because she was opposed to participating in mandatory national service in Eritrea. In the asylum proceedings, she had not previously disclosed the fact that she had been incarcerated in Sudan.

She then stated that, through an employment agency, she obtained work as a nanny and domestic servant for a royal family in Qatar and traveled to Qatar on a Ethiopian passport in 1993 under the assumed name, Selma Hiyabu. She lived in Qatar and worked for the family until 1998. She claimed that she returned to Eritrea briefly between May and September 1996, when she lived in hiding and attempted to obtain an Eritrean passport but was denied due to her refusal to participate in national service. She claimed that she had heard stories of women being sexually abused while in national service or returning from national service pregnant. She explained that she lied on her United States asylum application and in the prior hearing because Mr. Abraha had told her she would be denied asylum if she admitted to having lived in Qatar.

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