Makonnen v. I.N.S.

• Citation: 44 F.3d 1378
• Decision Date: 11 January 1995
• Docket Number: No. 93-4010,93-4010
• Parties: Elizabeth MAKONNEN, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 1378

44 F.3d 1378

Elizabeth MAKONNEN, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 93-4010.

United States Court of Appeals,

Eighth Circuit.

Submitted Oct. 14, 1994.

Decided Jan. 11, 1995.

Janis M. Clay, Minneapolis, MN, argued, for appellant.

Richard M. Evans, U.S. Dept. of Justice, Office of Immigration Litigation, argued (Frank W. Hunger, U.S. Asst. Atty. Gen., and David J. Kline, Asst. Director, on the brief), for appellee.

Before McMILLIAN, Circuit Judge, LAY, Senior Circuit Judge, and BOWMAN, Circuit Judge.

BOWMAN, Circuit Judge.

Elizabeth Makonnen petitions for review of a decision of the Board of Immigration Appeals (the BIA or Board) denying her application for political asylum under 8 U.S.C. Sec. 1158 (1988 & Supp. V 1993) and withholding of deportation under 8 U.S.C. Sec. 1253(h) (Supp. V 1993), granting her request for voluntary departure instead, and denying her motion to remand her case to the Immigration Judge for consideration of additional evidence. We grant the petition and remand to the Board for further proceedings.

I.

Makonnen, an Ethiopian national and a member of the Oromo Liberation Front (OLF), entered the United States on September 21, 1988, on a non-immigrant student visa. She accepted employment without Immigration and Naturalization Service (INS) authorization. Consequently, an order to show cause alleging deportability under 8 U.S.C. Sec. 1251(a)(9) (1988) was issued on July 31, 1990, with a telephone hearing held on January 29, 1991. Makonnen admitted the factual allegations in the order and conceded deportability, but requested asylum under 8 U.S.C. Sec. 1158, withholding of deportation under 8 U.S.C. Sec. 1253(h), or, alternatively, voluntary deportation, asserting that she feared persecution if forced to return to Ethiopia.

After a final administrative hearing on March 25, 1992, the Immigration Judge noted that Makonnen had supported the OLF when she was a child and had assisted her father in its activities, opposing the former Marxist government. Since her arrival in the United States Makonnen had attended monthly OLF meetings, where she taught youngsters about Oromo culture and cooked ethnic food. Makonnen believed that the Ethiopian government was aware of her OLF activities, and for this reason she feared persecution if she were forced to return to Ethiopia. The judge noted that

respondent's claim principally rises and falls on her own testimony and general background information concerning the present conditions in Ethiopia. The court takes administrative notice that the Mengistu regime fell in May 1991 and that the respondent's previous fear of returning to Ethiopia no long[er] exists.... While the respondent seems to say that she fears the general ethnic conflict and unrest existing in Ethiopia at the present time, this information is insufficient to establish eligibility for Asylum per se.

In re Makonnen, No. A 29 466 150, Oral Decision of the Immigration Judge at 6 (Mar. 25, 1992). The judge denied Makonnen's request for asylum and for withholding of deportation, but granted voluntary deportation with an accompanying order of deportation should she fail to leave the United States within the period prescribed for voluntary departure.

Makonnen appealed to the Board of Immigration Appeals, and moved the Board to remand her case for a further hearing

based on material evidence that was not available and could not have been discovered or presented at the final deportation hearing--departure of the OLF from the coalition government and a pattern of human rights abuses by the new government in Ethiopia, including the arrest and arbitrary detention of Makonnen's own father just days after Makonnen's March 25, 1992 hearing.

Brief of Petitioner at 2. The Board dismissed the appeal and denied Makonnen's motion to remand.

Petitioner timely filed a petition for review, and requested leave to adduce additional evidence under 28 U.S.C. Sec. 2347(c). In her petition, Makonnen argues that the Board erred (1) in applying a stricter standard to her political asylum claim than that mandated by law, (2) in rejecting her claim for asylum based on political opinion because she had not shown that all ethnic Oromos were being persecuted, (3) in denying procedural due process by refusing her the opportunity for a hearing on evidence crucial to her case, (4) in failing to find that, more likely than not, Makonnen would be subject to persecution in Ethiopia, or at least had the requisite fear necessary for a grant of asylum, and (5) in refusing to grant her motion to remand for consideration of her additional evidence.

II.

Before discussing Makonnen's issues, we first supply some general background information based upon published studies. ¹ The OLF was established in Ethiopia in July 1973. As the most recent manifestation of resistance to central government control, the OLF is in the tradition of the Azebo-Raya revolt of 1928-30, the Oromo Independence Movement of 1936, and the Bale revolt of 1964-70. The OLF's stated goal is autonomy or independence for the southern provinces of Ethiopia, known by OLF partisans as Oromoland. ² While the Oromo (Galla) people, Ethiopia's largest ethnic group comprising close to forty percent of the population, are dispersed throughout the country, the southern provinces are considered their heartland. The Oromo penetrated Ethiopia from the south in the fifteenth and sixteenth centuries, and by 1600 established control over the regions they inhabited. Not until the late nineteenth century were they conquered by the Kingdom of Ethiopia. While many Oromo assimilated with the politically dominant Amhara, the Oromo possess distinct physical characteristics and have their own language.

The OLF first began operations against the Ethiopian government in Harrege province in 1974. These actions continued when it became apparent that the Dirg, the Provisional Military Administration Council of the Ethiopian government, would not allow use of the Oromo language in newspapers or at school and when the group was prevented from running its own peasant association. While operations spread to Welega province, the OLF apparently had only scattered successes in the late 1970s and early 1980s. Its inability to mobilize popular support has been attributed to a failure "to organize an effective antigovernment movement, to convince the majority of Oromo people that separation was a viable political alternative, or to sustain military operations in ... geographically separated areas." Thomas P. Ofcansky & LaVerle Berry, U.S. Dep't of State Ethiopia: A Country Study 247 (1993). From 1989-91 the OLF achieved more success than it previously had in the struggle against the Mengistu regime, although at least some of this was attributable to the support of other resistance groups, including the Tigray People's Liberation Front (TPLF) and the umbrella Ethiopian People's Revolutionary Democratic Front (EPRDF), of which the TPLF is a major constituent.

After the fall of the Mengistu government in 1991, the OLF, the EPRDF, and other groups formed a coalition regime. "Relations between the OLF and the EPRDF," however, "seem to have been ambivalent even at the best of times because the Oromo were deeply suspicious of the ultimate designs of the Tigrayan leadership." Ofcansky & Berry, supra, at 311. In June 1992, the OLF withdrew from the coalition government due to alleged EPRDF intimidation of its members and manipulation of the regional election process. According to a State Department report that Makonnen has called to our attention, and which she wishes to have the Board consider, the regional elections

were flawed by numerous irregularities, including fraud, harassment, intimidation, and political assassination--and the OLF forces took up arms against the Government. In subsequent clashes, the EPRDF forces defeated the OLF units and, at the beginning of 1993, the [Transitional Government of Ethiopia] held more than 20,000 OLF prisoners in several camps. During 1993 most of these detainees were released; the remaining 1,200 are to face criminal charges. The OLF remains outside the Government; much of its senior leadership is abroad.

U.S. Dep't of State, Ethiopia Human Rights Practice, 1993 (Jan. 31, 1994) (citation omitted). This, then, is the general background for petitioner's claim to asylum.

III.

Petitioner first contends that the Board erred in applying a stricter standard to her asylum claim than that mandated by law. She also asserts that the Board erroneously rejected her claim based on political opinion because she has not shown that all ethnic Oromos are being persecuted. We combine these contentions for purposes of our discussion. Both Makonnen and the Board agree that the "well-founded fear" standard for asylum under 8 U.S.C. Sec. 1101(a)(42) (1988), set out in INS v. Cardoza-Fonseca, 480 U.S. 421, 448-49, 107 S.Ct. 1207, 1221-22, 94 L.Ed.2d 434 (1987), is less stringent than the "more likely than not" requirement for withholding of deportation under 8 U.S.C. Sec. 1253(h). Both cite the Board's opinion, which in turn cited Matter of Mogharrabi, 19 I. & N. Dec. 439 (1987), to the effect that "[a]n applicant for asylum has established a well-founded fear if he shows that a reasonable person in her [sic] circumstances would fear persecution for one of the five grounds specified in the Act," namely, race, religion, nationality, membership in a particular social group, or political opinion. In re Makonnen, No. A29 466 150, Order at 3 (Nov. 18, 1993), quoted in Brief for Respondent at 23 and cited in Brief of Petitioner at 24.

Use of the appropriate standard by the Board is a question of law, which we review de novo. In its own review of the case, the BIA noted that

[t]he immigration judge determined that the respondent failed to sustain the burden of proof and so denied the requested relief.... Following [a] recitation of the...