Menghesha v. Gonzales
| Decision Date | 13 March 2006 |
| Docket Number | No. 04-1716.,04-1716. |
| Citation | 440 F.3d 201 |
| Parties | Simmon Y. MENGHESHA, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Fourth Circuit |
ARGUED: David Allen Garfield, Washington, D.C., for Petitioner. Theodore Charles Hirt, Trial Attorney, U.S. Department of Justice, Office of Immigration Litigation, Civil Division, Washington, D.C., for Respondent. ON BRIEF: Peter D. Keisler, Assistant Attorney General, Civil Division, Margaret Perry, Senior Litigation, U.S. Department of Justice, Office of Immigration Litigation, Civil Division, Washington, D.C., for Respondent.
Before WILLIAMS, KING, and GREGORY, Circuit Judges.
Petition for review granted; vacated and remanded by published opinion. Judge GREGORY wrote the majority opinion, in which Judge KING joined. Judge WILLIAMS wrote a separate dissenting opinion.
Simmon Y. Menghesha fled his native country of Ethiopia on July 8, 2001, the day he learned that government officials had discovered his role in thwarting the arrest of anti-government protestors. The following day, Menghesha arrived in the United States and sought asylum under Section 208(a) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1158(a). Menghesha maintained that if returned to Ethiopia, he would suffer arrest, imprisonment, and torture on account of the political opinion he expressed through verbal critiques of the government and by his actions to frustrate the arrest of nonviolent protestors. The Immigration Judge ("IJ") denied Menghesha's asylum request based on a belief that the Ethiopian government desired to prosecute Menghesha for obstruction of justice. The IJ failed, however, to consider whether the government possessed coexisting illicit motives for taking action against Menghesha. The Board of Immigration Appeals ("BIA") affirmed the IJ's determination, rendering Menghesha removable to Ethiopia. Because we find that the IJ misapplied the law in denying Menghesha's request for asylum, we grant Menghesha's petition for review, vacate the BIA's decision, and remand for further proceedings.
Following is a recitation of undisputed facts adduced in Menghesha's asylum application and hearing testimony. In the absence of contrary evidence or an adverse credibility determination, we accept Menghesha's uncontested account as true. Menghesha was born in Addis Ababa, Ethiopia on May 15, 1976. After graduating from high school, he became actively involved in the Ethiopian People's Revolutionary Democratic Front and Tigray People's Liberation Front ("EPRDF/TPLF"), the political party presently in power. In November 1997, having been identified as a committed EPRDF/TPLF member, Menghesha was offered a position with the government's security services. After six months of training, Menghesha was assigned to a government security detail.
As a member of the security detail, Menghesha was directed to spy on meetings of groups opposed to the government. Menghesha first carried out this task in September 1999, when, undercover, he attended a meeting of the All Amhara People's Organization on the occasion of the death of that organization's leader. During the meeting, the leader of the undercover team summoned the riot police to suppress the allegedly unruly crowd. On their arrival, the riot police began to beat and arrest attendees who refused to disperse. Those who were arrested were detained for two days without bathroom access. Menghesha expressed his discontent about how the attendees were treated in a subsequent security meeting. At that time, his superiors warned him not to criticize the government and told him that such conduct "would harm him." J.A. 184.
In April 2001, Menghesha was assigned to a six-member under-cover team to identify anti-government behavior at a meeting organized by the head of the Ethiopian Human Rights Council. Because Menghesha did not observe any illegal conduct, he did not furnish any information leading to arrests. Consequently, government officials accused him and his colleague Yohannes Assefa of being "in sympathy" with the opposition, threatened them with arrest, and told them they would be watched closely. J.A. 69, 185.
About a week later, Menghesha's undercover team attended a meeting of disgruntled Addis Ababa University students. While a high-ranking security officer negotiated with students regarding their demands for increased freedom, Menghesha and his colleagues interacted with other students and collected information on student leaders. When negotiations failed, the security team received orders to arrest five students identified as opposition leaders. The team was directed to use "any means necessary" to effectuate the arrests, including deadly force. J.A. 185. Menghesha was "disturbed" by the order to use deadly force. Id. at 71. He felt "the students were asking the right questions" and could not comprehend "why the government was behaving this way." Id.
Menghesha discussed the arrest orders with Assefa. Disgusted by what was transpiring, they resolved to warn the five students in question. Having seen others beaten and killed upon arrest, Menghesha feared that the students would meet the same fate unless he intervened. J.A. 74. Further, he sympathized with the students because their request was "right and peaceful." Id. at 77. When the security officers arrived on campus to make arrests, the five students were gone, although other security teams arrested those students they were assigned to locate. Word of the arrests spread, and students mobilized to resist and protest. Troops moved in to control the students and a deadly riot ensued.
Thereafter, the security department began to investigate who had warned the five students. Menghesha and Assefa came under suspicion when security department officials learned that they had been at the university on the afternoon before the arrests, a fact they had failed to report. As there was no proof of wrongdoing, the security department modified the men's duties pending further investigation, but took no other action.
On July 8, 2001, Menghesha and Assefa learned that their role in thwarting the arrests had been discovered by government officials. That same day, Menghesha and Assefa boarded a plane bound for the United States. With that, Menghesha fled the country, without saying goodbye or retrieving any belongings, and despite his apparent plans to marry. On arrival the next day, the two surrendered to immigration authorities and told their story.
At his asylum hearing, Menghesha introduced documentary evidence, including the State Department's Country Report on Ethiopia, to substantiate his testimony. Although Assefa was available to testify, the parties simply stipulated to his corroborative testimony. The Immigration and Naturalization Service ("INS") did not introduce evidence at the hearing, offering only opening and closing remarks.1
After reviewing the evidence, the IJ denied Menghesha's requests for asylum and withholding of removal. The IJ expressed the view that as "a sworn law enforcement official . . . it was not for Menghesha to pick and choose among which of the persons he was directed to arrest." J.A. 225. He stated, "if Menghesha took exception to any action that the government might engage, including the arrest of students who were expressing their opposition to the government of Ethiopia, Menghesha had it within his ability to resign from his position as a law enforcement official." Id. at 225-26. The IJ concluded that "Menghesha fears prosecution for his criminal act of obstruction of justice," and that this "may not form the rational basis upon which the Court can conclude that he would be persecuted on account of his political opinion or any of the four remaining bases upon which asylum may be granted." Id. at 226. The IJ thus denied Menghesha's asylum request without making additional factual findings that might undermine Menghesha's entitlement to asylum.
On May 11, 2004, the BIA affirmed the IJ's decision without opinion. Menghesha timely appealed the BIA's order, challenging only the denial of his petition for asylum.
Section 208(b)(1) of the INA, 8 U.S.C. § 1158(b)(1), gives the Attorney General authority to grant asylum to an alien meeting the statutory definition of a refugee. Under the INA, a refugee is someone who is unable or unwilling to return to his home country due to a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C. § 1101(a)(42)(A). To satisfy this test, an asylum applicant "must demonstrate the presence of a protected ground and he must link the feared persecution, at least in part, to it." Saldarriaga v. Gonzales, 402 F.3d 461, 466 (4th Cir.2005), petition for cert. filed, 74 U.S.L.W. 3130 (U.S. Aug. 25, 2005) (No. 05-266).
Where, as here, the BIA engages in the streamlined review process set forth in 8 C.F.R. § 1003.1(e)(4) by simply adopting the IJ's conclusion without opinion, the IJ's decision becomes the final agency decision subject to our review. See Camara v. Ashcroft, 378 F.3d 361, 366 (4th Cir. 2004); see also 64 Fed.Reg. 56,138 (Oct. 18, 1999) (). Accordingly, the IJ's findings of fact "are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary." 8 U.S.C. 1252(b)(4)(B). We review the IJ's legal conclusions de novo, giving appropriate deference to its interpretations of the INA. Nwolise v. INS, 4 F.3d 306, 309 (4th Cir. 1993) (citing Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837, 842-45, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)). The IJ's ultimate decision with regard to Menghesha's eligibility for asylum must be upheld unless it is "manifestly contrary to the law and an abuse of...
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Silva v. U.S. Atty. Gen.
...does." These application statements are consistent with her testimony. That should be all we need to know. See Menghesha v. Gonzales, 440 F.3d 201, 203 (4th Cir.2006) (reciting the "undisputed facts adduced in [the] asylum application and hearing testimony" and stating "[i]n the absence of ......