Mengistu v. Ashcroft

• Citation: 355 F.3d 1044
• Decision Date: 22 January 2004
• Docket Number: No. 02-3419.,02-3419.
• Parties: Thomas MENGISTU, Petitioner, v. John ASHCROFT, Attorney General of the United States, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

355 F.3d 1044

Thomas MENGISTU, Petitioner, v. John ASHCROFT, Attorney General of the United States, Respondent.

No. 02-3419.

United States Court of Appeals, Seventh Circuit.

Argued September 11, 2003.

Decided January 22, 2004.

Stanley J. Horn (argued), Azulay, Horn & Seiden, Chicago, IL, for Petitioner.

George P. Katsivalis, Department of Homeland Security, Chicago, IL, Susan C. Lynch (argued), Department of Justice, Washington, DC, for Respondent.

Before FLAUM, Chief Judge, and POSNER and EASTERBROOK, Circuit Judges.

POSNER, Circuit Judge.

Thomas Mengistu was born in 1968 in Addis Ababa, the capital of Ethiopia. Ethnically, however, he is Eritrean. He came to the United States from Ethiopia in 1989 on a student visa, which expired in 1991. He did not leave the country, and in 1992 the immigration service began deportation proceedings against him. He did not deny that he was deportable, but he applied for asylum on the ground that he had been persecuted by the Ethiopian government for engaging in religious activity and resisting the draft and would be persecuted again if he were sent back to Ethiopia. Several of his siblings had been granted asylum in the United States. The immigration judge denied Mengistu's application on the ground that the persecution of which he had complained had occurred under the communist regime of Mengistu Mariam (obviously not a relative), which had been overthrown in 1991. Nor had the persecution of which he complained been so atrocious that it would justify asylum even if it were certain not to be repeated, as in the case of German Jews who sought asylum in this country even after the overthrow of the Nazi regime. 8 C.F.R. § 208.13(b)(1)(iii)(A); Asani v. INS, 154 F.3d 719, 722 (7th Cir.1998); Bucur v. INS, 109 F.3d 399, 404-05 (7th Cir.1997); Krastev v. INS, 292 F.3d 1268, 1279-80 (10th Cir.2002).

The judge ordered Mengistu deported (though granted him the option of voluntary departure). Mengistu appealed to the Board of Immigration Appeals. That was in 1993. Not until 2000 did the board decide the appeal, affirming the order of deportation. A month later Mengistu filed a motion to reopen his case on the basis of changed conditions in Ethiopia, as shown in documents that he attached to the motion. More than two years later the board denied the motion in the order that Mengistu asks us to vacate.

The board's long delay in deciding Mengistu's appeal was, ironically, the springboard for his motion to reopen. For in 1998, while his appeal was languishing before the board, Ethiopia and Eritrea went to war with each other. As a not very surprising consequence (for remember the removal of Japanese-American citizens from their homes on the west coast of the United States to concentration camps during World War II), Ethiopia began to persecute persons of Eritrean nationality or ethnicity living in Ethiopia. "Ethiopia authorities set in motion a campaign to round up, strip of all proof of Ethiopian citizenship, and deport Ethiopians of Eritrean origin from the country." Human Rights Watch, The Horn of Africa War: Mass Expulsions and the Nationality Issue (June 1998 — April 2002), p. 3 (Jan.2003). Tens of thousands of Eritreans and Ethiopians of Eritrean origin were deported in the course of the war. Id.; U.S. Dept. of State, Bureau of Democracy, Human Rights & Labor, Ethiopia: Country Reports on Human Rights Practices — 2001 (Mar. 4, 2002), http://www.state.gov/g/drl /rls/hrrpt/2001/af/8372pf.htm.

The war ended in December of 2000, several months after Mengistu had filed his motion to reopen but before the immigration service had responded to the motion. Its response, filed in April of 2001, was brief, consisting of a statement that since the war had ended, the changed country conditions on which Mengistu had premised his motion to reopen were no longer operative. Attached to the response were newspaper articles confirming that the war had indeed ended and that pursuant to the agreement ending the war Ethiopia had in February of 2001 begun withdrawing its troops from the portion of Eritrea that it had conquered during the war.

Sixteen months after the service's response, during which period Mengistu did not attempt to submit any further evidence in support of his motion, the board denied the motion. Stripped of boilerplate, the board's opinion consists of just two statements: (1) "[Mengistu] has attached documents to his motion to reopen which indicate that since May of 1998 [when the war broke out], the government of Ethiopia has escalated the oppression of citizens of Eritrean ethnicity. The documentation [Mengistu] has attached to his motion lead[s Mengistu] to believe that his life or freedom would be threatened because of his Eritrean ethnicity should he be deported to Ethiopia." (2) "The [Immigration] Service contends that since the filing of [Mengistu's] motion, Ethiopia has begun withdrawing their [sic] troops and a United Nations peacekeeping mission has been deployed. We agree with the service's contention that country conditions have changed again so that the information provided in the respondent's motion is no longer material to his claim." (2) is the sole ground for the denial of the motion.

Had the board said that Mengistu's failure to respond to the immigration service's response raised sufficient doubts about postwar persecution of ethnic Eritreans by Ethiopia to warrant a conclusion that he had failed to carry the heavy burden required to reopen a deportation proceeding, we might not have disturbed its decision, given the deferential scope of judicial review of discretionary determinations by administrative agencies. INS v. Doherty, 502 U.S. 314, 322-24, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992); Mansour v. INS, 230 F.3d 902, 906-07 (7th Cir.2000); Singh v. INS, 213 F.3d 1050, 1052 (9th Cir.2000); Rodriguez-Gutierrez v. INS, 59 F.3d 504, 508 (5th Cir.1995). The immigration service in its brief and argument defends the decision on this ground (among others). In so doing the service violates the Chenery doctrine, which forbids the lawyers for an administrative agency to defend the agency's decision on a ground different from that stated or at least discernible in the decision itself. Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 285-86, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974); MBH Commodity Advisors, Inc. v. CFTC, 250 F.3d 1052, 1065 (7th Cir.2001); Reddy v. CFTC, 191 F.3d 109, 125-26 (2d Cir.1999). "The [a...