Tsegay v. Ashcroft

• Decision Date: 26 October 2004
• Docket Number: No. 02-9577.,02-9577.
• Citation: 386 F.3d 1347
• Parties: Teshai Hogos TSEGAY, Petitioner, v. John ASHCROFT, United States Attorney General, Respondent. American Immigration Law Foundation, Amicus Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

386 F.3d 1347

Teshai Hogos TSEGAY, Petitioner, v. John ASHCROFT, United States Attorney General, Respondent.

American Immigration Law Foundation, Amicus Curiae.

No. 02-9577.

United States Court of Appeals, Tenth Circuit.

October 26, 2004.

Petition for review of the Board of Immigration Appeals.

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Emily Jeanellen Curray (Kenneth Stern and Lisa H. York on the briefs), Stern and Elkind, LLP, Denver, CO, for Petitioner.

Jamie M. Dowd (Peter D. Keisler, Linda S. Wernery and John D. Williams on the briefs) United States Department of Justice, Washington, D.C., for Respondent.

Beth Werlin, Nadine K. Wettstein, and Mary A. Kenney, American Immigration Law Foundation, Washington, D.C., on brief for Amicus Curiae for Petitioner.

Before EBEL, TYMKOVICH, Circuit Judges, and HEATON,^* District Judge.

TYMKOVICH, Circuit Judge.

Petitioner Teshai Hogos Tsegay was born in 1954 in a region of Ethiopia that later became part of the country of Eritrea. Though raised as an Orthodox Christian, in 1986 she converted to the Jehovah's Witnesses religion. After being persecuted by government officials for her religious activities as a Jehovah's Witness, she fled Eritrea and legally entered the United States in 1996 on a six-month temporary visa.

In 1997, her temporary visa expired. She lived without proper documentation for two years, and then applied for asylum in 1999. An immigration judge rejected her application after determining (a) that she had failed to file her application within the one-year statutory deadline, and (b) that she had also failed to show "changed circumstances" sufficient to extend the statutory deadline. See 8 U.S.C. § 1158(a)(2)(D) (2000). The judge did, however, grant her application for withholding of deportation on the ground that she would likely suffer persecution if returned to Eritrea. Tsegay currently resides in the United States.

Tsegay appealed the denial of asylum to the Board of Immigration Appeals. Under the regulations governing administrative review of immigration appeals,¹ a single BIA member "streamlined" the case, and summarily affirmed the IJ's decision without an opinion. Tsegay now seeks judicial review of the BIA's decision to affirm her case without opinion.

Tsegay acknowledges that under Tsevegmid v. Ashcroft, 336 F.3d 1231, 1234 (10th Cir.2003) (analyzing 8 U.S.C. § 1158(a)(3)), we do not have jurisdiction to review the merits of the IJ's decision. Instead, she raises this jurisdictional question: May we review the BIA's decision to affirm Tsegay's administrative appeal without opinion under 8 C.F.R. § 1003.1(e)(4), even though we do not have jurisdiction to review the merits of her appeal?

Holding that we have no authority to hear Tsegay's appeal, we DISMISS.

I. BACKGROUND

Tsegay is a native Ethiopian who converted to the Jehovah's Witnesses religion as a young adult. In the late 1980s, she actively practiced her religion without persecution under the Ethiopian regime and was even able to convert some of her relatives to her faith.

In 1991, after a brutal war that lasted decades, Eritrea achieved its independence from Ethiopia. Tens of thousands of Eritreans lost their lives in the struggle for independence. In accordance with the tenets of their religion, many Jehovah's Witnesses refused to participate in the war for independence and also refused to participate in the independence referendum that followed the war. This aroused widespread resentment against them both by the Eritrean government and among the general population, a resentment that soon developed into active persecution. The Eritrean government subsequently outlawed the practice of the Jehovah's Witnesses faith in Eritrea, stripped all Jehovah's Witnesses of their citizenship rights, and imprisoned some of them for refusing to participate in military service.

Despite these new government restrictions on the practices of Jehovah's Witnesses, Tsegay continued to meet with fellow Witnesses and to conduct her door-to-door ministry. Eventually, Eritrean government forces discovered Tsegay's activities and arrested her for participating in a Jehovah's Witnesses women's group. She was held in jail for three months, during which time her captors verbally harassed her and attempted to convince her to forsake her faith. She was only released after her nephew, a high-ranking official with the Eritrean security services, intervened on her behalf. Her nephew then helped her to obtain a visa to enter the United States.

Tsegay entered the United States on December 26, 1996, with a non-immigrant B-2 visa that entitled her to remain in the United States until June 25, 1997. In 1997, Congress amended the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 to provide that an alien must apply for asylum within one year after either arriving in the United States or before April 1, 1997, whichever is later. 8 U.S.C. § 1158(a)(2)(B). Accordingly, under the provisions of the Act, Tsegay had one year from April 1, 1997, or until April 1, 1998, in which to file her application for asylum. 8 C.F.R. § 208.4(a)(2)(ii) (2003).

Tsegay filed her application for asylum pro se on July 26, 1999—nearly sixteen months after April 1, 1998. On October 13, 1999, the Immigration and Naturalization Service² denied her asylum application and issued her a notice to appear as a removable alien. At the ensuing hearing on January 5, 2000, Tsegay, through counsel, admitted to the factual allegations in the notice to appear and conceded her removeability, but she requested relief from removal in the form of asylum and withholding of removal or, alternatively, voluntary departure. She was granted a second hearing on her request for relief from removal, which took place on August 4, 2000, in Denver, Colorado.

At the second hearing, Tsegay testified that she did not immediately apply for asylum upon her entry into the United States because she expected to return to Eritrea. She later decided to go to Ethiopia after several of her relatives who were Jehovah's Witnesses found refuge from persecution there. However, she overstayed the expiration of her visa because she could not afford a plane ticket to Ethiopia.

Unfortunately for Tsegay, around the same time her visa expired the conflict between Ethiopia and Eritrea boiled over. Both Ethiopia and Eritrea began deporting each other's citizens en masse to their respective countries. By September 1998, Ethiopia had deported Tsegay's family members back to Eritrea, where they again began to experience persecution because of their faith. About nine months later, Tsegay, who had remained in the United States during this time, filed her application for asylum.

Tsegay acknowledged the untimeliness of her application for asylum, but she asked the IJ to excuse her lateness under the "changed circumstances" exception of INA § 208(a)(2)(D), 8 U.S.C. § 1158(a)(2)(D) (providing that the INS may consider an alien's untimely application for asylum if the alien demonstrates the existence of changed circumstances that materially affect her eligibility for asylum). In particular, she argued that although conditions of persecution in Eritrea had always existed, changes in conditions in Ethiopia eliminated the safe haven that she had originally expected to find there.

The IJ denied Tsegay's request at the close of the August 2000 hearing. Although the IJ found that the Eritrean government had discriminated against Jehovah's Witnesses, he also found that Tsegay had failed to prove changed circumstances under § 1158(a)(2)(D) because the conditions in Eritrea had been the same since 1991. The IJ explained that "the statute and the intent of Congress as far as change in country conditions are concerned relate to Eritrea, not Ethiopia" and, accordingly, he did not consider the effect of the changed political environment in Ethiopia.

Tsegay appealed to the BIA on the grounds that the IJ had erred by failing to recognize that "changed circumstances" could include circumstances that took place outside the United States, but not in her home country. The BIA judge assigned to her case did not expressly address this argument. Instead, he summarily affirmed the IJ's decision under the agency's affirmance without opinion ("AWO") regulation and issued an opinion that stated simply, "The Board affirms, without opinion, the results of the decision below. The decision below is, therefore, the final agency determination. See 8 C.F.R. § 3.1(e)(4)."

Tsegay now seeks to appeal the BIA's decision to apply 8 C.F.R. § 1003.1(e)(4) and affirm her case without opinion rather than issue a written opinion.

II. THE BIA REVIEW PROCESS

Prior to 1999, all appeals to the BIA were heard by a panel of three Board members. In 1999, however, rapid growth in the BIA's caseload "severely challenged the Board's ability to accomplish its mission [to fairly and timely adjudicate immigration appeals] and require[d] the adoption of new case management techniques." Streamlining, 64 Fed.Reg. 56,135; 56,136 (BIA Oct. 18, 1999). In response, the Attorney General instituted BIA's AWO procedure. See id.

In adopting the new procedures, the Department of Justice explained that they were a reasonable solution to the BIA's backlog:

The number of appeals filed with the Board in recent years has exceeded the Board's capacity to give meaningful, three-Member consideration to each appeal, and to issue written decisions in every case. The summary affirmance process is a reasonable response to the current situation, because it allows the Board to concentrate its resources on cases where there is a reasonable possibility of reversal, or where a significant issue is raised in the appeal, while still providing assurances that correct results are achieved in all cases under the Board's appellate jurisdiction.

64 Fed.Reg. at 56,138; see also id. at 56,137 ("To operate effectively in an environment where over 28,000 appeals and motions...