Woldemeskel v. Immigration & Naturalization

• Citation: 257 F.3d 1185
• Decision Date: 25 July 2001
• Docket Number: No. 00-9516,00-9516
• Parties: (10th Cir. 2001) YESHWARED WOLDEMESKEL, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 1185

257 F.3d 1185 (10th Cir. 2001)

YESHWARED WOLDEMESKEL, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.

No. 00-9516

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

July 25, 2001

NOTE: SEE ORDER OF OCTOBER 10, 2001.

ON REVIEW FROM AN ORDER OF THE BOARD OF IMMIGRATION APPEALS (INS No. A29-910-501)

[Copyrighted Material Omitted] Kenneth H. Stern (Stephanie Goldsborough, with him on the briefs), Stern & Elkind, Denver, Colorado, for Petitioner.

Erin Albritton, Attorney, Office of Immigration Litigation, Civil Division (David W. Ogden, Assistant Attorney General, Civil Division, and David V. Bernal, Assistant Director, Office of Immigration Litigation, with her on the brief), United States Department of Justice, Washington, DC, for Respondent.

Before TACHA, Chief Judge, McKAY, and CUDAHY,^* Circuit Judges.

TACHA, Chief Judge.

The petitioner appeals the Board of Immigration Appeals' order denying her request for asylum and withholding of deportation and granting voluntary departure. Exercising jurisdiction under 8 U.S.C. 1105a(a) (1995),¹ we deny the petition for review.

I. Background

The petitioner, Ms. Yeshwared Woldemeskel, is a native and citizen of Ethiopia. In October 1992, she entered the United States on a temporary visa authorizing a six-month stay. Because she stayed longer than authorized by her visa, the Immigration and Naturalization Service (INS) instituted deportation proceedings against her, after which Ms. Woldemeskel applied for asylum and withholding of deportation claiming that she endured past persecution and feared future persecution in Ethiopia because of her ethnicity and political opinion. In August 1994, the immigration judge denied her request for asylum and withholding of deportation and granted voluntary departure, concluding Ms. Woldemeskel had not established statutory eligibility for asylum. In an order dated May 15, 2000, the Board of Immigration Appeals (BIA) affirmed the immigration judge's decision and this petition for review followed.

During the asylum proceedings, Ms. Woldemeskel claimed that she was the victim of past persecution under the Mengistu regime and that she feared future persecution under the Transitional Government of Ethiopia (TGE), which replaced the Mengistu regime in 1991. In 1977, at the age of seventeen, the Mengistu authorities allegedly arrested and imprisoned Ms. Woldemeskel for twelve months because she was believed to be a member of a political opposition group called the Ethiopian People's Revolutionary Party (EPRP). Ms. Woldemeskel testified that, during her first two months of imprisonment, she was threatened often with a gun and tortured by prison authorities who gagged her, tied her upside down, and whipped and hit her. When released from prison, authorities warned she would be arrested again if she worked with individuals opposing the Mengistu government.

From 1978 to 1990, Ms. Woldemeskel does not claim to have suffered further persecution. During this time, she married and had two children. In 1991, Ethiopia experienced a change in government with the election of the TGE, a group dominated by leaders of Tigrean ethnicity who belonged to the Ethiopian People's Revolutionary Democratic Front (EPRDF), the political group currently in power in Ethiopia. Ms. Woldemeskel claims the leaders of the TGE targeted Ethiopians of Amhara ethnicity, asserting that she and her husband were fired as a result of their Amhara heritage. In addition, she and her husband were members of a political opposition group called the All Amhara People's Organization (AAPO). Because her husband led a group protesting the firing of Amharas, he was allegedly arrested by the TGE in 1992. She claims that authorities then threatened to arrest her too if she did not stop protesting her husband's arrest. Shortly thereafter she obtained an Ethiopian passport and left the country. Because she was unable to obtain visas for her children, she had to leave them in Ethiopia with a friend.

II. Asylum

A request for asylum involves two steps. First, the asylum applicant has the burden of proving her statutory eligibility by establishing refugee status. 8 C.F.R. 208.13(a)²; Kapcia v. INS, 944 F.2d 702, 706 (10th Cir. 1991). In order to establish refugee status, the applicant must demonstrate either past "persecution or a well-founded fear of [future] persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. 1101(a)(42)(A). Although persecution is not explicitly defined, we have observed that it requires the "infliction of suffering or harm upon those who differ (in race, religion, or political opinion) in a way regarded as offensive" and requires "more than just restrictions or threats to life and liberty." Baka v. INS, 963 F.2d 1376, 1379 (10th Cir. 1992) (internal quotation marks omitted). Analysis of a claim specifically based on a "well-founded fear of [future] persecution" includes both a subjective and an objective component. Kapcia, 944 F.2d at 706. The applicant must first prove an objective basis by "'credible, direct, and specific evidence in the record, of facts that would support a reasonable fear that the petitioner faces persecution.'" Id. at 706-07 (quoting Aguilera-Cota v. INS, 914 F.2d 1375, 1378 (9th Cir. 1990)); see also 8 C.F.R. 208.13(b)(2)(i)(B) (applicant must prove "reasonable possibility" of future persecution). If an objective basis exists, the applicant must show her subjective fear is genuine. Id. at 706.

If the applicant proves her eligibility for refugee status, the Attorney General then exercises discretionary judgment in either granting or denying asylum. Id. at 708. In general, the Attorney General's discretion at this second step in an asylum claim is "extremely broad." Id. But if an applicant demonstrates statutory eligibility based on past persecution, a rebuttable presumption of a reasonable fear of future persecution arises. 8 C.F.R. 208.13(b)(1); Nazaraghaie v. INS, 102 F.3d 460, 462 (10th Cir. 1996). In order to rebut the presumption in favor of the favorable exercise of discretion, the INS must prove by a preponderance of evidence that the petitioner no longer has a well-founded fear of persecution because country conditions have changed. 8 C.F.R. 208.13(b)(1)(i)(A); Kapcia, 944 F.2d at 709. Alternatively, "the immigration judge or [the BIA] may take administrative notice of changed circumstances in appropriate cases, such as where the government from which the threat of persecution arises has been removed from power." Id. (internal quotation marks and emphasis omitted).

In addition, when an asylum applicant shows she experienced "past persecution so severe that repatriation would be inhumane," she may be eligible for a discretionary, humanitarian grant of asylum even when no future danger of persecution exists. Baka, 963 F.2d at 1379. According to the relevant regulation, a humanitarian grant of asylum is appropriate when the "applicant has demonstrated compelling reasons for being unwilling or unable to return . . . arising out of the severity of the past persecution." 8 C.F.R. 208.13(b)(1)(iii)(A).

A. Standard of Review

We apply a substantial evidence standard to the BIA's resolution of the first step of an asylum claim-whether an asylum applicant has established refugee status: "The BIA's determination that [the applicant is] not eligible for asylum must be upheld if 'supported by reasonable, substantial, and probative evidence on the record considered as a whole.' It can be reversed only if the evidence presented by [the applicant] was such that a reasonable fact finder would have to conclude that the requisite fear of persecution existed." INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992) (internal citation omitted) (quoting 8 U.S.C. 1105a(a)(4) (1995)). We will not, therefore, "weigh the evidence or . . . evaluate the witnesses' credibility." Kapcia, 944 F.2d at 707 (internal quotation marks omitted). At the second step of an asylum claim, which requires the exercise of agency discretion, we review the BIA's decision for abuse of discretion. Rezai v. INS, 62 F.3d 1286, 1289 (10th Cir. 1995). Recognizing the BIA's broad discretion, we will not substitute our judgment for that of the BIA, but do require a "rational connection between the facts found and the choice made." Kapcia, 944 F.2d at 708 (internal quotation marks omitted).

B. Eligibility for Asylum

Ms. Woldemeskel argues she is eligible for asylum under any of the approaches discussed above: (1) humanitarian asylum based on past persecution by the Mengistu regime; (2) asylum based on the rebuttable presumption created by past persecution; and (3) asylum based on her well-founded fear of persecution under the current government. The immigration judge concluded-and the BIA agreed-that Ms. Woldemeskel was not entitled to asylum under any of these approaches. We agree.

1. Past Persecution

Concerning her request for humanitarian asylum, the BIA did not abuse its discretion in deciding that the past persecution was not severe enough to warrant a grant of asylum on humanitarian grounds. Ms. Woldemeskel's imprisonment under the Mengistu regime occurred several years ago. Afterwards, she lived in Ethiopia for many years free from harassment or discrimination. Hence, the record shows a rational connection between the facts in this case and the BIA's finding that the imprisonment was not sufficiently severe.

Because the BIA simply stated that the past persecution alone did not compel a grant of asylum, Ms. Woldemeskel argues that the BIA abused its discretion by not engaging in an individualized review of the evidence. Although we may, of course, review the BIA's order for "procedural regularity," we have recognized the BIA need not "write an exegesis on every contention." Panrit v. INS, 19 F.3d 544, 545 (10th Cir. 1994) (internal quotation marks omitted). Instead, the BIA must ...