Fesseha v. Ashcroft

United States Court of Appeals
For the First Circuit

Nos. 00-1610, 02-2047

SENAIT FESSEHA,

Petitioner,

v.

JOHN ASHCROFT, Attorney General,

Respondent.

ON PETITIONS FOR REVIEW OF ORDERS OF THE
BOARD OF IMMIGRATION APPEALS

Before

Selya, Circuit Judge,
Cyr, Senior Circuit Judge,
and Lynch, Circuit Judge.

Ilana Greenstein with whom Harvey Kaplan, Maureen O'Sullivan,
Jeremiah Friedman, and Kaplan, O'Sullivan & Friedman, LLP were on
brief for petitioner.

Joan E. Smiley, Trial Attorney, Office of Immigration
Litigation, with whom Robert D. McCallum, Jr., Assistant Attorney
General, Civil Division, and Richard M. Evans, Assistant Director,
Office of Immigration Litigation, were on brief for respondent.

June 16, 2003
 LYNCH, Circuit Judge. Petitioner Senait Fesseha is an

Ethiopian citizen who applied for asylum due to past political

persecution, as well as a fear of future persecution based on her

ethnicity as an Amhara. An Immigration Judge (IJ) denied her

asylum application and the Board of Immigration Appeals (BIA)

affirmed. Fesseha then moved to reopen, based on changed country

conditions. The BIA denied the motion. She petitions for review

of both the denial of asylum and the denial of her motion to

reopen. We affirm both denials.

I.

A. Factual Background

The evidence submitted to the IJ is fairly summarized as

follows. Fesseha was born in Addis Ababa, Ethiopia in 1965. She

is an ethnic Amhara. Her family supported the government of

Emperor Haile Selassie, who ruled Ethiopia from 1916 to 1974,

excepting only a period of time during World War II, when Ethiopia

was occupied by Italy. Fesseha's father was a colonel in the army

under Selassie. In 1974, Selassie was overthrown in a coup d'etat

by the Provincial Military Administrative Council, known as the

"Dergue." In 1977, Dergue leader Colonel Mengistu assumed power,

which he retained until 1991. At least two of Fesseha's cousins

were members of the Ethiopian People's Revolutionary Party (EPRP),

a group opposed to the Dergue regime. While Fesseha herself was

not a member, she was also opposed to the Mengistu regime.

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 Fesseha's family suffered under Dergue rule. Her father

was fired from his job when his company was nationalized, and in

1984 he was detained outside of his house. The government also

took away land owned by Fesseha's mother in Addis Ababa. One of

her cousins, a member of EPRP, was imprisoned in the late 1970s and

is presumed dead. Another cousin, also an EPRP member, was

arrested in the early 1980s and conscripted into the army, where he

died. Fesseha also believes that a third cousin was killed by the

government.

Fesseha herself has been detained and arrested several

times by members of kebelles, which were local committees organized

to police neighborhoods. In 1982 she was arrested and detained

overnight.1 In 1983 she was again arrested after she missed a

kebelle meeting.2 In 1985 she was arrested, detained overnight,

and was forced to perform free labor at the kebelle office.3 After

the third arrest, Fesseha fled the country.

1
Fesseha originally claimed that she was accused of being a
member of the EPRP. She later specified that she was accused of
being "anti-government," but that the accusation did not refer to
the EPRP explicitly.
2
In her asylum application she claimed that she was detained
for 48 hours, but she later testified that she was only held
overnight.
3
Fesseha wrote in her asylum application that she was forced
to perform labor for three weeks, but later testified that the
period was only a week.

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 Fesseha obtained a student visa to the United States and

arrived in Boston on April 29, 1985 to attend Newbury Junior

College, although she attended Massasoit Community College instead,

only receiving the required authorization for the transfer after

the fact. Contrary to the visa, she obtained a job in June 1985 as

a housekeeper and later worked as a cashier in a market without

proper authorization.

B. Asylum Claim

Fesseha applied for political asylum on August 8, 1988.

Because Fesseha had a nonimmigrant student visa, she was authorized

to remain in the United States only so long as she maintained her

status as a student. On June 1, 1989, the Immigration and

Naturalization Service (INS) charged her with deportability because

she was employed without INS authorization, in violation of her

visa. On August 14, 1989, during the first deportation hearing,

Fesseha admitted the allegations against her and conceded

deportability but requested withholding of deportation.

Deportation hearings were held in Fesseha's case on August 14 and

December 8, 1989, July 19, 1991, November 10, 1992, and August 12

and September 17, 1993.

On October 10, 1992, Fesseha submitted a motion

requesting that the IJ amend her application for asylum to include

"nationality" as an additional ground. While the IJ never

explicitly ruled on this motion, on November 10, 1992, he added the

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motion to the record and admitted into evidence her submission of

more recent articles and documents regarding the current state of

affairs in Ethiopia.

The IJ denied Fesseha's application for asylum and

withholding of deportation on September 17, 1993. The IJ based his

decision on both a negative credibility finding and a determination

that Fesseha had not established a well-founded fear of future

persecution. He relied in part on his finding that "conditions in

Ethiopia have changed with the new government."

Fesseha timely appealed to the BIA. Seven years later,

on April 13, 2000, the BIA upheld the decision of the IJ. The BIA

noted that Fesseha had lied about her claim that she was accused of

being a member of the EPRP. But even accepting the rest of her

testimony as true, it found she had not "demonstrated past

persecution or satisfied the well-founded fear standard of

eligibility required for asylum." Fesseha filed a petition for

review of the BIA's decision with this court on May 12, 2000.

C. Motion to Reopen

On July 10, 2000, Fesseha also filed a motion to reopen

with the BIA.4 That motion was based on a change of country

conditions rooted in the 1991 overthrow of Mengistu's government.

4
Fesseha's appeal of the April 13, 2000 BIA decision, case
no. 00-1610, was held in abeyance until the BIA acted upon the
motion to reopen. That appeal was then consolidated with her
appeal of the BIA's denial of her motion to reopen, case no. 02-
2047.

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 With her motion Fesseha presented evidence tending to

show the following. In May 1991, the Ethiopian People's

Revolutionary Democratic Front (EPRDF), a coalition of ethnic-based

insurgent groups dominated by the Tigray People's Liberation Front,

defeated Mengistu's Dergue regime and seized power. Initially, the

new government promised to be a more humane one. It disbanded the

kebelles, though it created a similar system of "Peace and

Stability Committees." The EPRDF government also ratified many

international human rights conventions, incorporated human rights

treaties into domestic law, and adopted a constitution which

included human rights provisions.

Unfortunately, the EPRDF proved no more friendly to

political opposition than the previous regime. As early as 1991

the EPRDF detained several EPRP activists and took other action to

discourage opposition groups. When the government presided over

elections in 1995, opposition groups claimed that the government

took steps to prevent their participation. The State Department,

in its 1999 country report for Ethiopia, concluded that

"[p]olitical participation remains closed to a number of

organizations," including the EPRP.

The EPRDF also has been accused of imprisoning more than

ten thousand people for political reasons and of using heavy-handed

tactics to disband opposition parties and human rights groups.

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Some regional political parties have even complained that the

government has executed their members and supporters.

Fesseha's motion to reopen cited various accusations

against the EPRDF regime by sources such as the State Department,

the International Committee of the Red Cross, Amnesty

International, and Human Rights Watch. Fesseha argued that due to

the recent shift in power, and the resulting acceleration of

oppression of opposition groups such as the EPRP, her asylum claim

based on fear of political persecution had been strengthened.

On July 29, 2002, the BIA denied the motion to reopen.

Fesseha timely petitioned this court for review of both the BIA's

initial rejection of her asylum claim and its denial of her motion

to reopen.5

II.

A. Denial of Asylum

1. Legal Standard

Determinations of eligibility for asylum or withholding

of deportation are reviewed under the substantial evidence

standard: the agency's decision must be upheld if "supported by

reasonable, substantial, and probative evidence on the record

considered as a whole." INS v. Elias-Zacarias, 502 U.S. 478, 481

5
The Attorney General has been substituted for the INS as
respondent with the implementation of the Homeland Security Act of
2002, Pub. L. No. 107-296, §§ 441, 471, 116 Stat. 2135, 2192, 2205
(Nov. 25, 2002). See 8 U.S.C. § 1252(b)(3)(A) (2000).

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(1992) (internal quotation omitted); see Albathani v. INS, 318 F.3d

365, 372 (1st Cir. 2003). This standard is a deferential one: the

petitioner must demonstrate "that the evidence he presented was so

compelling that no reasonable factfinder could fail to find the

requisite fear of persecution." Elias-Zacarias, 502 U.S. at 483-

84; see 8 U.S.C. § 1252(b)(4)(B) (2000) ("[T]he administrative

findings of fact are conclusive unless any reasonable adjudicator

would be compelled to conclude to the contrary."); Oliva-Muralles

v. Ashcroft, 328 F.3d 25, 27 (1st Cir. 2003). Our review is of the

entire record before the BIA, not merely of the evidence supporting

the agency position, Albathani, 318 F.3d at 372, but we examine

only the administrative record, 8 U.S.C. § 1252(b)(4)(A). See

Gailius v. INS, 147 F.3d 34, 44 (1st Cir. 1998).

The Attorney General may grant asylum to an alien who is

otherwise inadmissible or deportable, but only if that alien is a

"refugee." 8 U.S.C. § 1158(b)(1) (2000). A refugee is an alien

"who is unable or unwilling to return to, and is unable or

unwilling to avail himself or herself of the protection of, [her

home] country because of persecution or a well-founded fear of

persecution on account of race, religion, nationality, membership

in a particular social group, or political opinion." Id.

§ 1101(a)(42)(A) (2000). The burden is on the alien to prove

refugee status. Civil v. INS, 140 F.3d 52, 55 (1st Cir. 1998); 8

C.F.R. § 208.13(a) (2003).

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 Applicants must show either past persecution or a well-

founded fear of future persecution. Id. § 208.13(b).

"[P]ersecution encompasses more than threats to life or freedom,

but less than mere harassment or annoyance." Aguilar-Solis v. INS,

168 F.3d 565, 570 (1st Cir. 1998). Applicants must also provide

"conclusive evidence" that they were targeted based on one of the

five asylum grounds. Albathani, 318 F.3d at 373; Velasquez v.

Ashcroft, 316 F.3d 31, 35 (1st Cir. 2002). Once applicants have

proven past persecution, they are presumed to have a well-founded

fear of future persecution unless the agency can prove otherwise.

In re H., 21 I & N Dec. 337, 346 (BIA 1996); 8 C.F.R.

§ 208.13(b)(1)(ii).

To show a well-founded fear of future persecution,

applicants must meet both subjective and objective prongs.

Alvarez-Flores v. INS, 909 F.2d 1, 5 (1st Cir. 1990). "[T]he

asylum applicant's fear must be both genuine and objectively

reasonable." Aguilar-Solis, 168 F.3d at 572. For proving either

past or a fear of future persecution, an applicant's testimony, if

credible, may be sufficient. 8 C.F.R. § 208.13(a).6

6
Fesseha has also appealed the BIA's denial of withholding of
deportation. Withholding is only mandatory when an alien presents
"evidence establishing that it is more likely than not that the
alien would be subject to persecution on one of the specified
grounds." INS v. Stevic, 467 U.S. 407, 429-30 (1984). Because the
withholding of deportation standard is more difficult to meet than
the asylum standard, "a petitioner unable to satisfy the asylum
standard fails, a fortiori, to satisfy the former." Albathani,
318 F.3d at 372 (citation omitted). Because we affirm the BIA's

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 The BIA decision did not rest on the IJ's finding that

Fesseha's testimony was not credible. However, the BIA did note

that she "fabricated her claim that government officials accused

her of membership in the [EPRP]." The BIA found that "even

accepting that [Fesseha]'s testimony was truthful and accurate,"

Fesseha had not demonstrated either past persecution or a well-

founded fear of future persecution. There was substantial evidence

supporting this conclusion.

As to the evidence of past persecution, the BIA found

that "the instances of detention do not rise to the level of

persecution as [Fesseha] was released unharmed." The decision

noted that "[Fesseha] herself stated that she was detained, not

imprisoned." Fesseha had testified that she was held only twenty-

four hours each time, and she was not harmed. Moreover, while

Fesseha testified that she "was accused of being anti-government,"

and that she assumed the accusation related to the EPRP membership

because of her cousins' affiliations, there was no evidence or

testimony indicating that her captors actually believed she was a

member of EPRP. In short, there was substantial evidence to

support the BIA's determination that Fesseha's detainments were too

short and too tangentially related to political affiliation to

constitute persecution under 8 U.S.C. § 1101(a)(42)(A) and 8 C.F.R.

decision that Fesseha does not meet the standard for asylum, we
need not consider her withholding of deportation claim.

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§ 208.13(b). See Nelson v. INS, 232 F.3d 258, 265 (1st Cir. 2000)

("[P]ersecution requires more than occasional detention, and,

indeed, more than occasional instances of physical abuse.").

As to her claim of a well-founded fear of future

persecution, the BIA found that Fesseha had not shown that "a

reasonable person in her circumstances would fear persecution on

account of race, religion, nationality, membership in a particular

social group, or political opinion." This finding was based in

part on the IJ's finding that "Ethiopia is undergoing a transition

to a federal system of government with an elected government,"

which the BIA found "fatally undermined [Fesseha]'s claim that she

possessed a well-founded fear of persecution." Fesseha has not

presented evidence that would compel a reasonable adjudicator to

conclude to the contrary.

As to her amended claim based on ethnic persecution

against Amharas under the post-1991 regime, neither the IJ nor the

BIA separately analyzed the evidence, possibly because Fesseha did

not clearly distinguish this as a separate claim. (Nor did Fesseha

attempt to buttress such a claim when she moved to reopen.)

Nevertheless, both the IJ and the BIA found Fesseha had failed to

meet her burden on grounds of race, nationality and membership in

a particular social group, thus rejecting her claim based on

Amhara status. Nothing in the record compels a different

conclusion.

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B. Motion to Reopen

"[M]otions to reopen are disfavored in deportation

proceedings" because of the "strong public interest in bringing

litigation to a close . . . promptly." INS v. Abudu, 485 U.S. 94,

107 (1988). There are two threshold requirements for a motion to

reopen: that it establish "a prima facie case for the underlying

substantive relief sought" and that it introduce "previously

unavailable, material evidence." Id. at 104. Moreover, even if

the BIA finds that these two requirements are met, it still may use

its discretion to deny relief. Id. at 105; see 8 C.F.R. § 3.2(a)

("The Board has discretion to deny a motion to reopen even if the

party moving has made out a prima facie case for relief."). The

BIA denied Fesseha's motion to reopen because she "has not

established that the new evidence of country conditions establishes

prima facie eligibility for asylum."

There is an initial question as to the proper standard of

review for denial of motions to reopen based on failure of the

applicant to establish prima facie eligibility for asylum. The

Supreme Court has made clear that when the BIA denies a motion to

reopen on the basis that the evidence presented was not previously

unavailable or material, or when the BIA finds that the two

threshold requirements are met but uses its discretion to deny

relief, we review under the abuse of discretion standard. INS v.

Doherty, 502 U.S. 314, 323 (1992). However, in Doherty, the Court

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reserved the standard of review question as to determinations by

the BIA that the motion to reopen did not make out a prima facie

case. Id.

A later case of this court resolved the question, holding

that abuse of discretion review is appropriate even when the BIA

grounds its decision in a failure to show a prima facie case for

relief. See Carter v. INS, 90 F.3d 14, 17 (1st Cir. 1996).

Therefore, we will reverse the BIA denial of the motion to reopen

only if the BIA "misread the law" or acted "in an arbitrary or

capricious fashion." Id.

Fesseha's motion to reopen focused on the continuing

difficulties faced by opponents of the regime who sought to

participate politically in the new government. Those difficulties

included purely political obstacles as well as detention of EPRP

members and rumors of far more harsh treatment. Even with the new

evidence Fesseha presented, her case continued to suffer from a

fundamental difficulty. In its original review of the IJ's

decision, the BIA did not believe that she would be identified as

a member of the EPRP; therefore, the new evidence describing

continued government action against EPRP members and other

political opposition did not improve her case in the eyes of the

Board. Moreover, in the evidence Fesseha included with her motion,

descriptions of harsher treatment were far less than specific, and

she failed to demonstrate that the victims of such treatment were

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members of the EPRP, as they are only identified as "critics and

suspected opponents" or "opposition groups."

The BIA did not abuse its discretion in finding that

Fesseha did not show a prima facie case of eligibility for asylum.

III.

We affirm the orders of the BIA.

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