IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-60296
SINTAYEHU ABEBE WONDIMU,
Petitioner,
versus
JOHN ASHCROFT, U S Attorney General,
Respondent.
Petition for Review of an Order
of the Board of Immigration Appeals
(A73 725 353)
August 13, 2002
Before GARWOOD, JOLLY and DAVIS, Circuit Judges.
PER CURIAM:*
Ethiopian citizen Sintayehu Wondimu appealed the denial of his
petition for asylum and withholding of deportation, but the Board
of Immigration Appeals dismissed his appeal because conditions in
Ethiopia had changed such that his fear of future persecution was
no longer well-founded. The Board also disregarded the immigration
*
Pursuant to 5TH CIR. R.47.5 the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
judge's negative credibility finding without itself awarding him a
positive credibility finding and it denied Wondimu's request for
asylum based solely on past persecution. Wondimu appeals all three
decisions to this court. Because the record contains no
substantial evidence supporting the BIA's finding of changed
country conditions, we vacate and remand.
Background
Sintayehu Wondimu is an Ethiopian citizen who first came to
the United States on a student visa in 1989 to attend Texas
Southern University in Houston, Texas. He left the university and
returned to Ethiopia in December 1993 after his father's death.1
Soon after Wondimu arrived, he joined the All-Amhara People's
Organization (“AAPO”), a group of ethnic Amharas who oppose the
present Transitional Government of Ethiopia (“TGE”). The TGE was
founded by the Ethiopian People's Revolutionary Democratic Front
(“EPRDF”), a group dominated by ethnic Tigrayans. Wondimu was not
a prominent member of the AAPO: he held no office and did not
publicly participate in AAPO activities.
A month and a half after he arrived in Ethiopia, Wondimu
married his wife, Nigat Bekele Abebe. Soon thereafter, he renewed
his United States student visa even though he claims he intended to
stay in Ethiopia. His reasons for doing so are not clear; he
1
In his application for asylum, Wondimu said he left the
United States because “things didn't work out with going to
college.”
2
claimed that it was to “express” to the United States that he was
in Ethiopia but he also admitted that the visa would provide an
escape route if the government continued persecuting Ethiopians who
had traveled to the United States.
On March 23, 1994, Wondimu was kidnapped from his home in the
middle of the night by people he identified as members of the EPRDF
because of their Tigrayan accents, their appearance and the focus
of their questions. He was confined for two and a half months,
during which time he was drugged, constantly handcuffed and
blindfolded, kept in unsanitary conditions, and interrogated daily
with beatings. The interrogations focused primarily on his time in
the United States and his reasons for going there. When his
captors were apparently satisfied that Wondimu was neither an AAPO
leader nor an information courier, they released him by throwing
him out of a moving car. His unsanitary imprisonment led to a
fungal skin infection and the violent method of release resulted in
an injured hip, although he did not seek medical care for either
ailment. After his release, Wondimu continued to live in Ethiopia
for two months though he and his family continued to be threatened.
On one occasion, his sister was slapped, detained and interrogated
for eight days.
On July 25, 1994, Wondimu's wife fled to India. Three days
later, Wondimu returned to the United States and entered at
Houston, Texas using his student visa. He completed an affirmative
3
application for asylum in December 1994, and the INS issued an
Order to Show Cause on March 1, 1995 based on his failure to attend
a university as required by the terms of his student visa.
At his hearing on June 19, 1995, Wondimu conceded his
deportability and attempted to establish eligibility for asylum or
withholding of deportation. Among the items of evidence introduced
at the hearing were State Department reports from 1994 and 1995,
reports from Amnesty International, Ethiopian news articles, and
letters from Wondimu's wife discussing his incarceration. The
immigration judge found Wondimu “not completely credible” due to
discrepancies in his story regarding the reason he left the United
States in 1993 and the government's treatment of his sister. In
addressing the evidence, the judge chose to rely on the State
Department reports instead of the more-pessimistic Amnesty
International reports and felt that the news articles were a mixed
bag of fact and opinion that failed to support Wondimu's story.
The judge also discounted the letters from Wondimu's wife under the
theory they were probably concocted solely for the purposes of his
asylum application. Accordingly, the judge held that Wondimu had
failed to carry his burden of demonstrating past discrimination on
account of his political convictions and denied the application for
asylum. The immigration judge permitted Wondimu to voluntarily
depart.
The Board of Immigration Appeals took up Wondimu's appeal
4
after an unexplained six year delay and finally affirmed the
decision on March 6, 2001. The BIA found the immigration judge's
adverse credibility finding unsupported by the record and refused
to defer to it, arguing that any inconsistencies relating to his
father's death were immaterial to the asylum application, as were
inconsistencies in Wondimu's description of his sister's treatment.
The Board added that it disagreed that the somewhat hurried
timeline of events cast doubt on Wondimu's story and found it
“inexplicabl[e]” that the immigration judge would reject the
letters from Wondimu's wife. Accordingly, the BIA refused to
“accord deference to the Immigration Judge's adverse credibility
finding.” At the same time, the BIA expressly refused to itself
find Wondimu credible, explaining instead that “this is a case
where we lack a firm conviction either way as to credibility.”
The BIA did not then decide whether Wondimu had established
past persecution by the TGE. The Board held instead that even if
Wondimu had suffered past persecution, conditions in Ethiopia had
changed to an extent that rebutted any presumption of a well-
founded fear of future persecution. Without using its power of
administrative notice to add to the record after the six-year
delay, the BIA cited statements in the 1994 and 1995 State
Department reports that the TGE had not increased violence against
low-level AAPO supporters, had included Amharas in the government,
and was not targeting Amharas for mistreatment. The BIA also
5
observed that the newspaper articles tended to show only that
certain political leaders were the ones being persecuted.
Accordingly, the BIA rejected Wondimu's application for asylum.
The Board also refused to grant Wondimu asylum for humanitarian
reasons, holding that his treatment was not “sufficiently severe.”
Accordingly, the appeal was dismissed. One Board member dissented
from this conclusion, explaining that she would have found Wondimu
credible. This member further argued that circumstances in
Ethiopia had not changed in a way that rebutted the presumption of
a well-founded fear of future persecution.
Wondimu timely appealed to this court. We have jurisdiction
under the modified form of 8 U.S.C. § 1105a set forth in section
309 of the Illegal Immigration Reform and Immigrant Responsibility
Act of 1996 (“IIRIRA”).2
Discussion
Wondimu argues that the BIA erred by holding that the
conditions in Ethiopia had changed in a way that rendered his fear
of future persecution no longer well-founded. “We review the
factual findings of the Board to determine if they are supported by
substantial evidence in the record.” Mikhael v. INS, 115 F.3d
299, 302 (5th Cir. 1997), citing INS v. Elias-Zacarias, 112 S.Ct.
812, 815 (1992). “We will reverse only when the evidence is so
2
Pub. L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996), as
amended by Act of Oct. 11, 1996, Pub. L. No. 104-302, 110 Stat.
3656.
6
compelling that no reasonable factfinder could fail to find the
requisite fear of persecution.” Id. (quotation omitted). We
review only the order of the BIA, not the order of the immigration
judge. Id.
To be defined as a refugee, the necessary first step to be
eligible to receive the discretionary grant of asylum, a petitioner
must show past persecution or a well-founded fear of future
persecution on account of his race, religion, nationality,
membership in a particular social group, or political opinion. 8
U.S.C. § 1158(b)(1); 8 U.S.C. § 1101(a)(42)(A). A petitioner who
fails to carry this burden has necessarily failed to carry the
heavier burden required for withholding of deportation. Mikhael,
115 F.3d at 306. A petitioner who establishes past persecution on
account of one of these enumerated factors will be presumed to have
a well-founded fear of future persecution, except where “a
preponderance of the evidence establishes that since the time the
persecution occurred conditions in the applicant's country of
nationality or last habitual residence have changed to such an
extent that the applicant no longer has a well-founded fear of
being persecuted if he or she were to return.”3 8 C.F.R. §
3
The regulations have since been changed. Effective January
5, 2001, the regulations require that the change be “fundamental.”
See 8 C.F.R. § 208.13(b)(1)(i)(A) (2002); 65 Fed. Reg. 76121, 76133
(Dec. 6, 2000). The regulation was changed to harmonize the
application of the INA with the 1951 Convention Relating to the
Status of Refugees and the United Nations High Commissioner for
Refugees' Handbook on Procedures and Criteria for Determining
7
208.13(b)(1)(i) (2000); see also In re N- M- A-, Int. Dec. 3368
(BIA 1998) (en banc) (interpreting the regulation as an evidentiary
presumption).
In this case, the BIA found that even if Wondimu suffered
persecution in the past, the circumstances in Ethiopia had changed
to a degree that defeated the presumption of a well-founded fear of
future persecution. The BIA based its finding on three points.
First, the Board noted that while the State Department reports
contained evidence of oppression of those AAPO leaders “actively
supporting insurrection,” there were no credible reports that the
TGE had increased violence against low-level AAPO supporters like
Wondimu. The Board also noted that Amharas were participating in
the government, and that in 1994 three cabinet members (the Prime
Minister, the Minister of Justice, and the Attorney General) were
Amharas. Finally, the Board held that the documentary evidence
submitted by Wondimu only supported a finding that AAPO leadership
was being oppressed.
Refugee Status. See 65 Fed. Reg. 76121, 76127 (Dec. 6, 2000). The
INS intended this change to expand the scope of the inquiry to
include changes in the petitioner's life as well as changes in the
circumstances in the country. Id. Nevertheless, Wondimu cannot
take advantage of this newer language. The regulation does not
purport to be retroactive, and should not be applied to a hearing
that occurred before it took effect. See Ladha v. INS, 215 F.3d
889, 898 (9th Cir. 2000) (applying the version of 8 C.F.R. §
208.13(a) in existence at the time of the hearing before the
immigration judge); see generally Bowen v. Georgetown Univ. Hosp.,
109 S.Ct. 468, 471-72 (1988) (discussing presumption against and
requirements for retroactivity of administrative regulations).
8
We hold that no substantial evidence supports the Board's
finding. The Board must ask whether “since the time the
persecution occurred conditions in the applicant's country . . .
have changed to such an extent that the applicant no longer has a
well-founded fear.” 8 C.F.R. § 208.13(b)(1)(i) (2000). That is,
the INS must rebut the presumption of a future fear of persecution
by providing evidence that conditions in the country have “changed”
-- more specifically, that conditions have changed for the better.
While the evidence cited by the Board may show that conditions in
Ethiopia were not as bad as Wondimu claimed, that merely casts
doubt on Wondimu's veracity and does not show that conditions in
Ethiopia changed, much less that conditions improved. Only one
item cited by the Board even deals with changed conditions, and it
merely said that the TGE had not “increased violence against low-
level AAPO supporters” (emphasis added). This proves that
conditions hadn't worsened by 1995, but it fails to prove the
converse: that conditions have improved such that Wondimu should
have no fear of returning. On their face, the facts cited by the
Board fail to support its order.
Neither can we independently find substantial evidence in the
record. The December 1994 and June 1995 State Department reports
relied upon by the Board do indeed say that conditions under the
TGE are a “vast improvement” over the prior Mengistu regime.
United States Department of State, Ethiopia: Profile of Asylum
9
Claims and Country Conditions 5 (June 1995). That fact is
irrelevant, however, because the regulation focuses solely on
changes occurring “since the time the persecution occurred.” See
8 C.F.R. § 208.13(b)(1)(i) (2000). The Mengistu regime had been
out of power for nearly three years by March 23, 1994, when Wondimu
was kidnapped and detained until June 1994.4 The relevant question
must therefore be whether the TGE's treatment of AAPO members
improved after that date. Given this focus, the State Department
reports greatly support Wondimu's case over that of the INS. The
December 1994 State Department report explains that the TGE was
increasingly intolerant of political dissent. See United States
Department of State, Ethiopia: Profile of Asylum Claims and Country
Conditions 3-4 (December 1994). Moreover, the report noted that
“AAPO appeared in July, 1994 to be under increasing pressure from
the government” and the ability of AAPO members and officials to
“live and work without harassment . . . may now be changing, as the
TGE steps up its pressure on AAPO.” Id. at 7. The report also
takes a mixed view of political diversity, noting that the 1994
campaigning was generally fair yet the major opposition parties
4
The case thus stands in contrast to Woldemeskel v. INS, 257
F.3d 1185 (10th Cir. 2001), in which the Ethiopian petitioner
requested asylum based in large part on her treatment by the
Mengistu regime. See id. at 1190. Once the presumption of future
persecution was countered by the evidence of changes since the fall
of the Mengistu regime, the petitioner was required to establish
refugee status due to the actions of the TGE alone. Id. She
failed to do so. Id.
10
boycotted the election and other independent candidates failed to
make a strong showing. Id. at 9. Taken as a whole, the December
1994 report suggests that conditions for AAPO members like Wondimu
were getting worse since June 1994 and clearly does not support the
view that they were improving.
The June 1995 State Department report offers a similar picture
of Ethiopia. The report largely reprints the opinions of the
December 1994 report, although it adds a discussion about a failed
series of political negotiations. See United States Department of
State, Ethiopia: Profile of Asylum Claims and Country Conditions
8 (June 1995). The report also discusses the campaigning by
independent candidates, although this time the State Department
characterized these activities as proof that the “TGE's tolerance
of diverse political views has slowly been increasing.” Id. at 12.
This positive characterization represents the only evidence that
conditions for AAPO members improved from June 1994 to 1995, but
this evidence is undermined by the State Department's more guarded
opinion of the same events in its December 1994 report. Given the
State Department evidence that conditions were getting worse for
the AAPO, and the equivocal nature of the only evidence to the
contrary, we find that no significant evidence supports the Board's
findings.
The BIA did not decide whether Wondimu had carried his burden
of establishing past persecution. We therefore vacate the decision
11
of the Board of Immigration Appeals and remand for further
proceedings. In doing so, we stress that we express no opinion on
whether Wondimu has established past persecution. We also stress
that our opinion is based only on the evidence currently in the
record, mindful that other evidence may prove that conditions have
indeed improved in Ethiopia since June 1994. The Board has the
power to administratively notice “commonly acknowledged facts and
technical or scientific facts that are within the agency's area of
expertise.” Rivera-Cruz v. INS, 948 F.2d 962, 967 (5th Cir. 1991)
(some punctuation omitted). If it wishes, the Board may use this
power on remand to introduce additional evidence of changed country
conditions. Id.; see also Faddoul v. INS, 37 F.3d 185, 190-91 (5th
Cir. 1994) (examining Rivera-Cruz). If the Board does so, Wondimu
must be afforded the right to respond to these facts and introduce
additional evidence of his own through a timely motion to reopen.
See Rivera-Cruz, 948 F.2d at 968; Faddoul, 37 F.3d at 190-91.5 If
5
The circuits are split on the proper procedure for
implementing this requirement of due process. Three circuits
reached the same result we did. See Kaczmarczyk v. INS, 933 F.2d
588, 597 (7th Cir. 1991); Gebremichael v. INS, 10 F.3d 28, 38-39
(1st Cir. 1993); Gutierrez-Rogue v. INS, 954 F.2d 769, 773 (D.C.
Cir. 1992). Another circuit has not gone quite so far, but may
indirectly agree. See Francois v. INS, 283 F.3d 926 (8th Cir.
2002). On the other hand, two circuits have held that due process
requires the INS to give the alien advance notice of the evidence
and the opportunity to rebut it at the hearing, reasoning that the
INS could deport the petitioner before a motion to reopen is heard.
See de la Llana-Castellon v. INS, 16 F.3d 1093, 1099-1100 (10th
Cir. 1994); Castillo-Villagra v. INS, 972 F.2d 1017 (9th Cir.
1992). The concern may have some validity. Because the petitioner
is not guaranteed a stay of deportation pending the hearing and
12
the Board denies such a motion to reopen on Wondimu’s part, he may
appeal that denial to this court. Rivera-Cruz, 948 F.2d at 968-69.
Because we vacate the order of the Board of Immigration Appeals, we
need not address Wondimu's other two points of error on appeal.
Conclusion
Though the BIA held that Wondimu no longer had a well-founded
fear of future persecution due to changed conditions in Ethiopia,
neither the evidence they cite nor the other evidence in the record
supports their conclusion. Because the BIA did not decide whether
Wondimu suffered past persecution, we vacate and remand. In doing
so, we reiterate that we express no opinion on the past persecution
claim or on any evidence outside the record.
VACATED AND REMANDED.
appeal of the motion to reopen, “[v]indication of an applicant's
procedural rights thus depends on the good faith of the Board in
handling the motion to reopen.” Gebremichael, 10 F.3d at 39 n.29.
13