In the
United States Court of Appeals
For the Seventh Circuit
No. 08-1411
A NTCHINECHE T SEGAW A YELE,
Petitioner,
v.
E RIC H. H OLDER, JR., Attorney General
of the United States,1
Respondent.
Petition for Review of an Order
of the Board of Immigration Appeals.
No. A76-853-631
A RGUED O CTOBER 27, 2008—D ECIDED M AY 4, 2009
Before K ANNE, W ILLIAMS, and S YKES, Circuit Judges.
W ILLIAMS, Circuit Judge. Antchineche Tsegaw Ayele
seeks review of a final order of the Board of Immigration
Appeals (“BIA”). The BIA summarily upheld the denial of
1
We substitute Eric H. Holder, Jr., the current Attorney
General of the United States, as the Respondent in this action.
See Fed. R. App. P. 43(c)(2).
2 No. 08-1411
Ayele’s application for asylum, withholding of removal,
and protection under the Convention Against Torture
(“CAT”). The BIA affirmed the finding of the Immigration
Judge (“IJ”) that although Ayele was credible and her
subjective fear of future persecution was reasonable, she
failed to prove her fear was objectively reasonable. We
believe the IJ did not fully analyze Ayele’s family ties
claim because he failed to address whether her family
constituted a social group, did not discuss the treatment
of her mother and uncles, and relied on Country Reports
to deny her claim despite finding Ayele and her witness
credible. Because of these deficiencies, we grant her
petition for review, vacate the BIA’s order and remand
for further proceedings consistent with this opinion.
I. BACKGROUND
Asylum applicant Antchineche Tsegaw Ayele is an
ethnic Amhara born in Addis Ababa, Ethiopia on
March 26, 1975. The Amhara tribe has been associated
with the Mengistu regime which ruled the country before
its overthrow by the Ethiopian Peoples’ Revolutionary
Democratic Front (“EPRDF”) in May 1991. Mengistu
Haile Mariam led the former military government, which
has been accused of property confiscation and the killing
of thousands of opponents since the regime came into
power in 1974. When EPRDF forces invaded Addis
Ababa in 1991, members of the Mengistu regime and
their families fled into exile. Many were captured by
EPRDF forces and detained, and many former officials
No. 08-1411 3
were charged with war crimes committed against
civilians during the Mengistu administration.
Ayele, her mother, Yeshibrget Belihu, and her two
sisters were among those who fled Ethiopia before the
EPRDF’s imminent invasion. Belihu and Ayele’s father,
Tsegaw Ayele (“Mr. Ayele”), were members of the Work-
ers’ Party of Ethiopia (“WPE”), which was Mengistu’s
political party. Mr. Ayele also had served as the President
of the National Olympic Committee and Senior Vice
President of the Association of African National Olympic
Committee, as well as Minister of Regional Affairs during
the Mengistu regime since 1986. Although Mr. Ayele did
not want the minister role with the government (in fact, he
cried when he learned of his appointment), President
Mengistu appointed Mr. Ayele and he believed that if he
refused it, he or his family may have faced punishment.2
One April night in 1991, when Ayele was 15, her parents
told her and her younger sisters to pack their things
because they were leaving the country before the rebels
invaded the capital. As she, her mother and sisters pre-
pared to depart on a morning flight to Kenya, her father
told them he would join them later, but he never did.
Ayele, her mother and her sisters arrived in Kenya to a
very different lifestyle. Because of Mr. Ayele’s prominent
position in the Mengistu government, the family had
lived a privileged life in Ethiopia. They lived in a villa, had
maids and a chauffeur, traveled frequently, and the girls
2
Before his appointment as sports commissioner, Mr. Ayele
had been secretary of the YMCA in Ethiopia.
4 No. 08-1411
attended private schools. In Kenya, Ayele and her sisters
and mother lived on money sent by a family friend in
Europe. Belihu kept the girls secluded and told them to
never disclose to anyone who their parents were. During
their time in Kenya, Ayele claimed that they were mis-
treated by Ethiopian infiltrators, and her mother was
asked to show her passport everywhere she went. In
1992, Ayele left Kenya and headed to the United States.
Sometime after she left, Ayele learned that her mother had
been arrested in 1995 by Kenyan officers, who Ayele
alleges were bribed by Ethiopian infiltrators that
targeted individuals who had been involved in the
Mengistu regime. Ayele’s mother eventually was
released, and her mom and sisters went to London.
Ayele arrived in the United States in September 1992 on
an F-1 visa, which allowed her to attend Defiance College,
where she eventually earned a bachelor’s degree in biol-
ogy. While working part-time on an H-1B visa, Ayele
attended Ball State University, where she received dual
biology and physiology master’s degrees. In 1998, Ayele
filed an asylum and withholding of removal petition,
which was denied, but her F-1 status was eventually
reinstated. Ayele fell out of status when she stopped
working in December 2002. Despite attempts to find
employment as an H-1B visa holder, Ayele did not find
a job or an employer who would petition for her perma-
nent residency based on employment. In March 2003,
Ayele renewed her application for asylum, withholding
of removal, and protection under the CAT.
No. 08-1411 5
Meanwhile, Ayele’s mother, Belihu, gained permanent
status in the United Kingdom (“U.K.”) in 2003. 3 While
in Kenya, Belihu had become a member of the All Amhara
People’s Organization (“AAPO”), a political group op-
posed to the EPRDF-led government. In Kenya, Belihu
was discreet about her activities with the group, but
when she moved to the U.K., she became more openly
involved and serves as treasurer and a member of the
executive committee of a U.K. AAPO branch. In 1997,
Ayele joined a Washington, D.C. branch of the AAPO,
called the All Amhara People’s Relief and Development
Association. Ayele provides financial support to the
group and writes letters on behalf of the group to
embassy officials and United States senators.
Although Ayele, and eventually her mother and sisters,
adjusted to life in their new countries, other members of
Ayele’s family were not so fortunate. When they were
living in Kenya, Ayele and her mother and sisters
learned from an aunt that after they had fled their
home, the EPRDF targeted Ayele’s father and confiscated
Mr. Ayele’s guns and arrested him. Mr. Ayele was im-
prisoned from June 1991 to August or September 1993,
during which time he was interrogated and tortured.
Eventually Mr. Ayele was released on bail, according to
Ayele, due to pressure from international contacts he
made while working with the African National Olympic
Committee and Red Cross. Mr. Ayele was never formally
3
Ayele cannot live in the U.K. with her mother and sisters
because when her mother entered England in 1995, she failed
to report Ayele as her daughter.
6 No. 08-1411
charged with any criminal offenses. Since his release
from prison, he remains under government surveillance,
he cannot leave the country, and he has been unable to
obtain a job, despite his efforts to find employment. His
extended family pays his living expenses.
Ayele’s uncle, Dr. Negussie Tegegne, who testified on
Ayele’s behalf at her removal hearing, faced a fate
similar to Ayele’s father.4 Dr. Tegegne served as a physi-
cian at a government hospital during the Mengistu ad-
ministration. While living in Ethiopia after the fall of the
Mengistu regime, Dr. Tegegne was denied employment
as a physician and was imprisoned because of his AAPO
membership and his activism in providing medical care
to refugees in Addis Ababa. In September 1994, while
attending the trial of Professor Asrat Woldeyes, 5 Dr.
Tegegne and other AAPO attendees were arrested. Dr.
Tegegne was incarcerated for a month and endured
torture and interrogations. He was arrested again in
December 1995. The next year, Dr. Tegegne escaped
Ethiopia and was granted asylum in the United States.
Dr. Tegegne was not the only other family member
harmed by the Ethiopian government. Dr. Tegegne testi-
fied that Ayele’s other uncle, Yigremachew Belihu, who is
the biological brother of Ayele’s mother, disappeared in
4
Dr. Tegegne is the stepbrother of Ayele’s mother.
5
Professor Asrat Woldeyes served as the president of the
AAPO and called for a nonviolent, united Ethiopia. He was
arrested and convicted of sedition.
No. 08-1411 7
October 1997, never to be heard from again.6 Dr. Tegegne
also testified that his brother, a school principal, was
killed by Oromo nationalists because the EPRDF-led
government instigated animosity against ethnic Amharas,
and another of Dr. Tegegne’s friends was killed after
the government accused him of being part of a rebel group.
After reviewing documentary evidence and hearing
testimony from Ayele and Dr. Tegegne during a removal
hearing held on August 6, 2003, the IJ denied Ayele’s
renewed asylum, withholding of removal and CAT appli-
cation in a decision dated June 29, 2006. The IJ found
both Ayele and her uncle to be credible, but determined
that Ayele did not sufficiently demonstrate that her fear
of future persecution was objectively reasonable given
the current country conditions. On January 23, 2008, the
BIA affirmed, without opinion, the IJ’s decision and
allowed Ayele to voluntarily depart the United States.
Ayele petitions for review of the BIA decision ordering
her removal. 7
6
Ayele explained in an affidavit attached to her asylum
application that witnesses related that Mr. Belihu was
abducted by the EPRDF regime’s secret police. The family
presumes he is dead.
7
The IJ found that although Ayele filed her asylum application
past the one-year deadline from the date of her entry into the
United States, she was not barred from filing for asylum be-
cause her circumstances fell within the “extraordinary circum-
stances” exception pursuant to 8 C.F.R. § 1208.4(a)(5). The IJ
also found that Ayele’s temporary stay in Kenya did not
constitute “firm resettlement” under 8 C.F.R. § 208.15, and thus
(continued...)
8 No. 08-1411
II. ANALYSIS
We review directly the IJ’s decision where, as here, the
BIA summarily affirms the decision of the IJ without
opinion. Balliu v. Gonzales, 467 F.3d 609, 612 (7th Cir. 2006).
Our review is one of deference. Musollari v. Mukasey, 545
F.3d 505, 508 (7th Cir. 2008). We review to see if the
“determination was supported by reasonable, substantial,
and probative evidence on the record considered as a
whole.” Ogayonne v. Mukasey, 530 F.3d 514, 519 (7th Cir.
2008) (internal citation and quotation marks omitted). To
reverse a BIA decision, the petitioner must show that
the evidence compels, not merely supports, a different
result. Id.
A. Asylum claim
The Immigration and Nationality Act (“INA”) defines a
“refugee” as someone who is unable or unwilling to
return to her homeland “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.” See 8 U.S.C. § 1101(a)(42)(A);
see also Musollari, 545 F.3d at 508 (“The Attorney General
has discretion to grant asylum to an alien ‘refugee.’ ”).
Refugee status can be proven through past persecution or
fear of future persecution. Id. An applicant who demon-
strates past persecution is entitled to a rebuttable presump-
7
(...continued)
she was not barred from seeking asylum in the United States.
No. 08-1411 9
tion of future persecution. Ingmantoro v. Mukasey, 550
F.3d 646, 649 (7th Cir. 2008). Without evidence of past
persecution, an applicant must demonstrate a well-
founded fear of future persecution. Id. at 650-51. The
applicant must satisfy both the objective and subjective
prongs of the well-founded fear standard. Id. at 651.
Ayele admits that the government never personally
persecuted her, so to succeed on her asylum petition she
must show a well-founded fear of future persecution.
Based on Ayele’s credible testimony, the IJ found that
Ayele established a subjective fear of future persecution.
Thus, only the objective component remains at issue. See
Bolante v. Mukasey, 539 F.3d 790, 794 (7th Cir. 2008) (review-
ing court should not ordinarily disturb credibility find-
ing). While the subjective component often depends
upon the applicant’s own credibility and testimony, the
objective prong requires evidence that there is a reason-
able probability that the applicant “will be singled out
individually for persecution” or that “there is a pattern or
practice of persecution of an identifiable group, to which
the [applicant] demonstrates he belongs, such that the
[applicant’s] fear is reasonable.” Capric v. Ashcroft, 355
F.3d 1075, 1085 (7th Cir. 2004) (internal citations omitted).
To be objectively reasonable, an applicant must show only
that persecution is a “reasonable possibility,” not that
persecution is definite or even likely. See Ahmed v. Ashcroft,
348 F.3d 611, 618 (7th Cir. 2003); see also Kllokoqi v. Gonzales,
439 F.3d 336, 345 (7th Cir. 2005) (“The applicant may
establish a reasonable possibility of future persecution by
showing that there is even a 10 percent chance that he
will be shot, tortured, or otherwise persecuted.”). An
10 No. 08-1411
asylum applicant must show a nexus between her fear of
future persecution and one of the five protected grounds:
race, religion, nationality, membership in a particular
social group, or political opinion. Torres v. Mukasey, 551
F.3d 616, 629 (7th Cir. 2008); see also 8 U.S.C.
§ 1101(a)(42)(A).
Ayele presents three grounds for her asylum claim:
(1) her Amhara ethnicity; (2) her involvement in the
AAPO political organization; and (3) her family as a
social group. First, she contends that because she is an
ethnic Amhara, she fears future persecution because of
the current government’s disdain for Amhara people.
The IJ denied Ayele’s ethnicity claim based on State
Department Country Reports demonstrating that ethnic
Amharas currently thrive in Ethiopia and specifically
pointed to a 1997 Country Report indicating that Amharas
serve in the executive cabinet of the current government.
Ayele argues that although members of the current ad-
ministration have Amharic names, they are not ethnic
Amharas. During the removal proceedings, Ayele’s
uncle, Dr. Tegegne explained that ethnic Amharas are
easily identified based on their accent. Second, Ayele
maintains that she fears persecution based on her
political opinion because if she returned to Ethiopia she
would continue her involvement with the AAPO and
would not remain silent. In his decision, the IJ pointed
to Country Reports indicating that AAPO members
are not being targeted by the EPRDF-led government.
We cannot say that the record compels the conclusion
that Ayele’s fear of future persecution on the account of
No. 08-1411 11
her ethnicity or political opinion is objectively reasonable.
The IJ pointed to case law and Country Reports ex-
plaining why he believed Ayele’s fear of future persecu-
tion based on her ethnicity and political opinion was
unfounded. He explained that Amharas serve in gov-
ernment positions and that as long as political opposition
groups denounce violence, the government will not
harm them. He further concluded that Ayele had not
proven she will be singled out from other Amharas and
AAPO members. See Chatta v. Mukasey, 523 F.3d 748, 752
(7th Cir. 2008). The IJ provided reasoned analysis that is
supported by substantial evidence. See Medhin v. Ashcroft,
350 F.3d 685, 690-91 (7th Cir. 2003). Therefore, we
cannot reverse the BIA’s decision on these grounds.
Ayele’s argument that she may face persecution if she
returns to Ethiopia because of her family ties fares better
than her other two grounds. Ayele made it apparent in
her asylum application and in her attorney’s closing
argument before the IJ that she feared persecution on
account of the treatment of her family and her family’s
prominent position in the Mengistu regime.
Nonetheless the IJ failed to fully analyze Ayele’s claim
that she may face persecution on account of her familial
ties. Even the government concedes that the IJ wholly
failed to discuss whether a family can constitute a social
group. The only reference to Ayele’s family in the IJ’s
analysis was the following:
In addition, if the . . . government desired to target
the respondent because she is the daughter of a
former minister in the Mengistu regime, or because
12 No. 08-1411
she is Amhara, it would stand to reason that the
government would also seek to persecute the
respondent’s father. However, based on the respon-
dent’s own testimony, since her father’s release in
1993, he has not been physically harmed, rather,
only placed under surveillance. Thus, the fact that
the respondent’s father has been living in Ethiopia
relatively unharmed for over a decade after her
departure significantly diminishes her claim of
future persecution.
This cursory explanation causes us to question whether
the IJ fully considered Ayele’s familial ties claim. See
Chitay-Pirir v. INS, 169 F.3d 1079, 1081 (7th Cir. 1999)
(remand required because unclear whether claim fully
understood or analyzed). Indeed, it seems that the IJ was
merely using the treatment of Ayele’s father to show
that she would not be singled out because of her
ethnicity or political opinion, rather than as an analysis
of whether Ayele would face persecution based on her
family’s history. There is no reference in the IJ’s opinion
to Ayele’s fears that she will be specifically targeted
because her mother, a political activist, lives abroad and
outside of the EPRDF-led government’s reach. Moreover,
despite finding Ayele and her uncle credible, the IJ failed
to discuss the past treatment of Ayele’s two uncles. See
Sosnovskaia v. Gonzales, 421 F.3d 589, 593-94 (7th Cir. 2005)
(determining that the IJ erroneously failed to discuss
arguments and evidence presented).
Our circuit recognizes a family as a cognizable social
group under the INA, see Torres, 551 F.3d at 629 (citing Iliev
No. 08-1411 13
v. INS, 127 F.3d 638, 642 (7th Cir. 1997)), as do our sister
circuits. See, e.g., Lopez-Soto v. Ashcroft, 383 F.3d 228, 235
(4th Cir. 2004); Jie Lin v. Ashcroft, 377 F.3d 1014, 1028 (9th
Cir. 2004); Gebremichael v. INS, 10 F.3d 28, 36 (1st Cir. 1993)
(“There can, in fact, be no plainer example of a social
group based on common, identifiable and immutable
characteristics than that of the nuclear family.”). Without
even a mention of this principle in the IJ’s opinion, we
cannot know for certain that he assessed this ground
for Ayele’s asylum request. See Chitay-Pirir, 169 F.3d
at 1081.
Every member of Ayele’s immediate family either is in
exile, has disappeared, has been imprisoned and
tortured, or is under house arrest.8 Her father was a
prominent member of the Mengistu regime, and her
mother is an AAPO activist. During her removal pro-
ceedings, Ayele’s uncle testified that her family name
was recognizable and that people would realize her
father was a minister in the Mengistu administration.
Her mother, and her uncle who was imprisoned and
tortured based on his political activism, are outside of the
reach of the government, making Ayele particularly
vulnerable. See Mema v. Gonzales, 474 F.3d 412, 417 (7th
8
The government asserts that Ayele has a large family living
in Ethiopia unharmed, which, it argues, belies Ayele’s conten-
tion that she will be targeted because of her family ties. The
record shows that only Mr. Ayele’s stepmother and unknown
members of Belihu’s family remain in Ethiopia. In her reply
brief, Ayele explains she only knows for certain that
Mr. Ayele’s stepmother remains in Ethiopia.
14 No. 08-1411
Cir. 2007) (“Oft times persecutors target children of
political dissidents not because they have imputed the
parents’ political opinion to the children, but as a means
of harassing, intimidating, and influencing the behavior
of the parent.”). The IJ failed to discuss any of this evi-
dence in light of Ayele’s claim.
As noted earlier, an asylum applicant can establish a
well-founded fear of persecution by proving either a
pattern or practice of persecution of a social group, of
which the applicant has proven she is a member, or by
proving the applicant will be singled out personally.
8 C.F.R. § 1208.13(b)(2)(iii). The regulation states:
In evaluating whether the applicant has sustained
the burden of proving that he or she has a
well-founded fear of persecution, the asylum
officer or immigration judge shall not require the
applicant to provide evidence that there is a rea-
sonable possibility he or she would be singled
out individually for persecution if:
(A) The applicant establishes that there is
a pattern or practice in his or her
country . . . of persecution of a group of
persons similarly situated to the applicant
on account of race, religion, nationality,
membership in a particular social group, or
political opinion; and
(B) The applicant establishes his or her
own inclusion in, and identification with,
such group of persons such that his or
her fear of persecution upon return is
reasonable.
No. 08-1411 15
8 C.F.R. § 1208.13(b)(2)(iii). Although it is not entirely
clear that the IJ even considered Ayele’s social group
claim, if he did, it seems he did precisely what this reg-
ulation instructs an IJ not to do. See Banks v. Gonzales, 453
F.3d 449, 452 (7th Cir. 2006). That is, the IJ required Ayele
to prove that she would be singled out individually
without deciding whether Ayele proved a pattern or
practice of persecution of her social group.9
Another problem with the IJ’s assessment is that despite
crediting Ayele and her uncle’s testimony, he charac-
terized Ayele’s father as “relatively unharmed.” The IJ
explained that Mr. Ayele had not been physically
harmed since his release from prison, but was placed
merely under surveillance. This reasoning is problematic
because it fails to recognize that surveillance has been
recognized as a possible form of persecution in this circuit,
see, e.g., Diallo v. Ashcroft, 381 F.3d 687, 697 (7th Cir. 2004),
and that this circuit has never required physical harm
to demonstrate persecution, see Begzatowski v. INS, 278
F.3d 665, 670 (7th Cir. 2002) (rejecting BIA’s attempt “to
impose on asylum applicants the additional burden of
establishing permanent or serious injuries as a result of
their persecution”). Moreover, the IJ ignored evidence
9
The government’s contention that Ayele did not fully exhaust
her claim that her family suffered a pattern or practice of
persecution is not persuasive. Throughout her asylum ap-
plication and in her appeal to the BIA, Ayele repeatedly dis-
cusses the treatment of her family members in the past and
her fear that she may face persecution because of her family’s
history.
16 No. 08-1411
that Mr. Ayele was unable to work because of his former
affiliation with the Mengistu regime, see Borca v. INS, 77
F.3d 210, 216 (7th Cir. 1996) (deliberate imposition of
substantial economic disadvantage may amount to perse-
cution), and that he is forbidden from leaving the country.
Cf. Toptchev v. INS, 295 F.3d 714, 722 (7th Cir. 2002) (deter-
mining no possibility of future persecution partly
because government had not interfered with applicant
leaving country).
Finally, the IJ relied heavily on Country Reports to deny
all of Ayele’s claims, which in and of itself gives us con-
cern. See, e.g., Niam v. Ashcroft, 354 F.3d 652, 658 (7th Cir.
2004) (criticizing im m igration court’s “chronic
overreliance” on Country Reports). To the extent that
the IJ relied on the reports to assess Ayele’s family claim,
this reliance is erroneous because the IJ credited the
testimony of Ayele and her uncle, which provides the
only foundation for which one could determine that
Ayele faced the possibility of persecution because of her
family ties. See Bace v. Ashcroft, 352 F.3d 1133, 1139 (7th
Cir. 2003) (“[I]t would be improper to find that a wit-
ness’s testimony about specific events could be contra-
dicted by a generalized State Department report broadly
discussing conditions in the applicant’s country of origin.”)
(internal quotation marks omitted). Country Reports
may inform an IJ in determining the treatment of a par-
ticular political organization or ethnic group, but Country
Reports will rarely aid the IJ in analyzing the unique
position of a family as a social group. See Galina v. INS, 213
F.3d 955, 959 (7th Cir. 2000) (“[country] reports are brief
and general, and may fail to identify specific, perhaps
No. 08-1411 17
local, dangers to particular, perhaps obscure, individu-
als.”). Ayele’s credible testimony should have been suffi-
cient evidence to demonstrate the historical treatment of
her family and her fear that she would face persecution
on account of her family if she returned to Ethiopia. “It is
well-established that the credible testimony of an alien,
without more, may be sufficient to sustain an asylum
claim.” Korniejew v. Ashcroft, 371 F.3d 377, 382 (7th Cir.
2004); see also Ikama-Obambi v. Gonzales, 470 F.3d 720, 725
(7th Cir. 2006).
But in addition to the credible testimony of Ayele and
her uncle, the record also contained evidence, including
portions of the cited Country Reports, corroborating
Ayele’s assertions about the current treatment of her
father by the government. See Ghebremedhin v. Ashcroft,
385 F.3d 1116, 1119 (7th Cir. 2004) (deciding that the
history of persecution detailed in the Country Report and
the instances of mistreatment identified by the asylum
applicant leads to the conclusion that no reasonable
factfinder after having credited his testimony could
then find no well-founded fear of future persecution). The
IJ selectively chose to highlight certain portions of the
Country Reports, while ignoring other portions that were
favorable to Ayele. For example, when discussing the
2005 Country Report, the IJ mentioned the “credible”
elections in Ethiopia in 2005, but ignored information
concerning the continued wiretap surveillance of
Ethiopian political party leaders by the government.
If Ayele and her uncle’s story about the treatment of
her family members was credited, and further cor-
18 No. 08-1411
roborated by the Country Report, it is not clear why the IJ
determined that Ayele does not have an objectively
reasonable fear of persecution based on her familial ties.
Even more fundamentally, though, the IJ did not specifi-
cally address whether Ayele’s family is a particular
social group. Because of this omission, a remand for the
BIA to consider this issue is necessary. See Gonzales v.
Thomas, 547 U.S. 183, 186-88 (2006) (per curiam) (remand
required for BIA to consider whether applicant’s family
“presents the kind of kinship ties that constitute a par-
ticular social group”) (internal quotation marks omitted).
On remand, the BIA should consider the cumulative
effect of all of the hardships and treatment to which Ayele
and her family have been subjected. The BIA should
consider the former role of Ayele’s parents in the
Mengistu regime, the past treatment of her parents, and
her uncles, and the current treatment of her father. See
Zhang v. Gonzales, 408 F.3d 1239, 1249 (9th Cir. 2005) (IJ
should not evaluate events in isolation, but rather their
cumulative impact).
B. Withholding of removal and CAT relief
An applicant seeking withholding of removal under the
INA must demonstrate a “clear probability” of future
persecution based on the “alien’s race, religion,
nationality, membership in a particular social group or
political opinion.” 8 U.S.C. § 1231(b)(3)(A); see Khan v.
Filip, 554 F.3d 681, 690 (7th Cir. 2009). Applicants
seeking relief under the CAT must show that it is “more
likely than not” that they will be tortured if removed. 8
No. 08-1411 19
C.F.R. § 1208.16(c)(2); see Rapheal v. Mukasey, 533 F.3d 521,
526-27 (7th Cir. 2008). Both tests apply a more stringent
standard than that of the asylum inquiry. See Selimi v.
Ashcroft, 360 F.3d 736, 741 (7th Cir. 2004).
The IJ denied Ayele’s withholding of removal and CAT
claims based on his determination that she had not satis-
fied her burden of establishing that she qualified for
asylum. Because we grant her petition to review her
asylum denial, we need not reach her withholding of
removal or CAT claims. On remand, the BIA should
review these claims as it reconsiders the administrative
record. See Gomes v. Gonzales, 473 F.3d 746, 757 (7th Cir.
2007).
C. Judicial notice of the 2005 and 2007 Country Reports
Finally, we note that Ayele, in an effort to refute some
of the arguments raised by the government in its brief,
presented a supplemental appendix with her reply brief
and requested we take judicial notice of the exhibits. The
supplemental appendix included: (1) a 2005 Country
Report; (2) a 2006 Amnesty International report; (3) a 2007
Country Report; and (4) 2008 testimony by an Amnesty
International advocacy director. The government moved
to strike these materials as extra-record evidence, con-
tending that Ayele could instead move to reopen her
case based on changed conditions and that she has
waived or not fully exhausted some of her arguments
20 No. 08-1411
because she did not raise them in her opening brief.1 0 We
do not agree, and therefore, we take judicial notice of
the Country Reports and include them in the analysis
of this case for the reasons explained below.
The IJ cited the 2005 Country Report in his decision, but
the 2005 report is not part of the administrative record.
Because the IJ relied on the report in its decision, we
took judicial notice of the 2005 report. See Nwaokolo v. INS,
314 F.3d 303, 308 (7th Cir. 2002) (taking judicial notice
of the country reports on current country conditions
crucial to the decision). We also took judicial notice of the
2007 Country Report because it provides the most recent
evidence of the current country conditions at the time
of Ayele’s appeal. See, e.g., Lhanzom v. Gonzales, 430 F.3d
833, 848 (7th Cir. 2005). Although the 2007 Country
Report was not part of the record below, we still may
take judicial notice of it. See Kebe v. Gonzales, 473 F.3d 855,
857 (7th Cir. 2007) (taking judicial notice of most recent
Country Report submitted with appellate brief, although
not submitted with applicant’s motion to reopen). The
2005 and 2007 Country Reports were relevant to whether
10
Ayele offered the Country Reports as evidence of the human
rights abuses that continue to occur in Ethiopia, a position she
has maintained since the initial filing of her asylum applica-
tion, which means the argument is not waived or unexhausted.
To the extent that Ayele relies on the Country Reports and
the Amnesty International materials to explain the various
political opposition groups, we need not consider them be-
cause we have affirmed the immigration court’s determina-
tion of her political claim.
No. 08-1411 21
Ayele’s fear of future persecution is reasonable based
on the current conditions in Ethiopia, which formed the
basis of the IJ’s decision. See id. (directing BIA to consider
most recent country report indicating that the EPRDF-
led government has become more aggressive in cracking
down on opposition protestors since the May 2005 elec-
tions). We did not consider the Amnesty International
report and testimony because those documents were
submitted to us in support of Ayele’s political claim, and
we found the IJ’s analysis of that claim to be supported
by substantial evidence so there was no need to con-
sider them.
III. CONCLUSION
Therefore, we G RANT Ayele’s petition for review, we
V ACATE the BIA decision, and R EMAND to the BIA for
further proceedings consistent with this opinion.
5-4-09