Mohammed Emu Ademo v. Eric H. Holder, Jr.
795 F.3d 823
| 8th Cir. | 2015Background
- Petitioner (called Mohammed Emu Ademo) entered U.S. in 2002 using a visa/passport in the name Dame Haji Hiko and applied for asylum claiming persecution in Ethiopia as an Oromo and supporter of the Oromo Liberation Front (OLF).
- An IJ initially granted asylum (2006) finding petitioner generally credible and that he suffered past persecution; DHS moved to reopen based on a U.S. Embassy referral form in the visa file suggesting the applicant was the brother of an Ethiopian security official (Ato Tahir Hajji).
- The IJ granted reopening, held a new hearing, and denied asylum, withholding, and CAT based principally on adverse credibility (conflicting identities, implausible claim that guards released him for a two-day school exam) and alternatively on a terrorism bar for material support to OLF.
- Petitioner later produced an Ethiopian passport in the Ademo name and an affidavit from a former diplomat asserting that prisons sometimes allow prisoners to take school exams; a second IJ nevertheless reaffirmed the adverse credibility finding and denied relief and voluntary departure.
- The BIA affirmed denial of asylum, withholding, and CAT (citing identity confusion and implausibility), declined to address voluntary departure, and denied petitioner’s motion to reopen as both untimely/new evidence not shown and not outcome-determinative.
- The Eighth Circuit affirmed the merits (credibility, withholding, CAT) and denial to reopen, but remanded limitedly because the BIA failed to exercise or address its discretion regarding voluntary departure.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Credibility / Identity (visa referral form) | Ademo: documents (school certificate, later passport, yearbook, letters) prove identity; embassy form unexplained but coincidental or nickname use explains inconsistencies | DHS/BIA: embassy referral identifying applicant as brother of a security official undermines Ademo’s claimed identity; inconsistencies and unexplained alias support adverse credibility | Affirmed: substantial evidence supports BIA/IJ adverse credibility finding; reasonable adjudicator could rely on embassy referral and inconsistencies |
| Implausibility of release for exam | Ademo: affidavit from former diplomat shows prisons sometimes allow prisoners to take school exams, making the release plausible | DHS/BIA: affidavit is too remote in time and does not establish practice for persecuted political detainees; the prison-release story is inherently implausible | Affirmed: IJ/BIA permissibly relied on implausibility as part of credibility assessment |
| Convention Against Torture (CAT) claim | Ademo: country reports and evidence of repression of Oromo and journalists show likely torture if returned | DHS/BIA: without credible individualized showing and given lack of evidence petitioner was previously targeted, country reports alone insufficient to meet "more likely than not" standard | Affirmed: substantial evidence supports BIA conclusion that petitioner failed to show it was more likely than not he would be tortured |
| Motion to reopen / new evidence | Ademo: submitted family affidavits, updated country reports, proof of U.S. journalism work; contends evidence was previously unavailable and material | DHS/BIA: affidavits were not shown to be previously unavailable, appear prepared for litigation, and would not materially alter identity/credibility findings or CAT outcome | Affirmed: no abuse of discretion in denying reopening |
| Voluntary departure — BIA failure to act | Ademo: BIA failed to address his appeal from IJ’s summary denial of voluntary departure | DHS: (did not respond on appeal) | Remanded: court grants review limitedly and remands because BIA failed to exercise or address its discretion regarding voluntary departure |
Key Cases Cited
- Martinez-Galarza v. Holder, 782 F.3d 990 (8th Cir. 2015) (standard for reviewing BIA factual findings)
- INS v. Elias-Zacarias, 502 U.S. 478 (1992) (review limitations on credibility findings)
- Singh v. Gonzales, 495 F.3d 553 (8th Cir. 2007) (credibility review and Real ID Act timing)
- Mamana v. Gonzales, 436 F.3d 966 (8th Cir. 2006) (adverse credibility may rest on implausibility)
- Valdiviezo-Galdamez v. Attorney Gen. of the U.S., 663 F.3d 582 (3d Cir. 2011) (requirements for CAT relief and need for individualized showing)
- INS v. Doherty, 502 U.S. 314 (1992) (standard of review for Board’s denial of motion to reopen)
- Kirong v. Mukasey, 529 F.3d 800 (8th Cir. 2008) (court may review BIA failure to exercise discretion)