Woldemeskel v. INSWoldemeskel v. INS
This matter is before the court on Ms. Woldemeskel‘s petition for panel rehearing and petition for rehearing en banc. Upon consideration, the petition for rehearing is denied. The panel, however, has determined that the opinion should be revised. The last full paragraph of Part II.C, which begins “We emphasize that,” is deleted from the opinion. A copy of the revised opinion is attached to this order.
The petition for rehearing en banc was transmitted to all of the judges of
Entered for the Court
PATRICK FISHER, Clerk of Court
by:
Deputy Clerk
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.
TACHA, Chief Judge.
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
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 seventeеn, 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
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.
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
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.”
A. Standard of Review
We apply a substantial evidence standard to the BIA‘s resolution of the
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) аsylum based on the rebuttable presumption created by past persecution; and (3) asylum based on her well-founded fear of
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 “consider the issues and announce its decision in terms sufficient to enable us, as a reviewing court, to perceive that it has heard and considerеd the arguments rather than merely reacted.” Id. Given the BIA‘s
Ms. Woldemeskel also argues the INS failed to rebut the presumption of future persecution created by the evidence of past persecution. This argument clearly fails because the record contains considerable evidence that conditiоns in Ethiopia changed with the 1991 transition in power. Furthermore, both the immigration judge and the BIA acknowledged the 1991 change in government and concomitant change in country conditions. The presumption was clearly rebutted, shifting the burden back to Ms. Woldemeskel to prove she is eligible for refugee status because of a well-founded fear of persecution under the TGE, rather than the Mengistu regime.
2. Well-Founded Fear of Persecution
Ms. Woldemeskel may prove a well-founded fear of persecution based on
The BIA concluded the record dоes not support a finding that Ms. Woldemeskel is a member of a group currently subject to a pattern or practice of persecution. We agree with the BIA‘s conclusion because, although the record does show continued political unrest and ethnic conflict in Ethiopia, it does not show that members of the AAPO or people of Amhara heritage are subject to a pattern or practice of persecution. A pattern or practice of persecution has been defined as “something on the order of organized or systematic or pervasive persecution.” Makonnen v. INS, 44 F.3d 1378, 1383 (8th Cir. 1995). The record contains evidence that the EPRDF, the organization that controlled the TGE and
Moreover, Ms. Woldemeskel failed to prove she is similarly situated to individuals currently targeted for harassment and discrimination. The evidеnce shows that many, if not all, of the victims of harassment and intimidation are AAPO leaders and outspoken activists. For example, the 1994 State Report on Ethiopia‘s country conditions acknowledges that AAPO activists believed by the TGE to advocate violence or insurrection are often arrested, but regular AAPO members have not been targeted. Ms. Woldemeskel has failed to prove that her position in the AAPO is similar to those previously targeted by the gоvernment. See, e.g., Feleke v. INS, 118 F.3d 594, 598 (8th Cir. 1997) (requiring asylum applicant prove that his position in a political opposition group was similar to those members of the group subject to persecution).
In addition to finding that Ms. Woldemeskel is not similarly situated to individuals undergoing persecution, the BIA also concluded the evidence failed
In support of her argument that she has a well-founded fear of individualized persecution, Ms. Woldemeskel challenges the BIA‘s refusal to
C. Administrative Notice
Ms. Woldemeskel argues that the BIA violated her Fifth Amendment right to due process by taking administrative notice of three facts contained in the State Department‘s 1999 Country Reports on Human Rights Practices and not providing her with an opportunity to respond to these facts. Because of their specialized knowledge in certain specific subject areas, administrative agencies may “take notice of technical or scientific facts that are within the agency‘s area of expertise.” Llana-Castellon v. INS, 16 F.3d 1093, 1096 (10th Cir. 1994) (internal quotation marks omitted). It is well established that the BIA “may take administrative notice of commonly acknowledged facts, which may include current events beаring on an applicant‘s well-founded fear of persecution.” Kowalczyk v. INS, 245 F.3d 1143, 1147 (10th Cir. 2001) (internal quotation marks omitted). In addition, the BIA “may draw reasonable inferences from the evidence which comport with common sense.” Kapcia, 944 F.2d at 705 (internal quotation marks omitted).
The BIA may not, however, base its decision primarily on facts not contained in the record without providing asylum applicants with notice and the opportunity to rebut inferences drawn from those facts. See id. 705-06;
In Ms. Woldemeskel‘s case, however, the BIA did not base its decision on the administratively noticed facts, which at most merely supplement the BIA‘s conclusion that “[t]here is no basis in the record upon which to conclude that persons similarly situated as the respondent are persecuted in Ethiopia simply on account of their Amhara ethnicity or their membership in the AAPO.” In re Woldemeskel, No. A29 910 501, at 2 (BIA May 15, 2000). As we have already discussed, the record lacks evidence showing Ms. Woldemeskel had a well founded fear of persecution based on her AAPO membership or Amhara ethnicity. Ms. Woldemeskel would first have to meet her burden of proof before the three facts from the State Department report would have any detrimentаl effect on her case.
Even if she had established statutory eligibility, the administratively noticed facts would have little impact on her case. The first fact recognizes the establishment in 1992 of a special prosecutor‘s office committed to vindicating human rights violations under the Mengistu regime—a detail also included in the
III. Withholding of Deportation
An asylum application also includes a request for withholding of deportation, which the Attorney General must grant if the statutory criteria are met. An applicant is entitled to withholding of deportation if the Attorney General “determines that [the applicant‘s] life or freedom would be threatened . . . on account of race, religion, nationality, membership in a particular social group, or political opinion.”
We accordingly deny the petition for review and AFFIRM the BIA‘s decision to deny asylum and withholding of deportation and to grant voluntary dеparture.