Kefay Gebremaria v. John Ashcroft ( 2004 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-2492
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Kefay Gebremaria, *
*
Petitioner, *
* Petition for Review of an
v. * Order of the Board of
* Immigration Appeals.
John Ashcroft, Attorney General *
of the United States, *
*
Respondent. *
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Submitted: June 17, 2004
Filed: August 2, 2004
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Before SMITH, BEAM, and COLLOTON, Circuit Judges.
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SMITH, Circuit Judge.
Kefay Gebremaria seeks review of a denial by the Board of Immigration
Appeals ("Board") of her motion to reopen her deportation case. We affirm.
I. Background
Gebremaria lawfully entered the United States in April of 1995 as a visitor
from Ethiopia. She applied for asylum alleging fear of persecution due to her political
activity within Ethiopia. In August 1997, an immigration judge denied Gebremaria's
asylum application following a hearing conducted in September 1996. Gebremaria
appealed to the Board, which subsequently dismissed her appeal on December 26,
2001. In May 2003, Gebremaria filed a petition to reopen based on new evidence and
evidence of changed circumstances. Specifically, Gebremaria claimed that because
of her Human Immunodeficiency Virus ("HIV")1 status she "would face a death
sentence" if she were forced to return to Ethiopia. She also claimed that her husband
had disappeared in Ethiopia two years earlier after being arrested and jailed by
Ethiopian authorities, and that her family thought he had been killed. Lastly, she
claimed that her political association with the All-Amhara People's Organization,
("AAPO") a political group, placed her in danger of future persecution.2
In support of her motion to reopen, Gebremaria submitted a January 2002 letter
from her doctor in the United States, stating that he "ha[d] seen [Ms. Gebremaria]
since 1997," and that "[a]t that time she was diagnosed with advanced AIDS." She
also submitted a May 2003 letter from the same doctor stating that Gebremaria "has
been followed and treated in the Infectious Diseases Clinic for several years," and
that "[h]er lowest CD4 count has been 74 in August of 1997, well below the 200
cutoff for AIDS." Finally, Gebremaria submitted a May 2003 letter from her sister in
Ethiopia that stated that Gebremaria's husband had disappeared from jail two years
earlier, and that she should not return to Ethiopia.
The Board denied Gebremaria's motion to reopen her case on June 10, 2003.
The Board denied the motion upon finding: 1) the HIV/AIDS evidence Gebremaria
wanted to present was not "new" evidence and could have been presented at the
original hearing in 1997; 2) insufficient evidence existed regarding the circumstances
1
HIV is the virus that causes Acquired Immunodeficiency Syndrome or
"AIDS."
2
Gebremaria did not claim in her motion that she was entitled to protection
pursuant to the United Nations Convention Against Torture. However, the motion
noted that Gebremaria would be eligible at some point to adjust her status to that of
a lawful permanent resident of the United States based upon a Visa petition filed on
her behalf by her brother.
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of her husband's imprisonment and two-year disappearance in Ethiopia to establish
a prima facie case of asylum eligibility; 3) Gebremaria failed to establish prima facie
eligibility for adjustment of status to that of a lawful permanent resident of the United
States. Gebremaria timely petitioned this court for review.3
II. Analysis
On appeal, Gebremaria asks us to reverse and remand to allow an immigration
judge to consider her petition for asylum due to her HIV health status and her
husband's disappearance and possible death.4 She also seeks to supplement the record
on appeal.
A. Motion to Supplement the Record
As an initial matter, we address Gebremaria's petition to supplement the record
on appeal. Gebremaria asks to include an affidavit from a family member who
recently reestablished contact with Gebremaria's husband. The affidavit indicates that
3
The Board entertained Gebremaria's petition to reopen her deportation
proceedings pursuant to 8 C.F.R. § 1003.2(a). The Board's June 10, 2003, decision
denying the motion was a final order of deportation from the United States. Because
her deportation proceedings were pending before April 1, 1997, and because she
received a final order of deportation from the Board after October 31, 1996, this is a
"transitional" case, and we possess jurisdiction to entertain Gebremaria's petition for
review of the Board's decision pursuant to 8 U.S.C. § 1105a(a) (1994). See Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA") §
309(c)(1), Pub. L. No. 104-208, 110 Stat. 3009, 3009-626 (Sept. 30, 1996).
4
Gebremaria waived (by failing to argue on appeal) a final issue regarding her
possible future persecution in Ethiopia for her affiliation with the All-Amhara
People's Organization ("AAPO"). In addition, although she now claims that she is
entitled to protection pursuant to the Convention Against Torture, we lack jurisdiction
to hear that claim because she did not raise that in her motion to the Board. Afolayan
v. INS, 219 F.3d 784, 788 (8th Cir. 2000) (in reviewing decisions of the Board, we
lack jurisdiction to review claims that were not presented to the Board in the first
instance).
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the husband escaped from prison and has been in hiding for two years. We deny this
request.
Before IIRIRA, this and other circuits used 28 U.S.C. § 2347(c) to invoke
discretionary authority to remand immigration cases in which 8 U.S.C. § 1105a(a)(4)
applied, so that new, non-record evidence could be admitted on appeal and remanded
for consideration by the Board. See, e.g., Makonnen v. INS, 44 F.3d 1378, 1384–86
(8th Cir. 1995); Saiyid v. INS, 132 F.3d 1380, 1384–85 (11th Cir. 1998);
Becerra-Jimenez v. INS, 829 F.2d 996, 1000–02 (10th Cir. 1987); Bernal-Garcia v.
INS, 852 F.2d 144, 147 (5th Cir. 1988); Dolores v. INS, 772 F.2d 223, 226–27 (6th
Cir. 1985) (per curiam); Coriolan v. INS, 559 F.2d 993, 1002–04 (5th Cir. 1977).
However, because this is a transitional case,5 the IIRIRA § 309(c)(4)(B) directs that
"a court may not order the taking of additional evidence under section 2347(c) of title
28." Najjar v. Ashcroft, 257 F.3d 1262, 1279 (11th Cir. 2001); Altawil v. INS, 179
F.3d 791, 792–93 (9th Cir. 1999). Thus, IIRIRA's prohibition of remanding for the
consideration of additional evidence pertains to non-record evidence that is
introduced in the first instance before a reviewing court. See Cardenas-Uriarte v.
INS, 227 F.3d 1132, 1138 (9th Cir. 2000) ("Section 2347 concerns a party's appeal
to [this] court [asking permission] to adduce additional evidence, for example, where
new evidence about a well-founded fear of persecution is discovered.").
We, as did the court in Najjar, 257 F.3d at 1281–82, interpret IIRIRA §
309(c)(4)(B) as eliminating our authority under § 2347(c) to remand to the Board so
that an alien can present "additional evidence." See IIRIRA § 309(c)(4)(B); Saiyid,
132 F.3d at 1384 n. 5 (noting, in dicta, that IIRIRA "eliminates § 2347 jurisdiction
over motions to reopen"). Under transitional rule § 309(c)(4)(B), we must act within
5
Transitional cases are those where a final order of deportation is entered more
than thirty days after the September 30, 1996, enactment of IIRIRA and deportation
proceedings are begun before April 7, 1997.
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the constructs of § 1105a(a)(4) and may not rely on our § 2347(c) authority. As such,
IIRIRA § 309(c)(4)(B) is a jurisdictional bar that precludes our consideration of
non-record evidence submitted for the first time on appeal. Gebremaria's motion to
supplement is therefore denied.
B. Merits
Motions to reopen deportation proceedings, like petitions for rehearing and
motions for new trial, are disfavored because of the strong public interest in bringing
litigation to a close, and because "[g]ranting such motions too freely will permit
endless delay of deportation by aliens creative and fertile enough to continuously
produce new and material facts sufficient to establish a prima facie case." INS v.
Abudu, 485 U.S. 94, 108 (1988) (quotation omitted). In Abudu, the Supreme Court
noted at least three independent grounds on which the Board may deny a motion to
reopen: failure to establish a prima facie case for asylum; failure to introduce
previously unavailable, material evidence or failure to reasonably explain why asylum
was not initially sought; or a determination that the movant would not be entitled to
this discretionary relief. Id., 485 U.S. at 104–05. The Board's decision is reviewed
under the abuse of discretion standard. Id.; Raffington v. INS, 340 F.3d 720, 722–23
(8th Cir. 2003).
1. Evidence of HIV/AIDS Status
In her first claim for relief, Gebremaria argues that the Board abused its
discretion in denying her motion to reopen because evidence of her HIV/AIDS status
is material evidence that was unavailable at the time of her deportation hearing. In
addition, she argues that circumstances in Ethiopia have changed due to the
HIV/AIDS epidemic in that country. She argues that if she returns to Ethiopia, she
will be unable to procure the medication used to control the virus and "she would face
a death sentence." Gebremaria argues that she did not present this evidence to the
immigration court or the Board because she only learned of her HIV/AIDS status two
months prior to her final hearing, and she had not yet considered the long-term effects
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of having a life-threatening disease. Gebremaria cites to various reports regarding the
epidemic in Ethiopia and Ethiopia's failure to manage the problem to date. Although
Gebremaria notes that she was provided a list of treatment centers in Ethiopia, she
argues that the list does not contain information regarding the type of treatment
available or whether she would have access to medication at these facilities. She also
notes that she suffers from other serious health problems, including a thyroid
condition requiring radiation therapy, diabetes mellitus, and high blood pressure.
Finally, she argues that, as a known member of the opposition party, she would likely
suffer at the hands of a government that controls the treatment centers. And, because
she had been imprisoned before for her political views, she likely would be again and
suffer greatly because of her medical condition.
The government responds that Gebremaria knew of her HIV/AIDS status at the
time of her original proceedings but failed to notify the immigration judge of her
condition. The government notes that as of August 1997 (when the immigration judge
denied her asylum application), Gebremaria knew–but failed to apprise the judge–of
her condition. Therefore, the government argues, the Board did not abuse its
discretion because the evidence was previously available.
Gebremaria's first deportation hearing occurred on September 19, 1996, and the
hearing to determine the merits of her claim occurred on August 13, 1997, after which
the judge rendered an oral decision. The medical evidence presented by Gebremaria
includes two letters from her treating physician, Dr. David Strike, dated May 6, 2003,
and January 14, 2002. The January 2002 letter stated that he had seen Gebremaria
since 1997, and at that time she was diagnosed with "advanced AIDS." The letter did
not specify the exact time that Dr. Strike first saw her. The May 2003 letter indicated
that Gebremaria's CD4 count was "well below the 200 cutoff for AIDS" in August
1997. Again, the letter did not specify the date the CD4 count measurement was
taken.
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There is no statutory provision for the reopening of a deportation proceeding,
and the regulations do not specify the conditions under which a motion to reopen
must be granted. Khalaj v. Cole, 46 F.3d 828, 833 (8th Cir. 1995) (citing INS v.
Doherty, 502 U.S. 314, 321–23 (1992)). The applicable regulation indicates that a
motion to reopen for additional evidence must state new and material facts that were
not available and could not have been discovered or presented at the prior hearing.
8 C.F.R. § 3.2(c) (1994). The Board ruled that the advanced nature of her condition
in August 1997 indicated that Gebremaria knew and appreciated the seriousness of
her condition. The Board determined that this evidence was previously available at
the final hearing, and that she should have presented the information to the
immigration judge at that time. Gebremaria was aware of–yet failed to present
evidence concerning–her condition prior to the final decision in her case. Due to the
deferential nature of our review, we find that the Board did not abuse its discretion
in denying Gebremaria's motion to reopen her deportation case based on her claim of
new and material evidence.
B. Prima Facie Case for Asylum
Gebremaria next argues that the Board abused its discretion in determining that
she could not make a prima facie case for political asylum. She argues that the
evidence of her husband's imprisonment and disappearance, during which time the
family believed he was dead, supports her claim that she would suffer future
persecution at the hands of the Ethiopian government. She argues that her political
connections to the AAPO subjected her to past persecution when she was jailed for
a month after participating in a rock-throwing demonstration, and that if she returns
to Ethiopia, the same people would persecute her for her political beliefs. She asserts
that this danger is even worse now than at the close of her hearing in 1997.
To qualify for asylum, an alien must show persecution or a well-founded fear
of persecution on account of race, religion, nationality, membership in a particular
social group, or political opinion. 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(2)(A)(iii); INS
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v. Elias-Zacarias, 502 U.S. 478, 481–82 (1992). Subjectively, the alien must
demonstrate with credible evidence that he or she genuinely fears persecution;
objectively, the alien must demonstrate through credible, direct, and specific evidence
that a reasonable person in his or her position would fear persecution. Nyonzele v.
INS, 83 F.3d 975, 983 (8th Cir. 1996). Although acts of violence against an alien's
family members may demonstrate a well-founded fear of persecution, absent a pattern
of persecution tied to the asylum applicant himself or herself, acts of violence against
family members do not necessarily demonstrate a well-founded fear of persecution.
Id., 83 F.3d at 983. In Nyonzele, for example, the alien alleged in part that he held a
well-founded fear of persecution because his father had been murdered due to his
political beliefs and due to the alien's desertion from his country's military. We
determined, however, that there was no pattern of persecution linked to the alien
himself, and that his father's murder was due to his political beliefs rather than to any
action taken by the alien. Id. We also noted that there was no evidence that any family
members surviving the alien's father suffered physical persecution by the government.
Id.
Gebremaria offers evidence that she presented to the immigration judge and
Board in her original asylum petition. That evidence included her past month-long
imprisonment following the political demonstration. However, the immigration judge
and Board determined that this evidence alone was insufficient to establish a fear of
future persecution due to her political beliefs. Therefore, to bolster her claim here, she
submitted evidence relating to her husband's disappearance following his
imprisonment in an Ethiopian prison. Gebremaria argues that this evidence indicates
that if she returns to the country, she would be subject to the same fate. However,
Gebremaria's evidence is insufficient under our case law to establish a claim for fear
of future persecution based on acts against her husband which, without evidence more
specific as to Gebremaria, cannot be imputed to her. Nyonzele, 83 F.3d 975. As such,
the Board did not abuse its discretion in determining that Gebremaria failed to
establish a prima facie case for asylum.
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Based on the foregoing, we deny Gebremaria's motion to supplement the record
and her petition to review the Board's denial of her motion to reopen her deportation
case.
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