Tolesa v. Holder , 353 F. App'x 815 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-1690
ABEBE GEBREMICHAEL TOLESA,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Argued: September 25, 2009 Decided: December 3, 2009
Before NIEMEYER, MICHAEL, and KING, Circuit Judges.
Petition denied by unpublished per curiam opinion.
ARGUED: Jason Alexander Dzubow, MENSAH, SHOEMAKER & DZUBOW,
PLLC, Washington, D.C., for Petitioner. Ada Elsie Bosque,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent. ON BRIEF: Gregory G. Katsas, Assistant Attorney
General, Civil Division, William C. Peachey, Assistant Director,
Office of Immigration Litigation, Mona Maria Yousif, Civil
Division, Office of Immigration Litigation, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Abebe Gebremichael Tolesa petitions this court for
review of an order by the Board of Immigration Appeals (BIA)
dismissing his appeal from the Immigration Judge’s (IJ’s)
decision denying his application for asylum. * Tolesa argues that
the BIA erroneously upheld the IJ’s determination that Tolesa
had failed both to provide corroborating evidence in support of
his asylum claim and to demonstrate that he had a well-founded
fear of future persecution. We deny the petition because it was
not an abuse of discretion for the IJ to conclude that Tolesa
had failed to demonstrate a well-founded fear of future
persecution.
I.
A.
Tolesa is a native and citizen of Ethiopia who belongs
to the Oromo ethnic group. Since 1988 he has served in the
Ethiopian military, currently holding the rank of captain. In
1991 the present government of Ethiopia came to power and
initially imprisoned Tolesa along with other officers who served
the previous regime. While he was later released back into
*
While Tolesa also pursued claims before the IJ for
withholding of removal and withholding pursuant to the United
Nations Convention Against Torture (CAT), he does not petition
this court to review the BIA’s dismissal regarding those claims.
2
military service, Tolesa was watched with suspicion because the
new government, comprised largely of ethnic Tigreans, distrusted
Oromos. Eventually, however, Tolesa obtained the government’s
trust and came to lead a prosperous life as a military trainer.
At some point Tolesa began to support a political
opposition party called the Coalition for Unity and Democracy
(CUD). Because the Ethiopian military prohibits its members
from participating in political activities, Tolesa attests that,
while in Ethiopia, he expressed his support for CUD in
“clandestine and discreet ways.” J.A. 256. Tolesa testified
that he formed a “cell” along with three other officers, Major
Gidey, Captain Melaku, and Captain Abera. Id. at 153. He
further testified that, in addition to encouraging support among
other members of the military through this cell, he discussed
CUD with his family and friends.
In early 2005 Ethiopia conducted a highly contested
election, which culminated in the government announcing that it
had retained power. CUD loudly denounced the results as
fraudulent and launched multiple protests. There was a
crackdown, and the brutal treatment of CUD supporters and of the
press was widely reported. Tolesa had been sent for training in
the United States shortly before the election and therefore did
not participate in the protests. From the United States,
however, he learned that several members of his cell had been
3
discovered. Major Gidey was caught watching a CUD video and
required to relocate, allegedly to deprive him of needed medical
resources. Gidey died soon after his relocation. Captain Abera
was also discovered and consequently reassigned and mistreated.
To the best of Tolesa’s knowledge, Captain Melaku’s CUD
association remains unknown to the Ethiopian government.
Tolesa testified that the government first learned of
his own CUD activities in late October 2005 while he was still
in the United States. The police had spoken to his brother and
wife about his CUD activities and made various threats. Based
on the treatment of his colleagues, Tolesa concluded that
returning to Ethiopia in March 2006 when his training ended
would subject him to persecution and maybe even death. When he
failed to return home after his training ended, the police
issued a summons demanding his presence for questioning. When
he failed to respond, the police issued a second summons
demanding that his wife report for questioning. The first
summons contains the following statement: “It is known that the
duty of a member of the armed forces is to guard the
constitution and defend the territorial integrity of his country
and [that] he is not to get involved in any political
activities.” J.A. 407. The summons cites Tolesa’s violation of
the “foregoing principle” as the reason for its issuance. Id.
4
In addition to his own testimony, Tolesa provided the
testimony of another member of the Ethiopian military, Assesa
Ambo, who was also in the United States for training and who is
also currently seeking asylum. Ambo generally corroborated
Tolesa’s account of the treatment of CUD supporters and the
threat of persecution if he and Tolesa returned. Among the
documentary evidence Tolesa provided to corroborate his account
were: (1) signed letters from his wife attesting to the
Ethiopian government’s knowledge of his CUD association, the
“serious retaliatory measure[s],” J.A. 393, including death,
that awaited him should he return, and the threats made to her
by the Ethiopian police; (2) the two summonses issued by the
Ethiopian government; and (3) various background materials from
the U.S. State Department, Human Rights Watch, and the press
documenting the persecution of CUD supporters in Ethiopia.
B.
The IJ found Tolesa “generally credible.” J.A. 82.
“His testimony was detailed, plausible, in most accounts,
internally consistent and generally consistent with the asylum
application and his statement, as well as with the statement of
his other witnesses.” Id. at 82-83. Nevertheless, the IJ
rejected Tolesa’s application on two grounds: (1) Tolesa had
failed to carry his burden of proof because he had produced
5
insufficient corroborating evidence; and (2) he had failed to
establish a well-founded fear of persecution.
With regard to Tolesa’s alleged fear of persecution,
the IJ found that it was not clear that Tolesa feared
persecution as much as prosecution. Citing the summons issued
to Tolesa, the IJ found it was “not clear whether the government
wants to talk to [Tolesa] because of his work on behalf of the
CUD or because he simply violated the rules or restrictions
against political activity or involvement for any reason by
members of the active duty military.” J.A. 86. If the
Ethiopian government sought to punish Tolesa under regulations
forbidding the military from engaging in political activity --
whether it be for the opposition or for the government -- the
punishment would not be persecution but prosecution under
legitimate criminal or military rules.
After denying Tolesa’s asylum application, the IJ
summarily dismissed Tolesa’s application for withholding of
removal and CAT claim because the burden for asylum was less
than that for withholding of removal and because there was
insufficient evidence “to establish even a reasonable chance
that [Tolesa] will face torture should he be removed to
Ethiopia.” Id. at 88. The BIA summarily affirmed in a brief,
three-paragraph decision, adopting the IJ’s rationale on every
claim. Tolesa next filed this petition for review.
6
II.
The BIA’s decision is a final order of removal. While
ordinarily we review only the decision of the BIA, when the BIA
adopts the reasoning of the IJ and summarily affirms, we review
the IJ’s decision. Gandarillas-Zambrana v. BIA, 44 F.3d 1251,
1255 (4th Cir. 1995). We review the IJ’s findings of fact under
the substantial evidence rule, and we must treat these findings
as conclusive unless “any reasonable adjudicator would be
compelled to conclude to the contrary.” Abdel-Rahman v.
Gonzales, 493 F.3d 444, 448 (4th Cir. 2007); 8 U.S.C.
§ 1252(b)(4)(B). We review all legal issues de novo. Abdel-
Rahman, 493 F.3d at 449. The final administrative decision
concerning removal, however, will not be disturbed unless we
determine that it is “manifestly contrary to law and an abuse of
discretion.” Naizgi v. Gonzales, 455 F.3d 484, 487 (4th Cir.
2006); 8 U.S.C. § 1252(b)(4)(D).
Although the IJ reached his conclusion on two
alternate grounds, we affirm on only one: that Tolesa failed to
establish a well-founded fear of future persecution. “The
Attorney General has the discretion to grant asylum to an alien
who successfully demonstrates that he qualifies as a refugee.”
Lin-Jian v. Gonzales, 489 F.3d 182, 187 (4th Cir. 2007). An
applicant qualifies as a refugee if he demonstrates that he has
suffered from past persecution, or has a well-founded fear of
7
future persecution, on account of race, religion, nationality,
membership in a particular social group, or political opinion.
8 U.S.C. § 1101(a)(42)(A); 8 C.F.R. § 1208.13(b). To
demonstrate a well-founded fear of future persecution, the
applicant must show both that he is “subjectively afraid and
that the fear is objectively well-founded.” Lin-Jian, 489 F.3d
at 188. For the fear to be objectively well founded, there must
be “a reasonable possibility of suffering such persecution if
[the applicant] were to return” to his country. 8 C.F.R.
§ 1208.13(b)(2)(i). The testimony of the applicant is almost
always critical to determining whether asylum is appropriate and
“if credible, may be sufficient to sustain the burden of proof
without corroboration.” 8 C.F.R. § 1208.13(a); 8 U.S.C.
§ 1158(b)(1)(B)(ii). However, while a finding of credibility
will likely be sufficient to establish that the applicant is
subjectively afraid of persecution, it will not necessarily be
sufficient to establish that his fear is objectively well
founded. See Najjar v. Ashcroft, 257 F.3d 1262, 1289 (11th Cir.
2001).
Although the IJ’s reasoning is not explicit, we take
his conclusion concerning Tolesa’s alleged fear of persecution
to rest on the objective component of the statute. The IJ found
Tolesa credible, implying that the IJ believed Tolesa when he
testified that he feared severe retribution from the Ethiopian
8
government on account of his political opinions. Moreover, the
IJ’s focus on the summons and the purpose for which the
Ethiopian government sought his return suggest that the IJ was
assessing whether Tolesa’s belief was objectively well founded.
Central to the IJ’s assessment was the statement in
the summons that the Ethiopian government restricts the
political speech of its military personnel. The IJ took this
statement to be evidence of a regulation prohibiting political
speech in the military. The IJ reasoned that even if such a
rule was problematic, its presence, without additional evidence,
weighed against a persecutory motive by the Ethiopian
government. Indeed, the IJ held that “even given the
persecution and mistreatment of some activists of the CUD in
Ethiopia in recent years,” it was “too speculative” to conclude
that Tolesa was being summoned for persecution. J.A. 86.
Tolesa had simply failed to carry his burden of demonstrating
that the punishment awaiting him was on account of dissident
political speech rather than violation of a neutral military
regulation.
Tolesa argues in response that the military regulation
in question was not, in fact, neutrally applied. Persecution
can still occur under the guise of prosecution if the
prosecutor’s motive is to target protected conduct. Abdel-
Rahman, 493 F.3d at 452 (“where the motive underlying a
9
purported prosecution is illegitimate, such prosecution is more
aptly called persecution”). In support of this argument Tolesa
testified that the requirement that army officers “not openly
give [themselves] to a political group” in fact meant that they
“were allowed only to give [themselves] to the government” and
not to any opposition group. J.A. 152. He further testified
that if he returned to Ethiopia, “the Ethiopian government will
kill me because of my political opinion” rather than the
violation of a military regulation. Id. at 163. Finally,
Tolesa argues that the government’s transfer of Major Gidey when
it knew of his medical problems is evidence of persecution and
not merely prosecution for violation of a regulation.
Given the record, we cannot conclude that the IJ’s
rejection of Tolesa’s argument was “manifestly contrary to law
and an abuse of discretion.” Except for the evidence concerning
the Ethiopian government’s general hostility towards CUD
supporters, Tolesa’s evidence is entirely consistent with the
government having a legitimate prosecutorial motive. The
summons states its purpose in neutral terms, purporting to seek
his presence for violation of a military regulation. Even if
the Ethiopian government has applied such a regulation to punish
CUD supporters, there is no evidence in the record of any
instances in which the Ethiopian government declined to apply it
to their own supporters, and hence no evidence that the
10
government does not apply the regulation neutrally. Moreover,
assuming Major Gidey and Captain Abera were punished for
violating the regulation, their transfers are minor punishments
compared with the death and torture that Tolesa claims await him
in Ethiopia. Considering the nature of the offense, that is,
political activity in violation of a military regulation, the
punishment imposed on Gidey and Abera suggests a prosecutorial
motive rather than a persecutory one.
Indeed, the only evidence Tolesa offers that the
Ethiopian government has a persecutory motive here is his
belief, shared by his wife and fellow officer Ambo, that it has
such a motive. While a finding of credibility entails the
conclusion that Tolesa testified truthfully, it does not entail
the conclusion that Tolesa’s belief is reasonable. Tolesa could
simply be wrong in believing that death awaits him for his
political views. Immigration judges must regularly make
judgments concerning not only the credibility of an applicant
but also the existence of an objectively reasonable basis for an
applicant’s honestly held beliefs. Here, the IJ appears to have
ultimately found that there was insufficient evidence to support
an objectively reasonable basis for Tolesa’s specific belief.
Without such a basis, the IJ could not conclude that there was a
reasonable possibility that Tolesa would suffer persecution in
Ethiopia. In light of the record as a whole, we cannot hold
11
that the IJ’s conclusion was manifestly contrary to law or an
abuse of discretion.
* * *
For the reasons stated, we deny Tolesa’s petition for
review.
PETITION DENIED
12