Esayas v. INS ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
YOSEPH ESAYAS, a/k/a Yosef Esayas
Hussien,
Petitioner,
v. No. 98-2472
U.S. IMMIGRATION & NATURALIZATION
SERVICE,
Respondent.
On Petition for Review of an Order
of the Board of Immigration Appeals.
(A70-801-291)
Submitted: February 23, 1999
Decided: May 6, 1999
Before WILKINS, HAMILTON, and LUTTIG, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Onyebuchi N. Enechionyia, Arlington, Virginia, for Petitioner. Frank
W. Hunger, Assistant Attorney General, Civil Division, Richard M.
Evans, Assistant Director, Carl H. McIntyre, Jr., Senior Litigation
Counsel, Office of Immigration Litigation, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Yoseph Esayas petitions for review of a final order of the Board
of Immigration Appeals (Board) denying his application for asylum
and withholding of deportation. We affirm the Board's decision
because there is substantial evidence in the record as a whole that
despite the genuine fear of harm that led Esayas to leave Ethiopia, the
government's treatment of Esayas does not rise to the level of "perse-
cution" for the purpose of asylum. Furthermore, Esayas does not have
a "well-founded fear of persecution" on account of protected grounds
if he is returned to Ethiopia.
The Immigration and Nationality Act (INA) authorizes the Attor-
ney General, in her discretion, to confer asylum on any refugee. See
8 U.S.C.A. § 1158(a) (West Supp. 1998). The INA defines a refugee
as a person unwilling or unable to return to his native country "be-
cause of 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.A. § 1101(a)(42)(A) (West Supp.
1998); M.A. v. INS, 899 F.2d 304, 307 (4th Cir. 1990) (en banc). The
"well-founded fear of persecution" standard contains both a subjective
and an objective component. An applicant may satisfy the subjective
element by presenting "`candid, credible, and sincere testimony' dem-
onstrating a genuine fear of persecution." Berroteran-Melendez v.
INS, 955 F.2d 1251, 1256 (9th Cir. 1992); see Figeroa v. INS, 886
F.2d 76, 79 (4th Cir. 1989). The objective element requires a showing
of specific, concrete facts that would lead a reasonable person in like
circumstances to fear persecution. See Huaman-Cornelio v. Board of
Immigration Appeals, 979 F.2d 995, 999 (4th Cir. 1992). A finding
of past persecution creates a rebuttable presumption of a well-founded
fear of future persecution. See 8 C.F.R.§ 208.13(b)(1) (1998). This
presumption may be rebutted by evidence demonstrating that there is
no longer a reasonable fear of future persecution, such as when condi-
2
tions in an alien's native country have changed significantly. See 8
C.F.R. § 208.13(b)(2) (1998). Eligibility for asylum can also be based
on grounds of past persecution alone even though there is "`no rea-
sonable likelihood of present persecution.'" Baka v. INS, 963 F.2d
1376, 1379 (10th Cir. 1992) (quoting Rivera-Cruz v. INS, 948 F.2d
962, 969 (5th Cir. 1991)). To establish such eligibility, an alien must
show past persecution so severe that repatriation would be inhumane.
Id.We must uphold the Board's determination that Esayas is not eligi-
ble for asylum if the determination is "supported by reasonable, sub-
stantial, and probative evidence on the record considered as a whole."
8 U.S.C.A. § 1105a(a)(4) (West Supp. 1998). The decision may be
reversed only if the evidence presented by Esayas was such that a rea-
sonable fact finder would have to conclude that the requisite fear of
persecution existed. See INS v. Elias-Zacarias , 502 U.S. 478, 481
(1992).
Esayas is a citizen of Ethiopia who entered the United States on a
nonimmigrant student visa in 1992. His primary motive in leaving
Ethiopia was to escape questioning, detention, harassment, and threats
by government authorities. Esayas did not attend school upon arrival
in the United States, as was required by his visa. He did, however,
apply for asylum. The Immigration and Naturalization Service (Ser-
vice) issued an Order to Show Cause charging Esayas with deporta-
bility under the INA § 241(a)(1)(C)(i) for failing to comply with the
terms of his visa. He admitted the allegations of fact contained in the
Order to Show Cause and conceded deportability. At that time,
Esayas requested political asylum, withholding of deportation, and,
alternatively, voluntary departure before the immigration court. The
immigration court denied his applications for political asylum and
withholding of deportation after having found that despite his genuine
fears of harm and danger in Ethiopia, Esayas' claims did not fit the
current case law's concepts of either past persecution or a well-
founded basis to fear persecution. The court granted Esayas voluntary
departure.
Esayas appealed to the Board of Immigration Appeals. The Board
upheld the immigration court's orders denying political asylum and
3
withholding of deportation and granting voluntary departure. Esayas
timely filed a petition for review with this Court.
Esayas' request for asylum was based on questioning, detention,
threats, and harassment he experienced because his uncle is a leader
in the Oromo Liberation Front (OLF), a political opposition group in
Ethiopia. Esayas is not a member of the OLF, nor is he involved in
any political activity. The OLF worked in coalition with the Ethiopian
People's Revolutionary Democratic Front (EPRDF) to overthrow the
brutal Marxist Mengistu Regime that ruled Ethiopia until 1991. The
EPRDF and the OLF were the two major political parties of the newly
formed Transitional Government of Ethiopia. In 1992, however, con-
flicts developed between the OLF and the EPRDF, and the OLF with-
drew from the coalition government. There were violent clashes
between the two groups in 1992.
Esayas testified that he was persistently questioned about his uncle
and that government officials demanded that Esayas become an infor-
mant by learning and reporting the whereabouts of OLF members.
Esayas was frightened that he would be suspected of being an OLF
member if he did not comply. On one occasion, the authorities came
to Esayas' home and searched his belongings for evidence that he was
in contact with his uncle. They found an old letter Esayas had written
to his cousin and apparently considered that as proof that Esayas was
in touch with his uncle. Esayas testified that he was threatened with
death. Government officials detained Esayas several times in the
street and once overnight. Esayas testified that when he was jailed
overnight, he was released only because one of the government ques-
tioners was a childhood friend who intervened and promised officials
that Esayas would provide information to authorities. After the over-
night detention, Esayas rarely left his home until he secretly moved
from Yirga Alem to a town near Addis Ababa. There, he was pro-
cessed for a visa. Esayas admits that he was not confronted by gov-
ernment officials after he moved, but received reports from his
mother that she was being pressured to reveal his whereabouts.
Esayas testified that his uncle is in exile and that while government
conditions in Ethiopia have changed in some respects, government
attitudes toward OLF members have not changed. Esayas believes
that his family connections make him a target of the current Ethiopian
government. He also believes that his Oromo ethnicity makes him a
4
target of persecution because Oromos are suspected of being mem-
bers of the OLF.
The record contains evidence of significant turmoil in Ethiopia, and
the government's treatment of Esayas is not questioned. However, a
central issue is whether that treatment rises to level of "persecution"
for the purposes of asylum. The Board agreed with the immigration
judge that the experiences described by Esayas do not rise to that
level. Regarding Esayas' fear of future persecution, the Board found
"nothing in the record to suggest that he would face consequences
more severe than those he experienced previously." The Board also
found no evidence in the record of a pattern or practice of persecution
of the Oromo ethnic group. See 8 C.F.R.§ 208.13(b)(2)(i) (1998);
Makonnen v. INS, 44 F.3d 1378, 1383 (8th Cir. 1995) (stating that the
term "pattern or practice" means something on the order of organized
systematic, or pervasive persecution, but requires less than the perse-
cution of all members of a group). The Board also agreed with the
immigration judge's finding that because OLF policy supports a vio-
lent overthrow of the current Ethiopian government, general efforts to
learn about OLF activities are not persecutory.
A review of the record establishes that the Board's determination
is supported by reasonable, substantial, and probative evidence on the
record considered as a whole. Although Esayas was detained, threat-
ened, questioned, and harassed by government authorities, that treat-
ment does not rise to the level of persecution for the purposes of
asylum. While the INA does not define "persecution," other circuits
have given the word a narrow focus. As the Third Circuit stated in
Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir. 1993),"persecution does
not encompass all treatment that our society regards as unfair, unjust,
or even unlawful or unconstitutional." Similarly, the Ninth Circuit has
cautioned that "persecution is an extreme concept that does not
include every sort of treatment our society regards as offensive."
Ghaly v. INS, 58 F.3d 1425, 1431 (9th Cir. 1995) (citations omitted).
In the instant case, there is no evidence that Esayas was physically
injured or otherwise seriously harmed on account of his Oromo eth-
nicity or his uncle's political activity. While we do not condone the
threats and harassment Esayas experienced, his treatment by Ethio-
pian authorities does not qualify as persecution. See Zalega v. INS,
916 F.2d 1257, 1260 (7th Cir. 1990).
5
Addressing Esayas' fear of future persecution, there is evidence
that political conditions in Ethiopia have improved since Esayas left
in 1992. The record establishes that since Ethiopia's August 1995
change in leadership, the Ethiopian government has been more open
to opposition political groups that renounce violence, although the
OLF has not done so. Even though the current government has, on
several occasions, jailed many OLF members, most of these were
released after renouncing violence. See Bureau of Democracy, Human
Rights and Labor, U.S. Dep't of State: Ethiopia: Profile of Asylum
Claims and Country Conditions 10-14 (1995). Furthermore, Esayas
admits that he was not harassed by authorities after he moved away
from Yirga Alem. His primary concern after leaving was the safety
of his mother, who was pressured to disclose his whereabouts.
Because Esayas' mother has died since he left Ethiopia, he will not
have the same fears about her safety if he is returned. In this case, the
evidence simply does not compel the conclusion that Esayas will be
subjected to persecution upon his return to Ethiopia because of his
family ties.
The record also supports the Board's determination that Esayas
does not have a well-founded fear of persecution based on his Oromo
ethnicity. Although ethnic clashes do continue to occur in Ethiopia,
the record shows that in 1995, the Ethiopian Parliament elected an
Oromo as president and Oromos took over four cabinet positions. Id.
at 5. In addition, the record shows that Esayas has two sisters in Ethi-
opia, who apparently are also Oromo, and who have not been subject
to harassment by government officials. The record does not, therefore,
compel the conclusion that Esayas will suffer persecution because of
his Oromo ethnicity.
Because Esayas fails to meet the burden of proof for asylum, he
necessarily fails to meet the higher standard for withholding of depor-
tation. See INS v. Cardoza-Fonseca, 480 U.S. 421, 431-32 (1987).
For these reasons, we deny Esayas' petition for review and affirm
the decision of the Board. We dispense with oral argument because
the facts and legal contentions are adequately presented in the materi-
als before the court and argument would not aid the decisional pro-
cess.
AFFIRMED
6