Gebremariam v. INS ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ASTER GEBREMARIAM,
Petitioner,
v.
No. 97-2598
U.S. IMMIGRATION & NATURALIZATION
SERVICE,
Respondent.
On Petition for Review of an Order
of the Board of Immigration Appeals.
(A70-630-751)
Submitted: September 29, 1998
Decided: October 23, 1998
Before LUTTIG, WILKINS, and NIEMEYER, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Bokwe Godwill Mofor, Silver Spring, Maryland, for Petitioner. Frank
W. Hunger, Assistant Attorney General, Karen Fletcher Torstenson,
Assistant Director, Joan E. Smiley, 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Unpublished opinions are not binding precedent in this circuit.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:
Aster Gebremariam petitions for review of a final order of the
Board of Immigration Appeals (Board) denying her application for
asylum and withholding of deportation. Because substantial evidence
supports the Board's decision, we affirm.
To establish eligibility for a grant of asylum, an alien must demon-
strate that she is a refugee within the meaning of the Immigration and
Nationality Act ("the Act"). The Act defines a refugee as a person
unwilling or unable to return to her native country"because of perse-
cution or a well-founded fear of persecution on account of race, reli-
gion, nationality, membership in a particular social group, or political
opinion." 8 U.S.C.A. § 1101(a)(42)(A) (West Supp. 1998). Fears
which may be well-founded, but do not arise on account of an appli-
cant's race, religion, nationality, membership in a social group, or
because of political opinion, do not qualify an alien as a refugee. See
Matter of Mogharrabi, 19 I. & N. Dec. 439, 447 (BIA 1987).
For a claim of persecution based on political opinion to succeed,
the record must compel the conclusion that the alien has expressed a
political opinion, and that the alien has a well-founded fear of perse-
cution specifically because of the political opinion. See INS v. Elias-
Zacarias, 502 U.S. 478, 481-83 (1992); Chen Zhou Chai v. Carroll,
48 F.3d 1331, 1342-43 (4th Cir. 1995). The alien bears the burden of
proving that she is a refugee as defined by the Act. See 8 C.F.R.
§ 208.13(a) (1998).
The well-founded fear of persecution standard contains both an
objective and a subjective element. The subjective element requires
a genuine fear on the part of the alien. See Figeroa v. INS, 886 F.2d
76, 79 (4th Cir. 1989). The objective element requires a showing of
specific, concrete facts which would lead a reasonable person in like
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circumstances to fear persecution. See Huaman-Cornelio v. Board of
Immigration Appeals, 979 F.2d 995, 999 (4th Cir. 1992); M.A. v. INS,
899 F.2d 304, 311 (4th Cir. 1990). The alien does not need to show
that she would be singled out individually if she can show: (1) a pat-
tern or practice of persecuting groups of persons similarly situated
and (2) his own identification with such a group such that his fear of
persecution upon return is reasonable. See 8 C.F.R.§ 208.13(b)(2)
(1998).
We must uphold the Board's determination that Gebremariam is
not eligible for asylum if the determination is"supported by reason-
able, substantial, and probative evidence on the record considered as
a whole." 8 U.S.C. § 1105a(a)(4) (1994).* We accord the Board all
possible deference. See Huaman-Cornelio, 979 F.2d at 999. The deci-
sion may be "reversed only if the evidence presented by [Gebre-
mariam] was such that a reasonable factfinder would have to conclude
that the requisite fear of persecution existed." Elias-Zacharias, 502
U.S. at 481.
Gebremariam, who entered the United States in November 1992 as
a visitor for pleasure and overstayed her six-month visa, disagrees
with the Board's finding that she failed to qualify for asylum and
withholding of deportation. After a thorough review of the adminis-
trative record, we conclude that substantial evidence supports the
Board's finding that Gebremariam did not satisfy her statutory bur-
den.
Evidence established that Gebremariam, a native and citizen of
Ethiopia, worked at the Ministry of Mines and Energy in Ethiopia as
a geologist from 1985 to 1989. She moved to England in 1989 to
study at the University of Leicester on a scholarship provided by the
European Economic Commission (EEC). Gebremariam did not suffer
any persecution under the regime of dictator Mengistu Haile Mariam
_________________________________________________________________
*We note that 8 U.S.C. § 1105a(a)(4) was repealed by the Illegal
Immigration Reform Immigrant Responsibility Act of 1996, Pub. L. No.
104-128, 110 Stat. 3009 (IIRIRA), effective April 1, 1997. Because this
case was in transition at the time the IIRIRA was passed, 8 U.S.C.
§ 1105a(a)(4) is still applicable under the terms of the transitional rules
contained in § 309(c) of the IIRIRA.
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prior to her departure from Ethiopia. Also, for the first six months of
her stay in England, her family continued to receive payments for
work she had done as a geologist. Gebremariam testified that she
came to the United States because she had more friends in the United
States than she had in England.
In declining to find Gebremariam eligible for asylum, the Board
noted that the current Ethiopian government, which is controlled by
the Ethiopian People's Revolutionary Democratic Front (EPRDF),
had no interest in punishing Gebremariam as late as August 1992,
when it granted her a renewal of her passport at its London embassy
so that she could continue traveling abroad from England. See
Rodriguez-Rivera v. INS, 848 F.2d 998, 1006 (9th Cir. 1988)
(explaining that a government-issued passport undercuts an alien's
claim of a well-founded fear of persecution). The Board also noted,
however, that it was also in August 1992 that Gebremariam joined the
Medhin party, an organization that advocates the violent overthrow of
the Ethiopian government. Thus, the Board recognized that Gebre-
mariam may now face criminal investigation and prosecution upon
her return to Ethiopia, but the Board found that this evidence does not
necessarily support her request for asylum or withholding of deporta-
tion. See M.A., 899 F.2d at 312.
Although the Board recognized that prosecution for an offense may
be a pretext for punishing an individual for her political opinion or
one of the other grounds protected under the Act, the Board was not
persuaded that Gebremariam would be subject to disproportionate
punishment for her political activities in opposition to the EPRDF,
which have all been conducted in the United States and England. The
Board relied on the advisory opinion of the Department of State's
Bureau of Democracy, Human Rights and Labor (DRL), dated July
1995, which states that there are few reports, none confirmed, of
members of exile groups facing prosecution upon returning to Ethio-
pia for anti-government activities conducted overseas. The DRL also
relates that the current Ethiopian government continues to state that
any group or individual that has never advocated violence or is will-
ing to forswear violence as a political tactic in Ethiopia may function
freely.
With regard to Gebremariam's activities in the United States, the
Board noted that she discontinued her membership in Medhin because
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it is an organization dedicated to the violent overthrow of the govern-
ment and she is opposed to violence. She has also participated in two
political demonstrations. She has typed articles and provided other
assistance for the Ethiopian Register, a magazine banned in Ethiopia.
Currently, however, she does not belong to any particular opposition
group or engage in any other activities to indicate that she would be
considered a prominent opposition figure. Based on this evidence, the
Board held that Gebremariam does not have a well-founded fear of
persecution based on her political opinion within the meaning of the
Act.
On appeal, Gebremariam claims that the Board applied an incorrect
legal standard by holding that a government issued passport under-
cut's her fear of persecution. As Gebremariam notes, evidence of a
valid passport or remaining in a country unharmed before fleeing does
not necessarily indicate lack of fear of persecution. See Perkovic v.
INS, 33 F.3d 615, 623 n.7 (6th Cir. 1994); Cordero-Trejo v. INS, 40
F.3d 482, 490 (1st Cir. 1994). However, the Board in denying Gebre-
mariam's application for relief relied only partly, not solely, on evi-
dence that the current Ethiopian government renewed her passport in
1992.
Gebremariam also contends that the Board erred in holding that she
was firmly resettled in England. An applicant is firmly resettled if,
"prior to arrival in the United States, [she] entered into another nation
with, or while in that nation, received an offer of permanent resident
status, citizenship, or some other type of permanent resettlement." 8
C.F.R. § 208.15 (1998). To avoid a finding that an applicant has
firmly resettled elsewhere, the applicant must establish "[t]hat the
conditions of her residence in that nation were so substantially and
consciously restricted by the authority of the country of refuge that he
was not in fact resettled." 8 C.F.R. § 208.15 (1998). The IJ considers,
among other factors, the types and extent of the employment available
to the refugee and the extent to which the refugee enjoyed other rights
and privileges, such as travel documentation including a right of entry
and/or reentry, education, ordinarily available to other residents in the
country. See id.Based on the evidence in the record, the Board agreed with the IJ's
finding that Gebremariam was firmly resettled in England prior to her
5
arrival in the United States. She resided in England for over three
years, enjoyed at least the status of a student and received funds from
the EEC, and was able to work as a curator and a research assistant
even after her graduation from the University of Leicester. Further-
more, Gebremariam was allowed to return to England after trips to
Canada and "other countries." She testified that she came to the
United States to "have a break and visit" her friends and relatives,
which indicates that she could have returned to England had she so
desired. The Board further found, based on her testimony, that when
Gebremariam decided to seek asylum, she considered returning to
England, but chose to remain in the United States. In light of the con-
siderations listed in 8 C.F.R. § 2098.15(b), there was substantial evi-
dence to support the Board's determination that Gebremariam was
resettled in England.
Lastly, Gebremariam contends that the Board accorded too much
weight to the State Department's Human Rights Report and virtually
ignored other human rights reports. However, the Board had the dis-
cretion to accord great weigh to the State Department's report. See
Mitev v. INS, 67 F.3d 1325, 1332 (7th Cir. 1995) (giving great weight
to State Department's opinions on matters within its area of exper-
tise). We find that substantial evidence supports the Board's finding
that Gebremariam was ineligible for a grant of asylum.
Gebremariam also insists she qualified for withholding of deporta-
tion. The standard for withholding of deportation is more stringent
than that for granting asylum. See INS v. Cardoza-Fonseca, 480 U.S.
421, 431-32 (1987). To qualify for withholding of deportation, an
applicant must demonstrate a "clear probability of persecution." Id. at
430. Because substantial evidence supports the Board's finding that
Gebremariam is ineligible for asylum, she cannot meet the higher
standard for withholding of deportation. Accordingly, we affirm the
Board's order.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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