Araya v. Atty Gen USA , 79 F. App'x 540 ( 2003 )

Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
11-3-2003
Araya v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 02-3296
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 02-3296
___________
TESFU ARAYA,
Petitioner
v.
JOHN ASHCROFT, U.S. ATTORNEY GENERAL; KENNETH J. ELWOOD,
DISTRICT DIRECTOR U.S. IMMIGRATION AND NATURALIZATION SERVICE,
Respondents.
________________________
On Petition for Review of an Order of
the Board of Immigration Appeals
INS No. A78-830-839
___________
Submitted Under Third Circuit L.A.R. 34.1(a)
July 23, 2003
Before: ALITO, FUENTES, BECKER, Circuit Judges.
(Opinion Filed: November 3, 2003)
________________________
OPINION OF THE COURT
________________________
FUENTES, Circuit Judge:
In May 2001, Petitioner Tesfu Araya arrived in the United States at Newark
International Airport. Araya requested asylum, and the asylum officer assigned to his case
found that Araya had a credible fear of persecution. Accordingly, Petitioner submitted an
application for asylum and withholding of removal, both of which were granted by an
immigration judge (“IJ”) in November 2001. Respondent INS appealed, and the Board of
Immigration Appeals (“BIA”) sustained the appeal in July 2002, ordering Araya removed
from the United States to Ethiopia. Araya argues that the BIA’s decision that he did not
demonstrate a well-founded fear of persecution is not supported by substantial evidence.
Because we do not find that a reasonable fact-finder would be compelled to disagree with the
BIA, we affirm the BIA’s decision.
Araya is of Eritrean ancestry, but was born in Ethiopia and has never lived in Eritrea.
Starting in 1992, Araya was studying in India on an Ethiopian passport, but the passport was
cancelled in 1998 by the Ethiopian government because he is of Eritrean descent. At that
time, he was also told that he would not be allowed to return to Ethiopia because he was no
longer considered an Ethiopian citizen, but an Eritrean. Araya’s application for an Eritrean
passport was also denied, although it is not clear why. In 2000, Araya traveled to Kenya with
his cancelled passport and a forged renewal stamp, and stayed with his uncle for some time.
The Kenyan uncle informed Araya that his mother’s house in Ethiopia had been confiscated.
After numerous failed attempts at gaining asylum in Kenya, he made his way to the United
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Kingdom on a fake Swiss passport, and then finally to the United States, where his mother
and two siblings reside. The siblings are U.S. citizens, while the mother is trying to gain
asylum here, also on the grounds that those of Eritrean descent face persecution in Ethiopia.
Before the IJ, Araya testified that he had a brother, Abraham, who had lived in
Ethiopia, but who had been detained, tortured and then deported because of his Eritrean
ancestry. Abraham reached Kenya, but has since disappeared, so Araya has not been able
to contact him directly; indeed, he only learned of Abraham’s plight through another brother
who lived in the U.S. Araya concluded by testifying that he fears returning to Ethiopia
because of what happened to his brother Abraham and to his mother’s house, and because
of reports he has read about the mistreatment of ethnic Eritreans in Ethiopia. The IJ found
Araya’s fear of persecution credible and well-founded and granted him asylum. The BIA
reversed, discounting Araya’s testimony because the acts of persecution to which he testified
came not from his personal knowledge, but from dated second-hand accounts. Furthermore,
the BIA relied on the U.S. State Department’s assertion in its 2000 Country Reports that a
December 2000 peace accord between Eritrea and Ethiopia had resulted in steadily
improving treatment of Eritreans in Ethiopia, including a near-cessation in deportations of
Eritreans.
The parties agree that this Court reviews the BIA’s findings of fact to determine
whether they are supported by substantial evidence. E.g., Immigration and Naturalization
Serv. v. Elias-Zacarias, 502 U.S. 478, 481 (1992). Specifically, the “BIA’s determination
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that [Araya] was not eligible for asylum... can be reversed only if the evidence presented by
[Araya] was such that a reasonable factfinder would have to conclude that the requisite fear
of persecution existed.” Id. (emphasis added). This standard has been codified in statutory
law: “the administrative findings of fact are conclusive unless any reasonable adjudicator
would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B) ; accord,
e.g., Lukwago v. Ashcroft, 329 F.3d 157, 167 (3 rd Cir. 2003). Thus, this Court’s role is not
to second-guess the BIA, or to weigh the evidence, but to overturn the BIA only if the facts
compel us to conclude to the contrary.
Because the BIA could reasonably rely on the 2000 Country Reports to adjudge that
Araya’s fear of persecution was no longer well-founded, Araya has not met this heightened
standard. Araya argues that other reports from groups such as Amnesty International refute
the Country Reports’ optimistic assessment of the Eritreans’ situation. The BIA, though, was
not compelled to credit these other reports over the Country Reports. Araya also contends
that the Country Reports themselves are inconsistent because they referred to continuing
detention and internment of Eritreans in Ethiopia. As Respondent points out, however, the
Country Reports as a whole could be read as depicting the deportations and internments as
past events that have been largely ameliorated by the 2000 peace accord. Additionally, the
BIA’s decision is not necessarily undercut by Araya’s testimony as to his family history: the
BIA could reasonably accept the more current Country Reports account over the dated
second-hand account of persecution given by Araya. In short, although Araya has presented
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some evidence of persecution, the record as a whole does not compel the conclusion that the
BIA erred. Accordingly, we deny the petition for review.
TO THE CLERK OF THE COURT:
Kindly file the foregoing Opinion.
/s/ Julio M. Fuentes
Circuit Judge
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