Arega v. INS ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
FASIL AREGA,
Petitioner-Appellant,
v.
No. 98-1051
U.S. IMMIGRATION & NATURALIZATION
SERVICE,
Respondent-Appellee.
On Petition for Review of an Order
of the Board of Immigration Appeals.
(A74-290-905)
Submitted: June 2, 1998
Decided: July 28, 1998
Before ERVIN, WILKINS, and WILLIAMS, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
William H. Rhodes, Arlington, Virginia, for Appellant. Frank W.
Hunger, Assistant Attorney General, David V. Bernal, Assistant
Director, Brenda E. Ellison, Senior Litigation Counsel, Office of
Immigration Litigation, UNITED STATES DEPARTMENT OF JUS-
TICE, Washington, D.C., for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Fasil Arega petitions for review of a final order of the Board of
Immigration Appeals (Board) denying his 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 he 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 his 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). Evidence of past persecution
raises a rebuttable presumption that an alien has reason to fear future
persecution. The alien bears the burden of proving that he is a refugee
as defined by the Act. See 8 C.F.R. § 208.13(a) (1997).
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
2
specific, concrete facts which 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); M.A. v. INS,
899 F.2d 304, 311 (4th Cir. 1990). The alien does not need to show
that he would be singled out individually if he can show: (1) a pattern
or practice of persecuting groups of persons similarly situated and (2)
his own identification with such a group such that his fear of persecu-
tion upon return is reasonable. See 8 C.F.R.§ 208.13(b)(2) (1997).
We must uphold the Board's determination that Arega 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. § 1105a(a)(4) (1994).* We accord the Board all possible
deference. See Huaman-Cornelio, 979 F.2d at 999. The decision may
be "reversed only if the evidence presented by[Arega] was such that
a reasonable factfinder would have to conclude that the requisite fear
of persecution existed." Elias-Zacarias, 502 U.S. at 481. This court
reviews the Board's determination under the deferential substantial
evidence standard. See Elias-Zacarias, 502 U.S. at 481.
Arega, who entered the United States with a non-immigrant visa in
February 1995, disagrees with the Board's finding that he failed to
qualify for asylum and withholding of deportation. After a thorough
review of the administrative record, we conclude that substantial evi-
dence supports the Board's finding that Arega did not satisfy his stat-
utory burden.
Evidence established that Arega, a native and citizen of Ethiopia,
worked for six years as the official driver for General Mulugeto
Hagos, a high ranking official in the Mengistu regime. Following the
violent overthrow of the Mengistu regime in May 1991, Arega was
imprisoned for seven months because of his ties to General Hagos.
During his imprisonment he was questioned, interrogated, and tor-
_________________________________________________________________
*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.
3
tured. Following his release from prison, Arega and his wife became
active members in the All Amhara People's Organization (AAPO), an
organization founded to protest the mistreatment of ethnic Amharas.
Around this same time Arega obtained a passport and started an
import-export business which required him to travel outside of Ethio-
pia on a regular basis. In December 1993 Arega was arrested during
an AAPO demonstration and detained for eleven days. Sometime
thereafter, Arega was forced to terminate his import-export business
because the Transitional Ethiopian Government no longer permitted
him to travel outside the country. In September 1994, a warrant was
issued for Arega's arrest because of his political activities. He then
went into hiding, and eventually bribed officials in order to obtain an
exit visa.
Arega takes issue with the IJ and Board's negative credibility find-
ing, contending that he suffered past persecution and has a well-
founded fear of persecution in Ethiopia. He also asserts that he has
demonstrated a pattern of persecution by the Transitional Ethiopian
Government targeting similarly situated individuals of the Amhara
ethnic group who are members of the AAPO.
We find that substantial evidence supports the Board's finding that
Arega was ineligible for a grant of asylum. The Board correctly noted
that any fear of persecution Arega expresses based on his seven
month imprisonment stemming from associations with the Mengistu
regime does not serve to qualify him as a refugee. See Matter of
Mogharrabi, 19 I. & N. Dec. at 447. The Board recognized that
Arega's testimony at his asylum hearing included graphic details of
inhumane treatment he suffered while imprisoned that he neglected to
state in his affidavit accompanying his asylum application. The incon-
sistencies between Arega's asylum application and his testimony sup-
port the Board's negative credibility finding. In addition, Arega's
failure to provide any evidence corroborating his claim that he was
beaten while detained for his AAPO activities further serves to under-
mine his credibility. Finally, the record contains reports from both
governmental and non-governmental agencies suggesting that the
Transitional Ethiopian Government has not engaged in a pattern or
practice of persecuting members of the AAPO. Although the group
is recognized as an outspoken critic of the Transitional Government,
the reports indicate that AAPO members are permitted to protest the
4
government so long as they do not advocate violent or illegal activi-
ties.
Arega also insists he qualified for withholding of deportation. 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 Arega is ineli-
gible for asylum, he 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 contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.
AFFIRMED
5