Gebru v. INS ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
HAREGU GEBRU,
Petitioner,
v.
No. 98-1927
U.S. IMMIGRATION & NATURALIZATION
SERVICE,
Respondent.
On Petition for Review of an Order
of the Board of Immigration Appeals.
(A70-510-887)
Submitted: January 19, 1999
Decided: February 18, 1999
Before MURNAGHAN, WILKINS, and MICHAEL, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Mikre Michael Ayele, Arlington, Virginia, 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Unpublished opinions are not binding precedent in this circuit.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:
Haregu Gebru 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.
The Immigration and Nationality Act (Act) authorizes the Attorney
General, in her discretion, to confer asylum on any refugee. See 8
U.S.C.A. § 1158(a) (West Supp. 1998). The Act defines a refugee as
a person unwilling or unable to return to her native country "because
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);
see 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 testi-
mony' demonstrating a genuine fear of persecution." Berroteran-
Melendez v. INS, 955 F.2d 1251, 1256 (9th Cir. 1992) (citation omit-
ted); see Figeroa v. INS, 886 F.2d 76, 79 (4th Cir. 1989). The objec-
tive 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 conditions in an alien's native country have changed signifi-
cantly. See 8 C.F.R. § 208.13(b)(2) (1998).
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Eligibility for asylum can also be based on grounds of past perse-
cution alone even though there is "``no reasonable likelihood of pres-
ent 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. ; see Matter of Chen,
20 I. & N. Dec. 16 (BIA 1989).
We must uphold the Board's determination that Gebru 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[Gebru] was such that
a reasonable factfinder would have to conclude that the requisite fear
of persecution existed." INS v. Elias-Zacarias, 502 U.S. 478, 481
(1992).
Gebru, who entered the United States in December 1990 as a visi-
tor, disagrees with the Board's finding that she failed to qualify for
a humanitarian grant of asylum based on past persecution and failed
to establish a well-founded fear of persecution in Eritrea and Ethiopia
due to her political opinion. Our review reveals, however, that sub-
stantial evidence supports the Board's finding that Gebru did not sat-
isfy her statutory burden.
Evidence at the hearing established that Gebru, a native of Ethiopia
and a citizen of Eritrea, worked in a hotel in Asmara. Now the capital
city of Eritrea, Asmara was once the provincial capital for what was
then a part of Ethiopia. In 1980, Gebru joined the Eritrean People's
Liberation Front (EPLF). Active in employee activities at her hotel,
Gebru eventually became the head of the hotel union. Because of her
leadership role in the union, the Ethiopian Worker's Party (EWP), the
_________________________________________________________________
*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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party that supported the now defunct Communist regime in Ethiopia,
summoned Gebru to its Asmara office in December 1985. The party
official asked Gebru to join EWP. Gebru declined, claiming that she
was too busy to join the party. The party official then communicated
to Gebru that she might be considered a supporter of the EPLF if she
refused to join EWP. Gebru was afraid because EPLF was in rebellion
against the Communist regime. The party official permitted her to
leave, but warned her she could be suspected of membership in the
EPLF.
In January 1986, the party official summoned Gebru again to his
office and she again declined to join the EWP. The next month, Gebru
was arrested by Communist government agents and imprisoned for
over four months. During her incarceration, Gebru was interrogated
and was forced to view the corpses of executed prisoners. During two
interrogations, Gebru was tied up and suspended on a stick. She was
tortured with electric shocks, kicked, burned with cigarettes, and her
head was periodically immersed in a barrel of dirty water in attempts
to induce her to confess membership in EPLF. Despite this mistreat-
ment, Gebru did not admit her EPLF membership.
After her release, Gebru was summoned to the Department of
Investigation for interrogation several times in 1986, 1987, 1988, and
1989 for questioning. Gebru continued to deny support for the EPLF.
After the civil war in Eritrea took a turn against the Communist
regime in early 1990, Gebru and other suspected EPLF supporters
were rearrested and incarcerated. Held for three months, Gebru was
again tortured by her captors. Unable to withstand her mistreatment
this time, Gebru revealed that she had been a member of the EPLF
and provided names of two individuals she said were EPLF members.
In fact, those individuals were not involved with the EPLF but Gebru
named them to satisfy the demands of her captors. Gebru later refused
to sign a written confession.
After her release, Gebru traveled to Addis Ababa to stay with her
cousin. With her cousin's help, Gebru obtained an Ethiopian passport
and a visitor's visa to come to the United States. Gebru testified at the
hearing that she has come to oppose the EPLF, which now governs
a free and independent Eritrea, and has not been an EPLF member
since 1993. Since 1993, Gebru has associated herself with the Eritrean
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Liberation Front, an opposition group active in Eritrea. She testified
that the EPLF government does not respect human rights and she does
not wish to return.
Gebru challenges the IJ's and Board's finding that although she
suffered past persecution, it did not compare to the level of atrocious
persecution suffered by the asylum applicant in Matter of Chen and
thus did not merit a humanitarian grant of asylum based on past perse-
cution alone. As the IJ noted in a lengthy and detailed opinion that
was affirmed by the Board, the asylum applicant in Matter of Chen
became physically debilitated due to years of mistreatment, had to
wear a hearing aid for the rest of his life, and suffered psychological
damage which made him suicidal. While Gebru undoubtedly suffered
greatly as a result of the mistreatment she endured during her incar-
cerations, the IJ and Board noted she presented no evidence demon-
strating that she suffers from physical and psychological disabilities
like those shown in Matter of Chen. While we note that Gebru's mis-
treatment was serious and agree that she indeed suffered past persecu-
tion, we find that substantial evidence supports the IJ's and Board's
finding that a grant of humanitarian asylum was not warranted.
We also find that substantial evidence supports the IJ's and Board's
finding that Gebru failed to demonstrate a well-founded fear of perse-
cution in Eritrea or Ethiopia because of changes in country condi-
tions. Mengistu no longer rules Ethiopia, and Eritrea is now an
independent nation governed by the same organization Gebru sup-
ported for almost thirteen years. As the IJ noted, the human rights sit-
uation in both Ethiopia and Eritrea has greatly improved since the
overthrow of Mengistu, and evidence in the record, particularly the
State Department country reports, does not support a finding that
members of the Eritrean Liberation Front are targeted for persecution
in Eritrea or Ethiopia.
Finally, Gebru contends that the Board used the wrong standard of
law and evidence and abused its discretion in denying her asylum. We
find the Board properly cited and applied the law. Gebru's contention
that the Board abused its discretion is misplaced because the Board
found her ineligible for relief and did not reach the question of
whether she merited a grant of asylum in the exercise of discretion.
5
Because Gebru has not established entitlement to asylum, she can-
not meet the higher standard for withholding of deportation. See INS
v. Cardoza-Fonseca, 480 U.S. 421, 431-32 (1987). We accordingly
affirm the Board's order. We dispense with oral argument because the
facts and legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional process.
AFFIRMED
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