Mecha v. INS ( 2000 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
KONJIT MECHA,
Petitioner,
v.
No. 00-1220
U.S. IMMIGRATION & NATURALIZATION
SERVICE,
Respondent.
On Petition for Review of an Order
of the Board of Immigration Appeals.
(A73-701-962)
Submitted: July 20, 2000
Decided: August 30, 2000
Before MOTZ, TRAXLER, and KING, Circuit Judges.
_________________________________________________________________
Vacated and remanded by unpublished per curiam opinion.
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COUNSEL
Allan Ebert, Washington, D.C., for Petitioner. David W. Ogden, Act-
ing Assistant Attorney General, Karen Fletcher Torstenson, Assistant
Director, Timothy P. McIlmail, 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Unpublished opinions are not binding precedent in this circuit.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).
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OPINION
PER CURIAM:
Konjit Mecha, a native and citizen of Ethiopia, petitions for review
from a final order of the Board of Immigration Appeals (Board). That
order affirmed the September 8, 1995 order of the immigration judge
(IJ) denying Mecha's applications for asylum and withholding depor-
tation and granting her request for voluntary departure. We have juris-
diction pursuant to 8 U.S.C. § 1105a(a) (1994).* We grant Mecha's
petition for review, vacate the Board's order, and remand for further
proceedings.
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 1999). The Act defines a refugee as a per-
son unwilling or unable to return to his 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 polit-
ical opinion." 8 U.S.C.A. § 1101(a)(42)(A) (West 1999); 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 pre-
senting "``candid, credible, and sincere testimony' demonstrating 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, con-
_________________________________________________________________
*The Illegal Immigration Reform and Immigrant Responsibility Act of
1996 ("IIRIRA") repealed 8 U.S.C. § 1105a (1994), and replaced it with
a new judicial review provision. See IIRIRA§ 306(c)(1), Pub. L. No.
104-208, 110 Stat. 3009 (1996), as amended by Act of Oct. 11, 1996,
Pub. L. No. 104-302, 110 Stat. 3656. The new provision, however, does
not apply to petitioners whose deportation proceedings commenced
before April 1, 1997. This court, therefore, continues to have jurisdiction
in this case pursuant to 8 U.S.C. § 1105a. See IIRIRA § 309(c)(1).
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crete 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 perse-
cution creates a rebuttable presumption of a well-founded fear of
future persecution. See 8 C.F.R. § 208.13(b)(1) (2000). This presump-
tion may be rebutted by a preponderance of the evidence demonstrat-
ing that there is no longer a reasonable fear of future persecution,
such as when conditions in an alien's native country have changed
significantly. See id. Eligibility for asylum can also be based on
grounds of past persecution alone even though there is "``no reason-
able 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 Mecha 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). The decision may be reversed only if
the evidence presented by Mecha was such that a reasonable fact
finder would have to conclude that the requisite persecution existed.
See INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992).
Mecha's asylum application was based upon persecution under the
Ethiopian Mengistu regime and later under the government that over-
threw the Mengistu regime in 1991. The Board agreed with the IJ that
the harm suffered by Mecha under the Mengistu regime rose to the
level of persecution, especially in light of Mecha's very young age at
the time she suffered the harm. The Board further agreed that condi-
tions in Ethiopia have changed so that Mecha no longer has a reason-
able fear of future persecution if returned and also that Mecha does
not qualify for a grant of asylum based solely upon the severity of her
past persecution.
The Board's finding that Mecha experienced past persecution is
supported by substantial evidence. However, the record does not con-
tain substantial evidence supporting a finding of changed country
conditions. The evidence presented by the Immigration and Natural-
ization Service as to changed country conditions consisted of a four-
sentence Associated Press article that appeared in the Washington
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Post. The article provided no information as to how the present Ethio-
pian government is different from the prior government. In contrast,
Mecha submitted Amnesty International and Human Rights Watch
reports describing human rights abuses under Ethiopia's transitional
government. Because the record is deficient as to whether conditions
in Ethiopia have changed so as to rebut the legally mandated pre-
sumption of a well-founded fear of persecution, we vacate the
Board's order and remand for further proceedings in which both par-
ties may submit current evidence as to changed country conditions.
We intimate no view as to whether the supplemented record would
support a finding of significantly changed country conditions so as to
rebut the well-founded fear presumption.
For the foregoing reasons, we grant Mecha's petition for review,
vacate the Board's order, and remand for further proceedings consis-
tent with this opinion. 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.
VACATED AND REMANDED
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