Tekie v. Gonzales ( 2005 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 05a0823n.06
Filed: October 6, 2005
No. 04-3343
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ALEXANDER TEKIE, )
)
Petitioner, )
)
v. ) ON PETITION FOR REVIEW OF A
) DECISION OF THE BOARD OF
ALBERTO GONZALES, ) IMMIGRATION APPEALS
)
) OPINION
Respondent. )
)
Before: GUY, BATCHELDER, and GILMAN, Circuit Judges.
RONALD LEE GILMAN, Circuit Judge. Alexander Tekie, an Ethiopian national of
Eritrean ethnicity, was admitted to the United States on a nonimmigrant visa in November of 1987.
He later obtained a student visa when he entered college. In 1994, the INS began removal
proceedings against Tekie for having not complied with the terms of his student visa. He responded
by filing an application for asylum, the withholding of removal, and protection under the Convention
Against Torture (CAT). His original application was denied by an immigration judge (IJ) in 1999,
but Tekie’s subsequent motion to reopen the proceedings was granted. In 2004, an IJ found that
Tekie was not a credible witness and ordered him removed to Eritrea, or in the alternative to
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Ethiopia. The IJ’s holding was summarily affirmed by the Board of Immigration Appeals (BIA).
For the reasons set forth below, we DENY Tekie’s petition for review of the BIA’s order.
I. BACKGROUND
A. Factual background
Tekie was born in Asmara, a city that used to be located in Ethiopia but is now the capital
of Eritrea. He later moved with his family to Addis Ababa, the present capital of Ethiopia. Tekie
maintains that, while in Ethiopia, he was involved with the Eritrean People’s Liberation Front, a
group whose purpose was to agitate for an independent Eritrean state. Eritrea gained its
independence from Ethiopia in 1993.
Although the record is conflicting, Tekie alleges that he was arrested by Revolutionary
Guards in 1984, held for two weeks, and received beatings on the bottom of his feet with rubber
hoses in an effort to get him to reveal the names of other Liberation Front members. Tekie also
contends that he was arrested in 1985 for being an hour late to a required government-sponsored
meeting on Marxist ideology. He does not claim to have been beaten or otherwise tortured during
this arrest, nor does he argue that this detention was related to his activities with the Eritrean
People’s Liberation Front.
In 1986, Tekie left Ethiopia, going first to Kenya and then to Israel, where he allegedly
underwent treatment for a hearing disability. Tekie eventually came to the United States in
November of 1987 using a valid nonimmigrant visa.
B. Procedural background
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Soon after entering the United States, Tekie enrolled at Mott Community College in Flint,
Michigan. He was thus able to obtain a student visa. The Immigration and Naturalization Service
(INS), however, claimed that Tekie failed to comply with the terms of his student status. This
caused the INS to commence removal proceedings against him in 1994. Tekie then filed an
application for asylum, the withholding of removal, and protection under the CAT. An IJ found that
Tekie was removable. Tekie withdrew his application for reasons not stated in the record and was
ordered to depart the United States voluntarily by October 25, 1997.
In September of 1997, however, Tekie sought to reopen his deportation proceedings, arguing
that he had maintained seven years of continuous residence in the United States and was therefore
entitled to a suspension of deportation. The IJ denied the motion to reopen. Tekie once again
moved to reopen the deportation proceedings in January of 1999, this time arguing that country
conditions in Ethiopia had changed, making it necessary for him to remain in the United States. This
motion was unopposed by the government, and, on February 9, 1999, it was granted by an IJ.
In November of 2002, Tekie was again found removable. The IJ found that Tekie was not
a credible witness. She also concluded that the events from the 1980s described by Tekie, even if
taken as true, did not constitute “the extreme conduct required for persecution.” The IJ further
denied Tekie’s claims for the withholding of removal and for protection under the CAT, and ordered
that Tekie be deported to Eritrea, or in the alternative to Ethiopia. A panel of the BIA adopted and
affirmed the IJ’s opinion in a one-page order. This timely appeal followed.
II. ANALYSIS
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A. Standard of review
As an initial matter, because the BIA adopted and affirmed the reasoning of the IJ, we will
review those aspects of the IJ’s decision directly. Singh v. Ashcroft, 398 F.3d 396, 401 (6th Cir.
2005). The IJ’s “findings of fact, such as whether an alien qualifies as a refugee, [are reviewed]
under the substantial evidence standard, keeping in mind that such findings are ‘conclusive unless
any reasonable adjudicator would be compelled to conclude to the contrary.’” Id. at 400 (quoting
Yu v. Ashcroft, 364 F.3d 700, 702 (6th Cir. 2004)). This deferential standard “‘does not entitle a
reviewing court to reverse . . . simply because it is convinced that it would have decided the case
differently.’” Klawitter v. INS, 970 F.2d 149,151-52 (6th Cir. 1992) (citation omitted). Importantly,
“credibility determinations are findings of fact” to be reviewed under this standard. Yu, 364 F.3d
at 703. We review de novo, however, any “alleged due process violation[s].” Castellano-Chacon
v. INS, 341 F.3d 533, 552 (6th Cir. 2003).
B. Tekie’s challenge to the adverse-credibility determination by the IJ
One of Tekie’s principal contentions on appeal is that the IJ improperly determined that
Tekie was not a credible witness. Before we can consider the merits of this claim, however, we must
first address the government’s argument that Tekie has waived the challenge because he failed to
mention the IJ’s adverse-credibility finding either in his notice of appeal to the BIA or in his brief
to that agency. This court has held that “[i]t is proper for an appellate court to consider waived all
issues not raised in an appellant’s briefs [before the BIA], even if the issue has been raised in the
notice of appeal.” Ramani v. Ashcroft, 378 F.3d 554, 558 (6th Cir. 2004); see also Gojcevic v.
Gonzales, No. 04-4091, 2005 WL 1799393, at *7 (6th Cir. 2005) (unpublished) (finding that the
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court did not have jurisdiction to entertain claims that were not mentioned in either the petitioner’s
notice of appeal to the BIA or in his brief submitted to the BIA). The general rule, therefore, is that
“only claims properly presented to the BIA and considered on their merits can be reviewed by this
court in an immigration appeal.” Ramani, 378 F.3d at 560.
In the present case, the handwritten form containing the substance of Tekie’s appeal to the
BIA makes no mention of the IJ’s adverse-credibility determination. And Tekie’s 15-page brief to
the BIA makes only one oblique reference to the adverse-credibility finding when it mentions that
Tekie’s “testimony, which did substantiate and expand upon the statements set forth in his asylum
application and previous limited testimony before the Court, is credible.” Tekie’s single, obscure
reference was not sufficient to preserve this claim for appeal. See Ramani, 378 F.3d at 560. We
therefore hold that Tekie has waived his challenge to the IJ’s adverse-credibility determination.
In any event, we note that even if Tekie had properly preserved this issue for appeal, there
is substantial evidence to support the IJ’s adverse-credibility determination. Tekie’s testimony with
regard to his alleged arrests, for example, conflicts with his various applications for asylum. There
is likewise conflicting evidence about Tekie’s age when he left Ethiopia and his alleged inability to
renew his Ethiopian passport. He also acknowledges that he left Ethiopia to seek medical treatment
for his hearing problem, not because of any alleged persecution. In sum, although another IJ might
have decided the case differently, there are enough inconsistencies such that a “reasonable
adjudicator” reviewing these facts would not be “compelled to conclude to the contrary.’” Yu, 364
F.3d at 702 (quoting 8 U.S.C. § 1252(b)(4)(B)).
C. Tekie’s claims of past persecution and fear of future persecution
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We also have concluded that the two arrests described by Tekie were not sufficient to
constitute past persecution. An applicant establishes past persecution if he “has suffered persecution
in the past in the applicant’s country of nationality . . . on account of race, religion, nationality,
membership in a particular social group, or political opinion.” 8 C.F.R. § 208.13(b)(1). Such
persecution “requires more than a few isolated incidents of verbal harassment or intimidation,
unaccompanied by any physical punishment, infliction of harm, or significant deprivation of
liberty.” Mikhailevitch v. INS, 146 F.3d 384, 390 (6th Cir. 1998). Indeed, persecution is “‘an
extreme concept that does not include every sort of treatment our society regards as offensive.’” Ali
v. Ashcroft, 366 F.3d 407, 410 (6th Cir. 2004) (citation omitted).
Tekie was allegedly beaten on his feet during his first detention, an isolated incident that was
never again repeated in the two remaining years that he lived in Ethiopia. In addition, Tekie does
not claim that he suffered any mental or physical abuse the second time that he was allegedly
detained. The fact that an applicant continues to live in his home country undisturbed after an
alleged instance of persecution clearly weighs against his claim. See, e.g., Mucllari v. Gonzales, No.
04-3047, 2005 WL 1621093, at *4 (6th Cir. 2005) (unpublished) (noting that the claim of an
applicant was “undermined” because he had been living undisturbed in his country of nationality
for over a year after his alleged persecution). Therefore, the IJ’s determination that Tekie could not
demonstrate past persecution was supported by substantial evidence.
Even if Tekie has not suffered past persecution, he could still be eligible for asylum upon
demonstrating a well-founded fear of future persecution if deported to Eritrea or Ethiopia. See
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8 C.F.R. § 208.13(b) (stating that an applicant for asylum bears the burden of establishing that he
qualifies as a refugee “either because he or she has suffered past persecution or because he or she
has a well-founded fear of future persecution”). An applicant “must actually fear that he will be
persecuted upon return to his country, and he must present evidence establishing an ‘objective
situation’ under which his fear can be deemed reasonable.” Perkovic v. INS, 33 F.3d 615, 620-21
(6th Cir. 1994). The IJ, in considering this issue, concluded that Tekie’s fear of future persecution
“is not subjectively real nor is it objectively reasonable.”
With regard to Eritrea, the IJ’s decision is clearly supported by substantial evidence. When
asked what type of persecution he would suffer upon a return to Eritrea, Tekie claimed only
economic hardship, because many Eritreans are unemployed. In addition, as the government notes,
the Eritrean People’s Liberation Front, the group to which Tekie belonged, presently controls the
Eritrean government.
Tekie’s fear of future persecution in Ethiopia, the alternative destination, also falls short.
Though relations between Ethiopia and Eritrea have occasionally been hostile, the situation as
reflected by the record is no longer as contentious. See Negeya v. Gonzales, 417 F.3d 78, 84 (1st
Cir. 2005) (rejecting the petition of an ethnic Eritrean who claimed that she would be immediately
forced into exile if she was deported to Ethiopia, relying in large part on a 2002 State Department
Country Report indicating that tension between the two nations has subsided). The IJ’s decision on
this point was therefore supported by substantial evidence.
D. Tekie’s claims for the withholding of asylum and for protection under the CAT
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Tekie also argues that the IJ erred when she denied his claims for the withholding of removal
and for protection under the CAT. The withholding of removal is an available remedy if an
applicant can demonstrate that his “life or freedom would be threatened in the proposed country of
removal on account of race, religion, nationality, membership in a particular social group, or
political opinion.” 8 C.F.R. § 1208.16(b). “An applicant seeking withholding of removal faces a
more stringent burden than what is required on a claim for asylum.” Pilica v. Ashcroft, 388 F.3d
941, 951 (6th Cir. 2004).
As discussed above, Tekie has failed to demonstrate how the economic harm that he would
allegedly suffer if returned to Eritrea supports a claim for a well-founded fear of future persecution.
This claim of economic harm is similarly unsupportive of a claim for the withholding of removal.
See Koliada v. INS, 259 F.3d 482, 489 (6th Cir. 2001) (“Because substantial evidence supports the
[BIA’s] determination that Koliada is ineligible for asylum, it therefore follows that he cannot satisfy
the more stringent standard for withholding of deportation.”). The IJ’s decision to deny Tekie’s
claim for the withholding of removal was therefore supported by substantial evidence.
To obtain relief under the CAT, an applicant bears the burden of establishing that “it is more
likely than not that he or she would be tortured if removed to the proposed country of removal.”
8 C.F.R. § 1208.16(c)(2). Because Tekie was unable to satisfy the substantial-evidence standard
required for asylum, his claim for relief under the CAT also fails.
E. Alleged procedural violations
Tekie further claims that his hearing before the IJ suffered from two procedural flaws. His
first complaint is that the IJ erred in refusing to admit the affidavit of Dr. Yacob Fisseha, a professor
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of agricultural economics at Michigan State University. Dr. Fisseha’s affidavit was offered by Tekie
at the asylum hearing, but the IJ concluded that the document was inadmissible because Dr. Fisseha
was not an “expert” in Ethiopian country conditions. Tekie argues that the IJ “committed a
reversible error in not admitting Dr. Fisseha’s affidavit into evidence, and the case warrants remand
on this ground alone.”
His second complaint is that he suffers from a hearing disability, which Tekie cites as the
reason he originally left Ethiopia. He claims that, during the asylum hearing, his bad ear was facing
the IJ, and that “[s]ome of his alleged inconsistent statements were directly attributed to his
shortness of hearing.”
Even if these contentions had merit, which the government does not concede, the government
is correct in pointing out that Tekie never made these arguments to the BIA. These arguments have
therefore been waived, and we lack the jurisdiction to entertain them. See Ramani v. Ashcroft, 378
F.3d 554, 560 (6th Cir. 2004) (noting that “only claims properly presented to the BIA and considered
on their merits can be reviewed by this court in an immigration appeal”).
F. Tekie’s alleged status as a “stateless” individual
Tekie next claims that he is a “stateless individual” for whom deportation to either Eritrea
or Ethiopia would be improper. He argues, without citing any authority, that “[n]either designation,
Ethiopia or Eritrea, satisfies as a country which would openly accept him.” Tekie has not attempted
to obtain an Eritrean passport (or even to renew his Ethiopian passport). He in effect presents
nothing more than the mere assertion that he is, in fact, stateless. As such, we find that the IJ
properly identified Eritrea as the country to which Tekie should be deported.
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G. The BIA’s summary affirmance of the decision by the IJ
Tekie’s last contention is that the BIA acted improperly in affirming and adopting the
decision of the IJ without itself issuing a detailed opinion. He maintains that “[w]ithout an
explanation of the reasons for the decision, the Court could not determine whether the Board
adequately and correctly evaluated and applied each of the . . . criteria before issuing the . . .
decision.” This court, however, has held that
it is not a due process violation for the BIA to affirm the IJ’s decision without issuing
an opinion. Even if the BIA would view the factual and legal issues differently from
the immigration judge, the summary-affirmance-without-opinion rule renders the IJ’s
decision the final agency order, and we review that decision.
Denko v. INS, 351 F.3d 717, 730 (6th Cir. 2003) (citation and quotation marks omitted). Tekie’s
argument on this point is therefore without merit.
III. CONCLUSION
For all of the reasons set forth above, we DENY Tekie’s petition for review.
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