Mengistu, Thomas v. Ashcroft, John ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-3419
THOMAS MENGISTU,
Petitioner,
v.
JOHN ASHCROFT, Attorney General
of the United States,
Respondent.
____________
Petition to Review an Order of the
Board of Immigration Appeals.
____________
ARGUED SEPTEMBER 11, 2003—DECIDED JANUARY 22, 2004
____________
Before FLAUM, Chief Judge, and POSNER and EASTERBROOK,
Circuit Judges.
POSNER, Circuit Judge. Thomas Mengistu was born in
1968 in Addis Ababa, the capital of Ethiopia. Ethnically,
however, he is Eritrean. He came to the United States
from Ethiopia in 1989 on a student visa, which expired in
1991. He did not leave the country, and in 1992 the immi-
gration service began deportation proceedings against
him. He did not deny that he was deportable, but he ap-
plied for asylum on the ground that he had been persecuted
by the Ethiopian government for engaging in religious
activity and resisting the draft and would be persecuted
again if he were sent back to Ethiopia. Several of his sib-
2 No. 02-3419
lings had been granted asylum in the United States. The
immigration judge denied Mengistu’s application on the
ground that the persecution of which he had complained
had occurred under the communist regime of Mengistu
Mariam (obviously not a relative), which had been over-
thrown in 1991. Nor had the persecution of which he
complained been so atrocious that it would justify asylum
even if it were certain not to be repeated, as in the case
of German Jews who sought asylum in this country
even after the overthrow of the Nazi regime. 8 C.F.R.
§ 208.13(b)(1)(iii)(A); Asani v. INS, 154 F.3d 719, 722 (7th
Cir. 1998); Bucur v. INS, 109 F.3d 399, 404-05 (7th
Cir. 1997); Krastev v. INS, 292 F.3d 1268, 1279-80 (10th Cir.
2002).
The judge ordered Mengistu deported (though granted
him the option of voluntary departure). Mengistu ap-
pealed to the Board of Immigration Appeals. That was in
1993. Not until 2000 did the board decide the appeal,
affirming the order of deportation. A month later Mengistu
filed a motion to reopen his case on the basis of changed
conditions in Ethiopia, as shown in documents that he
attached to the motion. More than two years later the board
denied the motion in the order that Mengistu asks us
to vacate.
The board’s long delay in deciding Mengistu’s appeal
was, ironically, the springboard for his motion to re-
open. For in 1998, while his appeal was languishing be-
fore the board, Ethiopia and Eritrea went to war with
each other. As a not very surprising consequence (for
remember the removal of Japanese-American citizens from
their homes on the west coast of the United States to
concentration camps during World War II), Ethiopia be-
gan to persecute persons of Eritrean nationality or ethnic-
ity living in Ethiopia. “Ethiopia authorities set in motion
No. 02-3419 3
a campaign to round up, strip of all proof of Ethiopian
citizenship, and deport Ethiopians of Eritrean origin from
the country.” Human Rights Watch, The Horn of Africa
War: Mass Expulsions and the Nationality Issue (June 1998—
April 2002), p. 3 (Jan. 2003). Tens of thousands of Eritreans
and Ethiopians of Eritrean origin were deported in the
course of the war. Id.; U.S. Dept. of State, Bureau of Democ-
racy, Human Rights & Labor, Ethiopia: Country Reports on
Human Rights Practices—2001 (Mar. 4, 2002), http://www.
state.gov/g/drl/rls/hrrpt/2001/af/8372pf.htm.
The war ended in December of 2000, several months
after Mengistu had filed his motion to reopen but before
the immigration service had responded to the motion. Its
response, filed in April of 2001, was brief, consisting of
a statement that since the war had ended, the changed
country conditions on which Mengistu had premised his
motion to reopen were no longer operative. Attached to
the response were newspaper articles confirming that
the war had indeed ended and that pursuant to the agree-
ment ending the war Ethiopia had in February of 2001
begun withdrawing its troops from the portion of Eritrea
that it had conquered during the war.
Sixteen months after the service’s response, during
which period Mengistu did not attempt to submit any
further evidence in support of his motion, the board de-
nied the motion. Stripped of boilerplate, the board’s opin-
ion consists of just two statements: (1) “[Mengistu] has
attached documents to his motion to reopen which indi-
cate that since May of 1998 [when the war broke out],
the government of Ethiopia has escalated the oppres-
sion of citizens of Eritrean ethnicity. The documentation
[Mengistu] has attached to his motion lead[s Mengistu]
to believe that his life or freedom would be threatened
because of his Eritrean ethnicity should he be deported
4 No. 02-3419
to Ethiopia.” (2) “The [Immigration] Service contends that
since the filing of [Mengistu’s] motion, Ethiopia has be-
gun withdrawing their [sic] troops and a United Nations
peacekeeping mission has been deployed. We agree with
the service’s contention that country conditions have
changed again so that the information provided in the
respondent’s motion is no longer material to his claim.” (2)
is the sole ground for the denial of the motion.
Had the board said that Mengistu’s failure to respond
to the immigration service’s response raised sufficient
doubts about postwar persecution of ethnic Eritreans by
Ethiopia to warrant a conclusion that he had failed to
carry the heavy burden required to reopen a deportation
proceeding, we might not have disturbed its decision,
given the deferential scope of judicial review of discre-
tionary determinations by administrative agencies. INS
v. Doherty, 502 U.S. 314, 322-24 (1992); Mansour v. INS,
230 F.3d 902, 906-07 (7th Cir. 2000); Singh v. INS, 213
F.3d 1050, 1052 (9th Cir. 2000); Rodriguez-Gutierrez v. INS,
59 F.3d 504, 508 (5th Cir. 1995). The immigration service
in its brief and argument defends the decision on this
ground (among others). In so doing the service violates
the Chenery doctrine, which forbids the lawyers for an
administrative agency to defend the agency’s decision
on a ground different from that stated or at least dis-
cernible in the decision itself. Bowman Transportation, Inc.
v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 285-
86 (1974); MBH Commodity Advisors, Inc. v. CFTC, 250 F.3d
1052, 1065 (7th Cir. 2001); Reddy v. CFTC, 191 F.3d 109, 125-
26 (2d Cir. 1999). “The [agency’s] counsel raises various
arguments not mentioned within or even implied by the
orders on review. But the agency runs this regulatory
program, not its lawyers; parties are entitled to the agency’s
analysis of its proposal, not post hoc salvage operations
of counsel. We therefore do not consider these argu-
No. 02-3419 5
ments.” Florida Power & Light Co. v. FERC, 85 F.3d 684,
689 (D.C. Cir. 1996). If Mengistu’s failure to reply to the
immigration service’s response were a compelling ground
for the denial of his motion to reopen, we could invoke
harmless error and thus overlook the Chenery violation.
(On the general principle that the doctrine of harmless
error is applicable in judicial review of administrative
action, see Keys v. Barnhart, 347 F.3d 990, 994-95 (7th Cir.
2003); Save Our Heritage, Inc. v. FAA, 269 F.3d 49, 61-62
(1st Cir. 2001); for the application of that principle to
Chenery violations, see Sahara Coal Co. v. Office of Workers’
Compensation Programs, 946 F.2d 554, 558 (7th Cir. 1991);
Illinois v. ICC, 722 F.2d 1341, 1348-49 (7th Cir. 1983).) But
Mengistu’s silence does not have the weight that the
immigration service assigns to it. He may have believed
that since the service’s response to his motion had not
said that persecution of Eritreans by Ethiopia had ceased,
there was no need for him to supplement his motion
with additional evidence.
The only ground stated or for that matter implied in
the board’s decision not to reopen Mengistu’s case is that
the twin facts that Ethiopia was beginning to withdraw
its troops from Eritrea, following the ending of the war,
and that the U.N. had dispatched a peacekeeping mis-
sion showed that conditions in Ethiopia, so far as the
persecution of ethnic Eritreans (like Mengistu) was con-
cerned, had changed from what they were during the war.
The ground was a non sequitur (which is why Mengistu
might not have anticipated it, and therefore decided he
didn’t have to reply to the service’s response, which ad-
vanced the same ground); and, as we tirelessly repeat,
e.g., Henderson v. Barnhart, 349 F.3d 434, 436 (7th Cir. 2003),
an agency opinion that fails to build a rational bridge
between the record and the agency’s legal conclusion
cannot survive judicial review. (For the application of this
6 No. 02-3419
principle to denials of motions to reopen by the Board
of Immigration Appeals, see Mansour v. INS, supra, 230 F.3d
at 906-07; Johnson v. INS, 962 F.2d 574, 577 (7th Cir. 1992).)
As World War II drew toward an end, the nations that
Germany had occupied, notably Poland and Czechoslova-
kia, expelled all their citizens of German origin, several
million in number. Of course the situation in Ethiopia
may not be parallel. But the board did not say that. Nor,
to repeat, did it say that the service’s response to the mo-
tion to reopen, inconsequent as it seemed, had shifted the
burden to Mengistu to present evidence that the end of the
war had not been the end of the persecution. The board
didn’t even say that the end of the war had altered condi-
tions of the Eritrean minority in Ethiopia back to what
they had been in 1993. The board said only that it was
the beginning of the withdrawal of Ethiopian troops
from occupied territory and the dispatch of a U.N. peace-
keeping mission that had altered the conditions on which
the motion to reopen had been premised. The connection
between those events and the persecution by Ethiopia of
persons living, not in the part of Eritrea from which Ethio-
pia was withdrawing under U.N. supervision, but in
Ethiopia itself is obscure.
It is telling that according to an uncontradicted state-
ment by Mengistu’s lawyer at the oral argument, Ethiopia
has informed the immigration service that it will not
issue Mengistu a passport—so much for a rapproche-
ment between Ethiopia and its Eritrean minority—while
Eritrea will not issue him a passport either, since he is
not an Eritrean citizen. For indications that persecution
of Eritreans by Ethiopia has continued despite the end of
the war, see U.S. Dept. of State, Bureau of Democracy, Hu-
man Rights & Labor, Ethiopia: Country Reports on Human
Rights Practices—2002 (Mar. 31, 2003), http://www.
asylumlaw.org/docs/ethiopia/usdos02_ethiopia_cr.pdf;
No. 02-3419 7
“Split by a Pointless War: Despite Peace, Ethiopia’s Border
with Eritrea Is Still Closed,” The Economist, Sept. 21, 2002,
p. 45. There are also contraindications, Medhin v. Ashcroft,
350 F.3d 685, 690 (7th Cir. 2003); Araya v. Ashcroft, No.
02-3296, 2003 WL 22475835, at *2 (3d Cir. Nov. 3, 2003),
and so we do not hold or mean to imply that Mengistu’s
fear is well founded; that is a matter for determination on
remand.
The order of the board is vacated and the matter re-
turned to the board for further proceedings consistent
with this opinion.
VACATED AND REMANDED.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-22-04