Ahmed Hassan v. Eric Holder, Jr. ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-1535
A HMED H ASSAN,
Petitioner,
v.
E RIC H. H OLDER, JR., Attorney General
of the United States,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A99-023-706
A RGUED F EBRUARY 18, 2009—D ECIDED JULY 2, 2009
Before R OVNER, E VANS, and T INDER, Circuit Judges.
T INDER, Circuit Judge. Ahmed Hassan, an Ethiopian
national, petitioned for asylum, withholding of removal,
and relief under the Convention Against Torture (“CAT”).
The Immigration Judge (“IJ”) denied Hassan’s petition,
concluding that inconsistencies between Hassan’s
asylum application and hearing testimony rendered his
claims incredible and, alternatively, that Hassan failed to
2 No. 08-1535
show the persecution necessary to establish asylum
eligibility. The Board of Immigration Appeals (“BIA”)
affirmed the IJ’s decision. We deny Hassan’s petition
for review.
I. Background
On November 4, 2005, Hassan attempted to enter the
country at Chicago’s O’Hare airport under the “Visa
Waiver Program,” see 8 U.S.C. § 1187, using a fake
Swedish passport. Immigration officials determined
that the passport was invalid and detained Hassan. The
Department of Homeland Security commenced “asylum-
only” proceedings before an Immigration Judge to effect
Hassan’s removal. See id. § 1187(b)(2); Mitondo v. Mukasey,
523 F.3d 784, 785-86 (7th Cir. 2008). Hassan requested
asylum, withholding of removal, and protection under
the CAT.
A. The Asylum Application
In his asylum application, Hassan stated that he is an
Ethiopian national and an ethnic Oromo. Hassan’s father
was an “important figure” in an organization fighting
for the independence of the Oromo people. In 1986, when
Hassan was six years old, his father and uncle were
killed during an armed conflict with the Ethiopian mili-
tary. Fearing that the Ethiopian government would re-
taliate against Hassan’s family for his father’s military
activities, Hassan’s mother relocated the family to the
neighboring country of Djibouti, where they resided
illegally.
No. 08-1535 3
Hassan’s application further stated that in 2004 he
agreed to accompany his cousin, Anwar Gamada, back to
Ethiopia to visit Anwar’s dying mother. Anwar’s mother
died the day after their arrival, and they went to a burial
ceremony. At the grave site, a truck carrying five to
seven Ethiopian soldiers arrived, and Hassan told Anwar
that “[t]hey have come for us.” Hassan and Anwar started
running. A soldier shouted at Hassan and Anwar to
stop, but they continued to flee. The soldiers fired two
shots, missing Hassan, but hitting and killing Anwar.
Hassan escaped to Djibouti and reported the shooting
incident to his mother. Fearing that the incident would
lead the Ethiopian authorities to discover Hassan’s where-
abouts, Hassan’s mother hired a smuggler to get Hassan
out of Djibouti. Hassan traveled through Yemen and
Italy, staying in each country for about two months. He
then traveled through Germany, Denmark, and Sweden
before finally arriving at Chicago O’Hare. Hassan re-
quested asylum based on persecution for his political
opinion and membership in a particular social group.
B. The Asylum Hearing
At the asylum hearing on May 2, 2006, Hassan testified
before the IJ via video conferencing. Hassan elaborated
that his father and uncle were soldiers in the Oromo
Liberation Front (“OLF”), a politico-military organization
dedicated to the rights of the Oromo people. Hassan is not
himself an OLF member. In describing his 2004 return
to Ethiopia to visit his dying aunt, Hassan added that
the Ethiopian government had confiscated his aunt’s
4 No. 08-1535
house, leaving her destitute. Regarding the shooting at
the burial ceremony, Hassan acknowledged that the
soldiers shot at him and Anwar only after they started
running. The soldiers did not fire on any of the other
burial attendees, none of whom tried to flee. The
soldiers shouted at Hassan to stop but did not call him
by name or say anything about his ethnicity.
Hassan also testified about a number of repressive acts
against his family not mentioned in his asylum applica-
tion. He stated that, just prior to his father’s death, Ethio-
pian soldiers threatened his mother that they would
“exterminate the whole family” if the father did not stop
his military activities. When the IJ asked why Hassan had
not included that threat in his written application, Hassan
stated that “at that time . . . I was in sort of a confusion . . .
they interpreted to me in another language, which is
Amharic.” In response, the IJ pointed out that Hassan
had sworn at the beginning of the hearing that he went
over the application “in a language that [he] understood”
and that the application was “correct and complete.”
Hassan recounted that, following the death of his father
in 1986, Ethiopian soldiers burned down the family’s
previous house, although the family had safely moved
by that point. When asked on cross-examination why he
failed to mention the house burning in his written ap-
plication, Hassan stated that he was unaware that “the
rules” required him to include this information.
Finally, Hassan testified that, following his escape from
the shooting incident and return to Djibouti, his family
relocated to another Djibouti community to avoid detec-
No. 08-1535 5
tion. After the family learned that the Djibouti police had
searched for them at their prior home, Hassan’s mother
hired a smuggler, Mustafa, to get Hassan out of the
country. The IJ confronted Hassan on his failure to
include this search in his application. Hassan responded
that “[n]obody has raised this question about who both-
ered me.” The IJ again pointed out that Hassan had
sworn that his application was correct, and that several
questions on the application specifically ask “whether
or not he was ever mistreated in the past.”
In addition to his own testimony, Hassan offered the
testimony of his aunt, Mahbuba Nasir, and his second
cousin, Faisal Mohamed. Both confirmed that Hassan
was an ethnic Oromo. Nasir testified that Hassan’s father
was involved in the OLF and killed in 1986, while
Mohamed testified that the government persecuted
the families of those affiliated with the OLF.
C. The IJ’s Decision
On May 12, 2006, the IJ rendered an oral decision deny-
ing Hassan’s asylum application. The IJ determined that
Hassan’s hearing testimony was incredible based on a
number of “new factual assertions” omitted from
Hassan’s written application, including the 1986 threat by
Ethiopian soldiers to Hassan’s mother, the burning of
the family’s house, the confiscation of Anwar’s mother’s
house, and the search for Hassan by the Djibouti police.
The IJ further concluded that Hassan failed to provide
a plausible explanation for why he omitted these
events from his application. When questioned about the
6 No. 08-1535
omissions, Hassan was either unresponsive or “tried to
indicate . . . that he did not understand the information
in the application and had no opportunity to provide
the information.” Hassan’s claim that he did not under-
stand the application was “expressly inconsistent with
his earlier testimony under oath to the Court that the
information was reviewed in the Oromo language” and
“that all the information was true, correct and com-
plete. . . . Therefore, the only explanation presented to the
Court by the respondent is patently false.” The IJ accord-
ingly denied Hassan’s asylum application “based on an
adverse credibility finding.”
The IJ held in the alternative that, even if Hassan “had
presented credible and consistent testimony,” he none-
theless failed to show the persecution necessary to estab-
lish asylum eligibility. Hassan had no evidence that the
2004 shooting incident was related to his father’s OLF
activities. The IJ noted that Hassan traveled through
several countries without applying for asylum before
arriving in Chicago, suggesting that he left Djibouti out
of a desire to come to the United States rather than a
fear for his life.
The IJ also considered the background evidence sub-
mitted by Hassan, including country conditions reports
prepared by the State Department and the affidavit of
Professor Halberson, an expert in African Political Science.
The IJ acknowledged that this evidence indicated that
the Ethiopian government continues to engage the OLF in
armed conflicts. Further, the ruling party frequently
mistreats political minorities and the Oromo people, who
No. 08-1535 7
make up 40% of the Ethiopian population. However, the
IJ concluded that Hassan could not rely on these
general conditions of violence and mistreatment to
prove his claim of persecution, especially since Hassan
was not an OLF member or an outspoken political activist.
D. The BIA’s Decisions
On September 11, 2006, the BIA affirmed the IJ’s deci-
sion, concluding that Hassan failed to show the persecu-
tion necessary to establish asylum eligibility. The BIA
also found that the IJ’s adverse credibility determina-
tion was not clearly erroneous. The BIA agreed with the
IJ that Hassan’s claim that he did not understand the
asylum application was inconsistent with his earlier
testimony that he reviewed the application in a language
that he understood. Because Hassan provided a “false
excuse” for omitting certain events from his application,
the IJ properly determined that Hassan’s testimony
was incredible.
After Hassan petitioned for review of the BIA’s decision,
this court remanded so that the BIA could consider the
application of the REAL ID Act of 2005, Pub. L. No. 109-13,
div. B, § 101(a)(3), 119 Stat. 231, 303 (2005) (codified at 8
U.S.C. § 1158(b)(1)(B)), to Hassan’s application. In its
subsequent opinion, the BIA moderated its view of the
IJ’s adverse credibility finding, acknowledging that the IJ
may have mischaracterized portions of Hassan’s hearing
testimony. In particular, the BIA accepted Hassan’s
explanation that his apparent lack of responsiveness to
the IJ’s questions resulted from problems with the video
8 No. 08-1535
conferencing. The BIA also noted that the IJ erroneously
stated that Hassan testified that he had reviewed the
application in “Oromo.” In fact, Hassan had sworn only
that he reviewed the application in a language that he
“understand[s].” He was confused by an application
question translated to him in Amharic, a language that
he understands but not as well as his native Oromo.
Nonetheless, the BIA concluded that this mischarac-
terization of Hassan’s testimony was harmless. Since
Hassan’s claim that he did not understand the applica-
tion was inconsistent with his earlier testimony that
he reviewed the application in a language that he under-
stood (albeit not Oromo), the IJ had a sufficient basis
for deeming Hassan incredible.
The BIA also addressed Hassan’s argument that the IJ
mischaracterized his explanation for the omission of a
specific event from his application. According to Hassan,
the IJ misinterpreted his statement that no one ever
asked him specifically about the Djibouti police’s search
for his family as a much broader statement that no one
ever asked him about any past mistreatment. The BIA
noted, however, that Hassan cited deficiencies in the
application questions to justify a number of omitted
events, not just the Djibouti police search. The BIA also
found it understandable that the IJ was frustrated with
Hassan’s failure to include this particular search in his
application, since that event was “one of the major
reasons for his alleged fear of returning to Ethiopia.”
Hassan timely petitioned this court for review of the
agency’s denial of his asylum application. Hassan argues
No. 08-1535 9
that the record does not support the agency’s findings
that Hassan’s testimony was incredible and that he
failed to show persecution. Hassan also argues that the
agency erred in denying his claims for withholding of
removal and protection under the CAT.
II. Analysis
Where, as here, the BIA affirms, adopts, and supple-
ments the IJ’s decision, we review “both the immigration
judge’s decision and any additional reasoning of the
BIA.” Mema v. Gonzales, 474 F.3d 412, 416 (7th Cir. 2007)
(citation omitted). “We must affirm the [agency’s] decision
if it is supported by reasonable, substantial, and probative
evidence on the record considered as a whole, and over-
turn it only if the record compels a contrary result.”
Id. Credibility determinations in particular receive “a
highly deferential review so long as they are supported
by specific cogent reasons that bear a legitimate nexus to
the finding.” Shmyhelskyy v. Gonzales, 477 F.3d 474, 479
(7th Cir. 2007) (quotation omitted).
A. The Adverse Credibility Determination
In order to establish eligibility for asylum, the ap-
plicant has the burden of showing status as a “refugee.”
8 U.S.C. § 1158(b)(1)(B)(i). A “refugee” is one who is unable
or unwilling to return to his country of origin “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.” Id.10 No. 08-1535
§ 1101(a)(42)(A). The applicant may prove refugee
status through his own uncorroborated testimony, “but
only if the applicant satisfies the trier of fact that the
applicant’s testimony is credible, is persuasive, and
refers to specific facts sufficient to demonstrate that the
applicant is a refugee.” Id. § 1158(b)(1)(B)(ii). Given the
importance of the applicant’s credibility in asylum pro-
ceedings, “an adverse credibility finding will doom
the applicant’s claimed eligibility as a ‘refugee.’ ”
Musollari v. Mukasey, 545 F.3d 505, 508-09 (7th Cir. 2008).
In making an adverse credibility determination, the IJ
may rely on inconsistencies between the applicant’s
hearing testimony and earlier statements. Adepke v. Gonza-
les, 480 F.3d 525, 531 (7th Cir. 2007). In particular, the IJ
may question the credibility of an applicant who
describes significant events of persecution during his
live testimony but omits those events from his written
asylum application. Tarraf v. Gonzales, 495 F.3d 525, 532-
33 (7th Cir. 2007). Under our prior case law, only those
omitted events that “go to the heart of the asylum ap-
plicant’s claim” could support an adverse credibility
finding. Adepke, 480 F.3d at 531. However, for applica-
tions such as Hassan’s filed after May 11, 2005, an amend-
ment to the Immigration and Nationality Act (“INA”)
expands the category of inconsistencies on which the
agency may rely. “Considering the totality of the cir-
cumstances, and all relevant factors, a trier of fact may
base a credibility determination on . . . the consistency
between the applicant’s . . . written and oral statements . . .
without regard to whether an inconsistency, inaccuracy,
or falsehood goes to the heart of the applicant’s claim . . . .”
No. 08-1535 11
REAL ID Act of 2005, Pub. L. No. 109-13, div. B, § 101(a)(3),
119 Stat. 231, 303 (2005) (codified at 8 U.S.C.
§ 1158(b)(1)(B)(iii)); see also Kadia v. Gonzales, 501 F.3d
817, 821 (7th Cir. 2007) (“[T]he Real ID Act allows an
immigration judge in asylum cases to consider, in deter-
mining credibility, falsehoods or inaccuracies ‘without
regard to whether an inconsistency, inaccuracy, or false-
hood goes to the heart of the applicant’s claim.’ ”).
Although the REAL ID Act requires a highly deferential
review of credibility findings, Immigration Judges may
not rely on inconsistencies that are completely trivial,
Kadia, 501 F.3d at 822, or that result from a misunder-
standing or mischaracterization of the applicant’s testi-
mony, cf. Musollari, 545 F.3d at 509-10 (identifying
several implausible interpretations of the applicant’s
testimony made by the IJ). Accordingly, our cases up-
holding adverse credibility findings based on inconsisten-
cies between an applicant’s testimony and applica-
tion generally involve an attempt by the applicant to
manufacture claims of recent, severe abuse.
In Korniejew v. Ashcroft, 371 F.3d 377 (7th Cir. 2004), the
applicant described an overnight kidnapping by
religious persecutors in her application but failed to recall
that event during her hearing testimony. Because the
alleged kidnapping was the applicant’s “most recent
personal encounter with those threatening her” and
involved “physical injury,” we held that the failure to
testify to that event supported an adverse credibility
finding. Id. at 384-85. Relying on Korniejew, we con-
cluded in Shmyhelskyy, 477 F.3d at 480-81, that the appli-
12 No. 08-1535
cant’s testimony that he was severely beaten following
his arrest was sufficiently inconsistent with his applica-
tion statement that he was merely detained to find the
applicant incredible.
Similarly, in Tarraf, the applicant’s testimony about his
30-day detention and torture conflicted with his written
application, which described only a 3-day interrogation
without physical abuse. These discrepancies, which
related to “the length and severity of the critical incident”
of the persecution claim, were sufficient to find the ap-
plicant incredible. Tarraf, 495 F.3d at 533 (emphasis
in original). It was likewise apparent in Torres v. Mukasey,
551 F.3d 616, 632-33 (7th Cir. 2008), that the applicant’s
testimony that his captors subjected him to water
torture, threatened to execute him, and forced him to
run nude in front of his co-prisoners—all absent from
his written application—described new events that were
“significant” enough to support an adverse credibility
determination.
By contrast, in Georgis v. Ashcroft, 328 F.3d 962, 968 (7th
Cir. 2003), we held that the applicant’s omission of an
arrest and beating from her application did not support
an adverse credibility determination, where the IJ had
also relied on minor inconsistencies regarding the exact
dates of persecution events. We also concluded in
Adepke, 480 F.3d at 531-32, that inconsistencies re-
garding the exact date of the assassination of the appli-
cant’s father-in-law, as well as the exact methods used
to torture the applicant during an interrogation, were
too immaterial to find the applicant incredible.
No. 08-1535 13
With these cases as a backdrop, and mindful that the
REAL ID Act further expands the agency’s discretion to
make adverse credibility determinations, we examine
the inconsistencies between Hassan’s hearing testimony
and his written application. The IJ cited four events
that Hassan described during the hearing but omitted
from his application: (1) the Ethiopian soldiers’ threat to
Hassan’s mother that they would kill the entire family
if the father did not cease his OLF activities; (2) the
burning of the family’s previous house; (3) the confisca-
tion of the house of the aunt whose burial Hassan
attended in 2004; and (4) the Djibouti police’s search for
Hassan’s family at their prior home following the 2004
shooting incident.
These events do not directly contradict Hassan’s written
application and are arguably not central to his asylum
claim. The threats against Hassan’s mother and burning
of the family’s house occurred in 1986, when Hassan
was six years old, meaning that these events lack the
recency that we found important in Korniejew. These
earlier incidents, along with the burning of the aunt’s
house, were also not within Hassan’s firsthand knowl-
edge and did not involve government acts “in which
he personally was targeted.” Tarraf, 495 F.3d at 533. And
none of these events approaches the severity of the beat-
ings or torture in Korniejew, Shmyhelskyy, Tarraf, and Torres.
Although the Djibouti police’s search for the family
is more recent and particular to Hassan, that event
does not go directly to Hassan’s theory of persecution,
which rests on the Ethiopian authorities’ targeting him
14 No. 08-1535
for his family’s political views. Hassan does not claim
that the Djibouti police were seeking to punish him for
his ties to an Ethiopian politico-military organization.
Rather, Hassan surmised that the Djibouti government
was interested in his family as illegal Oromo refugees
subject to repatriation to Ethiopia.
Still, these omitted events are hardly trivial. Because
Hassan bases his asylum claim on persecution for the
political views of his family, we think that he would be
inclined to mention past threats and pillaging against
his family in his asylum application. Indeed, one of the
questions on the application form that Hassan com-
pleted asked directly whether “you, your family, or close
friends or colleagues ever experienced harm of mistreat-
ment or threats in the past by anyone?” Additionally,
unlike in Georgis and Adepke, the IJ in this case
did not highlight trivial inconsistencies between
Hassan’s descriptions of these events in his application
and in his live testimony. Instead, the IJ focused on the
complete absence of these events from Hassan’s
asylum application.
So, in sum, the adverse credibility determination in
this case rests on omitted events that are neither critical
nor trivial to Hassan’s claim of persecution. Given the
REAL ID Act’s highly permissive standard for adverse
credibility determinations, we conclude that the IJ could
properly rely on these material omissions to discredit
Hassan’s testimony. The asylum statute, as amended by
the Act, makes clear that an IJ may rely on discrepancies
that do not go “to the heart of the applicant’s claim” or on
No. 08-1535 15
“any other relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii).
Considering all of the relevant factors in the case, the IJ
could conclude that Hassan’s testimony about events
not disclosed in his application was an attempt to “embel-
lish” his asylum claim. See Tarraf, 495 F.3d at 533. Such
an adverse credibility determination, based on non-
trivial discrepancies between the applicant’s written
application and live testimony, is entitled to deference
under the REAL ID Act.
We also credit the agency’s reliance on Hassan’s travel
through several countries prior to arriving in the United
States. In two of these countries, Yemen and Italy,
Hassan remained for at least two months without
seeking asylum. As stated by the IJ, after living in
Djibouti for eighteen years without harm from the Ethio-
pian government, Hassan’s departure and passage
through several countries was more consistent with a
desire to settle in the United States than a fear for his
life. Although we do not say that failure to seek asylum
in intermediate countries is always inconsistent with a
fear of persecution, in this case, it was one of several
“relevant factors” that the agency could consider in
finding Hassan’s testimony incredible. See 8 U.S.C.
§ 1158(b)(1)(B)(iii); cf. Tarraf, 495 F.3d at 534 (recognizing
that return travel to the country of persecution may be
a factor weighing against an applicant’s credible fear
of persecution); Balogun v. Ashcroft, 374 F.3d 492, 500-01
(7th Cir. 2004) (upholding an adverse credibility deter-
mination based in part on the applicant’s multiple prior
trips to the United States and the United Kingdom with-
out seeking asylum).
16 No. 08-1535
Our conclusion that the IJ “could” properly rely on
the events omitted from Hassan’s asylum application
does not end the credibility analysis, for the IJ did not
rely solely on those omissions. The IJ also determined
that the explanations that Hassan provided for omitting
the events were either non-responsive or “patently false.”
As recognized by the BIA, however, the IJ may have
mischaracterized portions of Hassan’s testimony in
concluding that his explanations were unreasonable. We
must therefore determine whether any mischarac-
terizations of Hassan’s testimony tainted the IJ’s adverse
credibility determination.
One mischaracterization is the IJ’s statement that
Hassan testified that he had reviewed the application in
“Oromo.” In fact, Hassan only swore that he reviewed
the application in a language that he “understand[s].”
Hassan further testified that part of the application
was translated in Amharic, a language that Hassan under-
stands but not as well as his native Oromo. The IJ
missed this distinction and concluded that Hassan
“either testified falsely that he had reviewed the applica-
tion in the Oromo language and reviewed it and made
corrections, or he testified falsely that he did not go
over the information prior to its filing.” Since the IJ’s mis-
statement that Hassan reviewed the entire application
in “Oromo” was so intertwined with the critical finding
that Hassan “testified falsely,” the IJ’s error regarding
the application language gives us pause.
Nonetheless, based on our review of the hearing testi-
mony, we do not believe that the IJ’s erroneous reference
No. 08-1535 17
to Oromo tainted the credibility analysis. After Hassan
testified about the Ethiopian soldiers’ threat to his
mother, the IJ asked why Hassan did not include that
event in his application. Hassan responded that the
application questions confused him because “they inter-
preted to me in another language, which is Amharic.”
Then, the IJ pointed out that Hassan had previously
testified that he went over the application “in a language
that [he] understood.” From this exchange, it is clear
that the IJ was not concerned with whether Hassan re-
viewed the application in “Oromo” or “Amharic” specifi-
cally. Rather, the IJ relied on the inconsistency between
Hassan’s initial statement that he reviewed the applica-
tion in a language that he understood and his subse-
quent explanation that the application questions con-
fused him. The IJ’s erroneous reference to “Oromo” was
harmless.
The IJ also stated that Hassan “tried to indicate that he
was not . . . asked the questions on the application . . . and
had no opportunity to provide the information.” The IJ
found that this explanation for the omitted events was
incredible in light of Hassan’s earlier testimony that he
reviewed the application and verified that “all the infor-
mation was true, correct and complete.” Hassan argues
that the IJ mischaracterized his explanation for the omis-
sion of a single event, the Djibouti police’s search for
his family, as a sweeping claim that no one ever asked
him about any past mistreatment. Hassan points to a
portion of the hearing when he testified that no one
asked him about the Djibouti police search specifically.
The IJ responded that Hassan could not claim that the
18 No. 08-1535
application did not ask “whether he was mistreated in
the past,” since “at least half a dozen specific questions”
on the application addressed past mistreatment.
Based on our review of the hearing transcript, we
disagree with Hassan that the IJ overemphasized Hassan’s
response regarding a single, omitted event. True, the IJ’s
comment that Hassan could not claim that the applica-
tion did not ask about past mistreatment immediately
followed Hassan’s testimony about the Djibouti police
search. However, we read this comment as a fair charac-
terization of Hassan’s recurring claim that he had no
opportunity to provide information on the various
events omitted from his application. The IJ’s point was
that, since multiple questions on the application asked
about past mistreatment, it was unconvincing for
Hassan to cite deficiencies in the application to explain
any of the omissions.
Because our review of the record indicates that any
mischaracterizations of Hassan’s testimony did not
color the IJ’s credibility analysis, the agency’s adverse
credibility determination is supported by substantial
evidence.
B. Persecution Based on an Imputed Political Opinion
Although the agency’s adverse credibility determina-
tion is alone sufficient to deny Hassan’s petition, we
acknowledge that the events omitted from Hassan’s
application are not critical to his claim of persecution.
We also note that the IJ’s finding that Hassan testified
No. 08-1535 19
falsely involved a mischaracterization of Hassan’s testi-
mony, albeit a harmless one. Based on these reservations,
we think it best to review the agency’s alternative
holding that, even if Hassan’s testimony were credible, he
failed to show the persecution necessary to establish
asylum eligibility.
We review the agency’s conclusion that the harm that
Hassan allegedly suffered did not rise to the level of
persecution under the substantial evidence standard.
Tarraf, 495 F.3d at 534. Under that standard, we will
reverse only if the record compels a different result, and
not simply because we are convinced that we would
have decided the case differently. Shmyhelskyy, 477 F.3d at
478-79. To justify reversal, the evidence in support of
the application must be “ ‘so compelling that no rea-
sonable fact-finder could fail to find the requisite fear of
persecution.’ ” Georgis, 328 F.3d at 967-68 (quoting INS
v. Elias-Zacarias, 502 U.S. 478, 484 (1992)).
As mentioned above, in order to establish eligibility for
asylum, the applicant has the burden of showing status as
a “refugee.” 8 U.S.C. § 1158(b)(1)(B)(i). A “refugee” is one
who is unable or unwilling to return to his country of
origin “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.” Id. § 1101(a)(42)(A). The applicant may qualify
as a refugee either because he has suffered “past persecu-
tion” or because he has a “well-founded fear of future
persecution.” 8 C.F.R. § 1208.13(b). An applicant who
shows past persecution on account of a protected trait
20 No. 08-1535
is entitled to a presumption of refugee status. Id.§ 1208.13(b)(1). In order to establish refugee status
based on a well-founded fear of persecution, the ap-
plicant must show that his “fear is subjectively genuine
and objectively reasonable in light of credible evidence.”
Musollari, 545 F.3d at 508 (quotation omitted). The fear
is objectively reasonable if a “reasonable possibility”
exists that the applicant would suffer persecution on
account of a protected trait upon returning to his
country of nationality. 8 C.F.R. § 1208.13(b)(2)(i)(B).
Hassan claims both past persecution and a well-founded
fear of future persecution on account of his membership
in a family of OLF supporters and an imputed political
opinion. He argues that the Ethiopian authorities
attribute to him the political views of his family members,
particularly his father, a former OLF member.
Our case law recognizes that an applicant may suffer
persecution on account of the political opinions held
by family members and imputed to the applicant. See
BinRashed v. Gonzales, 502 F.3d 666, 673 (7th Cir. 2007)
(finding substantial evidence of persecution of the son of
a political activist); Mema, 474 F.3d at 415-16, 418-20(reviewing evidence that persecutors imputed the views
of the applicant’s politically active father and twin
brother); Nakibuka v. Gonzales, 421 F.3d 473, 478 (7th
Cir. 2005) (examining whether persecutors perceived,
correctly or not, that the house worker of an opposition
leader was herself a political opponent). We have
described this basis of persecution as on account of either
an “imputed political opinion” or “membership in a
No. 08-1535 21
particular social group”—the family group. BinRashed,
502 F.3d at 670; Mema, 474 F.3d at 417. Under either
characterization, the necessary proof is the same: the
applicant must show that the persecutors attributed a
political opinion to him, and that this attributed opinion
was the motive for the persecution. Mema, 474 F.3d at
417 (citations omitted). It is not enough to show both a
violent government act and the applicant’s relationship
to a political dissident; the applicant must link the two
and “show that her family’s political opinions have
been imputed to her and that she has suffered or will
suffer persecution as a result.” Ciorba v. Ashcroft, 323
F.3d 539, 545 (7th Cir. 2003).
We examine Hassan’s evidence to determine whether
the record compels a finding of either past persecution or
a well-founded fear of future persecution. As for past
persecution, Hassan points to the 2004 shooting
incident, reasoning that the Ethiopian soldiers fired at
him and his cousin Anwar based on their fathers’ political
views. He surmises that a village informant told the
Ethiopian government that he and Anwar had returned
to Ethiopia and that the soldiers targeted them at the
burial ceremony for their fathers’ OLF activities.
We cannot agree with Hassan that the record compels
this interpretation of events. No evidence links the shoot-
ing to any political views held by Hassan and Anwar or
imputed to them based on the OLF activities of their long-
deceased fathers. See Aid v. Mukasey, 535 F.3d 743, 747-48
(7th Cir 2008) (observing that no evidence indicated
that terrorists who raided the applicant’s store were
22 No. 08-1535
motivated by political goals, especially where the ap-
plicant was not politically outspoken); Sankoh v.
Mukasey, 539 F.3d 456, 471-72 (7th Cir. 2008) (finding no
evidence that the persecutors imputed a family political
opinion that the applicant “did not outwardly hold”).
On the contrary, the only motive for the shooting sug-
gested by the record is the fact that Hassan and Anwar
were the only burial attendees who fled. The soldiers
never identified Hassan by name or confronted him
based on his family’s ties to the OLF. Cf. Nakibuka, 421
F.3d at 475 (recounting that soldiers who detained and
beat the applicant addressed her by name and warned
her to stop supporting the political opposition); Tolosa v.
Ashcroft, 384 F.3d 906, 910 (7th Cir. 2004) (noting
that soldiers made derogatory comments about the ap-
plicant’s Oromo ethnicity while beating and interrogating
her about the whereabouts of her father, a political defec-
tor).
Further, while we do not minimize the danger that
Hassan faced from being fired upon, the soldiers’ isolated
shooting at unidentified suspects is distinct from the
recurring “detention, arrest, interrogation, prosecution,
imprisonment . . . beatings, or torture” of political oppo-
nents that typically sustain allegations of past persecution.
Tarraf, 495 F.3d at 535 (quotations omitted); cf. BinRashed,
502 F.3d at 671 (addressing allegations of past persecution
based on threats and detentions of a political opponent’s
son); Mema, 474 F.3d at 418 (noting that the applicant
was allegedly detained and beaten for his father’s
political activities).
No. 08-1535 23
Because the record does not compel Hassan’s inter-
pretation of the shooting incident, the agency’s decision
that Hassan failed to show past persecution is sup-
ported by substantial evidence. Although another judge
may have found past persecution on these facts, “we
cannot say that the record compels a contrary result.”
Mema, 474 F.3d at 418.
By similar reasoning, substantial evidence supports
the agency’s finding that Hassan failed to show a well-
founded fear of future persecution. Hassan argues that
the 2004 shooting incident, in conjunction with his
family history and background evidence of repression of
OLF supporters, establishes a well-founded fear of
political persecution. We have already discussed the
lack of evidence linking the shooting to Hassan’s family
ties or political views. As for family history, Hassan’s
aunt, Mahbuba Nasir, and his second cousin, Faisal
Mohamed, did testify that Hassan was an Oromo
whose father was involved in the OLF and killed in
combat. However, this testimony does not compel the
conclusion that the Ethiopian government knew of
Hassan’s father’s political views, attributed those views
to Hassan, and would likely persecute Hassan based on
those views. Cf. BinRashed, 502 F.3d at 668-69 (describing
evidence that the Yemeni authorities had threatened
to arrest the applicant for his father’s political dissidence
and later issued arrest warrants for him and his siblings);
Mema, 474 F.3d at 415 (recounting the applicant’s testi-
mony that the police attacked him and his siblings for
supporting their father in leading the opposition party).
24 No. 08-1535
Regarding background evidence, Hassan presented
the IJ with reports by the State Department and other news
and human rights organizations. These reports indicate
that the Ethiopian government engages the OLF in armed
conflicts and arbitrarily detains persons suspected of
sympathizing with the political opposition. The expert
affidavit of Professor Halberson further establishes that
Oromos suffer a disproportionate share of this arbitrary
treatment, since authorities tend to assume that Oromos
are more likely to be OLF supporters. Hassan also cites a
2005 Human Rights Watch report indicating that the
government has set up structures to monitor the Oromo
population and harass outspoken political opponents.
Human Rights Watch, Suppressing Dissent: Human Rights
Abuses and Political Repression in Ethiopia’s Oromia
Region 27 (2005), available at http://www.hrw.org/sites/
default/files/reports/ethiopia0505.pdf.
This background evidence does suggest that, as an
Oromo in Ethiopia, Hassan is more likely to experience
political repression by the Ethiopian government than
members of other ethnic groups. However, we agree
with the IJ that the general mistreatment of Oromos,
who make up approximately 40% of the Ethiopian popula-
tion, does not alone establish a well-founded fear of
persecution. To establish an objectively reasonable fear
of future persecution, Hassan must point to “specific,
detailed facts showing a good reason to fear that he . . .
will be singled out for persecution.” Bolante v. Mukasey, 539
F.3d 790, 794 (7th Cir. 2008) (emphasis in original) (quota-
tion omitted). Hassan has not produced such facts. Al-
though his witnesses established the family’s ties to the
No. 08-1535 25
OLF, Hassan was not himself an OLF member, and
nothing in the record indicates that he ever “express[ed]
any political opinion” critical of the Ethiopian govern-
ment. Aid, 535 F.3d at 748.
In sum, Hassan’s evidence does not compel the conclu-
sion that the Ethiopian government imputes a political
opinion to him based on his family ties, much less that
the government will target him for that opinion. It
follows that the agency’s determination that Hassan
failed to show a well-founded fear of political persecu-
tion is supported by substantial evidence.
C. Withholding of Removal and Protection
Under the CAT
Finally, we briefly address Hassan’s claims for with-
holding of removal and protection under the Convention
Against Torture. The INA prohibits the Attorney
General from removing an alien to a country where
“the alien’s life or freedom would be threatened . . .
because of the alien’s race, religion, nationality, mem-
bership in a particular social group, or political opinion.”
8 U.S.C. § 1231(b)(3)(A). An applicant seeking with-
holding of removal must demonstrate a “clear probabil-
ity” of harm by showing that it is “more likely than not”
that he will suffer persecution if removed. BinRashed,
502 F.3d at 670. Because this “clear probability” require-
ment is “more stringent” than the requirements for
asylum eligibility, our rejection of Hassan’s asylum
petition necessarily dooms his withholding of removal
claim. Shmyhelskyy, 477 F.3d at 481; see also Bolante, 539
26 No. 08-1535
F.3d at 795 (“Because we find that Bolante cannot meet
his burden of proof on his asylum claim, his with-
holding of removal claim must fail a fortiori.”).
As for Hassan’s CAT claim, in order to obtain relief
under the CAT, the applicant must show 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.
§ 208.16(c)(2). Although the torture need not be on
account of one of the enumerated traits required for
asylum claims, the burden of proof for CAT protection
is nonetheless “more stringent” than the burden for
establishing asylum eligibility. Shmyhelskyy, 477 F.3d
at 481. Just as Hassan’s evidence fails to establish a well-
founded fear of persecution, it fails to show that it is
more likely than not that he will be tortured upon
being returned to Ethiopia.
III. Conclusion
The agency’s adverse credibility determination, based
on material inconsistencies between Hassan’s asylum
application and hearing testimony, is supported by sub-
stantial evidence. The agency’s alternative holding
that Hassan failed to show the persecution necessary
to establish asylum eligibility also finds substantial sup-
port in the record. We therefore D ENY Hassan’s petition
for review.
7-2-09