Sihin Francois v. INS ( 2002 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 01-1233
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Sihin Hadera Francois, *
*
Petitioner, *
* Petition for Review of
v. * an Order of the Immigration
* and Naturalization Service.
Immigration and Naturalization Service, *
*
Respondent. *
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Submitted: November 12, 2001
Filed: March 18, 2002
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Before BYE, RICHARD S. ARNOLD and BEAM, Circuit Judges.
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BYE, Circuit Judge.
Sihin Hadera Francois, a native and citizen of Eritrea, petitions for review of
an order of the Board of Immigration Appeals (BIA) dismissing her appeal from an
Immigration Judge's denial of her request for asylum and withholding of deportation.
For the reasons stated below, we deny the petition.
I.
A. Procedural Background
Francois entered the United States on October 7, 1987, as a nonimmigrant
student to attend Brown Institute in Minneapolis, Minnesota. She was authorized to
remain in this country until March 23, 1989. On December 8, 1988, however,
Francois was placed in deportation proceedings by the filing of an Order to Show
Cause with the Immigration Court. The Order charged that Francois was an alien
who failed to comply with the conditions of the nonimmigrant status under which she
had been admitted to the United States, namely, that she had never attended the
Brown Institute.
At a July 13, 1993, hearing Francois admitted the factual allegations contained
in the Order and conceded deportability, but requested an opportunity to apply for
asylum and a withholding of deportation. At the conclusion of an immigration
hearing held on December 16, 1993, an Immigration Judge denied Francois's
applications for asylum and withholding of deportation, but granted her voluntary
departure. Francois appealed the Immigration Judge's decision to the BIA, and on
December 27, 2000, the BIA dismissed her appeal.
B. Factual Background
Francois contends she was subject to past persecution in Eritrea because of her
religious beliefs and political opinion, and that she has a well-founded fear of future
persecution if she returns because she is (1) a Christian, (2) a political opponent of
the Mengistu regime, and (3) a member of the ELF (Eritrean Liberation Front), an
opponent of the EPLF (Eritrean People's Liberation Front), which now rules Eritrea.
Francois submitted evidence based on her individual and family experiences in
Eritrea.
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1. Francois's Individual Experiences
Francois belonged to the Catholic Youth Organization (CYO) and was
involved in studying the Bible and teaching the Catechism. While attending Asmara
University in Eritrea, she distributed pamphlets for the Eritrean Liberation Front
(ELF); the last time she distributed pamphlets was in 1986. The ELF was a group
that opposed the Marxist Mengistu regime. Francois was prepared to perform two
years of government service in exchange for her free education at the university, but
the government sent her to study Marxist-Leninist ideology in the Soviet Union for
three years along with other Ethiopian students. She refused to cooperate in the study
of that ideology because it denied the existence of God and was against her religion.
After her return from the Soviet Union, Francois underwent an interrogation
by the Kedele, the local communist party. She told them she refused to cooperate in
the study of Marxist-Leninist ideology because of her Catholic beliefs. She was then
referred to another level of interrogation, the Keftegne, or Workers' Party, under the
Mengistu regime, where she was interrogated every day for two months about her
political beliefs in an effort to convince her to embrace their ideology. From there
she was referred to Ethiopian military officials who asked her the same questions for
a week and showed her pictures of people being tortured and killed. Francois was
told that if she did not change her ideology, they were going to kill her father. She
was never detained overnight or sent to jail during these interrogations and was
allowed to return home every day. When asked if she was involved with the ELF,
Francois always responded in the negative.
After these interrogations, Francois was accepted to Hull University in London,
but was unable to attend because the Ethiopian government refused to issue her an
exit visa. When the Ethiopian government began to imprison members of the CYO,
Francois believed her life was in danger so she decided to leave Ethiopia, contacted
her brother in the United States, and made plans to come to this country as a student.
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She admitted she never actually attended Brown Institute in Minneapolis because she
wanted to study biology not electronics.
A week before the immigration hearing, Francois received a letter from her
father in which he related incidents of terrorism and killing of former ELF supporters
by former Mengistu sympathizers. In that letter, her father also indicated that one of
her sisters was promoted by her employer and her other sister graduated from high
school and was awaiting her college entrance exam results.
The Transitional Government of Ethiopia took power and overthrew the
Mengistu regime in 1991. Eritrea became independent in 1993 and the new
government of Eritrea is neither anti-Catholic nor pro-Marxist, but is dedicated both
to democratic reform and freedom of religion. Francois has acknowledged these
political changes. She also testified she is not opposed to the new government. She
agreed the new government is engaged in reform and that her religious beliefs would
not be persecuted. Francois stated she nevertheless fears persecution because the new
government is incapable of protecting its own people from Ethiopian terrorists or
controlling political violence.
2. Francois's Family's Experiences
Francois's father had been a judge on the Supreme High Court in Ethiopia for
44 years, but his duties ended when the Ethiopian government forced him to resign
and replaced the court with military tribunals in 1986. He had also attempted to
establish a Catholic University and write a newsletter on human rights issues.
Francois's father still resides in Eritrea.
Francois's uncle had been a bishop in the Catholic church for 25 years until
1987, when his tenure ended under pressure from the government due to his
involvement with the Eritrean independence movement. Her uncle was arrested in
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1986 for giving a sermon during the feast of St. Anthony in which he discussed the
oppression of the people, and was jailed for a week. He also wrote six or seven books
on Catholic theology that were banned by the Ethiopian government.
Francois's oldest brother left Ethiopia in 1976 and presently lives in Germany
under refugee status. He left Ethiopia because he was involved with the ELF and the
Mengistu government was aware of this affiliation. Government soldiers descended
upon his home and questioned his mother at gun point as to his whereabouts. After
this incident, he left Eritrea. A second brother left Eritrea in 1986 because he had
been forced by Ethiopian soldiers to fight against the Eritrean people. This brother
was granted refugee status in the United States. Francois's third brother left Eritrea
in 1977 because he was involved in distributing pamphlets for the ELF and several
of his friends had been killed. This brother came to the United States in 1981 and
was also granted refugee status. A fourth brother was imprisoned by Ethiopian
soldiers in 1979 for three years because of his involvement with the ELF. He was
released in 1982 and left Ethiopia because his friends started to disappear. This
brother died in the Sudan of unknown causes. Francois also has two sisters who still
reside in Eritrea.
II.
A. Asylum
The Immigration and Nationality Act authorizes the Attorney General, in his
discretion, to confer asylum on any refugee. 8 U.S.C. § 1158(a). A refugee is defined
as an alien who is unwilling to return to his or her home country because of "(1) past
persecution or (2) 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 "well-founded fear of persecution" standard contains subjective
and objective elements. An alien may establish the subjective element with credible
testimony that he or she genuinely fears persecution. Ghasemimehr v. INS, 7 F.3d
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1389, 1390 (8th Cir. 1993) (internal citations omitted). The objective element
requires a showing of credible, direct, and specific evidence that a reasonable person
in the alien's position would fear persecution if returned to the alien's native country.
Id.
An alien will be presumed to possess a well-founded fear of future persecution
if past persecution is established, and the burden then shifts to the Immigration and
Naturalization Service (INS) to show by a preponderance of the evidence that
"conditions in the applicant's country . . . have changed to such an extent that the
applicant no longer has a well-founded fear of being persecuted if he or she were to
return." 8 C.F.R. § 208.13(b)(1)(i). Even if the INS carries this burden,
"humanitarian asylum" may be granted based on past persecution alone if that
persecution was particularly atrocious. See Cigaran v. Heston, 159 F.3d 355, 357
(8th Cir. 1998) (citations omitted).
That BIA found that, even assuming Francois established past persecution, the
INS had successfully rebutted the presumption of future prosecution by proving that
conditions in Eritrea have changed. The BIA noted the State Department Country
Reports for 1995 and 1999 indicate that Eritrea became an independent state in 1993,
following an internationally-monitored referendum in which citizens voted
overwhelmingly for independence from Ethiopia. It noted that Islam and Christianity
are practiced and tolerated widely throughout the country with persons free to
worship at the mosque or church of their choice. The BIA further noted that "[w]hen
the EPLF assumed power, it summarily expelled Mengistu's soldiers, administrators,
and even many Ethiopian citizens who had lived in Eritrea for decades . . .
[particularly] Amharas, regarded by most Eritreans as supports [sic] of Mengistu."
"The harsh excesses of Marxist dictatorship (under Mengistu) . . . have ended, and .
. . Eritrean exiles who had fled Mengistu's brutal rule should now be able to return
without reprisals." Additionally, the BIA noted there is "no definitive evidence to
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support the allegation sometimes made that the EPLF now punishes those who
supported the ELF."
We review the BIA's denial of asylum for an abuse of discretion, and the
factual findings underpinning its refusal to grant asylum under the substantial
evidence standard. Manivong v. Dist. Dir., U.S. Dep't. of Justice INS, 164 F.3d 432,
433 (8th Cir. 1999). This means the BIA's factual determinations "must be upheld if
supported by reasonable, substantial, and probative evidence on the record considered
as a whole." Tang v. INS, 223 F.3d 713, 718 (8th Cir. 2000) (internal citations and
quotations omitted). Reversal of the BIA's decision is warranted only if the petitioner
shows the evidence was so compelling that no reasonable factfinder could fail to find
the requisite fear of persecution. Kratchmarov v. Heston, 172 F.3d 551, 554 (8th Cir.
1999).
After reviewing the evidence, we believe the BIA's factual determinations are
supported by substantial evidence—that is, Francois's fear of future persecution was
not objectively reasonable. The evidence submitted by Francois to support her claims
is based on events that occurred in the mid-1980s under the defunct Mengistu regime.
Francois's contentions that she fears persecution on account of her Christianity and
political opposition to the Mengistu regime are stale. Francois admits the Eritrean
government is currently neither anti-Catholic nor pro-Marxist and is dedicated to
democratic reform and freedom of religion. The BIA's determination that Francois's
fear of persecution on account of her religious beliefs and political opinion was not
well-founded is therefore fully supported by the record.
Francois argues it is inequitable to deny her asylum when two of her brothers
have been granted refugee status in the United States under similar facts. During oral
argument, we asked the INS to supplement the record with materials pertaining to the
grant of refugee status as to these brothers, Gabriel Hadera Francois and Leul-Seghed
Hadera Francois. The records show Gabriel's application for refugee status was
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approved on September 18, 1981, and Leul-Seghed's application was approved on
July 19, 1988. Thus, Francois's brothers were granted refugee status while the
oppressive Mengistu regime was still in power—a marked difference from Francois's
situation.
All the evidence submitted by Francois, including the experiences of her father,
uncle and brothers, with the single exception of a supplemental affidavit dated 1991,
pre-dates 1989. Francois has failed to show how these dated events, which occurred
under the now defunct Mengistu regime, provide an objectively reasonable basis for
a present fear of particularized persecution directed at her personally, and on the basis
of her political or religious opinions or on the basis of her family's political or
religious beliefs. See Nyonzele v. INS, 83 F.3d 975, 981 (8th Cir. 1996) ("Much of
Nyonzele's evidence of family persecution (the suspicious deaths of a brother and two
cousins) occurred over a decade ago. Nyonzele has not shown why these rather dated
events provide an objectively reasonable basis for a present fear of particularized
persecution directed at h[im] personally and on the basis of his political opinion . . .
or on the basis of h[is] family's political opinions."). Perhaps Francois's fear is
subjectively real. But she has produced almost no evidence that her fear is
objectively reasonable given the current climate in Eritrea. See Menjivar v. INS, 259
F.3d 940, 941 (8th Cir. 2001).
Although Francois's claims of persecution concern primarily conditions that no
longer exist in Eritrea, she does claim the new Eritrean government is incapable of
protecting its own people, including ELF supporters, from Ethiopian terrorists or
controlling political violence. See Hernandez v. Reno, 258 F.3d 806, 811 n.5 (8th
Cir. 2001) (recognizing that harassment by groups the government is unwilling or
unable to control can constitute persecution). In support of this claim, Francois relies
on a letter she received from her father relating incidents of terrorism and killing of
ELF supporters by former Mengistu sympathizers. The BIA, however, relied on
information contained in the State Department Country Report for 1995 and
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determined Francois's fear of persecution on account of her being an opponent of the
EPLF was not well-founded. See Gebru v. INS, 1999 WL 95523, at *3 (4th Cir. Feb.
18, 1999) (finding that the State Department country reports, among other evidence,
do not support a finding that members of the ELF are targeted for persecution in
Eritrea or Ethiopia). The BIA's determination is bolstered by the fact that Francois's
father and two sisters, all of whom still reside in Eritrea, have not been molested by
the new government and in fact seem to be prospering under it. Plus, while living in
Eritrea, Francois never publicly acknowledged her support for, or affiliation with, the
ELF. Based on the record we believe there was substantial evidence to support the
BIA's decision.
Francois also contends she is entitled to humanitarian asylum. Citing cases
wherein an applicant had been granted humanitarian asylum, the BIA noted the
atrocity of the past persecution an applicant must show in order to obtain this type of
asylum, including permanent physical and emotional scarring, or a combination of
detention, involuntary military service, sleep deprivation, beatings, electric shock, and
routine physical torture and psychological abuse. See Matter of Chen, 20 I. & N.
Dec. 16 (1989). We believe the BIA properly concluded Francois failed to
demonstrate the severe or long-lasting harm akin to what aliens who had been granted
asylum based on humanitarian grounds endured in their respective countries.
B. Withholding of Deportation
The standard for withholding of deportation requires aliens to show a "clear
probability" that they will face persecution in the country to which they will be
deported. See Kratchmarov, 172 F.3d at 555. This standard is more onerous than the
well-founded fear standard for asylum. Id. Having concluded that substantial
evidence supports the BIA's denial of Francois's asylum request, we likewise
conclude that substantial evidence supports the BIA's denial of Francois's
withholding of deportation request.
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C. Administrative Notice
Francois contends the BIA violated her due process rights by taking
administrative notice of the changed conditions in Eritrea. She also contends the BIA
failed to engage in an individualized review of her petition.
We have approved the BIA's use of administrative notice of changed conditions
in an alien's home country. Wojcik v. INS, 951 F.2d 172, 173 (8th Cir. 1991)
(agreeing with Seventh and Tenth Circuit decisions approving the BIA's use of
administrative notice of changed political conditions). Due process, however,
requires that an alien be given notice of the BIA's intention to take administrative
notice, and a sufficient opportunity to respond. The question here is whether Francois
was given notice of the BIA's intention to take administrative notice of changed
conditions in Eritrea, and whether she had a sufficient opportunity to respond.
Although Francois was not given notice, she was neither harmed nor prejudiced
because the BIA noticed current conditions in Eritrea of which Francois was aware.
Francois testified she did not believe the new government was anti-Catholic or
pro-Marxist, and that it is dedicated to democratic reform and religious freedom. The
BIA took administrative notice of these conditions. Further, the State Department
Country Report for 1993 was introduced into evidence during the immigration
hearing and was thus part of the administrative record. See Kapcia v. INS, 944 F.2d
702, 705-06 (10th Cir. 1991) (holding no due process deprivation when immigration
judge took notice of change of government at hearing, and petitioners knew of this
issue when they appealed to BIA). Although the BIA took administrative notice of
facts contained in a 1995 and 1999 report, the findings contained therein had their
genesis in the 1993 report and were not materially different. Francois therefore had
ample opportunity to rebut such evidence during the hearing held before the
Immigration Judge, by supplementing the record, and after the BIA's decision by
moving to have the record re-opened. Contrary to her contention that she was denied
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the opportunity to respond to the changed conditions in Eritrea, Francois did in fact
submit evidence challenging the facts the BIA relied upon and claims the BIA
ignored this evidence. The evidence Francois submitted, however, was generated in
the mid-1980s, before the Mengistu regime was overthrown and before Eritrea gained
its independence. Francois's evidence did not contradict the current conditions in
Eritrea of which the BIA took administrative notice. Francois knew this at the
immigration hearing, yet failed to submit any additional, recent evidence.
Francois's claim that the BIA failed to engage in an individualized review of
her petition is likewise without merit. The BIA noted her testimony that she does not
believe the present government of Eritrea is anti-Catholic or pro-Marxist, and referred
to the ELF, the movement which Francois supported. The BIA's dismissal of
Francois's asylum request was not merely a recitation of administratively-noticed
boilerplate changes in the conditions in Eritrea; rather, it reflected a particularized
consideration of Francois's case. We have examined Francois's other arguments and
have found them to be without merit.
III.
We conclude substantial evidence supports the BIA's denial of Francois's
asylum request, as well as its denial of withholding of deportation. Accordingly, we
deny Francois's petition. Furthermore, Francois's November 12, 2001, motion to hold
the decision in abeyance or to remand to the BIA is denied. Our decision here is
without prejudice to whatever action might be taken on Francois's most recent
petition for review.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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