Martha Wondimu Alemu v. John Ashcroft ( 2005 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-3464
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Martha Wondimu Alemu, *
*
Petitioner, *
* Petition for Review of an
v. * Order of the Board of
* Immigration Appeals.
Alberto Gonzales, *
*
Respondent. *
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Submitted: October 22, 2004
Filed: April 8, 2005
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Before LOKEN, Chief Judge, MAGILL and BENTON, Circuit Judges.
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LOKEN, Chief Judge.
Petitioner Martha Wondimu Alemu is a citizen of Ethiopia. Ms. Alemu came
to the United States in October 1999 to receive medical care for an eye condition.
When she overstayed her six-month visa, the Immigration and Naturalization Service
(now Immigration and Customs Enforcement) commenced removal proceedings. Ms.
Alemu conceded she was removable and requested asylum, withholding of removal,
and relief under the Convention Against Torture (“CAT”), claiming past persecution
and a well-founded fear of future persecution in Ethiopia because of her Oromo
ethnicity and past support of the Oromo Liberation Front (“OLF”), a political group
that has violently opposed the present government since 1992. The immigration
judge (“IJ”), in a thorough opinion, denied relief after finding significant aspects of
Ms. Alemu’s testimony not credible. The Board of Immigration Appeals affirmed
without opinion, making the IJ’s decision the final agency order for purposes of
judicial review. See 8 U.S.C. § 1252(a)(1). We deny Ms. Alemu’s petition for
review of that order.
I. Asylum Claim
The Attorney General has discretion to grant asylum to a “refugee.” 8 U.S.C.
§ 1158(b)(1). A refugee is an alien who is unable or unwilling to return to her home
country “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.” 8 U.S.C. § 1101(a)(42)(A). An applicant who establishes past persecution
is entitled to a presumption that her fear of future persecution is well-founded. See
8 C.F.R. § 208.13(b)(1). We must affirm a decision denying asylum if it is
“supported by reasonable, substantial, and probative evidence on the record
considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992). To obtain
reversal, Ms. Alemu must show “that the evidence [she] presented was so compelling
that no reasonable factfinder could fail to find the requisite fear of persecution.” Id.
at 483-84. We defer to the IJ’s credibility findings if they are “supported by a
specific, cogent reason for disbelief.” Perinpanathan v. INS, 310 F.3d 594, 597 (8th
Cir. 2002).
Past persecution. Ms. Alemu testified that her father, who died in 1984, was
a founder of the OLF; that she joined the OLF in 1991 while in college and worked
for the group until 1996; and that her brother has been fighting for the OLF against
the Ethiopian government since 1993. After graduating from college in 1993, Ms.
Alemu obtained a secretarial job with a government agency which she held until
1998, when her boss lured her to the office one weekend and raped her. She told no
one but her mother of the rape but quit one week after the incident. To cover his
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misdeed, Ms. Alemu testified, the boss accused her of taking documents from the
agency and giving them to the OLF. He had learned that Ms. Alemu supported the
OLF after she refused to join the government-sponsored political party to which he
belonged. The security police then arrested and imprisoned her for one month.
Though never beaten or tortured in prison, she was questioned for two weeks about
her family’s activities in the OLF. She was released when she contracted typhoid
fever from the unsanitary prison conditions, resulting in a significant loss of vision.
Ms. Alemu argued that she proved past persecution because the rape and
subsequent arrest and detention were based upon her ethnicity and her support of and
membership in the OLF. The IJ rejected this contention. Noting that Ms. Alemu’s
attorney had tried and failed to obtain corroborating evidence from human rights
organizations active in Ethiopia, and from other sources, the IJ discredited her
“general and meager testimony” regarding her claimed membership in the OLF, her
detention in 1998, and her claims that her father was a founding member of the OLF
and her brother is a fighter for the OLF army. The IJ noted some inconsistencies in
Ms. Alemu’s testimony about the rape and found, in any event, that Ms. Alemu
“testified that the boss did not say why he was raping her. . . . Accordingly, even if
she was raped, which is a horrible act, [she] has failed to connect such an act to any
protected basis under the asylum laws of the United States.” After careful review of
the record, we conclude that the credibility findings are supported by cogent reasons
and the ultimate findings are supported by substantial evidence. Therefore, the denial
of Ms. Alemu’s claim of past persecution must be upheld.
Future Persecution. When an applicant fails to prove past persecution, she
must prove a fear of future persecution that is both objectively and subjectively well-
founded. See Tawm v. Ashcroft, 363 F.3d 740, 743 (8th Cir. 2004). Ms. Alemu
argues that she proved a well-founded fear based upon her testimony that she was a
member of the OLF in Ethiopia who has continued to support the OLF since coming
to the United States; her father was an OLF founder; her brother is in the OLF army;
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she was raped and detained on account of her political opinion; and her mother has
twice been detained since she left the country.
The IJ found that Ms. Alemu failed to prove a well-founded fear of future
persecution on account of her ethnicity or political beliefs. The IJ discredited Ms.
Alemu’s unsupported claim that her mother has twice been detained in recent years
and discounted the testimony of OLF involvement. The IJ found it significant that
Ms. Alemu held a government job for many years and obtained a valid passport and
exit visa in February 1999 but did not leave Ethiopia to seek medical treatment in the
United States until October 1999. Rather than establish a well-founded fear, the IJ
found that Ms. Alemu “has made up, embellished, stories of OLF participation of her
and her family members so as to create a claim for asylum in the United States.”
On appeal, Ms. Alemu criticizes the IJ’s adverse credibility findings and then
assumes the truth of all her testimony in arguing that she proved a well-founded fear
of future persecution. However, the IJ gave cogent reasons for discrediting Ms.
Alemu’s essentially unsupported claims of persecution or fear of persecution on
account of her ethnicity and support of the OLF. Department of State reports in the
administrative record state that the Oromos are the largest ethnic group in Ethiopia,
that Oromos are not persecuted for their ethnicity alone, and that rank-and-file
membership in the OLF is tolerated. The IJ “reasonably may rely upon the State
Department’s assessment of current country conditions as they relate to the likelihood
of future persecution, given the Department’s expertise in international affairs.”
Navarijo-Barrios v. Ashcroft, 322 F.3d 561, 564 (8th Cir. 2003). Ms. Alemu
remained in Ethiopia for years after she testified that she first began to fear the
government. Her mother, sisters, aunts and uncles, and her adopted daughter
continue to live in Ethiopia unharmed -- except for alleged detentions of the mother
that the IJ found not credible -- despite being OLF members related to an alleged OLF
founder. On this record, substantial evidence clearly supports the IJ’s ultimate
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finding that Ms. Alemu failed to prove that she has a well-founded fear of future
persecution if removed to Ethiopia.
II. Withholding of Removal Claim
To be eligible for withholding of removal, Ms. Alemu must show that her “life
or freedom would be threatened” in Ethiopia “because of [her] race, religion,
nationality, membership in a particular social group, or political opinion.” 8 U.S.C.
§ 1231(b)(3)(A). The burden of proof that an alien is eligible for withholding of
removal is more demanding than that for asylum -- here, Ms. Alemu must prove a
“clear probability” of persecution on account of her ethnicity or OLF membership if
she is removed to Ethiopia . See Krasnopivtsev v. Ashcroft, 382 F.3d 832, 840 (8th
Cir. 2004). As Ms. Alemu failed to meet the less demanding burden of proof for
asylum, we must likewise uphold the denial of her claim for withholding of removal.
III. Convention Against Torture Claim
An alien is eligible for relief under the CAT if she shows “that it is more likely
than not . . . she would be tortured if removed to the proposed country of removal,”
here, Ethiopia. 8 C.F.R. § 208.16(c)(2). Torture is narrowly defined as an extreme
form of cruel and inhuman treatment intentionally inflicted by or with the
acquiescence of a public official. See 8 C.F.R. § 208.18(a)(1); Aden v. Ashcroft, 396
F.3d 966, 969 (8th Cir. 2005). Ms. Alemu argues that she proved past torture by her
testimony of brutal rape and detention under inhumane prison conditions. But the IJ
found this testimony for the most part not credible. Moreover, Ms. Alemu’s
testimony that she was raped, if credited, proves a single criminal act by one
individual but not the likelihood of future torture. See Ngure v. Ashcroft, 367 F.3d
975, 992-93 (8th Cir. 2004); Melgar de Torres v. Reno, 191 F.3d 307, 313 (2d Cir.
1999). Substandard prison conditions are not a basis for CAT relief “unless they are
intentionally and deliberately creat[ed] and maintain[ed] . . . in order to inflict
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torture.” In re J-E-, 23 I. & N. Dec. 291, 301 (BIA 2002). Unlike the Ethiopian
petitioner in Zewdie v. Ashcroft, 381 F.3d 804 (8th Cir. 2004), Ms. Alemu was not
repeatedly beaten with whips and sticks while in prison, nor was she threatened with
reprisal if she left the county.
Finally, Ms. Alemu urges us to remand her CAT claim because the IJ did not
independently analyze this request for relief. See Habtemicael v. Ashcroft, 370 F.3d
774 (8th Cir. 2004). However, separate analysis is required only when there is
evidence that the alien might be tortured for reasons unrelated to her claims for
asylum and withholding of removal, such as previously deserting the military of the
country to which she will be removed. Aden, 396 F.3d at 969. Here, Ms. Alemu
presented the same factual basis for all three claims. Therefore, the IJ’s adverse
findings that warranted denial of asylum and withholding of removal warrant the
denial of CAT relief as well. Those findings are supported by substantial evidence on
the administrative record as a whole. The denial of CAT relief must be upheld.
We deny the petition for review.
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