Chebude v. Ashcroft

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 03-2370
AZEB GEBRE CHEBUDE,
Petitioner,
v.
JOHN ASHCROFT, Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Lipez, and Howard,
Circuit Judges.
Genet Getachew on brief for petitioner.
Earle B. Wilson, Senior Litigation Counsel, Office of
Immigration Litigation, Terri J. Scadron, Assistant Director, and
Peter D. Keisler, Assistant Attorney General, on brief for
respondent.
August 10, 2004
LYNCH, Circuit Judge. Petitioner Azeb Gebre Chebude, a
native and citizen of Ethiopia, is of Eritrean descent. In July
2000, shortly after a two-year war between Ethiopia and Eritrea
ended, Chebude left Ethiopia and attempted to enter the United
States using fraudulent documents. The INS detained her and
commenced removal proceedings. Chebude conceded removability but
sought asylum, withholding of removal, and protection under the
Convention Against Torture ("CAT") on the ground that, as a person
of Eritrean origin, she would face discrimination and potential
deportation to Eritrea upon her return. An Immigration Judge
denied each form of relief on March 19, 2002. Chebude appealed the
denial of her asylum claim to the Board of Immigration Appeals
(BIA), which affirmed the IJ's decision on September 8, 2003.
Because a number of Chebude's arguments on appeal were not raised
in her briefs to the BIA, and substantial evidence supports the
BIA's rejection of those arguments that she did raise, we affirm.
I.
Fighting between Ethiopia and Eritrea broke out in 1998.
Chebude, who was the sole witness at her removal hearing, testified
that her mother is Eritrean and her father is Amharic. Chebude
testified that she lost her job as a secretary in August 1999
because her employer was afraid he would be investigated by the
government for hiring Eritreans. She further testified that, also
in August 1999, the police arrested two of her three brothers and
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forcibly deported them. Although she, her mother, and Yadic, her
remaining brother, were present during one of the arrests, they
were not taken. According to Chebude, her mother was too elderly
and Yadic was too sick to be taken, and Chebude herself was not
taken because she was the only person available to care for them.
Over the next several months, she said, the Ethiopian
police came repeatedly to her house to deport her. The first time,
she testified, she was at the hospital caring for Yadic, so they
did not find her. The second time, she testified, they again did
not take her because Yadic had recently passed away and she was in
mourning. After the forty-day mourning period had passed, she went
into hiding. During that time, she testified that her mother told
her that government agents had twice come to their house to inquire
as to her whereabouts.
According to the State Department's country conditions
report for Ethiopia in 2001, the conflict between Ethiopia and
Eritrea lasted through June 2000, when the two nations signed an
agreement ending hostilities. The report notes that during the
conflict, many Ethiopians of Eritrean origin lost their jobs and
access to government services, and as many as 75,000 were detained
and forcibly deported. The report goes on to note that "the
Government stopped forcibly deporting Eritreans and Ethiopians of
Eritrean origin after it signed the cessation of hostilities
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agreement with Eritrea in June 2000" and that 2,892 such persons
were repatriated in 2000.
On March 19, 2002, the IJ denied Chebude's petition for
asylum and withholding of departure. Although he found Chebude to
be a "credible witness," he concluded that she lacked a well-
founded fear of future persecution. He determined that the
evidence was not sufficient to demonstrate that Chebude had been
subjected to past persecution. He described Chebude's allegations
that authorities repeatedly tried to deport her as "speculative"
and noted that, in any event, she had not been deported. The IJ
also determined that Chebude was unlikely to be persecuted upon her
return, citing State Department country conditions reports that
Ethiopia and Eritrea had signed a peace agreement and that Ethiopia
had stopped deporting individuals of Eritrean descent. The IJ
further stated that "[t]here is no evidence that Ethiopians [of]
Eritrean descent are being denied housing or education or
employment at the present time" and that Chebude's evidence on that
point was "strictly an[ec]dotal and unsubstantiated." In addition,
the IJ denied Chebude's CAT petition on the ground that there was
no evidence that Chebude faced torture upon her return to Ethiopia.
On April 9, 2002, Chebude appealed from the IJ's denial
of her petition for asylum. She did not challenge the IJ's denial
of her petition for withholding of departure or CAT protection. In
her brief to the BIA, she stated, "The only issue in the instant
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case is whether conditions have changed in the Respondent's country
. . . to permit the Respondent to return to her country of
nationality without fear." She argued that the "INS has not
established by preponderance of evidence [that] the government of
Ethiopia has stopped deporting Ethiopians of Eritrean origin."
Chebude's brief did not challenge the IJ's finding that she had not
suffered past persecution or the IJ's conclusion that there was no
evidence that Ethiopians of Eritrean descent were still being
denied housing, education, and employment at that time.
On September 8, 2003, the BIA affirmed the IJ's denial of
asylum. The BIA held that Chebude bore the burden of demonstrating
a well-founded fear of future persecution "because the Immigration
Judge correctly determined that she did not establish past
persecution." Citing the State Department's country conditions
report, the BIA determined that Chebude had not met that burden.
II.
We review the BIA's decision under the deferential
substantial evidence standard. Pieterson v. Ashcroft, 364 F.3d 38,
43 (1st Cir. 2004). Under that standard, we must affirm the BIA
unless the evidence not only supports a contrary conclusion, but
compels it. Id.; see also INS v. Elias-Zacarias, 502 U.S. 478, 481
(1992). Where, as here, the BIA adopted the IJ's reasoning, we
review that reasoning as if it were articulated by the BIA in the
first instance. Pieterson, 364 F.3d at 43 n.2.
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To be eligible for asylum, an applicant bears the burden
of establishing that she meets the statutory definition of a
refugee under 8 U.S.C. § 1101(a)(42)(A). See 8 C.F.R. § 208.13(a).
To satisfy that definition, the applicant must demonstrate "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); see also 8 C.F.R. §
208.13(b); Khem v. Ashcroft, 342 F.3d 51, 53 (1st Cir. 2003). That
fear can be demonstrated in two ways. First, the applicant can
demonstrate past persecution on one of the five statutory grounds.
Such a showing creates a presumption of a well-founded fear of
future persecution. 8 C.F.R. § 208.13(b)(1); Khem, 342 F.3d at 53.
Second, the applicant can establish a genuine and objectively
reasonable fear of future persecution. 8 C.F.R. § 208.13(b)(2); El
Moraghy v. Ashcroft, 331 F.3d 195, 202-03 (1st Cir. 2003).
Chebude contends that she has met her burden here. She
raises two new arguments regarding her asylum claim that were not
articulated in her brief to the BIA: (1) that she demonstrated past
persecution based on the deportation of her brothers and the
Ethiopian government's repeated attempts to deport her, and (2)
that she established a genuine and objectively reasonable fear
that, as an Ethiopian of Eritrean origin, she would be deprived of
housing, employment, access to government services, her right to
vote, and her citizenship if returned to Ethiopia. We decline to
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consider either argument. Arguments not raised to the BIA are
waived for failure to exhaust administrative remedies. Opere v.
INS, 267 F.3d 10, 14 (1st Cir. 2001); Bernal-Vallejo v. INS, 195
F.3d 56, 64 (1st Cir. 1999). That Chebude mentioned these
arguments in her notice of appeal to the BIA does not excuse her
failure to raise them in her brief to the BIA. See Cumberland
Farms, Inc. v. Montague Econ. Dev. and Indus. Corp., 78 F.3d 10, 12
n.1 (1st Cir. 1996) (holding that appellant waived an issue raised
in its notice of appeal when it did not refer to the issue in its
brief).
The only argument that Chebude raised to the BIA was that
the State Department's country conditions report did not suffice to
negate her genuine and objectively reasonable fear of deportation
upon her return to Ethiopia. Substantial evidence supports the
BIA's rejection of this argument. The 2001 country conditions
report states that "the Government stopped forcibly deporting
Eritreans and Ethiopians of Eritrean origin after it signed the
cessation of hostilities agreement with Eritrea in June 2000" and
that 2,892 such persons were repatriated in 2000. It also states
that 80,000 to 100,000 individuals of Eritrean descent continued to
reside in Ethiopia as of the date of the report in 2001. Chebude
conceded in her testimony to the IJ that "[a]t this moment
currently the government is not directly deporting people from
Ethiopia to Eritria."
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The country conditions report does mention that
"Ethiopians of Eritrean origin have been able to obtain exit visas
[to leave Ethiopia] but often are not permitted to return to the
country." That statement, though, does not indicate that Ethiopia
has resumed deportations. There are concerns that the peace
between Eritrea and Ethiopia may not last. But we cannot say that
those concerns compel the conclusion that Chebude would likely face
deportation upon returning to Ethiopia.
Chebude also argues that she is entitled to withholding
of departure. That claim has been waived, as she did not challenge
the IJ's denial of that relief in her petition to the BIA. Opere,
267 F.3d at 14.
III.
The BIA's denial of asylum is affirmed.
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