Habtedengil v. Ashcroft

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
SEP 13 2004
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
LEYKUN TEKLETSION
HABTEDENGIL,
Petitioner,
v. No. 03-9543
(No. A75-390-821)
JOHN ASHCROFT, Attorney General (Petition for Review)
of the United States,
Respondent.
ORDER AND JUDGMENT *
Before KELLY , Circuit Judge, BRORBY , Senior Circuit Judge, and BRISCOE ,
Circuit Judge.
Petitioner Leykun Tekletsion Habtedengil, an Ethiopian native of Amharic
ethnicity, seeks review of a decision of the Board of Immigration Appeals (BIA)
dismissing his appeal from the denial of his application for asylum and
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
withholding of removal. 1
Mr. Habtedengil raises three issues on appeal. He
asserts (1) the BIA committed error in relying on the IJ’s adverse credibility
finding because it was not supported by substantial evidence in the record ; (2) the
BIA committed error by imposing an unreasonable and unduly burdensome
standard of proof on him; and (3) the BIA’s decision is not supported by
substantial evidence because it fails to rule on and ignores significant evidence
pertinent to his asylum application and to those similarly situated in Ethiopia.
Because the BIA’s conclusion, that Mr. Habtedengil failed to establish past
persecution or a well-founded fear of future persecution, was not contrary to what
a reasonable factfinder would have been compelled to conclude, we deny his
petition for review.
In 1992, Mr. Habtedengil joined a government-opposition group called the
All Amhara People’s Organization (AAPO). Over time he became, in his words,
“a prominent leader and organizer” of this political organization. Admin. R.
at 417. According to Mr. Habtedengil, he was twice arrested by members of the
Ethiopian government due to his AAPO involvement. Both times he was
1
As a preliminary matter, we note that Mr. Habtedengil has waived any
argument with respect to the denial of his request for withholding of removal
because he did not raise that issue before the BIA. Rivera-Zurita v. INS , 946 F.2d
118, 120 n.2 (10th Cir. 1991) (holding that “[t]he failure to raise an issue on
appeal to the Board constitutes failure to exhaust administrative remedies . . . and
deprives the Court of Appeals of jurisdiction to hear the matter”). This
disposition therefore considers only the denial of asylum.
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purportedly interrogated and severely beaten on a daily basis. He was first
arrested in September 1994. After being held for twenty-eight days, the Ethiopian
government released him, but insisted he refrain from participating in opposition
activities or face harsher punishment in the future. Mr. Habtedengil was arrested
again in May 1996. He maintains that he was beaten much more brutally during
this detention than during his first. After another stern warning not to participate
in opposition activities, the Ethiopian government released him on December 9,
1996. He claims he was “barely alive” when he “was finally released,” and that
as a condition of his release, he was made to sign an agreement that if summoned
by the Ethiopian government, he would make himself available for further
interrogation. Id. at 423.
On February 17, 1997, Mr. Habtedengil received such a summons; it
allegedly caused him to fear for his life. Several days later he fled Ethiopia and
entered the United States on a visitor’s visa, leaving behind his wife, two
children, and other family members. In May 1997, he filed an application for
asylum and withholding of removal, alleging the Ethiopian government
persecuted him because of his political opinion. The INS 2
thereafter served
2
“The INS ceased to exist on March 1, 2003, and its functions were
transferred to the U.S. Citizenship and Immigration Services (“USCIS”) within
the newly formed Department of Homeland Security.” Sviridov v. Ashcroft ,
358 F.3d 722, 724 n.1 (10th Cir. 2004).
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Mr. Habtedengil with a notice to appear, asserting that he was removable under
8 U.S.C. § 1227(a)(1)(B), because he had overstayed his visitor’s visa. At a
master calendar proceeding Mr. Habtedengil conceded removability but sought
asylum and withholding of removal. After a merits hearing, an immigration judge
(IJ) issued an oral decision denying Mr. Habtedengil’s application for asylum and
withholding of removal, but granting voluntary departure. Mr. Habtedengil timely
appealed to the BIA, which dismissed his appeal on March 31, 2003. This
petition for review followed. Our jurisdiction arises under 8 U.S.C. § 1252(a).
“A request for asylum involves a two-step process.” Krastev v. INS ,
292 F.3d 1268, 1270-71 (10th Cir. 2002); see also 8 U.S.C. § 1158 (Asylum).
First, the applicant has the burden, 8 C.F.R. § 208.13(a), of proving that he is a
“refugee” as defined in 8 U.S.C. § 1101(a)(42)(A). There are three ways an
applicant can establish refugee status, two of which are relevant here: by
showing that, on account of his “race, religion, nationality, membership in a
particular social group, or political opinion,” (1) he has a “well-founded fear of
[future] persecution,” 8 U.S.C. § 1101(a)(42)(A), or (2) he “has suffered past
persecution, which gives rise to a [rebuttable] presumption that he . . . has a
well-founded fear of future persecution.” Krastev, 292 F.3d at 1270. Once an
applicant establishes refugee status, then at step two of the process, “the Attorney
General exercises discretionary judgment in either granting or denying asylum.”
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Id. at 1271. Because Mr. Habtedengil failed to demonstrate refugee status at
step one,
our review is limited, in breadth, to that threshold determination.
Our review is further limited, in depth, to evaluating whether the
record on the whole provides substantial support for that
determination or, rather, is so decisively to the contrary that a
reasonable factfinder would have concluded petitioner is a refugee.
Vatulev v. Ashcroft , 354 F.3d 1207, 1209 (10th Cir. 2003) (citation omitted); see
also 8 U.S.C. § 1252(b)(4)(B) (stating that “administrative findings of fact are
conclusive unless any reasonable adjudicator would be compelled to conclude to
the contrary”). In accordance with our deferential standard of review, we will
neither “weigh the evidence” nor “question the immigration judge’s or BIA’s
credibility determinations so long as they are substantially reasonable,”
Woldemeskel v. INS , 257 F.3d 1185, 1192 (10th Cir. 2001), and “specific, cogent”
reasons substantiate an adverse credibility finding, Sviridov , 358 F.3d at 727.
I.
Mr. Habtedengil asserts that the BIA committed error in relying on the IJ’s
adverse credibility finding because it was not supported by substantial evidence in
the record. We disagree. While acknowledging that there are problems in
Ethiopia, the IJ found incredible that (1) throughout Mr. Habtedengil’s tenure
with the AAPO, he was employed by an air carrier run by the Ethiopian
government, Ethiopian Airlines, which promoted him in 1994 and again in 1996;
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(2) Ethiopian Airlines allowed him to return to work after both of his arrests by
the Ethiopian government in 1994 and 1996; (3) he took five international trips
between 1992 and 1996, but did not seek asylum on any of those occasions;
(4) although the Ethiopian government was allegedly seeking Mr. Habtedengil,
all of the documents he used to flee Ethiopia were in his name; and (5) the
Ethiopian government is persecuting AAPO members even though the State
Department Report on Ethiopia indicates that the AAPO is a registered political
party that opposes the government, has its own newspaper broadcasting its
opposition to the regime, and is represented in the national government by four or
five cabinet members. The record on the whole provides substantial support for
the BIA’s reliance on the IJ’s adverse credibility determination. Thus, we cannot
say that it was substantially unreasonable.
II.
In dismissing Mr. Habtedengil’s appeal, the BIA held:
Overall, we agree with the Immigration Judge that the testimony, of
limited credibility and lacking in detail, combined with the
inadequate documentary support, provides insufficient evidence to
meet the overall burden of proof. This is particularly true where the
respondent claims to have had a rather high position in a political
organization, yet has been unable to provide very much support to
this claim, other than documentation of questionable authenticity and
a photo of himself with a party leader.
Admin. R. at 3. Mr. Habtedengil takes issue with this holding, arguing that the
BIA erred by imposing an unreasonable and unduly burdensome standard of proof
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on him, which was contrary to existing law. He first notes that an applicant’s
testimony, “if credible . . . may be sufficient to sustain the [applicant’s] burden of
proof without corroboration.” 8 C.F.R. § 208.13(a). But, as we have already
explained, substantial evidence supports the BIA’s reliance on the IJ’s
determination that Mr. Habtedengil’s testimony was incredible.
Mr. Habtedengil goes on to assert that the BIA’s dismissal of his
“corroborative evidence as ‘inadequate’ to meet [his] burden of proof” does not
comport with the standards established in Matter of S-M-J , 21 I. & N. Dec. 722
(BIA 1997). Pet’r Br. at 16. In Matter of S-M-J the BIA held, in pertinent part,
that
where it is reasonable to expect corroborating evidence for certain
alleged facts pertaining to the specifics of an applicant’s claim, such
evidence should be provided. That is, an asylum applicant should
provide documentary support for material facts which are central to
his or her claim and easily subject to verification . . . . If the
applicant does not provide such information, an explanation should
be given as to which such information was not presented.
21 I. & N. Dec. at 725.
Mr. Habtedengil contends the BIA violated its own precedent and
committed reversible error by: misunderstanding or ignoring the evidence he
submitted, failing to explain what other evidence he could have been reasonably
expected to submit, and failing to consider whether he had provided an adequate
explanation for evidence not submitted. We cannot agree. Mr. Habtedengil
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provided corroborating evidence, the BIA rejected it, and as such Matter of S-M-J
is not implicated.
Mr. Habtedengil bears the burden of proving a well-founded fear of future
persecution or that he has suffered past persecution. In shouldering this burden,
Mr. Habtedengil offered more than a half-dozen pieces of corroborating evidence
that the IJ explicitly indicated had been admitted into evidence, including (1) two
affidavits from individuals who know Mr. Habtedengil; (2) a psychological
evaluation of Mr. Habtedengil; (3) country condition evidence; (4) reports from
an individual who is an expert on Ethiopia; and (5) copies of Mr. Habtedengil’s
visa and passport. 3
On the whole, the record contains substantial evidence to
support the BIA’s agreement with the IJ’s conclusion that “the evidence presented
was not adequate to support [his] burden of proof,” Admin. R. at 2, and a
reasonable factfinder would not have been compelled to conclude otherwise.
III.
Finally, Mr. Habtedengil contends the BIA’s decision is not supported by
substantial evidence because it fails to rule on and ignores significant evidence
3
Mr. Habtedengil has chosen on appeal not to rely on three other pieces of
“corroborating” evidence found to be fraudulent by the respondent’s forensic
document expert: an AAPO membership letter, a police letter referencing his
second arrest, and the summons he purportedly received from the Ethiopian
government.
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pertinent to his asylum application and to those similarly situated in Ethiopia. He
claims the following evidence was “ignored”:
live testimony of an eye witness, the written affidavits of two
additional eye witnesses, a written report from an expert
[psychologist] indicating that [Mr. Habtedengil] suffers from Post
Traumatic Stress Syndrome, written testimony from expert witnesses
regarding country conditions in general, and the persecution of
AAPO members specifically, and extensive additional information
regarding country conditions, in addition to showing the IJ scars that
reflect injuries [Mr. Habtedengil] suffers as a result of torture.
Pet’r Opening Br. at 28. Mr. Habtedengil also contends that “it was error on the
part of the BIA to give such little significance to the photograph of the Petitioner
with the Vice President of the AAPO . . . .” Id. Although the BIA does not
specifically mention all of this evidence in its decision, “the BIA is not required
to discuss every piece of evidence when it renders a decision.” Hadjimehdigholi
v. INS , 49 F.3d 642, 648 n.2 (10th Cir. 1995). Moreover, there is nothing to
support Mr. Habtedengil’s claim that the BIA did not consider this evidence: the
IJ considered it, and the BIA agreed with the IJ’s evaluation of it. Thus, the BIA
did not err on this point. 4
4
For the first time in his reply brief, Mr. Habtedengil asserts that the BIA
committed error by refusing to consider supplemental evidence he provided while
his case was pending; but, by not raising “this issue in his opening brief . . . [he]
has waived the point.” State Farm Fire & Cas. Co. v. Mhoon , 31 F.3d 979, 984
n.7 (10th Cir. 1994).
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Having reviewed the record in accordance with the prescribed deferential
standard of review, we hold “that petitioner has failed to carry the heavy burden
placed on those challenging adverse asylum determinations.” Vatulev , 354 F.3d
at 1208. The petition for review is DENIED.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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