Kende v. INS

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
BANCHI ALEM ANIMUT KENDE,
Petitioner,
v.
No. 98-1889
U.S. IMMIGRATION & NATURALIZATION
SERVICE,
Respondent.
On Petition for Review of an Order
of the Board of Immigration Appeals.
(A71-799-180)
Submitted: December 29, 1998
Decided: January 20, 1999
Before WIDENER, MURNAGHAN, and MOTZ, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Richard S. Fishbein, LAW OFFICE OF DAVID GARFIELD, Wash-
ington, D.C., for Petitioner. Frank W. Hunger, Assistant Attorney
General, Civil Division, Brenda E. Ellison, Senior Litigation Counsel,
Ernesto H. Molina, Jr., Office of Immigration Litigation, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Petitioner Banchi Alem Animut Kende seeks review of the final
order of deportation issued by the Board of Immigration Appeals
(BIA or Board). Kende's petition assigns error to the Board's deter-
mination that she did not provide credible evidence to support her
request for asylum. Finding no error, we affirm the Board's order.
Kende is a citizen of Ethiopia. She left Ethiopia in 1991 and
arrived in the United States using a student visa. In Ethiopia, Kende
lived with her parents in Addis Ababa. Kende contends that her father
was a prominent political figure in the previous political regime and
was a former Mengistu official. Kende alleged that she and her family
suffered persecution from the new government.
The Immigration and Nationality Act (Act) authorizes the Attorney
General, in her discretion, to confer asylum on any refugee. See 8
U.S.C.A. § 1158(a) (West Supp. 1998). The Act defines a refugee as
a person unwilling or unable to return to her native 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.A. § 1101(a)(42)(A) (West Supp. 1998);
see M.A. v. INS, 899 F.2d 304, 307 (4th Cir. 1990) (en banc).
The "well-founded fear of persecution" standard contains both a
subjective and an objective component. An applicant may satisfy the
subjective element by presenting "``candid, credible, and sincere testi-
mony' demonstrating a genuine fear of persecution." Berroteran-
Melendez v. INS, 955 F.2d 1251, 1256 (9th Cir. 1992) (citation omit-
ted); see Figeroa v. INS, 886 F.2d 76, 79 (4th Cir. 1989). The objec-
tive element requires a showing of specific, concrete facts that would
lead a reasonable person in like circumstances to fear persecution. See
Huaman-Cornelio v. Board of Immigration Appeals, 979 F.2d 995,
999 (4th Cir. 1992).
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A finding of past persecution creates a rebuttable presumption of
a well-founded fear of future persecution. See 8 C.F.R. § 208.13(b)(1)
(1998). This presumption may be rebutted by evidence demonstrating
that there is no longer a reasonable fear of future persecution, such as
when conditions in an alien's native country have changed signifi-
cantly. See 8 C.F.R. § 208.13(b)(2) (1998).
Eligibility for asylum can also be based on grounds of past perse-
cution alone even though there is "``no reasonable likelihood of pres-
ent persecution.'" Baka v. INS, 963 F.2d 1376, 1379 (10th Cir. 1992)
(quoting Rivera-Cruz v. INS, 948 F.2d 962, 969 (5th Cir. 1991)). To
establish such eligibility, an alien must show past persecution so
severe that repatriation would be inhumane. Id. ; see Matter of Chen,
20 I. & N. Dec. 16 (BIA 1989).
We must uphold the Board's determination that Kende is not eligi-
ble for asylum if the determination is "supported by reasonable, sub-
stantial, and probative evidence on the record considered as a whole."
8 U.S.C. § 1105a(a)(4) (1994). We accord the Board all possible def-
erence. See Huaman-Cornelio, 979 F.2d at 999. The decision may be
"reversed only if the evidence presented by [Kende] was such that a
reasonable factfinder would have to conclude that the requisite fear
of persecution existed." INS v. Elias-Zacarias, 502 U.S. 478, 481
(1992).
On appeal, Kende only asserts that the Board erred in finding that
her testimony before the IJ was not credible regarding a rape she
alleged that she suffered by two Ethiopian government soldiers. An
IJ's credibility determination is granted substantial deference and is
reviewed under a substantial evidence standard. See Figeroa v. INS,
886 F.2d 76, 78 (4th Cir. 1989).
In reviewing Kende's request for asylum, the Board found she
lacked credibility because her testimony contained material inconsis-
tencies with her asylum application. The Board noted that the main
focus of Kende's application was that she was raped by two Ethiopian
soldiers in May 1991 because of her association with her father. The
Board found that Kende did not state in her asylum application or
detailed statement attached to her application that soldiers raped her
due to her family's political associations. The Board also noted the
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inconsistency that, in her asylum application, Kende alleged that local
villagers chased and harassed her because of her suspicions that she
was providing secret information to communists, but she did not tes-
tify to this at the IJ hearing.
Kende alleged that her testimony before the IJ regarding the rape
was not inconsistent with her asylum application. The application
stated that members of her family had been "sexually harassed."
Kende argued to the Board that she did not use the word "rape" or
specifically include herself in the allegation because Ethiopian society
treats rape as taboo or extremely embarrassing. The Board found that
this did not explain why she did not provide the information to United
States officials, particularly considering the gravity of the proceed-
ings. In addition, the application did state that Kende's friend was
raped, so the word rape was used regardless of its humiliating effect.
Finally, Kende's attorney admitted that he did not know that Kende
was raped until less than ten days before the hearing. Considering
these inconsistencies cited by the Board, we find substantial evidence
supports its adverse credibility determination.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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