Kebe, Getu Hailu v. Gonzales, Alberto R.

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued June 1, 2005
Decided June 15, 2005
Before
Hon. DANIEL A. MANION, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 04-3179
GETU HAILU KEBE and GEDAM Petition for Review of an Order of the
TESFAYE AYELE, Board of Immigration Appeals
Petitioners,
Nos. A79 290 810, A79 290 811
v.
ALBERTO R. GONZALES,
Respondent.
ORDER
Ethiopian citizens Getu Kebe and wife Gedam Ayele illegally entered the
United States in September 2000 and applied for asylum. In November 2002 an
immigration judge denied their application. Kebe and Ayele appealed to the Board
of Immigration Appeals, which affirmed the IJ’s decision without opinion. Instead
of petitioning for review to this court, they filed with the BIA a motion to reconsider
that highlights perceived errors by the IJ and cites Niam v. Ashcroft, 354 F.3d 652
(7th Cir. 2004), a case decided while their appeal was pending. The BIA denied the
motion, reasoning that it was untimely and, in any event, failed to identify any
factual or legal errors in the BIA’s affirmance. Kebe petitioned for review of the
BIA’s denial of their motion for reconsideration. We deny the petition.
No. 04-3179 Page 2
BACKGROUND
Kebe and Ayele entered the United States without documentation.
Removability was established, and they applied for asylum. Ayele’s application is
derivative of her husband’s. Kebe is a 35-year-old man of Oromo ethnicity, and he
and Ayele have two children, both born in the United States. Kebe claimed that if
he was returned to Ethiopia, he would be persecuted because of his ties to the
Oromo Liberation Front (OLF) and his Oromo ethnicity.
In 1977, Mengistu Halle Mirium orchestrated an attack that killed
thousands of government opponents, and the Tigrayan People’s Liberation Front
launched a war for regional autonomy. In 1991, the Ethiopian People’s
Revolutionary Democratic Front (EPRDF) captured Addis Ababa, forcing Mengistu
to leave the country. The EPRDF, the OLF, and others established a transitional
government, but the OLF withdrew in 1992. In 1994, Ethiopia was divided into
ethnically-based regions, and in 1995 Negasso Gidada (an Oromo) became
president and Meles Zenawi became prime minister.
Kebe testified at the asylum hearing that he fears returning to Ethiopia for
two reasons: (1) he believes he will be persecuted for his father’s role as a colonel in
the former Mengistu regime; and (2) he was involved with the OLF as a supporter
since 1995 and a member since 1996. According to the State Department’s 1997
county report on Ethiopia, the OLF is an organization whose “primary interest
appears to be getting a share of political power, especially in the Oromo regional
state.” As a businessman Kebe frequently traveled into the countryside of Ethiopia.
During these trips, he was able to talk with the OLF members and convey messages
from his hometown of Addis Ababa, the capital of Ethiopia.
Kebe testified about two encounters with government authorities before he
left Ethiopia. The first occurred in December 1998 when he was arrested and
questioned regarding his association with the OLF. During the interrogation, Kebe
denied being a member or supporter of the OLF. Kebe was questioned for 24 hours
but then released with a warning not to tell anyone about the episode. He was also
instructed to remain in Addis Ababa and report to the police station each week.
Kebe complied for eight months but then stopped reporting to the police station
because the directive was interfering with his business and causing him to lose
profits.
Kebe’s second encounter occurred in December 1999 when authorities
arrested him at his office and imprisoned him. For two months, he was questioned
about supporting the OLF and his reasons for ending his weekly visits. He was also
beaten repeatedly with rubber truncheons and when he screamed, the police stuffed
socks in his mouth. When he finally was released, the police ordered him to report
to the station every three days. Kebe did so while planning his escape.
No. 04-3179 Page 3
The IJ found Kebe credible but concluded that he did not suffer past
persecution or have a well-founded fear of future persecution. Regarding past
persecution, the IJ reasoned that the evidence left unclear whether the “sole basis”
for Kebe’s second arrest was his alleged OLF ties or his disregard of the directive to
report to the police weekly. The IJ concluded, without further explanation, that he
was most likely detained for violating the reporting requirements and travel
restrictions, which in the IJ’s view would have constituted “detention related to
prosecution” rather than persecution. And, the IJ added, if Kebe was arrested and
detained because of his ties to the OLF—which the IJ characterized as a militant
group seeking a violent overthrow of the government—that would not help his case
because “mistreatment or investigation by a government does not establish
eligibility for asylum where the purpose of the mistreatment or the investigation
was to obtain information about militants who sought the violent overthrow of the
government rather than to punish the individual because of the person’s political
opinion.”
The IJ also concluded that Kebe did not have a well-founded fear of future
persecution. The IJ agreed with Kebe that the record contained “evidence of
significant turmoil in Ethiopia” but noted that the Ethiopian government’s efforts
“to learn about the OLF activities” would not constitute persecution given the
group’s goal of a violent overthrow of the current government. The IJ also reasoned
that since the leadership change in 1995, the government had been more open to
political groups that, unlike the OLF, have renounced violence. Even though the
government had jailed OLF members, most were released after renouncing
violence.
Kebe appealed the IJ’s decision to the BIA. As far as the record discloses,
counsel filed a notice of appeal but never submitted a brief to the BIA.
The BIA affirmed without opinion. Kebe did not petition for review. Instead he
filed a fourteen-page, single-spaced “motion for reconsideration” that addresses the
IJ’s decision. Its only reference to matters that might have been overlooked by the
BIA is a citation to Niam.
ANALYSIS
We review the BIA’s denial of a motion for reconsideration for abuse of
discretion. Laboski v. Ashcroft, 387 F.3d 628, 631 (7th Cir. 2004). Review is
limited to “‘whether the discretion was actually exercised and whether it was
exercised in an arbitrary or capricious manner.’” Id. (quoting Nwaokolo v. INS, 314
F.3d 303, 307 (7th Cir. 2002)). That question is answered by looking to the BIA’s
stated reasons for denying reconsideration, not by assessing its earlier opinion
affirming the decision of the IJ. See id. at 632.
No. 04-3179 Page 4
Timeliness
The government asserts that the BIA properly denied Kebe’s motion for
reconsideration because it was untimely. The BIA, in denying the motion, stated
that Kebe had until April 19, 2004—thirty days from its March 19 order affirming
the IJ—to file for reconsideration, but that the “record reflects . . . that the Board
did not receive the motion until April 20, 2004.” Kebe’s motion was stamped
“received” by the clerk at the BIA on April 20 at 8:41 a.m.
The BIA correctly stated that Kebe had thirty days from its decision to file
the motion to reconsider. 8 C.F.R. § 1003.2(b)(2). Kebe counters that his motion to
reconsider was timely because the Postal Service attempted delivery on April 19
but, he assumes, no one was available at the BIA to accept delivery of the package.
As evidence of an attempted delivery, Kebe includes in his appendix a “Track &
Confirm” email obtained from the Postal Service in August 2004 verifying that the
last shipment activity for a package with tracking number ER544236180US was a
“Notice Left” at a location in Falls Church, Virginia, on April 19, 2004, at 11:52 a.m.
The government responds that this email is not included in the administrative
record and, therefore, we cannot consider it. The government adds that the email,
even if it can be considered, does not link its tracking number to the motion for
reconsideration rather than some other article of mail.
The debate about the email is unnecessary. The administrative record
includes the “Addressee Copy” of the Express Mail label affixed to the motion to
reconsider when Kebe sent it to the BIA. The document, which the BIA apparently
stapled to Kebe’s motion after opening it, represents that a “delivery attempt” was
made to the BIA on April 19 at 11:52 a.m. Although the April 19 entry is noted as
an “attempt,” it would appear that delivery was actually made on that date since
the BIA obviously got the motion to reconsider and an additional space to record the
“delivery date” is blank. Most likely the delivery information was recorded on the
wrong line, but ultimately it does not matter. What is significant is that the record
establishes, at a minimum, that delivery was attempted (if not effected) on April 19
without regard to the email Kebe inserted into his appendix.
Demonstrating Errors of Law and Fact
In denying the motion for reconsideration, the BIA stated alternatively that,
“[e]ven if the motion had been timely, it would be denied because the respondents
have not demonstrated any error of fact or law in the Board’s decision.” Kebe
contests this conclusion.
In his motion to reconsider, Kebe argued that the IJ had incorrectly applied
the standard of proof regarding past and future persecution. Kebe contends that
the IJ believed persecution arises only from abuse motivated solely by race,
No. 04-3179 Page 5
religion, nationality, membership in a social group, or political opinion but argues
that this belief is erroneous because the BIA has held an asylum applicant does not
have to establish the exact motive for persecution. Kebe also argued that the IJ
applied the wrong standard of proof regarding his claim of a well-founded fear of
future persecution because the IJ stated that Kebe must prove that he would suffer
persecution because of his ties to the OLF. Kebe further contended that the IJ
wrongly concluded that, to establish a well-founded fear of future persecution, he
was required to prove that he would be persecuted, not just that he harbored a
genuine and objectively reasonable fear of persecution. See INS v. Cardoza-
Fonseca, 480 U.S. 421, 440 (1987).
The problem for Kebe is that his motion for reconsideration includes nothing
that was unavailable to him at the time of his appeal to the BIA; essentially he
used his motion for reconsideration to make the arguments he should have made
during his appeal to the BIA. Now he is trying to have this court overlook that
what is before it is a petition for review of the order denying his motion, not the
BIA’s order affirming the IJ’s decision. After the BIA affirmed the IJ’s decision,
Kebe should have petitioned this court for review of the BIA’s decision, as well as
filed the motion for reconsideration with the BIA. Filing a motion to reconsider
does not toll the time to seek judicial review of the IJ and BIA’s denial of relief.
Ahmed v. Ashcroft, 388 F.3d 247, 248 (7th Cir. 2004). In short, the IJ’s decision is
not before this court.
A proper motion for reconsideration asks the IJ to “reexamine its decision in
light of additional legal arguments, a change of law, or perhaps an argument or
aspect of the case which was overlooked.” Matter of Cerna, 20 I. & N. Dec. 399, 402
n.2 (BIA 1991) (internal quotation marks and citation omitted). What Kebe should
have done was submit his fourteen-page, detailed arguments as part of his original
appeal rather than waiting until after he lost. What is evident, though, is that
nothing in the motion to reconsider—except the citation to Niam—was unavailable
to Kebe during the appeal. See Ahmed, 388 F.3d at 251.
Apparently recognizing as much, Kebe now argues that Niam “provided
further additional legal argument” that was unavailable to him when he appealed
to the BIA. But simply reading Niam shows otherwise. The case does not develop
any novel issues of immigration law; Niam is merely an opinion that pokes multiple
holes in an IJ’s reasoning for denying asylum. Kebe cites Niam for the proposition
that it is irrelevant whether a member of the opposition party is active. But the IJ
did not deny Kebe’s claim for asylum because he was not an active member of the
OLF. The IJ denied asylum on the apparent premise that the Ethiopian
government was free to arrest, detain, and mistreat Kebe because he was a member
of the OLF, active or not. That premise is sound or unsound without regard to
Niam. Therefore, Kebe’s motion to reconsider failed to present errors of law or fact
that were unavailable to him at the time he filed his appeal to the BIA.
No. 04-3179 Page 6
CONCLUSION
Although the IJ’s decision is troubling, principally for the reason that the IJ
believed that the Ethiopian government was free to arrest, detain, and mistreat
members or supporters of the OLF, we may only review the BIA’s denial of Kebe’s
motion for reconsideration. Because Kebe did not present errors of law or fact to
the BIA in his motion for reconsideration, we DENY his petition for review.