Gemeda, Aman T. v. Gonzales, Alberto

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued January 6, 2006
Decided March 15, 2006
Before
Hon. Frank H. Easterbrook, Circuit Judge
Hon. Daniel A. Manion, Circuit Judge
Hon. Diane P. Wood, Circuit Judge
No. 05-1202 Petition for Review of a Decision of the
Board of Immigration Appeals
Aman T. Gemeda,
Petitioner, No. A95 405 659
v.
Alberto Gonzales, Attorney General of the
United States,
Respondent.
ORDER
Aman Gemeda, a native and citizen of Ethiopia and a supporter of the Oromo Liberation
Front, sought asylum, withholding of removal, and relief under the Convention Against Torture.
An Immigration Judge, after discounting Gemeda’s credibility, denied his application,
concluding that the complained-of conduct did not rise to the level of persecution. The Board of
Immigration Appeals affirmed. Gemeda appeals to this court. We DENY Gemeda’s petition for
review.
No. 05-1202 Page 2
I.
Aman Gemeda, who was born on July 14, 1973, in Bekoji, Ethiopia, is an ethnic Oromo.
While enrolled in college in Alemaya, Ethiopia in the early 1990’s, Gemeda supported the
Oromo Liberation Front (“OLF”), attending meetings and recruiting supporters. The OLF
originally participated in the political process in Ethiopia. However, as elections approached in
1992, the OLF withdrew its support from the process, claiming its candidates were harassed and
attacked. The OLF then declared war on the transitional Ethiopian government.
According to Gemeda, after the OLF declared war on the transitional government, the
government sent troops to Alemaya in search of student supporters of the OLF. Gemeda claims
that he and two other students were detained and interrogated for fifteen days, and that during
their detention, they were beaten with gun butts to coerce them to admit their OLF membership.
However, Gemeda was released after denying involvement in the OLF. Because of the incident,
Gemeda stopped openly supporting the OLF. He then finished his studies at Alemaya
University, graduated, and obtained a job, first with the Ethiopian Ministry of National
Resources and later with the Ministry of Agriculture.
About three years later, while still working for the government, Gemeda claims that
members of the rival political group, the Oromo People’s Democratic Organization (“OPDO”),
watched him to see if he was spreading OLF ideology or was recruiting members for the OLF.
Following several confrontations between the OLF and the government (none of which involved
Gemeda), Gemeda sought a safer haven, leaving Ethiopia for Ireland, where he entered a
Master’s degree program.
While in Ireland, Gemeda claims that he began communicating with an OLF student
studying in London and another living in the United States. He further claims that he tried to
organize an OLF student organization but that too few Oromos attended his school, so these
efforts failed. In June 2001, Gemeda returned to Ethiopia to conduct field research for his
Master’s program. While there, Gemeda claims that the OPDO interrogated him for three days,
during which time he was beaten. Two months later, on August 19, 2001, Gemeda returned to
Ireland.
On January 27, 2002, Gemeda entered the United States on a non-immigrant temporary
visa, which authorized him to remain here until February 28, 2002. On February 11, 2002,
Gemeda filed an application for asylum, withholding of removal and for relief under the
Convention Against Torture (“CAT”). On July 31, 2003, after hearing the above evidence, an
Immigration Judge (“IJ”) denied Gemeda’s application for asylum, and withholding of removal
and relief under the CAT. After noting that Gemeda’s claims of persecution were exaggerated
and possibly false, the IJ concluded that even if he were credible, Gemeda was not entitled to
asylum or withholding of removal because “the incidents, even if they are true, [did not] rise to
No. 05-1202 Page 3
the level [of] past persecution.” The IJ further concluded that because the conduct did not rise to
the level of persecution, it did not satisfy the higher “torture” standard required for relief under
CAT.
Gemeda appealed to the Board of Immigration Appeals (“Board”), arguing that the IJ
erred in its credibility assessment and in its conclusion that Gemeda had not suffered past
persecution for his support of the OLF. The Board concluded that it need not resolve the issue of
credibility because, even assuming that Gemeda was credible, the conduct at issue did not rise to
the level of persecution. Gemeda appeals.
II.
On appeal, Gemeda first argues that this court cannot review the Board’s decision and
must instead remand the case for further proceedings because the Board did not review the IJ’s
credibility determination or decide whether substantial evidence supported the IJ’s credibility
findings. Gemeda’s argument is somewhat baffling. The IJ assumed that even if Gemeda’s
testimony was credible, these facts did not rise to the lever of persecution. In reviewing
Gemeda’s case, the Board likewise assumed that he was credible and fully accepted his version
of the facts. Yet, even accepting as true Gemeda’s claims, the Board concluded that Gemeda did
not establish past persecution. Under these circumstances, because Gemeda’s credibility is
immaterial, there is no need to remand. Cf., Kayembe v. Ashcroft, 334 F.3d 231, 235 (3d Cir.
2003) (holding that where the Board did not adopt the IJ’s credibility finding, an appellate court
should review the Board’s decision with the assumption that the petitioner was credible.)
On the merits, the Board concluded that Gemeda was not entitled to asylum or
withholding of removal because he did not establish past persecution. Specifically, the Board
concluded that the conduct at issue did “not rise to the level of persecution, as [Gemeda] was not
seriously harmed, was held for a relatively short time, and was released to finish his education.”
To obtain asylum, an alien must establish “that he is unable or unwilling to return to his
home country because of past persecution or a well-founded fear of future persecution on
account of race, religion, nationality, membership in a particular social group, or political
opinion.” Guchshenkov v. Ashcroft, 366 F.3d 554, 561 (7th Cir. 2004). Withholding of removal
is appropriate if an alien establishes “it is more likely than not” that he will be persecuted if
forced to return to his native country. Prela v. Ashcroft, 394 F.3d 515, 519 (7th Cir. 2005). This
court reviews the Board’s decision denying asylum and withholding of removal under the
“substantial evidence” standard. Sivaainkaran v. I.N.S., 972 F.2d 161, 163 (7th Cir. 1992).
Under this highly deferential standard, we will uphold the Board’s determination if it is
“supported by reasonable, substantial, and probative evidence on the record as a whole,” and we
will reverse only if the evidence is so “compelling that no reasonable factfinder could fail to find
the requisite . . . persecution.” Id.No. 05-1202 Page 4
The question then is whether substantial evidence supports the Board’s conclusion that
the complained-of conduct did not reach the level of persecution. Gemeda focuses on his
detentions in 1992 and 2001 and his claims that he was beaten on both occasions. Gemeda,
however, did not describe the nature of his confinement or any physical injury. All we know
from the record is that in 1992 Gemeda was not taken to prison, but instead detained on campus,
and that the beating was not serious enough to warrant medical treatment. This is important
because Gemeda bears the burden of proving past persecution with specific detailed facts.
Sivaainkaran, 972 F.2d at 163. Not all physical abuse rises to the level of persecution. See
Dandan v. Ashcroft, 339 F.3d 567, 573-74 (7th Cir. 2003) (holding that a three-day interrogation
resulting in a swollen face from beatings did not constitute past persecution for asylum
purposes); Prela, 394 F.3d at 518 (7th Cir. 2005) (holding that an applicant who was
“interrogated at various times by the police, detained for twenty-four hours, harassed for money,
and beaten, causing an injury to his hands” did not suffer past persecution). In this case,
Gemeda’s general claims of two isolated beatings mirror the situations in Dandan and Prela.
Moreover, here, the Board had before it the added fact that after the 1992 incident, Gemeda was
released and allowed to finish school and that he then worked for the government from 1996 to
2000. Under these circumstances, substantial evidence supports the Board’s decision that the
complained-of conduct did not reach the level of past persecution.
In seeking reversal of the Board’s decision, Gemeda also argues that the Board erred in
denying him asylum because it only considered his claim of persecution as a supporter of the
OLF and did not consider evidence showing that Gemeda was arrested and beaten because he
was an ethnic Oromo. Citing Mgoian v. I.N.S., 184 F.3d 1029, 1035 (9th Cir. 1999), Gemeda
further argues that he need not establish that he personally suffered past persecution because
Ethiopia has a pattern and practice of persecuting ethnic Oromos. Id. (“On the other hand, the
applicant is not required to show that ‘[she] would be singled out individually for persecution if .
. . there is a pattern or practice . . . of persecution of groups of persons similarly situated’ . . . .” ).
Gemeda then asserts that given that Ethiopia has a pattern or practice of persecuting ethnic
Oromos, he has a well-founded fear of future persecution.
Gemeda, however, did not present his ethnic-Oromo claim to the Board.1 An alien must
raise and exhaust administrative remedies as to each claim or ground for relief. Capric v.
Ashcroft, 355 F.3d 1075, 1087 (7th Cir. 2004). Failure to present an issue to the Board
constitutes a failure to exhaust his administrative remedies and deprives this court of jurisdiction
over that issue. Mojsilovic v. I.N.S., 156 F.3d 743, 748 (7th Cir. 1998). Because Gemeda did not
present his pattern and practice of persecuting ethnic Oromos claim to the Board, he did not
exhaust his administrative remedies and has waived this issue.
1
Although Gemeda claims on appeal that he did present his ethnic-Oromo claim to the
Board, a thorough reading of his brief to the Board disproves his assertion.
No. 05-1202 Page 5
Similarly, Gemeda’s attempt to argue on appeal for relief under CAT fails because he did
not present this argument to the Board. Moreover, withholding of removal under CAT requires
an alien to establish that he is more likely to be tortured than not. Prela, 394 F.3d at 519. This
standard is more difficult to satisfy than the past persecution standard. Id. Therefore, even if
Gemeda properly presented this argument to the Board, he could not succeed under CAT
because he did not satisfy the more lenient “persecution” standard.
III.
Gemeda sought asylum and withholding of removal, claiming past persecution based on
his support of the OLF. The Board concluded that the conduct at issue did not rise to the level of
persecution. Substantial evidence supports this conclusion. Therefore, we DENY Gemeda’s
petition for review.