Rewuda Bushira v. Alberto Gonzales

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-2386
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Rewunda Mohammed Bushira, *
*
Petitioner, *
Petition for Review of an
*
Order of the Board of
v. *
Immigration Appeals.
*
Alberto Gonzales, Attorney *
General of the United States of *
America, *
*
Respondent. *
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Submitted: December 12, 2005
Filed: April 4, 2006
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Before BYE, BEAM and GRUENDER, Circuit Judges.
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GRUENDER, Circuit Judge.
Rewunda Mohammed Bushira, a thirty-six-year-old native and citizen of
Ethiopia, petitions for review of a final order of removal of the Board of Immigration
Appeals (“BIA”). The BIA affirmed, without opinion, the decision of the immigration
judge (“IJ”) denying Bushira’s application for asylum, withholding of removal and
relief under the Convention Against Torture (“CAT”). For the reasons given below,
we remand to the BIA for further administrative proceedings.
I. BACKGROUND
Bushira entered the United States in August 2001 as a nonimmigrant visitor,
remained beyond her authorized stay of three months, and then applied for asylum,
withholding of removal and relief under the CAT. The Immigration and
Naturalization Service (“INS”)1 commenced removal proceedings in July 2002.
Bushira conceded removability but renewed her application for asylum, withholding
of removal and CAT relief. Bushira declined to designate a country of removal. The
IJ designated Ethiopia. Bushira’s application alleged past persecution and fear of
future persecution in Ethiopia because of her Oromo ethnicity and the participation
of her family and her in political activities supporting the Oromo people.
Bushira was the only witness to testify at the hearing before the IJ on November
19, 2003. Bushira testified that she was born in Dilla, Ethiopia, and is of Oromo
ethnicity. Bushira’s application indicates that her father was imprisoned from 1986
to 1989. Bushira testified that in July 1992 her father was beaten and then imprisoned
for one year because he supported the economic development and self-determination
of the Oromos. Bushira’s mother was beaten and then imprisoned for one week.
Bushira’s parents were released after they signed agreements not to participate in
Oromo affairs. Bushira believes that her parents and five siblings are living in a
refugee camp in Kenya, but the last time she communicated with her family was in
1994.
In 1992 Bushira joined the Oromo Music Band (“Band”) in Ethiopia. The Band
was organized by the Oromo Liberation Front (“OLF”) with the goal of promoting the
1
The INS ceased to exist on March 1, 2003, and its functions were transferred
to the new Department of Homeland Security (“DHS”). See Homeland Security Act
of 2002, Pub. L. No. 107-296, 116 Stat. 2135 (Nov. 25, 2002).
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Oromo culture. Bushira sang and danced with the Band in approximately seven
performances over a period of months. Although Bushira does not know the Oromo
language, she memorized the songs. Bushira also testified that she was a registered
member of the OLF and participated in other Oromo political meetings. However, she
was not involved in political activities after she quit the Band.
Soldiers arrested Bushira at her home in August 1992, accusing her of
circulating political pamphlets. Bushira testified that she was imprisoned in Dilla for
two months in a dark, empty cell with a dirt floor. She was isolated from other
prisoners but could hear them crying. For approximately two weeks, she was beaten.
Bushira’s affidavit states that she was hung upside down, beaten on the soles of her
feet and silenced by pieces of cloth in her mouth. She also was raped several times
by two soldiers. Bushira explained that upon her release, she had to agree not to
participate in the Band or other Oromo activities and not to communicate with other
Oromos. She also was forced to sign in daily at the police station in Dilla for six
months, and sometimes the authorities followed her. Allegedly due to this
surveillance, in January 1994 Bushira left Dilla without informing the authorities. She
lived in hiding with her aunt in Addis Ababa, Ethiopia, located approximately 360
kilometers from Dilla.
In 1996 Bushira’s aunt paid an employment agency to obtain a passport and exit
visa for Bushira and arrange for Bushira to work in Saudi Arabia. The passport was
issued by the Ethiopian government, and the Ethiopian Embassy in Saudi Arabia
renewed the passport in 1998 and 2000. In Saudi Arabia, Bushira worked as a
housemaid for the family of Ahmed Abdullah Mohammed. Bushira testified that there
she was treated like a slave and raped by two men.
Bushira explained that she returned to Ethiopia twice in 1998 because of the
way she was being treated in Saudi Arabia. The first time she stayed for about six
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weeks. Then after one month back in Saudi Arabia, Bushira visited Ethiopia again for
approximately fifteen days. On these visits, Bushira stayed with her aunt in Addis
Ababa. Bushira explained that she was able to travel from Saudi Arabia to Addis
Ababa, Ethiopia, because the police were looking for her only in Dilla. However,
Bushira’s aunt sent her back to Saudi Arabia because her aunt was afraid for Bushira’s
life upon learning that the police from Dilla still were looking for Bushira.
In August 2001 Bushira entered the United States with her Saudi Arabian
employer as a babysitter for the family’s two daughters. Bushira’s employer prepared
her application for a nonimmigrant visa to the United States, and Bushira signed it.
The application indicated that Bushira worked as a housemaid for an ambassador, but
Bushira testified that she did not know whether Ahmed Abdullah Mohammed was an
ambassador to Saudi Arabia. Bushira recounted that her employer kept Bushira’s
passport during their three days in New York and their subsequent stay in
Minneapolis, Minnesota. Bushira found the passport and took it. She remained in
Minneapolis, living with Oromos unrelated to her.
Bushira’s aunt wrote a letter to her around August 2003, warning that Oromos
were being tortured and killed and that if Bushira returned, she also would be
imprisoned or killed. According to Bushira’s testimony, there is no place in Ethiopia
that would be safe for her because she left Dilla without telling the authorities and the
government soldiers could find her anywhere and take revenge.
Following the evidentiary hearing, the IJ rendered an oral decision on January
20, 2004, denying Bushira’s application for relief. Without first determining whether
Bushira had suffered past persecution, the IJ found that Bushira lacked a subjectively
genuine fear of future persecution in Ethiopia. The BIA summarily affirmed. Bushira
petitions this Court for review of the denial of her application for asylum, withholding
of removal and relief under the CAT.
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II. DISCUSSION
Where the BIA affirms without opinion, the court reviews the IJ’s decision as
the final agency action. Hoxha v. Gonzales, 432 F.3d 919, 920 (8th Cir. 2006). We
review questions of law de novo, according substantial deference to the BIA’s
interpretation of the statutes and regulations it administers. Bernal-Rendon v.
Gonzales, 419 F.3d 877, 880 (8th Cir. 2005). We review factual findings for
substantial evidence on the administrative record as whole. Alyas v. Gonzales, 419
F.3d 756, 760 (8th Cir. 2005). Under this standard, we will uphold the BIA’s denial
of relief unless the evidence presented “was so compelling that no reasonable fact
finder could fail to find the requisite fear of persecution.” Abrha v. Gonzales, 433
F.3d 1072, 1075 (8th Cir. 2006) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 483-84
(1992)).
The Attorney General has discretion to grant asylum to an individual who is a
“refugee.” 8 U.S.C. § 1158(b)(1). The asylum applicant must establish that she is a
refugee. 8 U.S.C. § 1158(b)(1)(B)(i). A refugee is defined as an alien who is “unable
or unwilling to return to . . . [the country of removal] 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. § 1101(a)(42)(A). A well-
founded fear of persecution is one that “is both subjectively genuine and objectively
reasonable.” El-Sheikh v. Ashcroft, 388 F.3d 643, 646 (8th Cir. 2004).
The IJ set forth this legal framework at the outset of his decision. However, the
IJ did not acknowledge that proof of past persecution entitles the asylum applicant to
a presumption that she has a well-founded fear of future persecution if she returns to
the country. See 8 C.F.R. § 208.13(b)(1); Awale v. Ashcroft, 384 F.3d 527, 529 (8th
Cir. 2004). If the applicant establishes past persecution, the burden shifts to the DHS
to rebut the presumption of a well-founded fear of future persecution. 8 C.F.R. §
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208.13(b)(1)(ii). The DHS may do this only by establishing by a preponderance of
the evidence either that there has been a “fundamental change in circumstances” in the
country such that the applicant no longer has a well-founded fear of persecution based
on a protected ground, 8 C.F.R. § 208.13(b)(1)(i)(A), or that “the applicant could
avoid future persecution by relocating to another part of” the country and it would be
reasonable for her to do so. 8 C.F.R. § 208.13(b)(1)(i)(B), (b)(3)(ii).
Bushira argues that the IJ committed legal error in failing to make a finding on
the issue of whether she suffered past persecution. As a result of this error, Bushira
contends, she was not given the benefit of the presumption of a well-founded fear of
future persecution to which she was entitled. The government asserts that the IJ
concluded that Bushira failed to demonstrate past persecution and that this finding,
along with the finding of no well-founded fear of future persecution, is supported by
substantial evidence.
The IJ’s denial of asylum was based solely on his determination that Bushira
does not have a subjectively genuine fear of future persecution in Ethiopia. A careful
review of the IJ’s opinion reveals that the IJ did not make a finding on whether
Bushira suffered past persecution due to a protected ground. Nowhere in the decision
does the IJ offer “specific, cogent reasons for disbelief” of Bushira’s testimony about
past persecution, as is required when an IJ rejects testimony as lacking credibility. See
Eta-Ndu v. Gonzales, 411 F.3d 977, 982 (8th Cir. 2005). While we acknowledge that
some of the evidence examined by the IJ may be relevant to the issue of whether
Bushira was persecuted in the past on account of a protected ground, we cannot
conclude that these isolated fact findings are the equivalent of a finding of no past
persecution.
Indeed, it appears that the IJ generally credited Bushira’s testimony about past
persecution. The IJ stated that Bushira “has told a generally consistent story as to
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what happened to her in Ethiopia and in Saudi Arabia” and that a minor discrepancy
regarding the dates of her participation in the Band would not “warrant a denial of the
claim.” However, he also noted that there was “very minimal corroboration” in
Bushira’s case. Aside from the letter from Bushira’s aunt warning Bushira that the
police were still looking for her, the IJ found “nothing else from Ethiopia regarding
[Bushira’s] participation in Oromo activities in 1992, or describing any abuse or
persecution she suffered. Likewise, we have nothing from [Bushira’s] family, which
is asserted to be in Kenya.” Later in the decision the IJ stated, “There is no real
indication that she participated in any OLF activities in Ethiopia. There has been no
real proof of her being a member of the OLF. . . . [We also] have no corroboration
from the OLF itself of her father’s involvement.” Instead of making a finding on past
persecution, however, the IJ proceeded to analyze whether Bushira had proved a
subjectively genuine fear of future persecution.2
The IJ explained that Bushira’s “involvement in Oromo activities in Ethiopia
was of a relatively short duration.” The IJ also discussed Bushira’s ability to obtain
a passport at a time she allegedly was in hiding with her aunt in Addis Ababa, to
renew the passport twice and to secure exit visas from the Ethiopian authorities both
in Ethiopia and at the Ethiopian Embassy in Saudi Arabia. According to the IJ, what
2
Even if the IJ’s comments on the lack of corroboration could be construed as
a finding that Bushira failed to meet her burden of proof on past persecution due to
a protected ground, this decision could not be sustained. We cannot sustain a denial
of asylum based upon the absence of corroborating evidence if “the BIA failed to: (1)
rule explicitly on the credibility of [the applicant’s] testimony; (2) explain why it was
reasonable in this case to expect additional corroboration; or (3) assess the sufficiency
of [the applicant’s] explanations for the absence of corroborating evidence.” El-
Sheikh, 388 F.3d at 647 (quoting Diallo v. INS, 232 F.3d 279, 287 (2d Cir. 2000)).
The IJ in this case never explicitly ruled that Bushira’s testimony on past persecution
was not credible. The IJ did not explain why it would be reasonable to expect
corroboration of this testimony nor did he assess any explanations for the absence of
such corroboration.
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“tips the balance” to a finding that Bushira lacked a subjectively genuine fear of
returning to Ethiopia is her two return trips to Ethiopia in a short period of time. The
IJ explained, “If there had been just one trip back to Ethiopia, the Court might find the
respondent’s explanation of learning about the police still looking for her as having
some validity. But she made two trips back, which files [sic] in the face of her
concerns about the police in Ethiopia actually looking for her.” The IJ determined that
Bushira failed to prove the “subjective basis” of her fear of future persecution and
concluded that she did not have a well-founded fear of future persecution if she
returned to Ethiopia.
In short, the IJ placed the burden on Bushira to demonstrate a well-founded fear
of future persecution without making the antecedent determination as to whether
Bushira established past persecution. Bushira alleged past persecution in her
application. On remand, if she establishes past persecution on account of a protected
ground, an issue on which we express no view, Bushira is entitled to a presumption
of a well-founded fear of future persecution.
We have held that the failure to shift the burden does not necessarily require a
remand. See Cigaran v. Heston, 159 F.3d 355, 357 (8th Cir. 1998) (stating that the
“shifting of an evidentiary burden of preponderance is of practical consequence only
in the rare event of an evidentiary tie”). However, this case is distinguishable from
Cigaran. The asylum applicant in Cigaran argued that the BIA erroneously made a
finding that he had not suffered past persecution. Id. We explained that even if the
BIA had found past persecution, “the record makes it clear . . . that the BIA believed
that the preponderance of the evidence established that Mr. Cigaran’s fear of future
persecution was not objectively reasonable,” and substantial evidence supported the
BIA’s finding of changed political circumstances in the country of removal. Id. at
358. Unlike the situation in Cigaran, in the present case the IJ denied relief based
solely on his determination that Bushira lacked a subjectively genuine fear of future
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persecution. We cannot say that the IJ believed that the DHS established either of the
two permissible grounds for rebutting the presumption. See 8 C.F.R. §
208.13(b)(1)(i)-(ii).
First, the IJ did not make a finding that circumstances had fundamentally
changed in Ethiopia. See De Brenner v. Ashcroft, 388 F.3d 629, 636 (8th Cir. 2004)
(“The DHS may rebut [the] presumption through showing by preponderant evidence
that country conditions in the country of origin have undergone a ‘fundamental
change’ from the time of the persecution and that the fundamental change is sufficient
to eliminate the basis for the applicant’s fear of future persecution.”). The IJ’s only
reference to conditions in Ethiopia appears in his description of the exhibits, where
the IJ noted that a 2003 country report on Ethiopia stated that “the government is still
involved in a conflict with the [OLF], and that OLF members and supporters have
been detained during the year covered by the report.” Second, the IJ simply did not
address whether it would be reasonable for Bushira to relocate within Ethiopia based
on the factors in 8 C.F.R. § 208.13(b)(3). See Hagi-Salad v. Ashcroft, 359 F.3d 1044,
1048 (8th Cir. 2004).
“When the BIA applies an incorrect legal standard, the proper remedy typically
is to remand the case to the agency for further consideration in light of the correct
standard.” Corado v. Ashcroft, 384 F.3d 945, 948 (8th Cir. 2004) (per curiam)
(holding that the IJ applied an impermissible definition of persecution in finding no
past persecution and remanding for a determination in the first instance whether the
testimony on past persecution was credible, and if so, “then the BIA, rather than this
court, should first consider the Attorney General’s arguments that evidence of
changed circumstances in Guatemala or the ability of petitioners to relocate safely
within the country is sufficient to rebut a presumption of future persecution”); see also
De Brenner, 388 F.3d at 639 (remanding where the BIA erroneously placed the
burden of proof on the asylum applicants to show changed country conditions).
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Because the IJ failed to make a determination as to whether Bushira established past
persecution based on a protected ground and made no findings on changed
circumstances or ability to relocate under 8 C.F.R. § 208.13(b)(1)(i), the appropriate
remedy is to remand for the BIA to make a determination on past persecution and then
to assign the burden of proof on fear of future persecution in accordance with the
immigration regulations. See INS v. Orlando Ventura, 537 U.S. 12, 16-17 (2002) (per
curiam).
III. CONCLUSION
For the reasons stated, Bushira’s petition for review is granted, the BIA’s order
is vacated and the case is remanded to the BIA for proceedings consistent with this
opinion. Given our disposition of Bushira’s asylum appeal, we also remand the denial
of withholding of removal and relief under the CAT.
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