Bogale Tegegn v. Eric H. Holder, Jr.

United States Court of Appeals
For the Eighth Circuit
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No. 12-1262
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Bogale Assefa Tegegn
lllllllllllllllllllllPetitioner
v.
Eric H. Holder, Jr., Attorney
General of the United States
lllllllllllllllllllllRespondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: October 17, 2012
Filed: January 11, 2013
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Before LOKEN, SMITH, and BENTON, Circuit Judges.
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LOKEN, Circuit Judge.
Bogale Assefa Tegegn, a 68-year-old citizen of Ethiopia, lawfully entered the
United States in February 2008 and timely applied for asylum, withholding of
removal, and relief under the Convention Against Torture. An immigration judge (IJ)
denied relief after a hearing, rejecting Tegegn’s claims of past persecution and a well-
founded fear of future persecution based primarily on his political opinion. The
Board of Immigration Appeals (BIA) dismissed Tegegn’s administrative appeal in an
opinion agreeing with the IJ’s determinations but not adopting her opinion. Tegegn
petitions for judicial review of the BIA’s final agency action. We conclude that
substantial evidence on the administrative record as a whole supports the BIA’s
determination that Tegegn failed to demonstrate past persecution. See Kebede v.
Gonzales, 481 F.3d 562, 564 (8th Cir. 2007) (standard of review). However, the BIA
did not adequately consider one aspect of his distinct claim of a well-founded fear of
future persecution that was supported by credible testimony and by other record
evidence including State Department Human Rights Reports. Accordingly, we grant
the petition for review and remand for further consideration of this issue.
I. Past Persecution
The Attorney General has discretion to grant asylum to a “refugee.” 8 U.S.C.
§ 1158(b)(1)(A). As relevant here, the term refugee means a person unable or
unwilling to return to his country of origin “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). An
applicant who establishes past persecution is presumed to have a well-founded fear
of persecution. 8 C.F.R. § 208.13(b)(1). Thus, a credible claim of past persecution
must usually be resolved before the IJ and the BIA consider a claim of well-founded
fear of future persecution. Compare Bushira v. Gonzales, 442 F.3d 626, 632-33 (8th
Cir. 2006), with Pavlovich v. Gonzales, 476 F.3d 613, 617 (8th Cir. 2007).
“Persecution is an extreme concept that does not encompass low-level
intimidation and harassment.” Ladyha v. Holder, 588 F.3d 574, 578 (8th Cir. 2009).
Absent a showing of physical harm, incidents of harassment, unfulfilled threats of
injury, and economic deprivation are not persecution. Quomsieh v. Gonzales, 479
F.3d 602, 606 (8th Cir. 2007). A threat of death on account of political opinion can
be enough to establish past persecution, but “not all alleged threats of death
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necessarily amount to persecution,” for example, threats that are exaggerated, non-
specific, lacking in immediacy, or not based on a protected ground. Corado v.
Ashcroft, 384 F.3d 945, 947-48 (8th Cir. 2004). We will affirm the BIA’s
determination that an alien has failed to prove past persecution unless the evidence
was so compelling that no reasonable fact finder could fail to find to the contrary.
Ladyha, 588 F.3d at 577.
Tegegn submitted detailed evidence of the political conditions he experienced
in Ethiopia in his July 2008 Form I-589 asylum application, a lengthy February 2010
affidavit, and testimony at the March 2010 hearing. The IJ found him to be a credible
witness. To briefly summarize this evidence, the Ethiopian People’s Revolutionary
Democratic Front (EPRDF), formed by the Tigray People’s Liberation Front (TPLF),
became the ruling party in Ethiopia in 1991 after the prior Marxist government was
overthrown. Tegegn, a college-educated member of the dominant Amhara ethnic
group with experience in agronomy and farm management, was then working at the
Addis Ababa University Library. He resisted repeated requests that he join the TPLF.
In 1995, he instead joined the All-Amhara People’s Organization (AAPO), an
ethnically-based opposition party. He was soon demoted at the University Library
and ultimately dismissed in 1999.
After initially serving as secretary of an AAPO regional office, Tegegn rose to
leadership positions, serving at times as a member of the Central Committee and the
Executive Committee, as chairman of the party newspaper Editorial Board, and as
Secretary General, First Vice President, and member of the National Congress. These
last positions provided “an opportunity to meet with other opposition political party
leaders, foreign embassies, international organizations and international news media.”
He published over two hundred articles commenting on the government in private and
AAPO publications, including a 2004 book entitled The Great Conspiracy that
criticized the TPLF party’s ownership and control of Ethiopian industries. Tegegn
entered the United States in February 2008. His wife visited him in May, stayed two
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months, and returned to Ethiopia to be with their grown children. His family has
continued to live in Ethiopia unharmed, although his wife was dismissed from her job
at a government-run television station in July 2009.
Tegegn’s bases his claim of past persecution on the following incidents:
-- While in Ethiopia, he received repeated threats, harassment, and warnings
over the years in response to his AAPO activities and his writings.
-- In 2002, while he was walking to the AAPO office, other pedestrians warned
Tegegn that a car was about to hit him from behind. He jumped out of the way, and
the car sped away. While walking home from the AAPO office that evening, a young
man approached and said, “you saved yourself from the accident . . . you will get [it],
don’t worry.” Though he could not identify the car, its driver, or the young man,
Tegegn testified that this type of hit-and-run attack was a method the government
used to eliminate its political opponents.
-- Although his 2004 Conspiracy book was published by a government
publisher, officials warned him to stop his anti-government writings with comments
such as, “This is against our bread.” An affidavit by Tegegn’s wife averred that she
was repeatedly warned to tell her husband to quit participating in the AAPO and
publishing articles. “If he does not stop,” one unidentified person said, “you will get
his dead body in front of your gate.” Their children received similar threats.
-- In 2005, after participating in contested national elections, opposition parties
took to the streets in protest when the ruling party announced it had won. Security
forces responded by arresting opposition leaders and thousands of demonstrators.
Hundreds were killed, and some were imprisoned for long periods. Tegegn testified
that he avoided imprisonment by hiding with relatives and friends for three months.
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-- Tegegn’s wife’s affidavit recites that, after he left for the United States, she
received calls from unknown persons asking his whereabouts. When she said he was
undergoing medical treatment and would return when it was finished, they told her
they wanted him back by the end of August 2009.
On appeal, Tegegn argues that the 2002 hit-and-run incident -- a “specific,
credible, and immediate threat of death on account of political opinion” -- established
past persecution. Corado, 384 F.3d at 947. We disagree. Tegegn testified this was
a method often used by the government to eliminate political opponents. But he
presented no evidence corroborating that opinion. Because the car approached
Tegegn from behind, there is no compelling evidence that this was an intentional
assault; if it was, Tegegn was unable to identify his attackers. Thus, the record fully
supports the IJ’s findings that “there is no evidence that ties the car to the
government,” and it is undisputed that Tegegn remained in Ethiopia unharmed for
years following this incident. After careful review, we conclude the administrative
record amply supports the BIA’s finding that Tegegn suffered only intimidation,
harassment, and unfulfilled threats of physical injury that did not establish past
persecution. See Malonga v. Holder, 621 F.3d 757, 764, 766 (8th Cir. 2010)
(upholding BIA’s finding of no past persecution because death threats were
“exaggerated, nonspecific, or lacking in immediacy”); Quomsieh, 479 F.3d at 606.
II. Well-Founded Fear of Future Persecution
Even if an applicant fails to establish past persecution, he can qualify for
asylum by showing well-founded fear of future persecution. 8 C.F.R. § 208.13(b)(2).
To be well-founded, the applicant’s fear of future persecution must be “both
subjectively genuine and objectively reasonable.” Eta-Ndu v. Gonzales, 411 F.3d
977, 983 (8th Cir. 2005). In most cases, this requires a showing of an objectively
reasonable fear of particularized persecution on the basis of his political opinion.
Feleke v. INS, 118 F.3d 594, 598 (8th Cir. 1997). However, an applicant can also
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prove a well-founded fear by showing (A) a “pattern or practice . . . of persecution of
a group of persons similarly situated to the applicant on account of . . . political
opinion,” and (B) “his or her own inclusion in, and identification with, such group of
persons such that his or her fear of persecution upon return is reasonable.” 8 C.F.R.
§ 208.13(b)(2)(iii); see Makonnen v. INS, 44 F.3d 1378, 1382-83 (8th Cir. 1995). “A
pattern or practice of persecution must be systemic, pervasive, or organized.”
Woldemichael v. Ashcroft, 448 F.3d 1000, 1004 (8th Cir. 2006) (quotation omitted).
Tegegn argues the BIA erred in finding that he failed to prove a well-founded
fear of persecution based upon the Ethiopian ruling party’s pattern or practice of
persecuting leaders of opposition political groups. His Memorandum to the IJ,
though focused primarily on the issue of past persecution, clearly raised this issue:
Ethiopia today is a classic lawless dictatorship. . . . Political opponents
are regularly killed with impunity, including members of the AAPO.
Security forces know that they can torture and kill people whenever they
choose, and a corrupt judiciary will do nothing. . . . Bogale Tegegn
believes that if he is sent back to Ethiopia he will be a target of the
security forces.
Likewise, his brief to the BIA included this issue, arguing that State Department and
other reports in the administrative record established-
a deadly pattern and practice of killing, imprisonment and permanent
disappearance of political opponents. This is true not only for AAPO
leaders but also for leaders of other opposition parties in Ethiopia.
Tegegn is clearly a vocal leader of a major opposition party, and is
“similarly situated.”
In support of this pattern or practice claim, Tegegn testified that he was a long-
time leader of the AAPO, an opposition group, and knew of two AAPO leaders and
another member who were killed, one in 1999 and two in 2002. His affidavit listed,
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by name and political affiliation, dozens of government opponents who allegedly
have “disappeared” or been killed, harmed, or imprisoned by the current Ethiopian
regime, or who fled the country. He submitted two affidavits corroborating his
testimony that he is an AAPO leader, testimony the IJ found credible. The lengthy
affidavit of Dr. Bekele Mamo, an Ethiopian citizen who is now a lawful permanent
resident of this county, averred that “[t]he Ethiopian government continues to carry
out terror and systematic social and political assaults to punish critics and opposition
activists.” Dr. Mamo described new laws -- detailed in an Amnesty International
report -- that subject non-violent political dissenters to broad police powers and harsh
criminal penalties. Dr. Mamo stated that Tegegn “is a selected opposition party
member being sought after and may already be on their ‘black’ list,” and that return
to Ethiopia would endanger his life.
The administrative record also includes 2008 and 2009 State Department
Human Rights Reports and other sources detailing examples of disappearances,
killings, arrests, beatings, and other abuses by the government against leaders and
members of opposition political groups. Though most widespread after the contested
2005 election, when Tegegn testified he went into hiding to avoid imprisonment, the
abuses apparently continue. For example, the 2009 State Department Report stated,
“Human rights abuses reported during the year included unlawful killings, torture,
beating, abuse and mistreatment of detainees and opposition supporters by security
forces, often acting with evident impunity.” In addition, the Report states, “The
government continued to arrest, harass, and prosecute journalists, publishers, and
editors.”
After analyzing Tegegn’s claim of past persecution in some detail, the BIA
gave this claim of well-founded fear little or no consideration. The BIA began by
characterizing Tegegn’s pattern or practice claim as “based on his membership and
active support of the [AAPO].” That unduly limits the claim. While Tegegn’s claim
of past persecution focused on his leadership positions in the AAPO, his claim of a
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well-founded fear of future persecution was explicitly based on the government’s
alleged pattern or practice of persecuting leaders or active supporters of all opposing
political groups. He explained that the government has kept opposition political
parties fractured by requiring them to organize along ethnic lines, and then has
suppressed opposition by systematically persecuting any leaders who persist in
opposing the government. This is a not-implausible claim of pattern or practice
political persecution. Such persecution can be confined to a particular opposing
political party or ethnic group, but it can also be directed at a broader group made up
of all who assume leadership of groups opposing the group in power. Compare Kyaw
Zwar Tun v. INS, 445 F.3d 554, 570 (2d Cir. 2006) (remanding for consideration of
possible pattern or practice of persecution against pro-democracy activists).
The BIA acknowledged the pattern or practice standard but summarily rejected
this claim: “Although [Tegegn] raises a claim that there is a pattern or practice of
persecution of persons similarly situated to him, no cogent argument for its existence
has been made.” In light of the extensive evidence we have briefly summarized, and
the above-quoted portion of Tegegn’s brief to the BIA, we cannot agree that no
cogent argument was made.
Asylum claims based on an alleged pattern or practice of political persecution
raise complex and difficult issues, particularly in a country such as Ethiopia that is
plagued by ethnic rivalries and has experienced dramatic political upheavals.
Compare Gemechu v. Ashcroft, 387 F.3d 944, 946-47 (8th Cir. 2004), and
Wondmneh v. Ashcroft, 361 F.3d 1096, 1098 (8th Cir. 2004), with Feleke, 118 F.3d
at 598-99, and Makonnen, 44 F.3d at 1382-84. In considering such a claim, the
relevant political group or groups must be identified, and the applicant’s inclusion in
the group established. Even if the government has not threatened all members of a
political opposition with systematic persecution, the risk that a particular applicant
will be persecuted “can rise to the level required for establishing a well-founded fear
of persecution . . . as a result of an individual’s activities in support of the group.”
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Makonnen, 44 F.3d at 1383. Here, these issues were clearly raised by Tegegn and
supported by credible evidence, yet the BIA made no findings regarding either the
subjective or objective components of the well-founded fear analysis. In these
circumstances, we must remand because we lack “reasons that are ‘specific’ enough
that a reviewing court can appreciate the reasoning behind the [agency’s] decision
and perform the requisite judicial review,” which in asylum cases is highly
deferential. Singh v. Gonzales, 495 F.3d 553, 557 (8th Cir. 2007).
For these reasons, we grant the petition for review and remand to the BIA for
further proceedings not inconsistent with this opinion.
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