Filed: Nov. 23, 2004
Latest Update: Mar. 28, 2017
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 03-1374 MIHRET Y. TEWELDE, Petitioner, versus JOHN ASHCROFT, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals. (A75-367-931) Argued: September 28, 2004 Decided: November 23, 2004 Before NIEMEYER, TRAXLER, and SHEDD, Circuit Judges. Petition for review denied by unpublished per curiam opinion. ARGUED: David Allen Garfield, Washington, D.C., for Petitioner. Cindy S. Ferrier, UNITED STATES DEPART
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 03-1374 MIHRET Y. TEWELDE, Petitioner, versus JOHN ASHCROFT, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals. (A75-367-931) Argued: September 28, 2004 Decided: November 23, 2004 Before NIEMEYER, TRAXLER, and SHEDD, Circuit Judges. Petition for review denied by unpublished per curiam opinion. ARGUED: David Allen Garfield, Washington, D.C., for Petitioner. Cindy S. Ferrier, UNITED STATES DEPARTM..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-1374
MIHRET Y. TEWELDE,
Petitioner,
versus
JOHN ASHCROFT,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals. (A75-367-931)
Argued: September 28, 2004 Decided: November 23, 2004
Before NIEMEYER, TRAXLER, and SHEDD, Circuit Judges.
Petition for review denied by unpublished per curiam opinion.
ARGUED: David Allen Garfield, Washington, D.C., for Petitioner.
Cindy S. Ferrier, UNITED STATES DEPARTMENT OF JUSTICE, Office of
Immigration Litigation, Washington, D.C., for Respondent. ON
BRIEF: Peter D. Keisler, Assistant Attorney General, Civil
Division, Linda S. Wendtland, Assistant Director, UNITED STATES
DEPARTMENT OF JUSTICE, Office of Immigration Litigation,
Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Mihret Y. Tewelde petitions this court for review of the
denial of her applications of asylum from Eritrea, asylum from
Ethiopia, and withholding of removal to Ethiopia. The Board of
Immigration Appeals (BIA) denied her applications, and Tewelde now
seeks review of the adverse rulings. For the reasons that follow,
we deny the petition for review.
I.
Tewelde was born in 1969 in the part of Ethiopia that is now
known as Eritrea. Tewelde claims that she is a native and citizen
of Eritrea and faced persecution there because of her religious
beliefs as a Jehovah’s Witness. In 1996, Tewelde lived in Ethiopia
for approximately five months, obtained a valid Ethiopian passport
and exit visa, and traveled to the United States.
Tewelde entered the United States as a non-immigrant visitor
for pleasure and later filed an application for asylum and
withholding of removal. The INS referred Tewelde’s case to an
Immigration Judge by filing a Notice to Appear charging Tewelde
with removability for having overstayed her visa. Tewelde conceded
removability and renewed her request for asylum and withholding of
removal, arguing that she had a well-founded fear of persecution in
Ethiopia and Eritrea based on her religious beliefs. The
2
Immigration Judge denied relief and ordered Tewelde’s removal but
granted voluntary departure.
On appeal from the Immigration Judge’s decision, the BIA
granted withholding of removal to Eritrea based on Tewelde’s
religious beliefs as a Jehovah’s Witness and the current country
conditions in Eritrea. Although Tewelde met the higher threshold
for withholding of removal to Eritrea, the BIA denied Tewelde’s
asylum claim, apparently finding it barred by her firm resettlement
in Ethiopia. With regard to Tewelde’s claims of asylum and
withholding of removal to Ethiopia, the BIA determined that Tewelde
could safely return to Ethiopia.1 Ultimately, the BIA granted
Tewelde’s request for withholding of removal to Eritrea but
dismissed Tewelde’s challenges to the Immigration Judge’s orders
concerning Ethiopia.
Along with her petition for review filed in this Court,
Tewelde filed a Motion to Reconsider Dismissal of Appeal with the
BIA. Tewelde attached new evidence to the motion to reconsider
both denying that she was firmly resettled in Ethiopia and
rebutting the 2001 Report on the safe conditions in Ethiopia. The
BIA denied the motion under the standards applicable both to
motions to reconsider and to motions to reopen. Tewelde did not
1
In making its decision, the BIA took administrative notice of
The Department of State’s 2001 Country Report on Human Rights
Practices in Ethiopia, which states that the Ethiopian government
no longer deports Eritrean Jehovah’s Witnesses facing religious
persecution in Eritrea.
3
file a petition for review of that order; therefore, Tewelde’s
petition for review before this Court involves only the BIA’s
denials of her applications for asylum from Eritrea, asylum from
Ethiopia, and withholding of removal to Ethiopia.
II.
Under the Immigration and Nationality Act (INA), the Attorney
General has authority to confer asylum on any refugee. 8 U.S.C. §
1158(b). To qualify as a refugee pursuant to the INA, an alien
must be unwilling or unable to return to his 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. § 1101(a)(42)(A).
The “well-founded fear of persecution” standard contains both
subjective and objective components. Chen v. INS,
195 F.3d 198,
201 (4th Cir. 1999). To satisfy the subjective component, an
applicant must “present[] candid, credible, and sincere testimony
demonstrating a genuine fear of persecution.” Id. (internal
quotations omitted). The objective component requires “specific,
concrete facts that a reasonable person in like circumstances would
fear persecution.” Id. at 202. The applicant for asylum bears the
ultimate burden of proving her status as a refugee. 8 C.F.R. §
1208.13(a) (2004). The applicant will be barred from asylum,
4
however, if she has “firmly resettled in another country prior to
arriving in the United States.” 8 U.S.C. § 1158(b)(2)(A)(vi).
To qualify for withholding of removal, an applicant must
demonstrate a “clear probability of persecution.” INS v. Stevic,
467 U.S. 407, 430 (1984). This is a more stringent standard than
that for asylum. Chen, 195 F.3d at 205. Unlike the grant of
asylum where an alien is entitled to remain in the United States,
withholding of removal merely bars the deportation of an alien to
a particular country. INS v. Aguirre-Aguirre,
526 U.S. 415, 419
(1999). Further, while asylum is discretionary, if an alien
establishes eligibility for withholding of removal, the grant is
mandatory. Id. at 420.
III.
Our review of an administrative decision regarding an order of
removal is limited to the “administrative record on which the order
of removal is based.” 8 U.S.C. § 1252(b)(4)(A) (2004). Further,
we give great deference to the factual findings by the BIA, as
those factual findings “are conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary.” Id.
§ 1252(b)(4)(B). For this reason, the substantial evidence test
for review of the BIA’s conclusions mandates affirmance if the
evidence is not “so compelling that no reasonable factfinder could”
agree with the BIA’s factual conclusions. Huaman-Cornelio v. BIA,
5
979 F.3d 995, 999 (4th Cir. 1992). We must apply the substantial
evidence test in turn to Tewelde’s claims of asylum from both
Eritrea and Ethiopia and withholding of removal to Ethiopia.
For Tewelde’s claim of asylum from Eritrea, the BIA found that
asylum was barred by Tewelde’s “firm resettlement” in Ethiopia.
See 8 U.S.C. § 1158(b)(2)(A)(vi). In support of this conclusion,
the BIA recognized that Tewelde obtained a valid Ethiopian passport
and exit visa, lived in Ethiopia for five months without incident,
and was a citizen or national of Ethiopia. Tewelde now argues that
she falls within a narrow exception to the “firm resettlement” bar,
claiming that the Ethiopian passport was fraudulently obtained and
was one of mere convenience with which to flee the country. 8
C.F.R. § 1208.15 (2004). In reviewing the evidence on record
before the BIA at the time of its decision, we conclude that
substantial evidence supports the BIA’s conclusions that Tewelde
was firmly resettled in Ethiopia. The conclusion is “supported by
reasonable, substantial, and probative evidence on the record
considered as a whole.” INS v. Elias-Zacarias,
502 U.S. 478, 481
(1992) (internal quotation marks omitted). Further, the evidence
on the administrative record for review is insufficient to compel
a conclusion otherwise. Huaman-Cornelio, 979 F.3d at 999.
In its decision regarding Tewelde’s claims of asylum and
withholding of removal to Ethiopia, the BIA found that Tewelde
could safely return to Ethiopia. As the basis of this finding, the
6
BIA took administrative notice of the 2001 Country Report prepared
by the Department of State.2 This document reveals that conditions
for Eritreans in Ethiopia significantly improved after Ethiopia and
Eritrea signed a cessation of hostilities agreement in 2000. We
believe that this report constitutes substantial evidence that the
Ethiopian government was no longer deporting Jehovah’s Witnesses
who might face religious persecution in Eritrea.3 In reviewing the
administrative record on which the order of removal is based, we
find insufficient evidence to compel a finding of the requisite
“fear of persecution” under the asylum standard. Id.
2
As the BIA took administrative notice of a report that had
not been released at the time the briefs of the parties were
submitted and there was no oral argument, Tewelde claims that she
was denied due process because she lacked the opportunity to rebut
the report. Indeed, the report was first raised in the BIA’s
order. However, Tewelde did have the opportunity to rebut the
Report in her motion to reconsider filed after the BIA’s decision.
A motion to reconsider provides an opportunity to rebut sufficient
to satisfy due process. See Gebremichael v. INS,
10 F.3d 28, 38
(1st Cir. 1993); Gutierrez-Rogue v. INS,
954 F.2d 769, 773 (D.C.
Cir. 1992); Rivera-Cruz v. INS,
948 F.2d 962, 968 (5th Cir. 1991);
Kaczmarczyk v. INS,
933 F.2d 588, 596-97 (7th Cir. 1991); but see
Castillo-Villagra v. INS,
972 F.2d 1017, 1029 (9th Cir. 1992)
(holding that a motion to reopen is not adequate to satisfy due
process).
3
To the extent that Tewelde challenges the BIA’s reliance on
the Report, she has waived this argument by not appealing the BIA’s
denial of her motion to reconsider. See 8 U.S.C. § 1252(b)(6)
(contemplating two filings for consolidation); see also Stone v.
INS,
514 U.S. 386, 393-95 (1995) (construing the predecessor
statute § 1105a(a)(6) to require two filings).
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IV.
For the foregoing reasons, we deny Tewelde’s petition to
review the BIA’s decision to deny asylum with respect to Eritrea
and Ethiopia, as well as its decision to withhold removal to
Ethiopia.
PETITION FOR REVIEW DENIED
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