Case: 13-13749    Date Filed: 08/08/2014   Page: 1 of 10


                                                            [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                                No. 13-13749
                            Non-Argument Calendar
                          ________________________

                           Agency No. A094-797-137

ETIFWORK BADADA,

                                                                          Petitioner,

                                     versus


U.S. ATTORNEY GENERAL,

                                                                        Respondent.

                          ________________________

                     Petition for Review of a Decision of the
                          Board of Immigration Appeals
                           ________________________

                                (August 8, 2014)

Before ED CARNES, Chief Judge, TJOFLAT and JORDAN, Circuit Judges.

PER CURIAM:

      Etifwork Badada, an Ethiopian national, seeks review of the Board of

Immigration Appeals’ final order affirming the Immigration Judge’s denial of her
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application for asylum under the Immigration and Nationality Act (INA) § 208(a),

8 U.S.C. § 1158(a).1 Badada challenges the BIA’s and IJ’s determination that she

failed to establish either past persecution or a well-founded fear of future

persecution, as required to establish eligibility for asylum.

                                               I.

         Badada entered the United States in May 2006 without being admitted or

paroled by an immigration officer. To prevent her deportation, she applied for

asylum based on her political opinion and membership in a particular social group.

She claimed that she had been imprisoned and interrogated by Ethiopia’s ruling

party, the Ethiopian People’s Revolutionary Democratic Front, because of her

support for the Coalition for Unity and Democracy Party (CUD), an opposition

party.

         In May 2008 an IJ denied Badada’s application for asylum, finding that she

was not credible because her testimony was vague, inconsistent, and implausible in

certain respects. The IJ also found that Badada had not provided enough evidence

to corroborate her story. Badada appealed, and a divided panel of the BIA

dismissed that appeal. It determined that Badada could not carry her burden of

proof regardless of whether she was found to be credible. The dissenting member


         1
          Badada does not challenge the denial of her applications for withholding of removal and
for relief under the United Nations Convention Against Torture. Those claims are abandoned.
See Sepulveda v. U.S. Att’y Gen., 

, 1228 n.2 (11th Cir. 2005).
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of the panel insisted that the BIA should not have reached a conclusion about

Badada’s ability to meet her burden of proof if she were credible; such a

determination had to be made by the IJ in the first instance.

      Badada petitioned this Court for review of the BIA’s decision. Before we

could hear the appeal, the government filed an unopposed motion to remand her

case to the BIA so that it could reconsider its decision. The government asked that

the IJ be allowed to decide in the first instance whether Badada, if credible, had

carried her burden of proof. We granted that motion. See Docket No. 09-15951

(Apr. 21, 2010).

      In December 2011 another IJ considered Badada’s application for asylum.

The IJ conducted a full merits hearing during which Badada testified and the

parties were allowed to submit additional documentary evidence. At the end of the

hearing, the IJ denied Badada’s application. The IJ found that Badada, even if

credible, had not proven that she suffered past persecution or that she had a well-

founded fear of future persecution. The IJ noted that: “[Badada’s] testimony, taken

as true, establishes that she was arrested and detained once for about two and a half

months. During the detention, she was questioned on two occasions. The more

serious questioning occurred about three weeks in. She said that she was hit by

soldiers with rubber batons on her legs and back. She was struck four or five

times. They also pushed her roughly.” The IJ nonetheless concluded that the harm


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Badada suffered “does not rise to the level of persecution.” The IJ explained:

“[Badada] was not harmed in such a way that would lead the Court to find that the

one period of detention during which she was beaten four or five times on her legs

and back and pushed roughly constitutes persecution. There’s no indication that

[Badada] needed to be hospitalized after the incident. She remained in detention

several more weeks, and there’s no indication that the harm that she suffered was

so severe so as to rise to the level of persecution.” The IJ further found that

Badada had not presented enough evidence to show that she had an objective basis

to fear future persecution. Although the IJ expressed doubts about Badada’s

credibility, he did not make an adverse credibility finding.

      The BIA dismissed Badada’s appeal. Assuming her credibility, the BIA

agreed with the IJ that Badada’s “account of being detained and mistreated by the

authorities did not rise to the level of persecution.” It also agreed with the IJ’s

determination that Badada could not show that she had a well-founded fear of

future persecution.

                                          II.

       “We review only the BIA’s decision, except to the extent the BIA expressly

adopts the IJ’s decision.” Wu v. U.S. Att’y Gen., 

, 1153 (11th Cir.

2014) (brackets and quotation marks omitted). We review factual determinations

under the substantial evidence test, “view[ing] the record evidence in the light most


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favorable to the agency’s decision and draw[ing] all reasonable inferences in favor

of that decision.” Adefemi v. Ashcroft, 

, 1026–27 (11th Cir. 2004).

We must affirm the decision if it is supported by reasonable, substantial, and

probative evidence on the record considered as a whole. 

To reverse

the IJ’s and BIA’s factfindings, we must find that the record not only supports

reversal, but compels it. 

BIA assumes an alien’s credibility, so must

we. Shi v. U.S. Att’y Gen., 

, 1234 (11th Cir. 2013)

      To be eligible for asylum, an applicant must establish either past persecution

or a well-founded fear of future persecution on account of a statutorily protected

ground, including political opinion. See Ruiz v. U.S. Att’y Gen., 

,

1257 (11th Cir. 2006); 8 C.F.R. § 208.13(b). A showing of past persecution gives

rise to a presumption of a well-founded fear of future persecution, which can be

rebutted if the government proves by a preponderance of the evidence that: (1) the

conditions in the alien’s country have changed or (2) the alien can avoid future

persecution by relocating within the country if, “under all the circumstances, it

would be reasonable to expect the [alien] to do so.” De Santamaria v. U.S. Att’y

Gen., 

, 1012 (11th Cir. 2008); 8 C.F.R. § 208.13(b)(1). Absent past

persecution, an alien can qualify for asylum by proving that she has a well-founded

fear of future persecution, which requires that she show that her fear is subjectively




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genuine and objectively reasonable. 

; 8 C.F.R.

§ 208.13(b)(2).

       At issue here is whether the record compels the conclusion that Badada

suffered past persecution or that she has a well-founded fear of future persecution.

What is not at issue is whether Badada’s claimed persecution is based on a

protected ground. The parties agree that it is — her political opinion. 2 Nor is

Badada’s credibility at issue. Because the BIA assumed her credibility, so must

we. 

.

       We start with Badada’s claim of past persecution. We decide whether an

alien has suffered past persecution by “consider[ing] the totality of the

circumstances” surrounding her case. 

We consider the cumulative

effect of the events forming the basis of her claim of persecution, not whether the

individual events themselves constitute persecution. See Delgado v. U.S. Att’y

Gen., 

, 861 (11th Cir. 2007). Badada offered evidence showing that

after protesting a rigged 2005 election she was arrested and detained for two and

half months at the hands of Ethiopia’s ruling party. Initially, two soldiers came to

her house and took her to a local police station where she was held alone in a small


       2
         The parties here do not dispute that Badada’s claimed persecution stems from her
support for CUD, an opposition political party in Ethiopia that has been the subject of oppression
by the governing Ethiopian People’s Revolutionary Democratic Front. See U.S. Department of
State 2007 Country Report on Human Rights Practices in Ethiopia, available at
http://www.state.gov/j/drl/rls/hrrpt/2007/100481.htm (last visited June 24, 2014).


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cell, made to sleep on the floor, given bread and tea twice a day, and allowed to

use the bathroom in the morning and evening. After two days, she and 20 other

detainees were transferred by truck to Zeway prison, about four hours away.

       At Zeway, she was held in a small, dark, dirty cell with ten other detainees.

Like at the local prison, she was given bread and tea twice a day and allowed to

use the bathroom in the morning and evening. Her captors at Zeway interrogated

her twice, with the more serious questioning occurring three weeks in. During that

interrogation session, three soldiers asked her about her support for CUD, the

opposition party that she had backed. When she denied ever working for or

supporting the party, two of the soldiers beat her on the legs and back with rubber

batons. She was struck four or five times, leaving her bruised and in pain. The

soldiers also pushed her “roughly.” She feared that she would be severely injured

or killed.

       The second interrogation took place about a week before Badada’s release.

That time the two soldiers questioning her offered to free her if she agreed to serve

as an informant on CUD. Badada agreed. Her captors warned her that she would

face severe consequences if she did not cooperate. About six months later, after

deciding that she would not follow through on her promise to inform on CUD,

Badada fled Ethiopia.




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      Even viewing the record in the light most favorable to the BIA’s decision

and drawing all reasonable inferences in favor of that decision, the record compels

the conclusion that Badada was persecuted. The INA does not define persecution.

Sepulveda v. U.S. Att’y Gen., 

, 1231 (11th Cir. 2005). But we have

explained that persecution is an “extreme concept, requiring more than a few

isolated incidents of verbal harassment or intimidation, and that mere harassment

does not amount to persecution.” 

quotation marks omitted).

What happened to Badada was more egregious than mere harassment and more

extreme than a few isolated incidents of verbal harassment or intimidation. What

happened to her is as bad as treatment that we have held to be persecution. On this

point our decision in Shi is instructive. See 

.

      In Shi, we reversed the BIA’s and IJ’s finding that Shi, a Chinese Christian,

had not suffered past persecution. 

Chinese officials had targeted

Shi on account of his faith. 

They broke up his church service,

confiscated his family’s bibles, and detained him for seven days. 

detention, they slapped him, threw him to the floor, and handcuffed him to an iron

bar overnight in the rain. 

After being left outside in the rain all night,

he became sick, and when he did not recover after two days, the police released

him. 

Considering the totality of the circumstances, we held that Shi

had suffered past persecution. 

We emphasized that the act of


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handcuffing him to an iron bar outside in the rain was “brutal, inhumane, and

extreme.” 

And we said that “another significant fact lending further

support to finding persecution is the length of Shi’s detention following his arrest:

in this case, seven days.” 

We noted that we had never found

“detention combined with some physical abuse” to be insufficient “to compel a

finding of persecution . . . when the detention lasted an entire week.” 

is a lot like Shi’s. Both were detained — Badada for two and

a half months and Shi for seven days. And both were physically abused at the

hands of their captors. Badada was beaten with batons on the legs and back. After

striking her four or five times, the men interrogating her also pushed her “roughly.”

She feared that she would be severely injured or killed, and she suffered from pain

and bruising. Shi, on the other hand, was slapped, thrown to the floor, and

handcuffed to an iron bar overnight outside in the rain. He became ill after

spending the night outside, and he later needed medical attention.

      In an attempt to distinguish the cases of Badada and Shi, the government

contends that the physical abuse suffered by Badada was less severe than that

suffered by Shi. Even if we accept that as true, the severity of the physical abuse

suffered is only one of the factors to consider when deciding if there was

persecution. We must also consider the length of detention. With respect to that

factor, the harm Badada suffered was far worse than the harm suffered by Shi.


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Badada was detained for ten times longer than Shi, and the conditions of her

detention were deplorable. Considering the totality of the circumstances, including

both the length of her detention and the abuse she underwent, the record compels

the conclusion that Badada suffered past persecution.

      Because the record compels the conclusion that, if her statements are

credible, Badada suffered past persecution, she is entitled to the benefit of a

rebuttable presumption of a well-founded fear of future persecution. See 8 C.F.R.

§ 208.13(b)(1)(i). We need not reach the separate question whether she has also

proven a well-founded fear of future persecution. Instead, we grant Badada’s

petition and remand for further proceedings. On remand, the BIA should

determine whether Badada’s statements (including her testimony) are credible. If

they are, her application for asylum should be granted unless the government

rebuts the presumption that she has a well-founded fear of future persecution. If

her statements are not credible, her application for asylum should be denied unless

there is sufficient corroborative evidence other than her statements to prove her

claims.

      PETITION GRANTED.




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