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Case Name:BELAYNEH V INS
Case Number:	Date Filed:
98-70941	05/23/00
 

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TSEHAY BELAYNEH; ESEY BEKELE,
                                                     No. 98-70941
Petitioners,
                                                     INS No.
v.
                                                     A70-776-777
IMMIGRATION AND NATURALIZATION
                                                     A70-776-778
SERVICE,
                                                     OPINION
Respondent.

Petition to Review a Decision of the
Immigration and Naturalization Service

Argued and Submitted
March 7, 2000--Pasadena, California

Filed May 23, 2000

Before: J. Clifford Wallace, Harry Pregerson and
Sidney R. Thomas, Circuit Judges.

Opinion by Judge Thomas

_________________________________________________________________



COUNSEL

Howard R. Davis, Rose, Rose & Davis, Los Angeles, Califor-
nia, Attorney for the petitioners.

Marshall T. Golding and Holly A. Gimbel, Office of Immi-
gration Litigation, United States Department of Justice,
Washington, D.C., Attorneys for the respondent.

_________________________________________________________________

OPINION

THOMAS, Circuit Judge:

In this petition for review, we must determine the extent to
which a former spouse's political views may be considered
imputed to a petitioner. Under the circumstances presented by
this case, we conclude that substantial evidence supports the
Board of Immigration Appeals' ("BIA") decision affirming
the denial of eligibility for asylum.

I

Tsehay Belayneh, a native and citizen of Ethiopia, married
Bekele Ibsa in 1967. They have four children, including peti-
tioner Esey Bekele, whose claim derives from his mother's.
Bekele Ibsa was a colonel under the government of Haile
Selassie until it was overthrown in 1974. In 1975, the new
communist government of Mengistu Haile Mariam impris-
oned Colonel Bekele for a year because of his involvement
with the army under the previous regime, then forcibly retired
him from service. In 1981, however, the Mengistu regime
forcefully recalled Colonel Bekele into the army to help put
down a rebellion, and later to work for internal security
forces. Belayneh urged him to quit the military and leave the
country, but he argued that service in the military was the
only means of supporting the family. Because of this "differ-

                               5434


ence in political opinion," as Belayneh put it in her asylum
application, the couple divorced in 1984.

Meanwhile, the Mengistu regime established kebeles, or
community associations, that repeatedly attempted to recruit
Belayneh and her children. When her family refused to join
the local kebele, its agents harassed them. In 1978, kebele
agents held her in a detention center, where she suffered 45
minutes of beatings under interrogation over two days.
Guards also attempted to rape her. The kebele released her
after a month, when she agreed to abstain from political activ-
ity. The communists continued to monitor her family after her
detention. In 1985, kebele agents temporarily detained and
beat her children because they refused to participate in com-
munist youth organizations. Over the next several years,
Belayneh sent all of her children to live in the United States,
including her minor son, petitioner Esey Bekele, who arrived
on a tourist visa in 1989. An older son, Getaneh, received asy-
lum in 1996, based on his detention and beating in 1985.
Belayneh visited her children in the United States and
returned to Ethiopia three times. On her fourth visit, she
entered the United States on May 25, 1991 with a tourist visa,
and stayed.

In 1991, the Ethiopian Peoples' Revolutionary Democratic
Front ("EPRDF") toppled the Mengistu regime. Again, the
new government arrested and imprisoned Colonel Bekele for
his prior military involvement; the record is unclear whether
he has been released yet. After she entered the United States,
Belayneh heard that EPRDF officials visited her former resi-
dence in search of her. She also suspects, but scarcely
evinces, that the new government was behind the disappear-
ance of her cousin and the murders of her sister and brother
in 1995. She fears persecution on account of her Amhara
nationality, her political opinion, and her membership in the
social group including relatives of army members.

                               5435


On July 25, 1995, the INS issued an order to show cause
charging Belayneh and her son with the deportable offense of
remaining in the United States longer than permitted, in viola-
tion of 8 U.S.C. S 1251(a)(1)(C)(i), transferred to 8 U.S.C.
S 1227(a)(1)(C)(i). At a deportation hearing on February 7,
1996, Belayneh conceded deportability and requested political
asylum and withholding of deportation. The immigration
judge denied the application, finding Belayneh's testimony
incredible and alternatively holding that Belayneh neither suf-
fered past persecution nor had a well founded fear of future
persecution. The BIA dismissed Belayneh's appeal, declining
to adopt the immigration judge's adverse credibility determi-
nation, but nonetheless agreeing that Belayneh has no well-
founded fear of persecution. She and her son petition us for
a review of the BIA decision. We have jurisdiction under 8
U.S.C. S 1105a(a).1

II

We may reverse the BIA's decision only if the evidence
presented by Belayneh is such that a reasonable fact-finder
would be compelled to conclude that the requisite fear of per-
secution existed. See INS v. Elias-Zacarias, 502 U.S. 478, 481
n.1 (1992). An alien is eligible for asylum and may be granted
asylum at the discretion of the Attorney General if the alien
establishes that she is a statutory "refugee. " 8 U.S.C.
S 1158(a). A "refugee" is an alien who is unable or unwilling
to return to the country of her nationality "because of persecu-
tion 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. S 1101(a)(42)(A). The alien
_________________________________________________________________
1 The Illegal Immigration Reform and Immigrant Responsibility Act of
1996 ("IIRIRA") repealed 8 U.S.C. S 1105a and replaced it with a new
review provision codified at 8 U.S.C. S 1252. See IIRIRA S 306(c)(1). The
new provision does not apply to deportation proceedings, such as
Belayneh's, commenced prior to April 1, 1997, and we continue to have
jurisdiction under 8 U.S.C. S 1105a. See IIRIRA S 309(c)(1).

                               5436


bears the burden of proof to establish eligibility for asylum,
which she may sustain through credible testimony. See 8
C.F.R. S 208.13(a). If an alien receives asylum, that same sta-
tus may be granted to her accompanying minor child. See 8
U.S.C. S 1158(b)(3).

[1] Substantial evidence supports the BIA's conclusion that
Belayneh has not established a reasonable fear of future per-
secution on account of a protected ground. 8 U.S.C.
S 1101(a)(42)(A). She claims that she will suffer persecution
if she returns to Ethiopia because of her former husband's
activities. Well-founded fear of persecution may be estab-
lished by the persecution of an estranged spouse whose views
are imputed to the petitioner. See Meza-Manay v. INS, 139
F.3d 759, 764 (9th Cir. 1998). However, a former relationship
alone is insufficient: there must be an evidentiary nexus
between the spouse's persecution and the petitioner's fear.
Here, the record is devoid of any suggestion that the alleged
persecutors have imputed to Belayneh her former husband's
views. Further, the two have been divorced for more than fif-
teen years and the government has twice changed in the
interim. These circumstances stand in contrast to those at
issue in Meza-Manay, where the couple was not divorced, the
petitioner had actively opposed the persecutors, and evidence
existed showing that the estranged husband's views had been
imputed to the petitioner. See 139 F.3d at 765.

[2] The only persecution suffered by Belayneh directly was
a brief detention a quarter century ago during the reign of the
Mengistu regime. After that she traveled to the United States
and returned to Ethiopia three times without incident. She
entered the United States shortly after the EPRDF assumed
power. Following her emigration, further changes occurred in
Ethiopia. In 1994, Ethiopia adopted a new democratic consti-
tution. In 1995, the Government of the Federal Democratic
Republic of Ethiopia assumed power after free elections. The
State Department Country Report noted that "sweeping
changes" had occurred in Ethiopia and that neither ethnic

                               5437


Amharas nor relatives of former army officers were subject to
persecution. See Bureau of Democracy, Human Rights and
Labor, U.S. Dept. of State, Ethiopia - Profile of Asylum
Claims & Country Conditions 3 (1995).

[3] Therefore, substantial evidence supports the BIA's con-
clusion that Belayneh does not have a well-founded fear of
persecution -- either because of her own views or those
imputed to her -- upon her return to Ethiopia. Because she
did not meet the threshold for asylum, she would not meet the
higher burden for withholding of deportation. 8 C.F.R.
S 208.16(b)(1); see also Acewicz v. INS , 984 F.2d 1056, 1062
(9th Cir. 1993).

III

[4] Belayneh also claims that the BIA erred in denying her
"humanitarian asylum" for atrocious past persecution. The
BIA may grant asylum for humanitarian reasons where an
applicant or his family has suffered under atrocious forms of
persecution, even where there is little likelihood of future per-
secution. See Acewicz v. INS, 984 F.2d at 1062. When the
BIA finds past persecution but no well-founded fear of future
persecution, we review its denial of humanitarian asylum for
an abuse of discretion. See Lopez-Galarza v. INS , 99 F.3d
954, 960 (9th Cir. 1996). Although rape may constitute an
atrocious form of persecution, see id. at 962, Belayneh never
claims to have been raped, and there is scant evidence even
of an attempted rape; she did not mention an attempted rape
in her application, and testified to it only in passing. While
this does not mean that she could not have been so trauma-
tized, she failed to evince it sufficiently to support a finding
of atrocity. On this record, we cannot say that the BIA abused
its discretion.

Belayneh also argues that the BIA should have accorded
more weight to her adult son's successful asylum claim, par-
ticularly because his persecution occurred during the

                               5438


Mengistu regime, yet he won asylum in 1996. Issue preclu-
sion applies to immigration proceedings. See Ramon
Sepulveda v. INS, 824 F.2d 749, 750-51 (9th Cir. 1987). How-
ever, Belayneh's claim of persecution rests upon a different
factual predicate than her son's: he was himself a victim of
persecution not long before he sought asylum. Further, as we
have noted, the country conditions have changed since his
petition was considered.

PETITION DENIED

                               5439


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