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                           United States Court of Appeals
                                    Tenth Circuit
                                     JUL 25 2001
                                   PATRICK FISHER
                           UNITED STATES COURT OF APPEALS
                                   TENTH CIRCUIT
         YESHWARED WOLDEMESKEL,           
         v.                                          No. 00-9516
                                IMMIGRATION APPEALS
                               (INS No. A29-910-501)
         Kenneth H. Stern (Stephanie Goldsborough, with him on the briefs), Stern & 
         Elkind, Denver, Colorado, for Petitioner.
         Erin Albritton, Attorney, Office of Immigration Litigation, Civil Division (David 
         W. Ogden, Assistant Attorney General, Civil Division, and David V. Bernal, 
         Assistant Director, Office of Immigration Litigation, with her on the brief), 
         United States Department of Justice, Washington, DC, for Respondent.
         Before TACHA, Chief Judge, McKAY, and CUDAHY,(1) Circuit Judges.
         TACHA, Chief Judge.

         (1)     Honorable Richard D. Cudahy, Senior Circuit Judge, United States Court 
         of Appeals for the Seventh Circuit, sitting by designation.
              The petitioner appeals the Board of Immigration Appeals' order denying 

         her request for asylum and withholding of deportation and granting voluntary 

         departure.  Exercising jurisdiction under 8 U.S.C. . 1105a(a) (1995),(1) we deny 

         the petition for review.

                                   I.  Background

              The petitioner, Ms. Yeshwared Woldemeskel, is a native and citizen of 

         Ethiopia.  In October 1992, she entered the United States on a temporary visa 

         authorizing a six-month stay.  Because she stayed longer than authorized by her 

         visa, the Immigration and Naturalization Service (INS) instituted deportation 

         proceedings against her, after which Ms. Woldemeskel applied for asylum and 

         withholding of deportation claiming that she endured past persecution and feared 

         future persecution in Ethiopia because of her ethnicity and political opinion.  In 

         August 1994, the immigration judge denied her request for asylum and 

         withholding of deportation and granted voluntary departure, concluding Ms. Woldemeskel
		 had not established statutory eligibility for asylum.  In an order 

         dated May 15, 2000, the Board of Immigration Appeals (BIA) affirmed the 

         immigration judge's decision and this petition for review followed.

              During the asylum proceedings, Ms. Woldemeskel claimed that she was the 

         victim of past persecution under the Mengistu regime and that she feared future 

         persecution under the Transitional Government of Ethiopia (TGE), which 

         replaced the Mengistu regime in 1991.  In 1977, at the age of seventeen, the 

         Mengistu authorities allegedly arrested and imprisoned Ms. Woldemeskel for 

         twelve months because she was believed to be a member of a political opposition 

         group called the Ethiopian People's Revolutionary Party (EPRP).  Ms. 

         Woldemeskel testified that, during her first two months of imprisonment, she was 

         threatened often with a gun and tortured by prison authorities who gagged her, 

         tied her upside down, and whipped and hit her.  When released from prison, 

         authorities warned she would be arrested again if she worked with individuals 

         opposing the Mengistu government.

              From 1978 to 1990, Ms. Woldemeskel does not claim to have suffered 

         further persecution.  During this time, she married and had two children.  In 

         1991, Ethiopia experienced a change in government with the election of the TGE, 

         a group dominated by leaders of Tigrean ethnicity who belonged to the Ethiopian 

         (1)      In 1996, 8 U.S.C.  1105a was repealed by section 306(b) of the Illegal 
         Immigration Reform and Immigrant Responsibility Act (IIRIRA), Pub. L. No. 
         104-208, 110 Stat. 3009.  IIRIRA dramatically changed the scope and nature of 
         judicial review in exclusion cases.  But because the INS commenced deportation 
         proceedings against the petitioner before IIRIRA's effective date, April 1, 1997, 
         and the final deportation order was entered after October 31, 1996, our review is 
         governed by the pre-IIRIRA rules as amended by IIRIRA's transitional rules.  See 
         IIRIRA  306(c)(1), reprinted as amended in 8 U.S.C.  1252 note; IIRIRA 
         309(a), (c)(1) & (4), reprinted as amended in 8 U.S.C.  1101 note.  Under the 
         transitional rules,  1105a remains in effect but for minor procedural 
         People's Revolutionary Democratic Front (EPRDF), the political group currently 

         in power in Ethiopia.  Ms. Woldemeskel claims the leaders of the TGE targeted Ethiopians
		 of Amhara ethnicity, asserting that she and her husband were fired as 

         a result of their Amhara heritage.  In addition, she and her husband were 

         members of a political opposition group called the All Amhara People's 

         Organization (AAPO).  Because her husband led a group protesting the firing of 

         Amharas, he was allegedly arrested by the TGE in 1992.  She claims that 

         authorities then threatened to arrest her too if she did not stop protesting her 

         husband's arrest.  Shortly thereafter she obtained an Ethiopian passport and left 

         the country.  Because she was unable to obtain visas for her children, she had to 

         leave them in Ethiopia with a friend.

                                    II.  Asylum

              A request for asylum involves two steps.  First, the asylum applicant has 

         the burden of proving her statutory eligibility by establishing refugee status.  8 

         C.F.R. . 208.13(a)(2); Kapcia v. INS, 944 F.2d 702, 706 (10th Cir. 1991).  In order 

         to establish refugee status, the applicant must demonstrate either past 

         "persecution or a well-founded fear of [future] persecution on account of race, 

         religion, nationality, membership in a particular social group, or political 

         opinion."  8 U.S.C. . 1101(a)(42)(A).  Although persecution is not explicitly

         (2)      Citations to the C.F.R. are based on the current version of the regulations. 
         Although 8 C.F.R.  208.13 was recently amended, see 65 Fed. Reg. 76121, 
         76133-34 (Dec. 6, 2000), it did not change the substance of the provisions 
         applicable to Ms. Woldemeskel.  In order to minimize potential confusion, we 
         cite to the most recent version.
         defined, we have observed that it requires the "infliction of suffering or harm 

         upon those who differ (in race, religion, or political opinion) in a way regarded 

         as offensive" and requires "more than just restrictions or threats to life and 

         liberty."  Baka v. INS, 963 F.2d 1376, 1379 (10th Cir. 1992) (internal quotation 

         marks omitted).  Analysis of a claim specifically based on a "well-founded fear 

         of [future] persecution" includes both a subjective and an objective component. 

         Kapcia, 944 F.2d at 706.  The applicant must first prove an objective basis by 

         "`credible, direct, and specific evidence in the record, of facts that would support 

         a reasonable fear that the petitioner faces persecution.'" Id. at 706-07 (quoting 

         Aguilera-Cota v. INS, 914 F.2d 1375, 1378 (9th Cir. 1990)); see also 8 C.F.R. . 

         208.13(b)(2)(i)(B) (applicant must prove "reasonable possibility" of future 

         persecution).  If an objective basis exists, the applicant must show her subjective 

         fear is genuine.  Id. at 706. 

               If the applicant proves her eligibility for refugee status, the Attorney 

         General then exercises discretionary judgment in either granting or denying 

         asylum.  Id. at 708.  In general, the Attorney General's discretion at this second 

         step in an asylum claim is "extremely broad."  Id.  But if an applicant 

         demonstrates statutory eligibility based on past persecution, a rebuttable 

         presumption of a reasonable fear of future persecution arises.  8 C.F.R. . 

         208.13(b)(1); Nazaraghaie v. INS, 102 F.3d 460, 462 (10th Cir. 1996).  In order 

         to rebut the presumption in favor of the favorable exercise of discretion, the INS
         must prove by a preponderance of evidence that the petitioner no longer has a 

         well-founded fear of persecution because country conditions have changed.  8 

         C.F.R. . 208.13(b)(1)(i)(A); Kapcia, 944 F.2d at 709.  Alternatively, "the 

         immigration judge or [the BIA] may take administrative notice of changed 

         circumstances in appropriate cases, such as where the government from which the 

         threat of persecution arises has been removed from power."  Id. (internal 

         quotation marks and emphasis omitted).  

              In addition, when an asylum applicant shows she experienced "past 

         persecution so severe that repatriation would be inhumane," she may be eligible 

         for a discretionary, humanitarian grant of asylum even when no future danger of 

         persecution exists.  Baka, 963 F.2d at 1379.  According to the relevant regulation, 

         a humanitarian grant of asylum is appropriate when the "applicant has 

         demonstrated compelling reasons for being unwilling or unable to return . . . 

         arising out of the severity of the past persecution."  8 C.F.R. . 


         A.   Standard of Review

              We apply a substantial evidence standard to the BIA's resolution of the 

         first step of an asylum claimÄwhether an asylum applicant has established refugee 

         status: "The BIA's determination that [the applicant is] not eligible for asylum 

         must be upheld if `supported by reasonable, substantial, and probative evidence 

         on the record considered as a whole.'  It can be reversed only if the evidence
         presented by [the applicant] was such that a reasonable factfinder would have to 

         conclude that the requisite fear of persecution existed."  INS v. Elias-Zacarias, 

         502 U.S. 478, 481 (1992) (internal citation omitted) (quoting 8 U.S.C. . 

         1105a(a)(4) (1995)).  We will not, therefore, "weigh the evidence or . . . evaluate 

         the witnesses' credibility."  Kapcia, 944 F.2d at 707 (internal quotation marks 

         omitted).  At the second step of an asylum claim, which requires the exercise of 

         agency discretion, we review the BIA's decision for abuse of discretion.  Rezai v. 

         INS, 62 F.3d 1286, 1289 (10th Cir. 1995).  Recognizing the BIA's broad 

         discretion, we will not substitute our judgment for that of the BIA, but do require 

         a "rational connection between the facts found and the choice made."  Kapcia, 

         944 F.2d at 708 (internal quotation marks omitted).

         B.   Eligibility for Asylum

              Ms. Woldemeskel argues she is eligible for asylum under any of the 

         approaches discussed above: (1) humanitarian asylum based on past persecution 

         by the Mengistu regime; (2) asylum based on the rebuttable presumption created 

         by past persecution; and (3) asylum based on her well-founded fear of 

         persecution under the current government.  The immigration judge concludedÄand 

         the BIA agreedÄthat Ms. Woldemeskel was not entitled to asylum under any of 

         these approaches.  We agree.

         1.   Past Persecution

              Concerning her request for humanitarian asylum, the BIA did not abuse its
         discretion in deciding that the past persecution was not severe enough to warrant 

         a grant of asylum on humanitarian grounds.  Ms. Woldemeskel's imprisonment 

         under the Mengistu regime occurred several years ago.  Afterwards, she lived in 

         Ethiopia for many years free from harassment or discrimination.  Hence, the 

         record shows a rational connection between the facts in this case and the BIA's 

         finding that the imprisonment was not sufficiently severe.

              Because the BIA simply stated that the past persecution alone did not 

         compel a grant of asylum, Ms. Woldemeskel argues that the BIA abused its 

         discretion by not engaging in an individualized review of the evidence.  Although 

         we may, of course, review the BIA's order for "procedural regularity," we have 

         recognized the BIA need not "write an exegesis on every contention."  Panrit v. 

         INS, 19 F.3d 544, 545 (10th Cir. 1994) (internal quotation marks omitted). 

         Instead, the BIA must "consider the issues and announce its decision in terms 

         sufficient to enable us, as a reviewing court, to perceive that it has heard and 

         considered the arguments rather than merely reacted."  Id.  Given the BIA's 

         detailed recitation of facts and its acknowledgment that much time has passed 

         since Ms. Woldemeskel's ordeal, we are satisfied that the BIA heard and 

         considered all the evidence and arguments.  Moreover, we note the governing 

         regulation explicitly requires that the asylum applicant "demonstrate[] compelling 

         reasons" for her unwillingness to return, 8 C.F.R. . 208.13(b)(1)(iii)(A), in order 

         to be eligible for asylum on humanitarian grounds.  Although the BIA appears to
         have exercised its discretion in denying her humanitarian claim, Ms. 

         Woldemeskel has arguably failed to establish her eligibility by asserting 

         compelling reasons for her unwillingness to return.

              Ms. Woldemeskel also argues the INS failed to rebut the presumption of 

         future persecution created by the evidence of past persecution.  This argument 

         clearly fails because the record contains considerable evidence that conditions in 

         Ethiopia changed with the 1991 transition in power.  Furthermore, both the 

         immigration judge and the BIA acknowledged the 1991 change in government and 

         concomitant change in country conditions.  The presumption was clearly rebutted, 

         shifting the burden back to Ms. Woldemeskel to prove she is eligible for refugee 

         status because of a well-founded fear of persecution under the TGE, rather than 

         the Mengistu regime.

         2.   Well-Founded Fear of Persecution

              Ms. Woldemeskel may prove a well-founded fear of persecution based on 

         her Amhara ethnicity or political opinion in one of two ways: she may 

         demonstrate that she would be singled out personally for persecution in Ethiopia, 

         or she may show she has a reasonable fear of persecution because of her 

         membership in a group subject to "a pattern or practice of persecution."  8 C.F.R. 

         . 208.13(b)(2)(iii)(A)-(B).  The group must consist "of persons similarly situated 

         to [her] on account of race, religion, nationality, membership in a particular 

         social group, or political opinion."  Id. . 208.13(b)(2)(iii)(A).  The BIA
         concluded she failed to meet her burden of proof under either approach and we 

         agree.  Although Ms. Woldemeskel may subjectively fear future persecution in 

         Ethiopia, she has failed to meet her burden in proving an objectively reasonable 

         fear of persecution should she return to Ethiopia.

              The BIA concluded the record does not support a finding that Ms. 

         Woldemeskel is a member of a group currently subject to a pattern or practice of 

         persecution.  We agree with the BIA's conclusion because, although the record 

         does show continued political unrest and ethnic conflict in Ethiopia, it does not 

         show that members of the AAPO or people of Amhara heritage are subject to a 

         pattern or practice of persecution.  A pattern or practice of persecution has been 

         defined as "something on the order of organized or systematic or pervasive 

         persecution."  Makonnen v. INS, 44 F.3d 1378, 1383 (8th Cir. 1995).  The record 

         contains evidence that the EPRDP, the organization that controlled the TGE and 

         that is now in power, may be responsible for various human rights violations, 

         including extra-judicial killings and torture, but the evidence does not support the 

         conclusion that certain groups suffer systematic or pervasive persecution.  Some 

         evidence demonstrates that the EPRDF has imprisoned and harassed members of 

         political opposition groups and that faculty members of Amhara ethnicity have 

         been dismissed from the university.  This evidence, however, does not support a 

         finding of systematic and pervasive persecution.

              Moreover, Ms. Woldemeskel failed to prove she is similarly situated to
         individuals currently targeted for harassment and discrimination.  The evidence 

         shows that many, if not all, of the victims of harassment and intimidation are 

         AAPO leaders and outspoken activists.  For example, the 1994 State Report on 

         Ethiopia's country conditions acknowledges that AAPO activists believed by the 

         TGE to advocate violence or insurrection are often arrested, but regular AAPO 

         members have not been targeted.  Ms. Woldemeskel has failed to prove that her 

         position in the AAPO is similar to those previously targeted by the government. 

         See, e.g., Feleke v. INS, 118 F.3d 594, 598 (8th Cir. 1997) (requiring asylum 

         applicant prove that his position in a political opposition group was similar to 

         those members of the group subject to persecution).

              In addition to finding that Ms. Woldemeskel is not similarly situated to 

         individuals undergoing persecution, the BIA also concluded the evidence failed to 

         support Ms. Woldemeskel's claim that she will be personally singled out for 

         persecution.  Even if she and her husband were fired because of their ethnicity, 

         this fact alone does not constitute persecution.  As both the immigration judge 

         and the BIA noted, governmental employees are often replaced when a new 

         administration takes office.  Furthermore, we have recognized that termination of 

         employment or fear of unemployment does notÄwithout moreÄsupport a grant of 

         asylum.  Baka, 963 F.2d at 1379 (citing Zalega v. INS, 916 F.2d 1257, 1260 (7th 

         Cir. 1990) (requiring substantial economic detriment to support grant of asylum)). 

              In addition, like the BIA, we need not address whether her husband's
         political opinions will be imputed to Ms. Woldemeskel because the evidence in 

         the record does not show clearly that he was arrested based on his political 

         opinion and activism.  In order to prove a well-founded fear of persecution based 

         on her political opinion, Ms. Woldemeskel had the burden of proving she fears 

         particularized persecution targeted at her personally.  Instead, the record only 

         supports a finding that she may experience political alienation because she 

         disagrees with the government's policies.  See Safaie v. INS, 25 F.3d 636, 640 

         (8th Cir. 1994) (noting that an asylum applicant's disagreement with repressive 

         governmental policies is insufficient to establish refugee status).  

              In support of her argument that she has a well-founded fear of 

         individualized persecution, Ms. Woldemeskel challenges the BIA's refusal to 

         consider an allegedly official Ethiopian document, which orders her arrest for her 

         political involvement with the AAPO.  She claims this document proves the 

         government will seek to arrest her upon her return.  The immigration judge and 

         the BIA, however, did not consider the document because it was not 

         authenticated according to regulation, see 8 C.F.R. . 287.6(a)-(b),(3) and its
		 timing and content raise doubts about its credibility.  The document conveniently 

         surfaced as Ms. Woldemeskel was preparing her asylum application, having last 

         been in the possession of her brother.  In addition, it contains self-serving 

         information totally unnecessary for authorization of an arrest but useful in 

         preparing an asylum application, such as details regarding Ms. Woldemeskel's 

         friend, her political activity, and her departure from Ethiopia.  We may not weigh 

         the evidence, and we will not question the immigration judge's or BIA's 

         credibility determinations as long as they are substantially reasonable.   Given the 

         document's timing and content, the BIA reached a reasonable conclusion 

         supported by substantial evidence.  In short, the record supports the BIA's 

         decision that Ms. Woldemeskel did not meet her burden in establishing a well-

         founded fear of persecution.

         C.   Administrative Notice

              Ms. Woldemeskel argues that the BIA violated her Fifth Amendment right 

         to due process by taking administrative notice of three facts contained in the 

         State Department's 1999 Country Reports on Human Rights Practices and not 

         providing her with an opportunity to respond to these facts.  Because of their 

         specialized knowledge in certain specific subject areas, administrative agencies 

         (3)      Because the BIA did not rely solely on her failure to follow the 
         regulation, we need not address Ms. Woldemeskel's argument that, under prior 
         BIA decisions, her failure to comply with the regulation's procedures does not 
         automatically invalidate the document.  Similarly, we need not discuss her 
         argument that she did not have to comply with the regulation because both the 
         INS and the immigration judge conceded that a copy was sufficient.  Even if the 
         document had been authenticated under the regulation, the immigration judge andthe BIA
		  remained free to assess its credibility.
         may "take notice of technical or scientific facts that are within the agency's area of
		 expertise."  Llana-Castellon v. INS, 16 F.3d 1093, 1096 (10th Cir. 1994) 

         (internal quotation marks omitted).  It is well established that the BIA "may take 

         administrative notice of commonly acknowledged facts, which may include 

         current events bearing on an applicant's well-founded fear of persecution." 

         Kowalczyk v. INS, 245 F.3d 1143, 1147 (10th Cir. 2001) (internal quotation 

         marks omitted).  In addition, the BIA "may draw reasonable inferences from the 

         evidence which comport with common sense."  Kapcia, 944 F.2d at 705 (internal 

         quotation marks omitted).  

              The BIA may not, however, base its decision primarily on facts not 

         contained in the record without providing asylum applicants with notice and the 

         opportunity to rebut inferences drawn from those facts.  See id. 705-06; 

         Kowalczyk, 254 F.3d at 1147-48.  We have repeatedly recognized that 

         individuals subject to deportation are entitled to procedural due process, which 

         provides an "`opportunity to be heard at a meaningful time and in a meaningful 

         manner.'" See, e.g., Llana-Castellon, 16 F.3d at 1096 (internal quotation marks 

         omitted) (quoting Mathews v. Eldridge, 424 U.S. 319, 333 (1976)).  

              In Ms. Woldemeskel's case, however, the BIA did not base its decision on 

         the administratively noticed facts, which at most merely supplement the BIA's 

         conclusion that "[t]here is no basis in the record upon which to conclude that 

         persons similarly situated as the respondent are persecuted in Ethiopia simply on 

         account of their Amhara ethnicity or their membership in the AAPO."  In re
         Woldemeskel, No. A29 910 501, at 2 (BIA May 15, 2000).  As we have already 

         discussed, the record lacks evidence showing Ms. Woldemeskel had a well-

         founded fear of persecution based on her AAPO membership or Amhara ethnicity. 

         Ms. Woldemeskel would first have to meet her burden of proof before the three 

         facts from the State Department report would have any detrimental effect on her 


              Even if she had established statutory eligibility, the administratively 

         noticed facts would have little impact on her case.  The first fact recognizes the 

         establishment in 1992 of a special prosecutor's office committed to vindicating 

         human rights violations under the Mengistu regimeÄa detail also included in the 

         record.  The second fact simply recognizes that the EPRDF formally replaced the 

         TGE in 1995, a fact with little significance because both parties acknowledge that 

         the TGE was dominated by the EPRDF; hence, the BIA's recognition of the 1995 

         transition is at most an acknowledgment that country conditions today are similar 

         to those under the TGE.  The final fact notes that political opposition parties are 

         anticipated to participate in the May 2000 elections.  We recognize that this is a 

         misstatement of the 1999 report, which indicates that opposition parties are 

         expected to protest.  But although this is a rather disconcerting error, the reality 

         that opposition groups planned to protest does not help Ms. Woldemeskel prove 

         her case for asylum.

              We emphasize that, if an asylum applicant has proved eligibility for
         refugee status, administrative notice of facts outside the record is improper unless 

         the applicant has notice and the opportunity to respond to the facts and rebut the 

         inferences drawn.  Kowalczyk, 245 F.3d at 1148-49 (holding asylum applicant's 

         due process rights were violated by the administrative notice of facts key to [his] 

         claim coupled with" a nine-year delay by the BIA on appeal).  If Ms. 

         Woldemeskel had met her burden of proof and the BIA had rested its decision on 

         facts not included in the record, she would have been entitled to notice and an 

         opportunity to be heard, but this is not the case.  See, e.g., Llana-Castellon, 16 

         F.3d at 1098 (holding notice and an opportunity to be heard were required when 

         the administratively noticed facts were dispositive of the asylum applicant's 

         appeal).  The BIA did not rest its decision on the noticed facts, nor did Ms. 

         Woldemeskel meet her burden in proving eligibility for refugee status.

                          III.  Withholding of Deportation

              An asylum application also includes a request for withholding of 

         deportation, which the Attorney General must grant if the statutory criteria are 

         met.  An applicant is entitled to withholding of deportation if the Attorney 

         General "determines that [the applicant's] life or freedom would be threatened . . 

         . on account of race, religion, nationality, membership in a particular social 

         group, or political opinion."  8 U.S.C. . 1253(h) (1994 & Supp. 1995).  The 

         burden of proof for withholding of deportation is, however, significantly higher 

         than that for asylum.  In order to demonstrate eligibility for withholding of
         deportation, the applicant must establish a "clear probability of persecution" 

         through presentation of "evidence establishing that it is more likely than not that 

         [the applicant] would be subject to persecution on one of the specified grounds." 

         INS v. Stevic, 467 U.S. 407, 429-30 (1984).  Because substantial evidence 

         supports the BIA's decision denying the asylum claim, Ms. Woldemeskel clearly 

         did not carry her burden of proof under the more stringent standard required for 

         withholding of deportation.  See, e.g., Nazaraghaie, 102 F.3d at 465; Kapcia, 944 

         F.2d at 709.

              We accordingly deny the petition for review and AFFIRM the BIA's 

         decision to deny asylum and withholding of deportation and to grant voluntary 


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