Abebe Tolesa v. Eric Holder, Jr.

Filing 920091203

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-1690

ABEBE GEBREMICHAEL TOLESA, Petitioner, v. ERIC H. HOLDER, JR., Attorney General, Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals.

Argued:

September 25, 2009

Decided:

December 3, 2009

Before NIEMEYER, MICHAEL, and KING, Circuit Judges.

Petition denied by unpublished per curiam opinion.

ARGUED: Jason Alexander Dzubow, MENSAH, SHOEMAKER & DZUBOW, PLLC, Washington, D.C., for Petitioner. Ada Elsie Bosque, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Gregory G. Katsas, Assistant Attorney General, Civil Division, William C. Peachey, Assistant Director, Office of Immigration Litigation, Mona Maria Yousif, Civil Division, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Abebe Gebremichael Tolesa petitions this court for

review of an order by the Board of Immigration Appeals (BIA) dismissing his appeal from the Immigration Judge's (IJ's)

decision denying his application for asylum. *

Tolesa argues that

the BIA erroneously upheld the IJ's determination that Tolesa had failed both to provide corroborating evidence in support of his asylum claim and to demonstrate that he had a well-founded fear of future persecution. We deny the petition because it was

not an abuse of discretion for the IJ to conclude that Tolesa had failed to demonstrate a well-founded fear of future

persecution. I. A. Tolesa is a native and citizen of Ethiopia who belongs to the Oromo ethnic group. Since 1988 he has served in the In and

Ethiopian military, currently holding the rank of captain. 1991 the present government of Ethiopia came to power

initially imprisoned Tolesa along with other officers who served the previous regime. While he was later released back into

While Tolesa also pursued claims before the IJ for withholding of removal and withholding pursuant to the United Nations Convention Against Torture (CAT), he does not petition this court to review the BIA's dismissal regarding those claims.

*

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military service, Tolesa was watched with suspicion because the new government, comprised largely of ethnic Tigreans, distrusted Oromos. Eventually, however, Tolesa obtained the government's

trust and came to lead a prosperous life as a military trainer. At some point Tolesa began to support a political

opposition party called the Coalition for Unity and Democracy (CUD). Because the Ethiopian military prohibits its members

from participating in political activities, Tolesa attests that, while in Ethiopia, he expressed his support for CUD in

"clandestine and discreet ways."

J.A. 256.

Tolesa testified

that he formed a "cell" along with three other officers, Major Gidey, Captain Melaku, and Captain Abera. Id. at 153. He

further testified that, in addition to encouraging support among other members of the military through this cell, he discussed CUD with his family and friends. In early 2005 Ethiopia conducted a highly contested election, which culminated in the government announcing that it had retained power. CUD loudly denounced protests. the results was as a

fraudulent

and

launched

multiple

There

crackdown, and the brutal treatment of CUD supporters and of the press was widely reported. Tolesa had been sent for training in

the United States shortly before the election and therefore did not participate in the protests. From the United States,

however, he learned that several members of his cell had been 3

discovered.

Major Gidey was caught watching a CUD video and

required to relocate, allegedly to deprive him of needed medical resources. Gidey died soon after his relocation. Captain Abera

was also discovered and consequently reassigned and mistreated. To the best of Tolesa's knowledge, Captain Melaku's CUD

association remains unknown to the Ethiopian government. Tolesa testified that the government first learned of his own CUD activities in late October 2005 while he was still in the United States. The police had spoken to his brother and Based that ended

wife about his CUD activities and made various threats. on the treatment to of his in colleagues, March 2006 Tolesa when his concluded training

returning

Ethiopia

would subject him to persecution and maybe even death. failed to return home after his training ended, the

When he police When

issued a summons demanding his presence for questioning. he failed to that respond, his wife the police for issued a second

summons first

demanding

report

questioning.

The

summons contains the following statement: duty of a member of the armed

"It is known that the is to guard the

forces

constitution and defend the territorial integrity of his country and [that] he is not to get involved in any political

activities."

J.A. 407.

The summons cites Tolesa's violation of Id.

the "foregoing principle" as the reason for its issuance.

4

In addition to his own testimony, Tolesa provided the testimony of another member of the Ethiopian military, Assesa Ambo, who was also in the United States for training and who is also currently account seeking of the asylum. treatment Ambo of generally CUD corroborated and the

Tolesa's

supporters

threat of persecution if he and Tolesa returned.

Among the

documentary evidence Tolesa provided to corroborate his account were: (1) signed letters from his of wife CUD 393, attesting to the the

Ethiopian "serious

government's retaliatory

knowledge

his

association, including

measure[s],"

J.A.

death,

that awaited him should he return, and the threats made to her by the Ethiopian police; (2) the two summonses issued by the Ethiopian government; and (3) various background materials from the U.S. State Department, Human Rights Watch, and the press documenting the persecution of CUD supporters in Ethiopia. B. The IJ found Tolesa "generally credible." "His testimony was detailed, plausible, in most J.A. 82. accounts,

internally consistent and generally consistent with the asylum application and his statement, as well as with the statement of his other witnesses." Id. at 82-83. Nevertheless, the IJ

rejected Tolesa's application on two grounds:

(1) Tolesa had

failed to carry his burden of proof because he had produced

5

insufficient corroborating evidence; and (2) he had failed to establish a well-founded fear of persecution. With regard to Tolesa's alleged fear of persecution, the IJ found that it was not clear that Tolesa feared

persecution as much as prosecution.

Citing the summons issued

to Tolesa, the IJ found it was "not clear whether the government wants to talk to [Tolesa] because of his work on behalf of the CUD or because he simply activity violated or the rules for J.A. or restrictions reason If by the

against members

political of the

involvement military."

any 86.

active

duty

Ethiopian government sought to punish Tolesa under regulations forbidding the military from engaging in political activity -whether it be for the opposition or for the government -- the punishment would not be persecution but prosecution under

legitimate criminal or military rules. After summarily denying Tolesa's asylum application, for the IJ of

dismissed

Tolesa's

application

withholding

removal and CAT claim because the burden for asylum was less than that for withholding "to face of removal and a because there was

insufficient that

evidence will

establish torture

even should

reasonable he be

chance to

[Tolesa]

removed

Ethiopia."

Id. at 88.

The BIA summarily affirmed in a brief,

three-paragraph decision, adopting the IJ's rationale on every claim. Tolesa next filed this petition for review. 6

II. The BIA's decision is a final order of removal. While

ordinarily we review only the decision of the BIA, when the BIA adopts the reasoning of the IJ and summarily affirms, we review the IJ's decision. 1255 (4th Cir. 1995). Gandarillas-Zambrana v. BIA, 44 F.3d 1251, We review the IJ's findings of fact under

the substantial evidence rule, and we must treat these findings as conclusive to 493 unless conclude F.3d "any to reasonable the 448 adjudicator would be v.

compelled Gonzales,

contrary." (4th Cir.

Abdel-Rahman 2007); 8

444,

U.S.C. Abdeldecision

§ 1252(b)(4)(B). Rahman, 493 F.3d

We review all legal issues de novo. at 449. The final administrative

concerning removal, however, will not be disturbed unless we determine that it is "manifestly contrary to law and an abuse of discretion." Naizgi v. Gonzales, 455 F.3d 484, 487 (4th Cir.

2006); 8 U.S.C. § 1252(b)(4)(D). Although the IJ reached his conclusion on two

alternate grounds, we affirm on only one: establish a well-founded fear of future

that Tolesa failed to persecution. "The

Attorney General has the discretion to grant asylum to an alien who successfully demonstrates that he qualifies as a refugee." Lin-Jian v. Gonzales, 489 F.3d 182, 187 (4th Cir. 2007). An

applicant qualifies as a refugee if he demonstrates that he has suffered from past persecution, or has a well-founded fear of 7

future persecution, on account of race, religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C. § a 1101(a)(42)(A); well-founded 8 fear C.F.R. of § 1208.13(b). persecution, To the

demonstrate

future

applicant must show both that he is "subjectively afraid and that the fear is objectively well-founded." at 188. Lin-Jian, 489 F.3d

For the fear to be objectively well founded, there must

be "a reasonable possibility of suffering such persecution if [the applicant] were to return" to his country. 8 C.F.R.

§ 1208.13(b)(2)(i).

The testimony of the applicant is almost

always critical to determining whether asylum is appropriate and "if credible, may be sufficient to sustain the burden of proof without corroboration." 8 C.F.R. § 1208.13(a); 8 U.S.C.

§ 1158(b)(1)(B)(ii).

However, while a finding of credibility

will likely be sufficient to establish that the applicant is subjectively afraid of persecution, it will not necessarily be sufficient founded. 2001). Although the IJ's reasoning is not explicit, we take his conclusion concerning Tolesa's alleged fear of persecution to rest on the objective component of the statute. The IJ found to establish that his fear is objectively well

See Najjar v. Ashcroft, 257 F.3d 1262, 1289 (11th Cir.

Tolesa credible, implying that the IJ believed Tolesa when he testified that he feared severe retribution from the Ethiopian 8

government on account of his political opinions. IJ's focus on the summons and the purpose

Moreover, the for which the

Ethiopian government sought his return suggest that the IJ was assessing whether Tolesa's belief was objectively well founded. Central to the IJ's assessment was the statement in the summons that the Ethiopian government restricts the

political speech of its military personnel.

The IJ took this

statement to be evidence of a regulation prohibiting political speech in the military. The IJ reasoned that even if such a

rule was problematic, its presence, without additional evidence, weighed against a persecutory the IJ motive held that by the Ethiopian given the

government.

Indeed,

"even

persecution and mistreatment of some activists of the CUD in Ethiopia in recent years," it was "too speculative" to conclude that Tolesa was being summoned for persecution. J.A. 86.

Tolesa had simply failed to carry his burden of demonstrating that the punishment awaiting him was on account of dissident political speech rather than violation of a neutral military regulation. Tolesa argues in response that the military regulation in question was not, in fact, neutrally applied. can still occur motive F.3d under is at to 452 the guise of Persecution if the

prosecution conduct.

prosecutor's Rahman, 493

target ("where 9

protected the

Abdela

motive

underlying

purported prosecution is illegitimate, such prosecution is more aptly called persecution"). In support of this argument Tolesa

testified that the requirement that army officers "not openly give [themselves] to a political group" in fact meant that they "were allowed only to give [themselves] to the government" and not to any opposition group. J.A. 152. He further testified

that if he returned to Ethiopia, "the Ethiopian government will kill me because of a of my political regulation. opinion" Id. at rather 163. than the

violation

military

Finally,

Tolesa argues that the government's transfer of Major Gidey when it knew of his medical problems is evidence of persecution and not merely prosecution for violation of a regulation. Given the record, we cannot conclude that the IJ's rejection of Tolesa's argument was "manifestly contrary to law and an abuse of discretion." the Ethiopian government's Except for the evidence concerning general hostility towards CUD

supporters, Tolesa's evidence is entirely consistent with the government having a legitimate prosecutorial motive. The

summons states its purpose in neutral terms, purporting to seek his presence for violation of a military regulation. Even if

the Ethiopian government has applied such a regulation to punish CUD supporters, there is no evidence in the record of any

instances in which the Ethiopian government declined to apply it to their own supporters, and 10 hence no evidence that the

government does not apply the regulation neutrally. assuming Major Gidey and Captain Abera were

Moreover, for

punished

violating the regulation, their transfers are minor punishments compared with the death and torture that Tolesa claims await him in Ethiopia. Considering the nature of the offense, that is,

political activity in violation of a military regulation, the punishment imposed on Gidey and Abera suggests a prosecutorial motive rather than a persecutory one. Indeed, Ethiopian the only has a evidence Tolesa offers here that is the his

government

persecutory

motive

belief, shared by his wife and fellow officer Ambo, that it has such a motive. While a finding of credibility entails the

conclusion that Tolesa testified truthfully, it does not entail the conclusion that Tolesa's belief is reasonable. simply be wrong views. in believing that death awaits must Tolesa could him for his make

political

Immigration

judges

regularly

judgments concerning not only the credibility of an applicant but also the existence of an objectively reasonable basis for an applicant's honestly held beliefs. Here, the IJ appears to have

ultimately found that there was insufficient evidence to support an objectively reasonable basis for Tolesa's specific belief. Without such a basis, the IJ could not conclude that there was a reasonable possibility that Tolesa would suffer persecution in Ethiopia. In light of the record as a whole, we cannot hold 11

that the IJ's conclusion was manifestly contrary to law or an abuse of discretion. * * * For the reasons stated, we deny Tolesa's petition for review. PETITION DENIED

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