Shewangizaw Worku v. Eric Holder, Jr.

Filing

UNPUBLISHED AUTHORED OPINION filed. Originating case number: A094-873-368. Copies to all parties and the agency. [999681449]. [13-2446]

Appeal: 13-2446

Doc: 44

Filed: 10/20/2015

Pg: 1 of 11

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-2446

SHEWANGIZAW AYELE WORKU,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.

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

Argued:

September 16, 2015

Decided:

October 20, 2015

Before KING, KEENAN, and FLOYD, Circuit Judges.

Petition for review denied by unpublished opinion. Judge Keenan
wrote the opinion, in which Judge King and Judge Floyd joined.

ARGUED: Jason Alexander Dzubow, DZUBOW & PILCHER, PLLC,
Washington, D.C., for Petitioner.
Surell Brady, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
ON
BRIEF: Stuart F. Delery, Assistant Attorney General, Civil
Division,
Cindy
Ferrier,
Assistant
Director,
Office
of
Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.

Unpublished opinions are not binding precedent in this circuit.

Appeal: 13-2446

Doc: 44

Filed: 10/20/2015

Pg: 2 of 11

BARBARA MILANO KEENEN, Circuit Judge:
Shewangizaw Ayele Worku, a native and citizen of Ethiopia,
petitions for review of a decision of the Board of Immigration
Appeals (BIA) dismissing his appeal from an immigration judge’s
order denying his application for asylum. 1
Worku

contends

immigration

that

judge

the

adverse

(IJ)

was

In his petition,

credibility

not

supported

finding
by

by

the

substantial

evidence, and, alternatively, that the testimony and affidavits
of

Worku’s

witnesses

and

his

documentary

evidence

provided

sufficient independent evidence to support his claim of past
persecution.

Upon our consideration of these arguments, we deny

Worku’s petition for review, because the agency’s determination
is supported by substantial evidence.

I.
Worku

entered

the

United

States

in

March

2006

after

receiving a “temporary B-2 visitor visa,” which authorized him
and his family 2 to stay in the United States until September

1

Worku also had sought withholding of removal and relief
from removal under the Convention Against Torture. However, the
IJ denied that relief, and the BIA concluded that Worku had
waived these claims. Because Worku does not challenge the BIA’s
conclusion of waiver, we address only Worku’s asylum request in
the present case.
2

Worku’s wife and daughter sought asylum as
beneficiaries
of
Worku’s
application,
see
8
(Continued)
2

derivative
U.S.C.
§

Appeal: 13-2446

2006.

Doc: 44

In

Filed: 10/20/2015

October

2006,

Pg: 3 of 11

Worku

filed

with

the

Department

of

Homeland Security (DHS) an application for asylum, claiming that
he

had

been

persecuted

in

Ethiopia

because

of

his

political

opinions involving the Oromo National Congress (ONC) 3 and because
of his Oromo ethnicity.
During an interview with a DHS asylum officer, Worku stated
that he left Ethiopia after he had been arrested, detained, and
tortured following an ONC demonstration.
asylum

officer’s

statement,
asylum

and

notes

his

request.

from

that

supporting

DHS

found

After reviewing the

interview,

documents,

that

Worku’s

Worku’s

DHS

written

denied

Worku’s

statements

were

not

credible because he had provided insufficient details regarding
the substance of his application, and because the documents he
submitted did not supply clarifying facts.
continued

presence

1158(b)(3)(A).
review.

in

the

United

States

Based on Worku’s
beyond

the

period

They are not named parties in this petition for

3

According to the State Department, Oromo is “Ethiopia’s
largest ethnic group, representing approximately 40% of the
population.” Bureau of Democracy, Human Rights, and Labor, U.S.
Dep’t of State, Ethiopia Asylum Country Profile 4 (August 2007).
Yet,
although
the
ONC
is
a
“prominent
Oromo
political
organization[,] which won over 40 seats in the May 2005
elections[,] . . . ONC members were killed, jailed[,] and
harassed both prior to, and following, the 2005 elections.” Id.

3

Appeal: 13-2446

Doc: 44

authorized

Filed: 10/20/2015

by

his

visa,

Pg: 4 of 11

DHS

initiated

removal

proceedings

against Worku under 8 U.S.C. § 1227(a)(1)(B).
In proceedings before the IJ, Worku conceded that he was
removable

but

sought

the

ground

“distributed

university

printed

student,

materials

he

describing

and

had

“attended
what

the

his

been

At a hearing, Worku testified that after he joined
a

opinion

he

ethnicity.
as

political

that

based

ONC

his

on

persecuted

the

on

asylum

Oromo

meetings,”
government

was doing to the Oromo people,” and “campaigned” to encourage
other students to join the group.

Worku stated that during a

student ONC demonstration on April 18, 2001, Ethiopian police
officers fired gunshots, struck Worku in the head with a rifle,
and arrested him.

Worku testified that he was detained in a

prison cell following this incident for a period of two weeks.
During Worku’s detention, officers allegedly interrogated
Worku about his Oromo ethnicity, his membership in the ONC, and
his distribution of leaflets before the student demonstration.
Worku stated that he was slapped, kicked, beaten severely with a
baton, and forced to crawl on sharp pebbles for “sport.”

Worku

was released on May 3, 2001, after allegedly signing a document
stating

that

he

would

not

participate

in

anti-government

activities.
According to Worku, he was not permitted to return to the
university, and he later observed two armed men following him
4

Appeal: 13-2446

Doc: 44

Filed: 10/20/2015

near his home.

Pg: 5 of 11

Fearing for his safety, Worku left Ethiopia and

entered Israel, where he ultimately was denied aslyum.
At

the

same

hearing

before

the

IJ,

Worku

presented

testimony and affidavits from his wife and three of his friends.
He also submitted a written statement from his father.
additionally

provided

several

documents

purporting

to

Worku
support

his claim, including a letter from an ONC official confirming
Worku’s

ONC

party

membership

and

a

letter

from

an

Ethiopian

government official stating that Worku is of Oromo ethnicity.
After
general
credible

the

hearing,

corroboration
witness.

of

The

the

IJ

Worku’s
IJ

concluded

that

testimony,

cited

certain

despite

Worku

was

some
not

inconsistencies

a

and

omissions based on her comparison of Worku’s hearing testimony
with his earlier interview with the asylum officer.

The IJ also

noted her adverse perception of Worku’s demeanor and his “nonresponsive answers” during the hearing.

The IJ therefore denied

Worku’s claim for asylum.
Worku appealed from the IJ’s decision to the BIA, which
vacated

the

determination

IJ’s

decision

whether

other

and

remanded

evidence

the

adequately

case

for

addressed

a
the

IJ’s concerns regarding Worku’s testimony about his detention
and

mistreatment.

credibility

finding

On
and

remand,

the

explained

IJ
that

renewed
the

her

adverse

affidavits

and

testimony of Worku’s friends and relatives were not persuasive,
5

Appeal: 13-2446

Doc: 44

because

Filed: 10/20/2015

those

individuals

Pg: 6 of 11

were

interested

parties

and

their

statements did not alleviate the IJ’s concerns regarding Worku’s
demeanor and non-responsive answers.

The IJ also explained that

neither the witnesses’ general statements nor the documentary
evidence resolved some inconsistencies she found when comparing
Worku’s statement made to the asylum officer with his testimony
regarding the details of his detention.
Worku
adverse

again

appealed

credibility

to

the

BIA,

determination

and

which

upheld

dismissed

the

the

IJ’s

appeal.

Worku filed a timely petition in this Court seeking review of
the BIA’s decision, pursuant to our jurisdiction under 8 U.S.C.
§ 1252(a)(1).

II.
A.
Because

the

BIA’s

decision

relied

on,

and

incorporated,

some of the factual findings set forth in the IJ’s decision, we
review both decisions as necessary to address Worku’s arguments.
See Martinez v. Holder, 740 F.3d 902, 908 n.1 (4th Cir. 2014).
We

must

uphold

the

agency’s

determination

unless

it

is

“manifestly contrary to the law and an abuse of discretion.”
Djadjou v. Holder, 662 F.3d 265, 273 (4th Cir. 2011) (citation
omitted).

“The agency abuses its discretion if it fails to

offer a reasoned explanation for its decision, or if it distorts
6

Appeal: 13-2446

Doc: 44

Filed: 10/20/2015

Pg: 7 of 11

or disregards important aspects of the applicant’s claim.”

Id.

(citation and internal quotation marks omitted).
B.
Worku contends that the BIA erred in dismissing his appeal
requesting

asylum

relief.

He

asserts

that

the

IJ’s

adverse

credibility finding was not supported by substantial evidence.
According to Worku, the alleged inconsistencies on which the IJ
relied were not actual discrepancies but were clarifications of
Worku’s

previous

statements.

Worku

also

argues

that

the

statements and testimony of his friends and relatives, and the
documentary

evidence

submitted,

claim of past persecution.
Under

8

U.S.C.

independently

supported

his

We disagree with Worku’s position.

§ 1158(b),

the

Attorney

General

has

discretion to admit into the United States an asylum applicant
if the applicant first establishes that he is a “refugee.”

A

“refugee” is defined as a person who is “unable or unwilling” to
return to his native country because of “persecution or a wellfounded

fear

nationality,

of

persecution

membership

political opinion.”

in

on
a

account

of

particular

race,

social

religion,
group,

or

Id. § 1101(a)(42) (emphasis added).

When an applicant establishes that he has suffered past
persecution, a rebuttable presumption arises that he has the
requisite

level

§ 208.13(b)(1).

of
If

fear
the

of

persecution.

applicant
7

cannot

See

8

establish

C.F.R.
past

Appeal: 13-2446

Doc: 44

Filed: 10/20/2015

Pg: 8 of 11

persecution, he must prove both the subjective and objective
components of fear of persecution, namely, “that the applicant
is subjectively afraid and that the fear is objectively wellfounded.”

Camara v. Ashcroft, 378 F.3d 361, 367 (4th Cir. 2004)

(emphasis omitted).
An applicant’s testimony alone may satisfy this burden, but
only when that testimony is credible, persuasive, and refers to
specific evidence demonstrating that the applicant qualifies as
a refugee.

8 U.S.C. § 1158(b)(1)(B)(ii).

“[A] determination

that the applicant’s testimony is not credible will generally
defeat” a claim for relief from removal, Camara, 378 F.3d at
369, unless the applicant can establish his eligibility with
evidence that is independent of the discredited testimony, see
Tassi v. Holder, 660 F.3d 710, 725-26 (4th Cir. 2011).
Our review of an agency’s adverse credibility determination
is “narrow and deferential,” and is limited to our consideration
whether

that

evidence.”

determination

is

by

“substantial

Djadjou, 662 F.3d at 273; Hui Pan v. Holder, 737

F.3d 921, 926 (4th Cir. 2012).
reverse

supported

the

agency’s

decision

Under this standard, we will
only

when

a

“reasonable

adjudicator would be compelled” to reach a different result.
Hui Pan, 737 F.3d at 926.
After reviewing the record, we conclude that substantial
evidence

supports

the

agency’s
8

adverse

credibility

Appeal: 13-2446

Doc: 44

Filed: 10/20/2015

The

determination.
differences
officer

the

between

and

surrounding

Pg: 9 of 11

his
his

IJ

the

and

statements

hearing

BIA
Worku

testimony

arrest

and

identified
made

to

the

concerning

two-week

several
asylum

the

events

detention.

Those

differences included the fact that Worku had testified that he
had

distributed

asylum

ONC

officer

leaflets,

about

this

but

had

particular

failed

to

inform

conduct.

Worku

the
also

provided inconsistent statements regarding the number of times
he was interrogated, the number of people in the room when he
was interrogated, and the time period during his detention when
he

was

forced

to

crawl

on

gravel.

Although

a

reasonable

factfinder could categorize these factual differences as minor
discrepancies, the differences are not so insignificant as to
compel us to conclude that Worku was credible.
Further supporting the adverse credibility finding was the
IJ’s

observation

that

Worku

was

not

responsive

to

certain

questions, and that he appeared to testify from a “script.”

We

accord substantial deference to this finding based on the IJ’s
unique role in observing Worku’s demeanor, a critical factor in
evaluating truthfulness.

See Huang v. Holder, 744 F.3d 1149,

1153 (9th Cir. 2014) (noting that the “need for deference is
particularly

strong

in

the

context

of

demeanor

assessments”

because such determinations often will be “based on non-verbal
cues” that rarely “can be conveyed by a paper record of the
9

Appeal: 13-2446

Doc: 44

Filed: 10/20/2015

proceedings”).
regarding

Pg: 10 of 11

We therefore conclude that the IJ’s assessment

Worku’s

discrepancies

demeanor,

evident

from

a

together
comparison

with
of

the

Worku’s

various
statement

before the asylum officer and his hearing testimony, constitute
substantial

evidence

determination.

to

support

the

adverse

credibility

See Hui Pan, 737 F.3d at 926.

We also conclude that the BIA correctly determined that the
other evidence presented by Worku did not overcome the adverse
credibility

finding

regarding

his

claim

of

past

persecution.

The testimony and statements from Worku’s friends and relatives
confirmed

only

that

Worku

was

an

ONC

member,

that

he

was

arrested during student demonstrations in April 2001, that he
returned home from the demonstrations with visible injuries, and
that

he

fled

Ethiopia.

This

evidence

does

not

directly

corroborate the allegation that Worku was persecuted because of
his

political

Furthermore,
evidence

evidence
Mickhou
(noting

the

came

personally

opinions
BIA

from

v.

“independent

correctly

in

was

Gonzales,

that

because

friends

interested

properly

or

and

the

F.3d

petitioner’s
evidence”

of

his

Oromo

concluded

that

relatives

of

outcome

accorded
445

of

of

Worku

weight.

351,

358-59

past

because

claim,

(4th

documents

affidavits were from interested friends and family).
10

were
such

See

persecution

this

who

Worku’s

less

proffered

ethnicity.

GandziamiCir.

2006)

were

not

because

the

Appeal: 13-2446

Doc: 44

Filed: 10/20/2015

Pg: 11 of 11

We also observe that the documentary evidence presented by
Worku

did

not

directly

link

his

alleged

mistreatment

membership in the ONC or to his Oromo ethnicity.

to

his

Instead, the

documents showed only that Worku had belonged to the ONC, that
some ONC members had been persecuted in the past, and that Worku
had sustained bodily injuries consistent with his self-reported
torture.

We therefore conclude that the record independent of

Worku’s testimony was insufficient to overcome Worku’s adverse
credibility determination, and that Worku failed to prove his
claim of past persecution on account of his political beliefs,
his membership in a social group, or his race.

See Camara, 378

F.3d at 370; Gandziami-Mickhou, 445 F.3d at 358-59.

III.
For these reasons, we deny Worku’s petition for review of
the BIA’s decision upholding the denial of his application for
asylum.
PETITION FOR REVIEW DENIED

11