Abebe Tolesa v. Eric Holder, Jr., No. 08-1690 (4th Cir. 2009)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-1690 ABEBE GEBREMICHAEL TOLESA, Petitioner, v. ERIC H. HOLDER, JR., Attorney General, Respondent.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 Petition denied by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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 decision denying his application for asylum. * Judge s (IJ s) 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 Ethiopian military, currently holding the rank of captain. 1991 the present government of Ethiopia came to power In and 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. 2 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 clandestine and discreet ways. his support J.A. 256. for CUD in 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 fraudulent power. and CUD launched loudly denounced multiple protests. the results There was as a 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 wife about his CUD activities and made various threats. on the treatment returning to of Ethiopia his in colleagues, March 2006 Tolesa when his concluded that training ended would subject him to persecution and maybe even death. failed to return home after his training Based ended, When he the police issued a summons demanding his presence for questioning. he failed demanding to respond, that his wife the police report for issued of a member of the armed second questioning. summons contains the following statement: duty a When summons The first It is known that the forces is to guard the constitution and defend the territorial integrity of his country and [that] activities. he is not J.A. 407. to get involved in any political The summons cites Tolesa s violation of the foregoing principle as the reason for its issuance. 4 Id. 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 Tolesa s account seeking of asylum. the Ambo treatment of generally CUD corroborated supporters threat of persecution if he and Tolesa returned. and the Among the documentary evidence Tolesa provided to corroborate his account were: (1) Ethiopian serious signed letters government s retaliatory from knowledge his of measure[s], wife his J.A. attesting CUD 393, to the association, the including 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, rejected Tolesa s application on two grounds: the IJ (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 persecution as much as prosecution. that Tolesa feared 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 against political members of the simply activity active violated or duty the rules involvement or for military. restrictions any J.A. reason 86. If by the 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 dismissed Tolesa s Tolesa s asylum application, application for the IJ withholding of removal and CAT claim because the burden for asylum was less than that for insufficient that evidence [Tolesa] Ethiopia. withholding will to face Id. at 88. of removal establish torture and even should a because there reasonable he be was chance removed to 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. Gandarillas-Zambrana v. BIA, 44 F.3d 1251, 1255 (4th Cir. 1995). We review the IJ s findings of fact under the substantial evidence rule, and we must treat these findings as conclusive to Gonzales, any conclude compelled unless to the contrary. 444, 448 (4th 493 adjudicator be Abdel-Rahman v. U.S.C. § 1252(b)(4)(B). We review all legal issues de novo. Abdel- Rahman, at F.3d 449. The final Cir. would 8 493 F.3d reasonable 2007); administrative decision 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 alternate grounds, we affirm on only one: establish a well-founded fear of future conclusion on two 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. § demonstrate 1101(a)(42)(A); a well-founded 8 C.F.R. fear of § future 1208.13(b). To persecution, the applicant must show both that he is subjectively afraid and Lin-Jian, 489 F.3d that the fear is objectively well-founded. at 188. For the fear to be objectively well founded, there must be a reasonable possibility of suffering such persecution if [the applicant] were § 1208.13(b)(2)(i). to return to his country. 8 C.F.R. 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. § 1158(b)(1)(B)(ii). 8 C.F.R. § 1208.13(a); 8 U.S.C. 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. to establish that his fear is objectively well See Najjar v. Ashcroft, 257 F.3d 1262, 1289 (11th Cir. 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 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 political speech of its military personnel. restricts the 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 government. a persecutory Indeed, the IJ motive held by that the even Ethiopian given the 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 prosecutor s motive Rahman, F.3d 493 under is at the to 452 guise target ( where 9 of prosecution protected the Persecution conduct. motive if the Abdel- underlying a 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 violation of a of my military political opinion regulation. Id. rather at than 163. the 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 Except for the evidence concerning government s 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, punished for 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 government only has evidence a Tolesa persecutory offers motive here that is the his 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. Tolesa could simply him be political wrong views. in believing that Immigration death judges awaits must for regularly his make 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 12

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