Fiseha Tadesse v. Immigration and Naturalization Service
|Publisher||United States Court of Appeals for the District of Columbia Circuit|
|Publication Date||22 December 1994|
|Cite as||Fiseha Tadesse v. Immigration and Naturalization Service, United States Court of Appeals for the District of Columbia Circuit, 22 December 1994, available at: http://www.refworld.org/docid/3ae6b68218.html [accessed 27 November 2014]|
|Comments||Filed: 22 December, 1994|
|Disclaimer||This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.|
Fiseha Tadesse, Petitioner v. Immigration and Naturalization
Service, Respondent No. 93-1469 UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA
December 22, 1994, FILED
Prior History:On Petition for Review of an Order of the Board of Immigration Appeals.
Judges:Before: WILLIAMS, GINSBURG AND HENDERSON, Circuit Judges
Opinion:JUDGMENT This case was heard on petition for review of an order of the Board of Immigration Appeals and on the briefs by the parties and arguments by counsel. The court has accorded the arguments full consideration and has determined the issues presented occasion no need for a published opinion. See D.C. Cir. Rule 36(b). For the reasons set out in the accompanying memorandum, it is ORDERED that the petition for review be denied. The clerk is directed to withhold issuance of the mandate herein until seven days after disposition of any timely petition for rehearing. See D.C. Cir. Rule 41(a)(1). Per Curiam For the Court MEMORANDUM Petitioner Fiseha Tadesse (Tadesse), a native of Ethiopia, seeks review of an order of the Board of Immigration Appeals (BIA or Board) denying his motion to reopen his deportation proceedings to allow him to apply for suspension of deportation. Tadesse argues that the BIA failed to consider whether a previous finding by an immigration judge that he had a "well founded fear of persecution" in Ethiopia established a prima fade case that he would suffer extreme hardship if returned to that country.
I. BACKGROUNDTadesse entered the United States in August 1984. His tourist visa allowed him to visit until February 1985, but he has remained (despite initially conceding deportability) since filing an application for political asylum in January 1985. Administrative Record (AR) 199-200. The Immigration and Naturalization Service (INS) denied the application in October 1985 and began deportation proceedings in January 1986. Id. As is his right, Tadesse renewed his asylum claim before an immigration judge (IJ). Id. The IJ ruled in March 1988 that Tadesse had satisfied the statutory requirement, necessary to establish his status as a refugee, that he have a well-founded fear of persecution because he had been arrested on political charges in Ethiopia in 1980. AR 204-06. Exercising her discretion, however, the IJ refused to grant asylum because Tadesse "was not in flight from persecution when he entered the United States" and had already found a safe haven in another country. AR 208. In fact, Tadesse had lived for almost two years in Nigeria with his brother, an employee of the Ethiopian Embassy there. See AR 200. He did not seek refugee status in Nigeria, travelled freely to and from there and had the right to return to Nigeria at the time he entered the United States. AR 208. Tadesse immediately appealed the ruling but the BIA did not decide the appeal until February 1993. The Board found no abuse of discretion, concluding "it seems apparent that the respondent was forum shopping for asylum when he applied for . . . relief from deportation in this country." AR 158. The BIA also refused to grant withholding of deportation after finding that Tadesse was not likely to be persecuted if returned to Ethiopia. The Board found "little likelihood of future persecution to [Tadesse] upon his return." AR 160. The Board's denial required Tadesse to voluntarily depart the United States within 30 days pursuant to 8 U.S.C. § 1254(e) or be deported under the terms of the IJ's order. Id. Tadesse completed the seventh year of his stay in the United States in August 1991 while the BIA appeal was pending. He thus became eligible to apply for suspension of deportation. He did not raise the issue, however, until the BIA decided his appeal in 1993. One month after the BIA's decision Tadesse filed a motion to reopen the deportation proceedings to allow his suspension claim to be heard. He argued that he would be subjected to extreme hardship in Ethiopia because of the economic and political conditions there. AR 14. He specifically alleged that he feared the new government of the EPRDF party, which opposed the EPRP party of which he had been a member. Id. The BIA denied the motion in May 1993. The Board gave "considerable attention" to documents submitted by Tadesse on the political situation in Ethiopia. AR 4. Although it noted human rights deficiencies, the BIA found that Tadesse had presented "no evidence that former members of the EPRP are singled out in any manner." AR 5. As a result, the Board determined that Tadesse had not produced evidence establishing a prima facie case of "extremely unusual hardship" if returned to Ethiopia and denied the motion to reopen. Id.
II. DISCUSSIONThe Board of Immigration Appeals has significant discretion in deciding whether to grant a motion to reopen a deportation proceeding, which is "disfavored." INS v. Abudu, 485 U.S. 94, 107 (1988) (Abudu). The Supreme Court has recognized that the regulation providing for such motions is "framed negatively" and "does not affirmatively require the Board to reopen the proceeding under any particular condition." INS v. Wang, 450 U.S. 139, 143 n.5 (1981). We review for abuse of discretion. Abudu, 485 U.S. at 105; Sang Seup Shin v. INS, 242 U.S. App. D.C. 274, 750 F.2d 122, 124-25 (D.C. Cir. 1984) (Shin). The Attorney General is permitted to suspend deportation of an alien "in his discretion" if "deportation would, in the opinion of the Attorney General, result in exceptional and extremely unusual hardship to the alien. . . ." 8 U.S.C. § 1254. Tadesse argues that the BIA abused its discretion by failing to consider whether the IJ's previous determination that he had a well-founded fear of persecution if returned to Ethiopia itself established the "extreme hardship" necessary to make out a prima facie case for suspension of deportation. It is apparent, however, that the Board properly concluded that Tadesse had no current fear of persecution and otherwise gave full consideration to the factors raised by him. We need not reach Tadesse's assertion that the IJ's 1988 finding that he then had a well-founded fear of persecution in Ethiopia established a prima facie case for suspension of deportation inasmuch as the BIA determined in 1993 that he had presented no evidence that he faced persecution in the then-current political climate in Ethiopia. Tadesse argued that "as a former member of the EPRP he will be subject to similar treatment [politically motivated human rights violations] if returned to Ethiopia." AR 4. The Board concluded, however, that "in relation to [Tadesse], there is no independent evidence which we can discern that the government actively targets former members of the EPRP." AR 5. In addition, the Board explicitly found in the original proceeding that Tadesse faced "little likelihood of persecution" if he were returned to Ethiopia. AR 160. The BIA's conclusion that Tadesse had not produced evidence in support of his arguments fully supports its denial. The relevant regulation. 8 C.F.R. § 3.8(a), requires that "motions to reopen shall state the new facts to be proved at the reopened hearing and shall be supported by affidavits or other evidentiary material." A lack of supporting evidence is itself sufficient to warrant dismissal of a motion to reopen. Sanchez v. INS, 228 U.S. App. D.C. 118, 707 F.2d 1523, 1529 (D.C. Cir. 1983). The Board had no reason to consider whether the IJ's 1988 determination that he had a well-founded fear of persecution established "extreme hardship" inasmuch as Tadesse had failed to demonstrate that he continued to have a well-founded fear. Moreover, it is equally clear that the Board fully considered all of the factors raised by Tadesse in his motion to reopen. The abuse of discretion inquiry in this context focuses on whether the BIA considered all of the relevant factors in evaluating the alien's claim. Turri v. INS, 997 F.2d 1306, 1308-09 (10th Cir. 1993) ("Failure to actually consider all the relevant factors constitutes an abuse of discretion."); see also Shin, 750 F.2d at 126 ("The BIA failed to give consideration to factors . . . identified as pertinent . . ."). Tadesse never asserted below that the IJ's 1988 finding that he had a "well-founded fear of persecution" was itself a relevant factor establishing that he would suffer extreme hardship in Ethiopia. Instead, his motion contended that "Some of the factors that led Mr. Tadesse to apply for political asylum are now relevant to his claim of extreme hardship." AR 14. The BIA considered this argument, gave "considerable attention" to the documents submitted and determined that there was "no evidence" that the EPRP was singled out. AR at 4-5. Because the Board addressed the factors raised by Tadesse and gave appropriate reasons for rejecting them, it did not abuse its discretion.
Three types of immigration status arise in this case. Asylum in the United States (8 U.S.C. 1158) may be granted by the Attorney General to an alien who is a refugee as defined by 8 U.S.C. 1101(a)(42). Withholding of deportation (8 U.S.C. § 1253(h)) is available to an unsuccessful asylum applicant whose "life or freedom" would be threatened in his home country. An applicant for asylum is automatically deemed an applicant for withholding of deportation. 8 C.F.R. § 208.3(b). Suspension of deportation (8 U.S.C. § 1254(a)) is available to any alien facing deportation who has lived in the U.S. for seven years, faces "extremely unusual hardship" if deported and meets other statutory criteria not relevant here. A "refugee" is statutorily defined in part as a person unwilling or unable to return to his country of nationality "because of persecution 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. § 1101(a)(42). Tadesse testified before the IJ that he did not want to remain in Nigeria because he was not satisfied with the support rendered by his brother, who provided him with room and board only. AR 202. He believed that his relatives in the United States "supported him at a better level." Id. The Supreme Court specifically referred to 8 C.F.R. § 3.8, which provides in relevant part that "motions to reopen in deportation proceedings shall not be granted unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing; nor shall any motion to reopen for the purpose of affording the alien an opportunity to apply for any form of discretionary relief be granted . . . unless the relief is sought on the basis of circumstances which have arisen subsequent to the hearing." Tadesse argues that the Board erred in this conclusion inasmuch as 8 C.F.R. § 208.16(b)(3) provides that "the Asylum Officer or Immigration Judge shall not require the applicant to provide evidence that he would be singled out individually" to establish eligibility for withholding of deportation. However, the Board did not reject Tadesse's claim based on a lack of evidence that he individually had not been singled out, but instead found that "there is no evidence that former members of the EPRP are singled out in any manner." AR 5 (emphasis added). The regulation itself requires an applicant to establish "a pattern or practice in the country of proposed deportation of persecution of groups of persons similarly situated to the applicant on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 C.F.R. § 208.16(b)(3)(i) (emphasis added).