Woldemeskel v. INS,57 F.3d 1185 (10th Cir. 2001), involved two basic issues.
I."Humanitarian Asylum"
An asylum claim has several steps to it. First, an
alien files an application for asylum. In the application, the alien must allege that she has suffered past
persecution on account of
race,
religion, political opinion, or membership in a particular social group, or that she has a well-founded fear of future persecution. If the
immigration judge agrees with the alien that she has shown past persecution, she “shall also be presumed to have a well-founded fear of persecution on the basis of the original claim.”
8 C.F.R. § 208.13(a)(1). The INS may rebut this presumption by establishing by a
preponderance of the evidence that there has been a “fundamental change in circumstances such that the applicant no longer has a well-founded fear of persecution” or that “
the applicant could avoid future persecution by relocating to another part of the applicant's country,”
8 C.F.R. § 208.13(b)(1)(i)(A), 8 C.F.R. § 208.13(b)(1)(i)(B). If the INS makes one of those two showings, the applicant must then demonstrate “compelling reasons for being unwilling or unable to return to the country arising out of the severity of the past persecution.”
8 C.F.R. § 208.13(b)(1)(iii)(A).
The
Woldemeskel court found
"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."
II "Well-founded fear of future persecution"
Thus, Ms. Woldemeskel only had two possible avenues for obtaining asylum. She could show that she experienced "past persecution so severe that repatriation would be inhumane,"
Baka v. INS, 963 F.2d 1376, 1379 (10th Cir. 1992), or, failing that, she could show that she has a well-founded fear of persecution under the TGE, the new Ethiopian government. The court held that she had done neither.
57 F.3d at 1191-1192
In attempting to prove that she had a well-founded fear of persecution under the new government, Ms. Woldemeskel had two possibilities:
1. She could prove that she had been “singled out for persecution.” (8 C.F.R. § 208.13(b)(2)(iii)(A))
2. She could prove that she was a member of a group subject to a “pattern or practice” of persecution (8 C.F.R. § 208.13(b)(2)(iii)(B))
The Tenth Circuit approvingly cited an Eighth Circuit case, in which the Eighth Circuit held that a pattern or practice of persecution could be defined as as "something on the order of organized or systematic or pervasive persecution." 57 F.3d at 1191, quoting
Makonnen v. INS, 44 F.3d 1378, 1383 (8th Cir. 1995). Based on this definition, the Tenth Circuit found that:
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.” Id.
Proving that one has been “singled out” for persecution under
8 C.F.R. § 208.13(b)(2)(iii)(A) tends to be the harder route, and the Tenth Circuit did not delve too deep into the record evidence in determining that Ms. Woldemeskel had not proved that she was singled out for persecution. Instead, the court affirmed the Board of Immigration Appeals decision that she had not shown that she was singled out based on the fact that the document on which she based this claim was of questionable authenticity:
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), n3 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.” 57 F.3d at 1191-92