                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          NOV 23 2004
                              FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    MOGES AEMRO BITEW,

                Petitioner,

    v.                                                   No. 03-9583
                                                    (BIA No. A79-512-848)
    JOHN ASHCROFT, United States                     (Petition for Review)
    Attorney General,

                Respondent.


                              ORDER AND JUDGMENT          *




Before LUCERO , McKAY , and PORFILIO , Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       Petitioner seeks review of a decision of the Board of Immigration Appeals

(BIA) dismissing his appeal from the denial of his application for asylum,

withholding of removal, and relief under the Convention Against Torture.       1
                                                                                   We

exercise jurisdiction under 8 U.S.C. § 1252(a), and we deny the petition for

review.

       Petitioner is a native and citizen of Ethiopia. He admitted that he

overstayed his visa to remain in the United States, but he then requested asylum

by claiming that he was a member of the Ethiopian Democratic Union Party

(alternately the EDU or EDUP), a group that is persecuted by the ruling party of

Ethiopia. Petitioner’s application for asylum was denied. Petitioner appealed,

and was granted a hearing before an immigration judge (IJ) in April 2002.

Petitioner was the sole witness in that proceeding.

       According to petitioner’s testimony, in December 1998, he was ordered to

report for civilian guard duty where he lived in Tigray, Ethiopia.   2
                                                                         R. at 67-68, 72,

90. He did not report as ordered, and he knew that he was taking a “risk” by

1
       The formal name of the Convention Against Torture is the United Nations
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85. The United States became a party
to the Convention Against Torture through the Foreign Affairs Reform and
Restructuring Act of 1998, Pub.L. No. 105- 277, § 2242, 112 Stat. 2681 (1998).
Elzour v. Ashcroft , 378 F.3d 1143, 1150 n.8 (10th Cir. 2004) (citing Batalova v.
Ashcroft , 355 F.3d 1246, 1248 n.2 (10th Cir. 2004)).
2
       Because this is the spelling of “Tigre” that was in the transcript of
petitioner’s hearing, we maintain the same spelling here.   See R. at 67.

                                            -2-
refusing his assignment.    Id. at 108. In March of 1999, petitioner received letters

ordering him to report to the kebele, or civilian control system.   3
                                                                        Id. at 69-70.

Petitioner’s testimony was not entirely clear here, but he related that, although his

father paid a “bond” to keep him out of jail, petitioner failed to report for guard

duty a second time, and he was arrested.     4
                                                 Id. at 69-72. He served a prison term

of three months.    Id. at 73. Petitioner asserted that he was beaten while in prison,

and that authorities suspected him of involvement with the EDU.           Id. at 70-71,

74-75.




3
       See generally U.S. Citizenship and Immigration Servs.,   Ethiopia:
Information on Kebelle (Kebele) Control of the Population in Ethiopia; and
Freedom to Travel for Ethiopians of Eritrean Origin or Heritage    (posted
January 10, 2001),
http://uscis.gov/graphics/services/asylum/ric/documentation/ETH01003.htm
(last modified February 27, 2003) (describing the kebele system of civilian social
control in Ethiopia).
4
      The testimony in the record is not entirely clear, and this is one attempt to
make sense of petitioner’s narrative. The IJ’s decision described this same period
of time in petitioner’s testimony this way:

         In March of 1999, the respondent received a letter indicating that he
         was to report to the kebele. The testimony was a little vague on
         exactly what happened afterwards, whether he reported as required or
         was arrested a day later, but in any event, it does appear that the
         respondent was then arrested . . . He testified at his arrest, the
         authorities expressed dissatisfaction with the respondent’s activities
         particularly his underground meetings. The respondent had [the]
         bond posted for him and he was released on June 20 of 1999.

Aplt. App. at 40.

                                             -3-
       Then, in November 1999, soon after serving his prison sentence, petitioner

received permission from the kebele to move to Addis Ababa, and he was offered

the opportunity to work as a household employee for a member of the Ethiopian

Embassy staff stationed in Vienna, Austria.         Id. at 78-79. When petitioner moved

to Addis Ababa, the kebele sent him a letter warning him not to participate in

anti-revolutionary activities, but the Ethiopian government issued him a visa for

travel to Europe.   Id. at 77-78, 79.

       Petitioner worked in Vienna for a year, took a trip with the diplomat to

Finland, and never attempted to contact a foreign country about asylum during

that time. Id. at 101-02, 104. The Ethiopian government renewed his passport

while he was in Vienna.     Id. at 100-01. But, according to petitioner, at the end of

the year, when his employer discovered that petitioner was still communicating

with the EDU, petitioner feared that he would lose his job or be arrested and

returned to Ethiopia.    Id. at 80-81. Petitioner flew to the United States, and he

overstayed his visa.    Id. at 50, 81. On cross-examination, petitioner admitted that

the kebele had never contacted his parents in Ethiopia, nor had the kebele sent his

parents or anyone else written documentation warning petitioner not to return to

Ethiopia. Id. at 105.

       In his decision, the IJ found that it was more likely that petitioner had been

imprisoned for the crime of not reporting for guard duty in Ethiopia than for his


                                              -4-
minimal level of political involvement.       Id. at 42. Although petitioner introduced

a letter from his cousin to support his assertion that he was a member of the EDU

and he had an EDU identity card, petitioner acknowledged that he held no

leadership position in that organization; his involvement with the EDU had

consisted mainly of attending meetings and secretly distributing pamphlets.        Id. at

41-42; accord id. at 91. The IJ documented that the Department of State profile

of Ethiopia confirms that “mere membership in or sympathy for a political

party . . . is not sufficient grounds for prosecution in Ethiopia.”   Id. at 42 (citing

Ex. 7 at 9). Additionally, although petitioner received a notice from the kebele

when he moved to Addis Ababa accusing him of not performing his civilian guard

duties because “you have an association with anti revolatioaries [sic] and that is

why you were not willing to do public service . . . .” R. at 187, the IJ noted that

the government of Ethiopia had subsequently granted petitioner a visa to leave the

country, and that he had been rewarded through plum employment with a

diplomatic officer in Vienna.     Id. at 42-43. And it was significant to the IJ that

petitioner’s passport had been renewed while petitioner served abroad.        Id. at 43.

       In conclusion, the IJ found that petitioner’s recitation of events showed that

he was “not in any kind of permanent danger from the government of Ethiopia.”

Id. at 43. Petitioner’s testimony, particularly his assertion that any of his political




                                              -5-
activity was first discovered by his diplomatic employer after a year despite

petitioner’s jail sentence was “just not believable.”          Id.

       The IJ denied petitioner asylum, and withholding of removal and relief

under the Convention Against Torture, but he granted voluntary departure back to

Ethiopia. Id. at 43-45. The BIA summarily affirmed the IJ’s decision without

opinion. Id. at 2.

       In his petition for review before us, petitioner asserts that the BIA erred in

denying him asylum because he had presented enough evidence to have convinced

the IJ that he suffered political persecution.         See, e.g. , Aplt. Br. at i. In particular,

petitioner argues that it should have been sufficient evidence of political

persecution to present (i) a letter from the chairman of the kebele charging him

with having an association with the anti-revolutionaries, (ii) his own testimony

that he characterizes without elaboration as consistent, detailed, and coherent,

(iii) general media reports about the human rights situation in Ethiopia, and (iv) a

public U.S. State Department report documenting that human rights abuses exist

in Ethiopia. See id. But we disagree.

       When the BIA summarily affirms an IJ, we review the IJ’s decision as if it

were the BIA’s.    Tsevegmid v. Ashcroft , 336 F.3d 1231, 1235 (10th Cir. 2003).

We do not weigh the evidence, nor do we evaluate the credibility of witnesses.

Yuk v. Ashcroft , 355 F.3d 1222, 1233 (10th Cir. 2004) (citing            Woldemeskel v. INS ,


                                                 -6-
257 F.3d 1185, 1189 (10th Cir. 2001)). In addition, the BIA’s factual findings

“are conclusive unless the record demonstrates that any reasonable adjudicator

would be compelled to conclude to the contrary.”         Tsevegmid , 336 F.3d at 1235

(quotation omitted). The IJ must give “specific, cogent reasons” for a

determination that petitioner lacks credibility.     Sviridov v. Ashcroft , 358 F.3d 722,

727 (10th Cir. 2004).

       We hold that the record in this case does not demonstrate that “any

reasonable adjudicator would be compelled to conclude” that petitioner was

persecuted for his political activities rather than for his disobedience of civil law.

Tsevegmid , 336 F.3d at 1235. Petitioner admits that failure to report for guard

duty is a civil offense in Ethiopia punishable by a prison sentence. R. at 108.

He admits that his participation in political activities was confined to attending

meetings, to writing letters, and to distributing letters and pamphlets secretly.    Id.

at 91-92. And there were problems with how each of the four pieces of evidence

that petitioner submitted might support his case. First, the letter from the kebele

accusing petitioner of association with anti-revolutionaries insinuates that

petitioner’s alleged association with anti-revolutionaries was a possible

explanation for why petitioner failed to report for guard duty. But this letter from

the kebele does nothing to dispute that petitioner was first and foremost punished

for failing to report for guard duty as ordered. And petitioner makes no argument


                                             -7-
that his failure to report for guard duty was politically motivated. Second,

petitioner’s testimony about why he would fear political persecution is neither

consistent, detailed, nor coherent. His testimony is instead riddled with so much

ambiguity that no one involved in this case could agree on the facts—both of the

parties and the IJ have divergent, and completely reasonable, interpretations of

the same transcript. Finally, media reports and the U.S. State Department

document discuss the general situation in Ethiopia, but shed no light on the

validity of petitioner’s particular assertions.

       Moreover, the IJ gave “specific, cogent reasons” why he found petitioner’s

testimony not to be credible.   Sviridov , 358 F.3d at 727. The IJ explained that

petitioner was most likely jailed for the simple reason that he shirked his civil

responsibility to report for guard duty; once this premise is established,

petitioner’s alternative explanation that he was imprisoned for being a member of

the EDU could not be “reliable or believable.” R. at 42. The IJ’s conclusion that

petitioner was not persecuted because of his political activities was bolstered by

notice of the preferential treatment that petitioner received after his imprisonment

in the form of permission to travel to Austria, and his ability to hold a plum

position in the employment of a diplomat there.    Id. at 43.

       Because no reasonable adjudicator would be compelled to conclude that

petitioner was persecuted for his political activities, and the IJ found as a factual


                                           -8-
matter that petitioner’s testimony was not credible,   see Elzour v. Ashcroft , 378

F.3d 1143, 1150 (10th Cir. 2004), we accept the agency’s findings as conclusive.

8 U.S.C. § 1252(b)(4)(B). We DENY the petition for review.

                                                       Entered for the Court



                                                       John C. Porfilio
                                                       Circuit Judge




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