                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-26-2004

Lakew v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-1172




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                                                               NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT


                                      No. 03-1172


                                   DEREJE LAKEW,

                                            Petitioner

                                            v.


                   JOHN ASHCROFT, ATTORNEY GENERAL
                         OF THE UNITED STATES,

                                             Respondent

                        _________________________________

                          On petition for review of a final order
                          of the Board of Immigration Appeals
                                  File No: A75-971-187
                        __________________________________

                  Submitted pursuant to Third Circuit LAR 34.1(a)
                               on January 13, 2004

                               Before: BARRY, SMITH
                           and GREENBERG, Circuit Judges,

                                (Filed: January 26, 2004)

                                ____________________

                              OPINION OF THE COURT
                               _____________________

SMITH, Circuit Judge.
       Petitioner Dereje Lakew applied for asylum and withholding of removal under the

Immigration and Nationality Act, and for relief under the United Nations Convention

Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or

Punishment (“CAT”). Lakew claims that he fled his native Ethiopia after being

persecuted by the government based on his ethnicity and political opinion. After a

hearing, the Immigration Judge (“IJ”) denied Lakew’s application, concluding that Lakew

was not credible and that the documents he presented were fraudulent. The Board of

Immigration Appeals (“BIA”) summarily affirmed. This timely appeal followed.

                                               I.

       Lakew testified that he is an ethnic Amhara, one of the many ethnic groups present

in Ethiopia, but an ethnic minority in his home town of Dilla. Lakew explained that,

beginning in 1991, the Amharas in his region began to be persecuted by the majority

ethnic group in that region, the Omoros. In 1993, Lakew and two other individuals went

to the regional authority to request protection from the government. Shortly thereafter,

Lakew testified that he was arrested on the suspicion that he was a member of a political

opposition party, the All Amhara People’s Organization (AAPO). He claimed that he was

severely beaten, imprisoned for five days, and threatened with death if he did not sign an

admission that he was a member of the AAPO. He testified that he was released only

after his father-in-law paid a 10,000 birr bail.

       After his arrest, Lakew sent his wife and children to Addis Ababa, joining them



                                               2
later. Once in Addis Ababa, Lakew testified that he met with AAPO leadership, learned

about the organization and eventually joined. He testified that he was once again arrested

along with four other individuals on M arch 11, 1996 for his affiliation with the AAPO.

He was detained for three days and then released when his brother paid a 10,000 birr bail.

Lakew testified that the police informed him that an investigation would follow and he

would be called back for questioning. In May 1996, Lakew learned that those with whom

he had been arrested in March had been re-arrested. Lakew eluded the police and

obtained an exit visa through his employer. After his departure from Ethiopia, Lakew

testified that the police went to his home in Addis Ababa looking for him. He presented

the IJ with a letter from his wife informing him of the police search and what he

characterized as a subpoena for his appearance.

       Lakew arrived in the United States on May 25, 1997 on a non-immigrant B-2 visa

with authorization to remain in the United States until November 24, 1997. At a master

calendar hearing on April 19, 2000, Lakew conceded removability and sought asylum and

withholding of removal under the Immigration and Nationality Act, and for relief under

the CAT. At a hearing Lakew submitted, among other documents, the following: (1) a

June 2, 1993 letter from the District Central Administration for the Ogado Area District

Court stating that Lakew had been arrested on suspicion of anti-governmental activities;

(2) a June 9, 1997 summons from the Section 14 Police Commission ordering Lakew to

appear on June 12, 1997; and (3) a July 8, 1997 summons from the Region 14



                                            3
administration ordering Lakew to appear within two days. Without objection, the

government submitted the results of its investigation into the authenticity of these

documents which concluded that the latter two documents were fraudulent.

       The IJ found Lakew not to be credible for three reasons. First, the IJ found

untenable Lakew’s testimony that he had joined the AAPO only after being imprisoned

on a mere accusation of being a member of that organization. Second, based on the

government’s proffered investigation, the IJ determined that Lakew presented two

fraudulent documents. Third, the IJ did not find credible Lakew’s testimony that no harm

came to his brother, although he gave a 10,000 birr bail for Lakew, but that Lakew’s wife

was harassed when Lakew did not appear for questioning. The IJ rejected Lakew’s

application. The BIA affirmed without opinion.1

                                             II.

       The IJ had jurisdiction pursuant to 8 C.F.R. § 208.2(b)(2002). The BIA had

appellate jurisdiction pursuant to 8 C.F.R. § 3.1(b)(2002). We exercise appellate

jurisdiction over the BIA’s order pursuant to § 242(b) of the Immigration and Nationality

Act. 8 U.S.C. § 1252(b); see also Abdulai v. Ashcroft, 239 F.3d 542, 548-49 (3d Cir.

2001). When the BIA defers to the IJ, however, “we must review the decision of the IJ.”

Gao v. INS, 299 F.3d 266, 271 (3d Cir. 2002); Abdulai, 239 F.3d at 549 n.2.

  1
   Lakew challenged the streamlining regulations. As we explained in Dia v. Ashcroft,
No. 02-2460, slip op. at 21 (3d Cir. Dec. 22, 2003) (en banc), the streamlining regulations
are neither contrary to the Immigration and Nationality Act nor offensive to the due
process clause.

                                             4
                                            III.

       Lakew claims that the IJ’s adverse credibility findings are not supported by

substantial evidence in the record and are impermissibly based on the government’s

unreliable authenticity report. Additionally, Lakew argues that he met his burden to show

that he was entitled to asylum and withholding of removal under the Immigration and

Nationality Act and the CAT.

       Asylum is proper where an alien can show that he qualifies as a refugee who is

unable or unwilling to return to his home country because of “persecut[ion] or who has 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)(A). A refugee

claiming a well founded fear of persecution must show both that he is subjectively afraid

that upon returning to his home country he will be persecuted and that this fear is

objectively reasonable. INS v. Cardoza-Fonseca, 480 U.S. 421, 430-31 (1987). Where a

petitioner demonstrates past persecution, he is presumed to have a well-founded fear of

persecution. Abdille v. Ashcroft, 242 F.3d 477, 496 (3d Cir. 2001); 8 C.F.R. §

208.13(b)(1).2 If an applicant cannot meet the standard for asylum, it is assumed that he

cannot meet the higher standard for withholding of removal. Abdille, 242 F.3d at 443-44;




  2
   The government may rebut this presumption with evidence that there has been a
“fundamental change” in the country conditions such that the applicant’s fear is no longer
well-founded. 8 C.F.R. § 208.13(b)(1).

                                             5
Janusiak v. INS, 947 F.2d 46, 47 (3d Cir. 1991).3

       An IJ’s determination that the petitioner did not meet his burden is reviewable on a

substantial evidence standard. Dia, slip op. at 26; Abdille, 242 F.3d at 483. “‘Substantial

evidence is more than a scintilla, and must do more than create a suspicion of the

existence of the fact to be established.’” Dia, slip op. at 27 (quoting Nat’l Labor Relations

Bd. v. Columbian Enameling and Stamping Co., 306 U.S. 292, 300 (1939)). We may

reverse only where the evidence compels a conclusion contrary to that of the IJ. Id.; 8

U.S.C. § 1252(b)(4)(B) (“the administrative findings of fact are conclusive unless any

reasonable adjudicator would be compelled to conclude to the contrary”).

       Lakew claims that the IJ impermissibly relied on the government’s authenticity

report which found that two of the three documents presented by Lakew were fraudulent.

He argues that the investigation done by the government did not meet the standard set out

by Ezeagwuna v. Ashcroft, 325 F.3d 396 (3d Cir. 2003). Because Lakew did not raise this

issue before the IJ or the Board, we do not have jurisdiction to review the question. 8

U.S.C.A. § 1252(d); Miah v. Ashcroft, 346 F.3d 434, 439 (3d Cir. 2003).

       Upon a review of the remaining record we conclude that there is ample support for



  3
    Withholding of removal is appropriate where “the Attorney General determines that
such alien’s life or freedom would be threatened in such country on account of race,
religion, nationality, membership in a particular social group, or political opinion.” 8
U.S.C. § 1253(h)(1). An applicant for withholding of removal under the CAT bears the
burden of establishing “that it is more likely than not that he or she would be tortured if
removed to the proposed country of removal.” Sevoian v. Ashcroft, 290 F.3d 166, 174-75
(3d Cir. 2002) (quoting 8 C.F.R. § 208.16(c)(2)).

                                             6
the IJ’s adverse credibility finding. We therefore uphold the IJ’s denial of Lakew’s

application. We will affirm.




TO THE CLERK:

      Please file the foregoing Opinion.




                                                /s/ D. Brooks Smith
                                           Circuit Judge




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