                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-3-2003

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Precedential or Non-Precedential: Non-Precedential

Docket No. 02-3296




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"Araya v. Atty Gen USA" (2003). 2003 Decisions. Paper 149.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/149


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                                                          NOT PRECEDENTIAL

                UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT
                          ___________

                             No. 02-3296
                             ___________

                           TESFU ARAYA,

                                             Petitioner

                                    v.

   JOHN ASHCROFT, U.S. ATTORNEY GENERAL; KENNETH J. ELWOOD,
DISTRICT DIRECTOR U.S. IMMIGRATION AND NATURALIZATION SERVICE,

                                         Respondents.
                     ________________________

                 On Petition for Review of an Order of
                  the Board of Immigration Appeals
                         INS No. A78-830-839

                             ___________

              Submitted Under Third Circuit L.A.R. 34.1(a)
                            July 23, 2003

           Before: ALITO, FUENTES, BECKER, Circuit Judges.

                   (Opinion Filed: November 3, 2003)
                     ________________________

                      OPINION OF THE COURT
                     ________________________
FUENTES, Circuit Judge:

       In May 2001, Petitioner Tesfu Araya arrived in the United States at Newark

International Airport. Araya requested asylum, and the asylum officer assigned to his case

found that Araya had a credible fear of persecution. Accordingly, Petitioner submitted an

application for asylum and withholding of removal, both of which were granted by an

immigration judge (“IJ”) in November 2001. Respondent INS appealed, and the Board of

Immigration Appeals (“BIA”) sustained the appeal in July 2002, ordering Araya removed

from the United States to Ethiopia. Araya argues that the BIA’s decision that he did not

demonstrate a well-founded fear of persecution is not supported by substantial evidence.

Because we do not find that a reasonable fact-finder would be compelled to disagree with the

BIA, we affirm the BIA’s decision.

       Araya is of Eritrean ancestry, but was born in Ethiopia and has never lived in Eritrea.

Starting in 1992, Araya was studying in India on an Ethiopian passport, but the passport was

cancelled in 1998 by the Ethiopian government because he is of Eritrean descent. At that

time, he was also told that he would not be allowed to return to Ethiopia because he was no

longer considered an Ethiopian citizen, but an Eritrean. Araya’s application for an Eritrean

passport was also denied, although it is not clear why. In 2000, Araya traveled to Kenya with

his cancelled passport and a forged renewal stamp, and stayed with his uncle for some time.

The Kenyan uncle informed Araya that his mother’s house in Ethiopia had been confiscated.

After numerous failed attempts at gaining asylum in Kenya, he made his way to the United



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Kingdom on a fake Swiss passport, and then finally to the United States, where his mother

and two siblings reside. The siblings are U.S. citizens, while the mother is trying to gain

asylum here, also on the grounds that those of Eritrean descent face persecution in Ethiopia.

       Before the IJ, Araya testified that he had a brother, Abraham, who had lived in

Ethiopia, but who had been detained, tortured and then deported because of his Eritrean

ancestry. Abraham reached Kenya, but has since disappeared, so Araya has not been able

to contact him directly; indeed, he only learned of Abraham’s plight through another brother

who lived in the U.S. Araya concluded by testifying that he fears returning to Ethiopia

because of what happened to his brother Abraham and to his mother’s house, and because

of reports he has read about the mistreatment of ethnic Eritreans in Ethiopia. The IJ found

Araya’s fear of persecution credible and well-founded and granted him asylum. The BIA

reversed, discounting Araya’s testimony because the acts of persecution to which he testified

came not from his personal knowledge, but from dated second-hand accounts. Furthermore,

the BIA relied on the U.S. State Department’s assertion in its 2000 Country Reports that a

December 2000 peace accord between Eritrea and Ethiopia had resulted in steadily

improving treatment of Eritreans in Ethiopia, including a near-cessation in deportations of

Eritreans.

       The parties agree that this Court reviews the BIA’s findings of fact to determine

whether they are supported by substantial evidence. E.g., Immigration and Naturalization

Serv. v. Elias-Zacarias, 502 U.S. 478, 481 (1992). Specifically, the “BIA’s determination



                                             -3-
that [Araya] was not eligible for asylum... can be reversed only if the evidence presented by

[Araya] was such that a reasonable factfinder would have to conclude that the requisite fear

of persecution existed.” Id. (emphasis added). This standard has been codified in statutory

law: “the administrative findings of fact are conclusive unless any reasonable adjudicator

would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B) ; accord,

e.g., Lukwago v. Ashcroft, 329 F.3d 157, 167 (3 rd Cir. 2003). Thus, this Court’s role is not

to second-guess the BIA, or to weigh the evidence, but to overturn the BIA only if the facts

compel us to conclude to the contrary.

       Because the BIA could reasonably rely on the 2000 Country Reports to adjudge that

Araya’s fear of persecution was no longer well-founded, Araya has not met this heightened

standard. Araya argues that other reports from groups such as Amnesty International refute

the Country Reports’ optimistic assessment of the Eritreans’ situation. The BIA, though, was

not compelled to credit these other reports over the Country Reports. Araya also contends

that the Country Reports themselves are inconsistent because they referred to continuing

detention and internment of Eritreans in Ethiopia. As Respondent points out, however, the

Country Reports as a whole could be read as depicting the deportations and internments as

past events that have been largely ameliorated by the 2000 peace accord. Additionally, the

BIA’s decision is not necessarily undercut by Araya’s testimony as to his family history: the

BIA could reasonably accept the more current Country Reports account over the dated

second-hand account of persecution given by Araya. In short, although Araya has presented



                                             -4-
some evidence of persecution, the record as a whole does not compel the conclusion that the

BIA erred. Accordingly, we deny the petition for review.




TO THE CLERK OF THE COURT:
Kindly file the foregoing Opinion.




                                                             /s/ Julio M. Fuentes
                                                               Circuit Judge




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