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


7-29-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-2060




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                                                                   NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                              _______________

                                    No. 03-2060
                                  _______________

                                ALEM ANDE BERHE,

                                                      Petitioner

                                         v.

                          JOHN ASHCROFT,
                UNITED STATES ATTORNEY GENERAL,

                                                      Respondent
                                  _______________

                       On Petition For Review of an Order of
                         The Board of Immigration Appeals
                                (BIA No. A79-726-783)
                                  _______________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                  on May 6, 2004

      Before: SLOVITER, FUENTES, Circuit Judges, and POLLAK, District Judge.*


                               (Opinion Filed July 29, 2004)

                                  _______________

                             OPINION OF THE COURT
                                 _______________


  *
   The Honorable Louis H. Pollak, Senior District Judge for the United States District
Court for the Eastern District of Pennsylvania, sitting by designation.
FUENTES, Circuit Judge:

       The petitioner, Alem Ande Berhe, appeals from an order of the Board of

Immigration Appeals (“BIA”), affirming the decision of the Immigration Judge (“IJ”).

The IJ denied Berhe asylum, withholding of removal, and protection under the

Convention Against Torture Act (“CAT”), finding that Berhe was not credible after

noting significant evidentiary gaps in his application for relief. The IJ determined that

Berhe failed to establish past persecution or demonstrate a well-founded fear of future

persecution in Eritrea due to his political opinion. Therefore, the IJ held that Berhe was

unable to satisfy the evidentiary showing necessary to support asylum, or the greater

burden necessary for withholding of removal or protection under the CAT.

       Berhe filed a timely Petition for Review to this Court. We have jurisdiction over a

final order of the BIA under 8 U.S.C. § 1252(a)(1). Because we conclude that substantial

evidence supports the IJ’s decision, we will deny the Petition for Review.

                                           I.

       Berhe is a 40-year-old native of Eritrea. Berhe attempted to enter the United States

at JFK International Airport on June 5, 2002, without a visa or proper travel

documentation. He claims to have left Eritrea on December 8, 2000 because he was

afraid of being arrested for writing two political articles published in an Eritrean

periodical called “Sitit” earlier that month. According to Berhe, the first of these articles

criticized tax exemptions provided by the Eritrean government to larger businesses that



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competed with smaller businesses such as the bakery and store he owned. The second

article addressed the government’s detainment of certain Eritrean businessmen who had

never been formally charged with crimes. Berhe wrote both of these articles using a pen

name.

          Berhe claims that, on December 8, 2000, three days after the second article was

published, uniformed government officials came to his house looking for him. Berhe was

at work when they arrived. His sister, who lived with him, later told him that the officials

took documents from his home, including copies of his two articles. As a result of this

incident, Berhe claims that he immediately left Eritrea for Sudan. Thereafter, his family

informed him that uniformed officials again came looking for him, this time at his bakery

and store.

          Berhe testified that he resided in Sudan until December 2001, when he left to make

his way to the United States. Because he believed that entrance into the United States

would be easier through Asia, Berhe moved to China, where he stayed for six months,

and then to Malaysia, where he remained until June 2002 when he came to the United

States.

                                             II.

          This Court “will not disturb the IJ’s credibility determination and findings of fact

if they are ‘supported by reasonable, substantial and probative evidence on the record

considered as a whole.’” Tarrawally v. Ashcroft, 338 F.3d 180, 184 (3d Cir. 2003),


                                                   3
quoting Balasubramanrim v. INS, 143 F.3d 157, 161 (3d Cir. 1998). Berhe argues that

the IJ’s adverse credibility findings are not supported by substantial evidence. We

disagree. The record shows several inconsistencies and evidentiary gaps upon which the

IJ based her adverse credibility determination. Given the evidentiary gaps in Berhe’s

application, we agree with the IJ’s conclusion that Berhe was not credible and that he,

therefore, failed to show past persecution as a result of his political opinions. We also

agree that Berhe failed to show a well-founded fear of future persecution if he is returned

to Eritrea.

       Berhe asserts that the two articles he allegedly wrote for Sitit, and which were

published in early December 2000, caused the Eritrean government to target him for

arrest. However, Berhe also testified that there was free press in Eritrea until September

1, 2001. Berhe failed to explain why the government would have sought to arrest him for

writing political articles ten months before the end of free press. Berhe also failed to

produce copies of his articles for review, despite the fact that Sitit was a widely circulated

newspaper.

       In addition, Berhe does not offer sufficient explanation as to how the government

knew he was the author of the articles, which he wrote under a pseudonym. Berhe

contends that he submitted his identification card to another journalist, Dawit Isaac,

because the government required authors to submit a legal name and address to

newspapers before contributing articles. The IJ was not satisfied with this explanation



                                              4
because Berhe testified that he and Isaac had been close friends for several years. Berhe

failed to explain why a friend would need possession of his identification card,

particularly when Isaac was a contributing journalist and not an editor of the newspaper.

In addition, the IJ found it inconsistent that Berhe would use a pseudonym, presumably

for the purpose of shielding his identity from the government, if the government

nevertheless required him to submit his real name and address, as Berhe contends it did.

       The IJ was also unconvinced by Berhe’s claim that government officials came to

his home to arrest him because, according to his testimony, they arrived at a time when he

was unlikely to be there and then left rather than waiting for him to return. Berhe stated

that he maintained a routine work schedule and, therefore, his whereabouts during the

workday were well known within his community. If the officials were seeking to arrest

him, they could presumably have done so at his place of business.

       Berhe also failed to substantiate his posited fears of future persecution by showing

that the Eritrean government had a continuing interest in arresting him. The IJ reasonably

concluded that if in fact government officials visited Berhe’s home on December 8, 2000,

the day he left for Sudan, one such visit does not show an on-going interest in arresting

him. Although Berhe testified that his family informed him of subsequent visits by

officials to his home and business, he did not volunteer this material information on direct

examination, nor did he make any reference to a subsequent visit in his asylum




                                             5
application. Further, an affidavit from his sister described only the visit on December 8,

2000, and made no mention of a later visit to Berhe’s home or business.

       In addition, the IJ was not convinced by Berhe’s argument that the Eritrean

government sought to arrest him for having participated in a political organization, the

Eritrean Liberation Front Revolutionary Council (“ELF-RC”), while he was in Sudan.

Again, Berhe fails to provide any direct or indirect evidence to support his claim that the

Eritrean government knew of his participation in this political organization. He asserts

that the government would have discovered his membership through public debates in

which he spoke out against it. However, we agree with the IJ that this explanation is too

vague and unsubstantiated to support a conclusion that the government had actual

knowledge of his participation in ELF-RC.

       Finally, Berhe also fails to provide any compelling evidence that his family

currently residing in Eritrea is the target of continual harassment by the government.

Such evidence could support an asylum applicant’s claim of potential future persecution.

However, “[w]ithout some explanation, the fact that close relatives continue to live

peacefully in the alien’s homeland undercuts the alien’s claim that persecution awaits his

return.” Aguilar-Solis v. INS, 168 F.3d 565, 573 (1st Cir. 1999). Although his asylum

application briefly alluded to his family’s being harassed by the government, Berhe made

no such statements in his asylum interview, and failed to offer any evidence of such




                                             6
harassment. Additionally, Berhe’s sister stated in her affidavit that she continues to live

in Eritrea and manage the family’s businesses without government interference.

       We thus find that the IJ’s adverse credibility determination was supported by

substantial evidence. We agree that Berhe failed to provide compelling evidence that he

suffered past persecution in Eritrea or has a well-founded fear of future persecution if he

is returned. Because Berhe failed to meet the evidentiary showing necessary for asylum,

he also failed to satisfy the more exacting burden of proof required for withholding of

removal or protection under the CAT.

                                           III.

       We also reject Berhe’s claim that he was denied “meaningful review” by the BIA’s

affirmance of the IJ’s decision without opinion. Appellant Br. at 7. The BIA is not

required to articulate its reasons for affirming an IJ’s order, and may adopt the IJ’s

opinion without further explanation. Dia v. Ashcroft, 353 F.3d 228, 240 (3d Cir. 2003).

                                           IV.

       Accordingly, for the reasons stated above, we deny Berhe’s Petition for Review.




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