United States Court of Appeals

For the First Circuit

No. 04-1983

HIRUT NEGEYA,

Petitioner,

v.

ALBERTO R. GONZALES,* ATTORNEY GENERAL,

Respondent.

PETITION FOR REVIEW OF AN ORDER

OF THE BOARD OF IMMIGRATION APPEALS

Before

 Boudin, Chief Judge,

Torruella and Selya, Circuit Judges.

Genet Getachew on brief for petitioner.

Peter D. Keisler, Assistant Attorney General, Civil Division,

Christopher C. Fuller, Senior Litigation Counsel, Office of

Immigration Litigation, and C. Alexander Hewes, Jr., Attorney,

United States Department of Justice, on brief for respondent.

July 27, 2005

__________

*Alberto R. Gonzales was sworn in as United States Attorney General

on February 3, 2005. We have therefore substituted Attorney

General Gonzales for his predecessor in office as respondent in

this matter. See Fed. R. App. P. 43(c)(2).
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SELYA, Circuit Judge. The petitioner, Hirut Negeya, is

an Ethiopian national. She seeks judicial review of a final order

of the Board of Immigration Appeals (BIA) denying her application

for asylum and other relief. Discerning no error, we deny her

petition.

The facts are straightforward. The petitioner entered

the United States on August 29, 2000, using a counterfeit nonimmigrant visa. The Immigration and Naturalization Service

immediately detained her and instituted removal proceedings. See

8 U.S.C. § 1182(a)(6)(C)(i) (fraud or willful misrepresentation of

a material fact) and id. § 1182(a)(7)(A)(i)(I) (alien not in

possession of a valid unexpired immigrant visa). She conceded

removability but cross-applied for asylum, withholding of removal,

and relief under the Convention Against Torture (CAT).

The case was heard on May 6, 2003. The petitioner, born

in Ethiopia on December 16, 1969, testified that she is unmarried

and childless. Her father is Amharic and her mother is an ethnic

Eritrean. After graduating from high school, she attended

technical school for three years. She then began work at the Water

Resource Development Authority (WRDA) in 1991.

The WRDA, a government agency, dismissed the petitioner

five years later. Although her termination letter stated that she

was being furloughed because she was a "contract worker" whose

contract had expired, the petitioner concluded that she would have
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been retained but for her Amharic lineage. To bolster this

conclusion, she noted that, at the time, many people of Amharic

descent were being laid off by government agencies.

The loss of her job was not the only basis for the

petitioner's apprehension. She testified that many Ethiopians of

Amharic descent, including several former co-workers, had been

detained by the government. Fearing that she also would be

detained on account of her Amharic ethnicity, she left Ethiopia for

Egypt. She made no effort to find other employment in Ethiopia.

While in Egypt, she learned of her father's detention in Ethiopia

on account of his connection with the Amharic political party.

The petitioner lived in Egypt from 1996 to August 2000.

She worked as a babysitter and maid even though she did not have a

work permit. Midway through this period, war broke out between

Ethiopia and Eritrea over a long-disputed border. During the war,

a large number of Eritreans were expelled from Ethiopia.

The war lasted for just over two years, culminating in an

armistice negotiated in June of 2000. Documentary evidence in the

record reflects that, from and after the date of the armistice, the

Ethiopian government stopped forcibly deporting persons of Eritrean

origin.

Despite the cessation of hostilities, the petitioner did

not return home but, rather, remained in Egypt. When her employer

left Egypt, she flew to the United States and, as said, entered
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illegally. She then sought asylum based primarily upon the fact

that she was an Ethiopian of Eritrean origin. In her own words,

she "fear[ed] persecution by the Ethiopian government on account of

[her] Eritrean lineage, as well as [her] connection with [her]

father." She stated conclusorily in her affidavit in support of

her application for asylum that if she were to return to Ethiopia

she would "be put in prison" and if her ethnic background was

discovered, she would "not be allowed to work or earn a livelihood

in [her] country, and . . . [would] likely be deported to Eritrea."

The petitioner's testimony was to the same effect. She

expressed a fear that if she returned to Ethiopia, she "would be a

person who'd have no rights in that country, no rights to work, to

rent a house, to live." Instead, the Ethiopian government would

consider her Eritrean and she would be deported. To buttress these

last conclusions, she noted that her mother and two younger sisters

had been deported to Eritrea in 1998 because they were of Eritrean

ethnicity. 

The immigration judge (IJ) deemed the petitioner credible

but nonetheless denied her application for asylum, withholding of

removal, and relief under the CAT. He found that the petitioner

had not established past persecution because termination of

employment and detention or deportation of family members "does not

rise to the level of persecution contemplated by the Immigration

and Nationality Act." Similarly, the petitioner had not
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established a well-founded fear of future persecution because,

inter alia, changed conditions in Ethiopia rendered her trepidation

groundless.

The petitioner appealed to the BIA, which summarily

affirmed the IJ's ruling. This timely petition for judicial review

followed. We have jurisdiction under 8 U.S.C. § 1252(b).

We start with the petitioner's asylum claim. When, as

now, the BIA has summarily affirmed an asylum determination, this

court will "review directly the IJ's decision as if it were the

decision of the BIA." Jupiter v. Ashcroft, 396 F.3d 487, 490 (1st

Cir. 2005). This appellate assessment implicates the substantial

evidence standard of review. Under this standard, we must honor

the IJ's findings as long as they are "supported by reasonable,

substantial, and probative evidence on the record considered as a

whole." INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992). The

decision below is then tested against the factual predicate, with

the understanding that the decision must be upheld "unless any

reasonable adjudicator would be compelled to conclude to the

contrary." 8 U.S.C. § 1252(b)(4)(B).

In order to qualify for asylum, an alien bears the burden

of showing that she is a refugee within the purview of the

Immigration and Nationality Act (INA). See id. § 1158(b)(1); 8

C.F.R. § 208.13(a); see also Laurent v. Ashcroft, 359 F.3d 59, 63

(1st Cir. 2004). The INA defines a refugee as someone who is
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unable or unwilling to return to her homeland "because of

persecution or a well-founded fear of future persecution on account

of race, religion, nationality, membership in a particular social

group, or political opinion." 8 U.S.C. § 1101(a)(42)(A).

If an asylum applicant is able to show past persecution,

there is a rebuttable presumption that her fear of future

persecution is well-founded. See 8 C.F.R. § 208.13(b)(1). In this

instance, the petitioner has abandoned the argument that she

suffered any cognizable past persecution. Consequently, the

question before us reduces to whether she has a well-founded fear

of future persecution. On that question, she bears the burden of

showing, unassisted by any presumption, that her fear of future

persecution is well-founded. Makhoul v. Ashcroft, 387 F.3d 75, 79

(1st Cir. 2004).

A well-founded fear of future persecution entails both

subjective and objective components. The petitioner must

demonstrate not only that she harbors a genuine fear of future

persecution but also that her fear is objectively reasonable.

Laurent, 359 F.3d at 65.

We assume, for argument's sake, that the petitioner

satisfied the subjective component of the two-part test. That

assumption brings us directly to the IJ's determination that the

petitioner did not satisfy the second of the two prongs.
For purposes of her "future persecution" claim, the 1

petitioner emphasizes her Eritrean heritage rather than her Amharic

heritage. We evaluate her case accordingly.

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In order for an alien to show that her fear of

persecution is objectively reasonable, she "must show 'by credible,

direct, and specific evidence . . . facts that would support a

reasonable fear that the petitioner faces persecution.'" Guzman v.

INS, 327 F.3d 11, 16 (1st Cir. 2003) (quoting Alvarez-Flores v.

INS, 909 F.2d 1, 5 (1st Cir. 1990)). Generally, this court

"narrow[s] the relevant inquiry to whether a reasonable person in

the asylum applicant's circumstances would fear persecution on

account of a statutorily protected ground." Aguilar-Solis v. INS,

168 F.3d 565, 572 (1st Cir. 1999). Keeping this framework in mind,

we conclude that the IJ's determination that the petitioner lacked

an objectively reasonable fear of future persecution is supported

by substantial evidence.

To begin, a petitioner must show that she fears

persecution based on one of the five statutorily enumerated

grounds. One of these is "membership in a particular social

group." 8 U.S.C. § 1101(a)(42)(A). A social group is composed of

members who "share a common, immutable characteristic." Da Silva

v. Ashcroft, 394 F.3d 1, 5 (1st Cir. 2005). Groups satisfying this

criterion typically include racial and ethnic groups. See id. The

group to which the petitioner belongs — ethnic Eritreans — may be 1
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considered a "social group" for purposes of 8 U.S.C. §

1101(a)(42)(A).

That leaves the matter of persecution per se. The

parameters of persecution are not set in cement, largely because

the INA contains no hard-and-fast definition of persecution. In

the absence of authoritative guidance, courts have taken a case-bycase approach to determining whether particular harms do — or do

not — constitute persecution within the ambit of the statute. See,

e.g., Bocova v. Gonzales, ___ F.3d __, __ (1st Cir. 2005) [No. 04-

2175, slip op. at 8]. We know, however, that inconvenience,

unpleasantness, and even a modicum of suffering may not be enough

to meet that benchmark. See, e.g., Rodriguez-Ramirez v. Ashcroft,

398 F.3d 120, 124 (1st Cir. 2005); Nelson v. INS, 232 F.3d 258, 263

(1st Cir. 2000).

Here, the petitioner's allegations of possible future

persecution come in two forms. First, she claims that she would

have no right to work or even to live a normal life in her

homeland. These claims, however, are not anchored in any factual

foundation in the record. They might have some traction if the

relevant time frame were the late 1990s, but it is not; the

relevant time frame for present purposes is a more recent period

(after the June 2000 armistice). With respect to that more recent

period, the petitioner's allegations are entirely conclusory and,

therefore, the IJ's rejection of them is sufficiently supported.
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See 8 U.S.C. § 1252(b)(4)(B). On this record, a reasonable person

in the petitioner's circumstances would have no continuing reason

to fear such persecution.

The petitioner also avers that, if removed to Ethiopia,

she will be forcibly deported or, at least, her right to travel

will be lost because her passport will not be renewed. Once again,

her claims do not withstand scrutiny.

The record reflects that soon before leaving Egypt to

come to the United States in 2000, the petitioner had her Ethiopian

passport renewed. There is credible evidence that the situation in

Ethiopia has improved, not deteriorated, since that date. Thus, it

is difficult to presume that a reasonable person would have a

continuing fear that her passport would somehow be revoked or its

renewal denied. To cinch matters, the petitioner has wholly failed

to adduce any credible, direct, or specific evidence showing that

the Ethiopian government, as matters now stand, would either revoke

or refuse to renew her passport, let alone deport her against her

will. Unsupported speculation that her passport might not be

renewed or that she might be arbitrarily expelled falls far short

of creating a well-founded fear of persecution.

The sockdolager is the evidence of changed country

conditions. This evidence undermines the petitioner's argument

that her fear of future persecution is objectively reasonable.

When authoritative documentary evidence, such as State Department
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country reports, shows convincingly that changed conditions in an

alien's homeland have dissipated the threat of persecution, a

stated fear of future persecution is no longer objectively

reasonable. See Yatskin v. INS, 255 F.3d 5, 10 (1st Cir. 2001)

(finding a State Department report that cited changed country

conditions sufficient to debunk alien's claim of an objectively

reasonable fear of persecution); Aguilar-Solis, 168 F.3d at 572-73

(similar). That is the situation here.

To be sure, the petitioner adduced evidence that her

mother and siblings had been forcibly deported. But those

deportations occurred in 1998. The IJ relied on the State

Department report on human rights conditions for Ethiopia for the

year 2002 (the Report) — a more recent and more relevant period.

The Report states in pertinent part that "the [Ethiopian]

Government stopped deporting forcibly Eritreans and Ethiopians of

Eritrean origin after it signed the cessation of hostilities

agreement with Eritrea in June of 2000." The Report also indicates

that "[t]here were no reports of forced exile during the year

[2002]" and that citizens no longer were "be[ing] deprived of their

nationality against their wills." Temporally and legally, that

evidence trumps the petitioner's earlier "family history" evidence.

In an effort to parry this thrust, the petitioner points

to some contradictory reports. Generally, State Department reports

are a highly probative source of evidence in cases that turn on the
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objective reasonableness of an asserted fear of future persecution.

See Gonahasa v. INS, 181 F.3d 538, 542 (4th Cir. 1999) (noting that

country conditions are "directly within the expertise of the

Department of State" (quoting Marcu v. INS, 147 F.3d 1078, 1081

(9th Cir. 1998))). In all events, choosing between conflicting

reports in an immigration case is for the factfinder, not for the

court of appeals. See id. The IJ was unpersuaded by the

petitioner's proffers, and under the substantial evidence standard

it is not our job to decide which of two conflicting sets of

reports is more credible.

That ends the matter. In the absence of powerful

contradictory evidence — and there is none in this record — the

existence of the Report, which elaborates upon significant

ameliorative changes in country conditions between the late 1990s

and the post-armistice period, fills in the blanks left by the

conclusory nature of the petitioner's testimony. So viewed, it

suffices to provide the substantial evidence needed to underpin the

IJ's determination that the petitioner failed to show an

objectively reasonable fear of future persecution. Yatskin, 255

F.3d at 10.

The supportability of the decision denying asylum also

disposes of the petitioner's claim for withholding of removal. A

withholding of removal claim requires an alien to carry a weightier

burden of proof than does a counterpart claim for asylum. See 8
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U.S.C. § 1231(b)(3)(A); see also Makhoul, 387 F.3d at 82. Thus,

since the petitioner's claim for asylum fails, her counterpart

claim for withholding of removal must fail as well. See Laurent,

359 F.3d at 61 n.1.

The petitioner's final claim is unsuccessful for a

different reason. That claim, which invokes the CAT, was not

developed in her appellate brief. Consequently, it has been

waived. See Makhoul, 387 F.3d at 82.

We need go no further. For the reasons elucidated above,

we uphold the BIA's final order.

The petition for judicial review is denied.