* Honorable Richard D. Cudahy, Senior Circuit Judge, United States Court

of Appeals for the Seventh Circuit, sitting by desi gnation.

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

YESHWARED WOLDEMESKEL,

Petitioner,

v. IMMIGRATION & NATURALIZATION SERVICE,

Respondent. No. 00-9516 (INS No. A29-910-501)

ORDER Filed October 1, 2001

Before TACHA , Chief Judge, McKAY , and CUDAHY , * Circuit Judges.

This matter is before the court on Ms. Woldemeskel’ s petition for panel rehearing and petition for rehearing en banc. Upon consideration, the petition for rehearing is denied. The panel, however, has determined that the opinion should be revised. The last full paragraph of Part II.C, which begins “We emphasize that,” is deleted from the opinion. A copy of the revised opinion is attached to this order. The petition for rehearing en banc was transmitted to all of the judges of-2-

the court who are in regular active service as requ ired by Fed. R. App. P. 35. As no member of the panel and no judge in regular acti ve service on the court requested that the court be polled, that petition i s also denied. Entered for the Court PATRICK FISHER, Clerk of Court
by: Deputy Clerk* Honorable Richard D. Cudahy, Senior Circuit Judge, United States Court

of Appeals for the Seventh Circuit, sitting by desi gnation. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUL 25 2001 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

YESHWARED WOLDEMESKEL,

Petitioner,

v. IMMIGRATION & NATURALIZATION SERVICE,

Respondent. No. 00-9516

ON REVIEW FROM AN ORDER OF THE BOARD OF

IMMIGRATION APPEALS (INS No. A29-910-501)
Kenneth H. Stern (Stephanie Goldsborough, with him on the briefs), Stern & Elkind, Denver, Colorado, for Petitioner. Erin Albritton, Attorney, Office of Immigration Lit igation, Civil Division (David W. Ogden, Assistant Attorney General, Civil Divisio n, and David V. Bernal, Assistant Director, Office of Immigration Litigatio n, with her on the brief), United States Department of Justice, Washington, DC , for Respondent.

Before TACHA , Chief Judge, McKAY , and CUDAHY , * Circuit Judges.

TACHA , Chief Judge.1 In 1996, 8 U.S.C. § 1105a was repealed by section 306(b) of the Illegal

Immigration Reform and Immigrant Responsibility Act(IIRIRA), Pub. L. No. 104-208, 110 Stat. 3009. IIRIRA dramatically changed the scope and nature o f judicial review in exclusion cases. But because th e INS commenced deportation proceedings against the petitioner before IIRIRA’s effective date, April 1, 1997, and the final deportation order was entered after O ctober 31, 1996, our review is governed by the pre-IIRIRA rules as amended by IIRI RA’s transitional rules. See IIRIRA § 306(c)(1), reprinted as amended in8 U.S.C. § 1252 note; IIRIRA 309(a), (c)(1) & (4), reprinted as amended in8 U.S.C. § 1101 note. Under the transitional rules, § 1105a remains in effect but f or minor procedural amendments. -2- The petitioner appeals the Board of Immigration App eals’ order denying her request for asylum and withholding of deportati on and granting voluntary departure. Exercising jurisdiction under 8 U.S.C. § 1105a(a) (1995), 1 we deny the petition for review. I. Background The petitioner, Ms. Yeshwared Woldemeskel, is a nat ive and citizen of Ethiopia. In October 1992, she entered the United States on a temporary visa authorizing a six-month stay. Because she stayed l onger than authorized by her visa, the Immigration and Naturalization Service (INS) instituted deportation proceedings against her, after which Ms. Woldemeske l applied for asylum and withholding of deportation claiming that she endure d past persecution and feared future persecution in Ethiopia because of her ethni city and political opinion. In August 1994, the immigration judge denied her reque st for asylum and-3-

withholding of deportation and granted voluntary de parture, concluding Ms. Woldemeskel had not established statutory eligibili ty for asylum. In an order dated May 15, 2000, the Board of Immigration Appeal s (BIA) affirmed the immigration judge’s decision and this petition for review followed. During the asylum proceedings, Ms. Woldemeskel clai med that she was the victim of past persecution under the Mengistu regim e and that she feared future persecution under the Transitional Government of Ethiopia (TGE), which replaced the Mengistu regime in 1991. In 1977, at the age of seventeen, the Mengistu authorities allegedly arrested and impriso ned Ms. Woldemeskel for twelve months because she was believed to be a memb er of a political opposition group called the Ethiopian People’s Revolutionary P arty (EPRP). Ms. Woldemeskel testified that, during her first two mo nths of imprisonment, she was threatened often with a gun and tortured by prison authorities who gagged her, tied her upside down, and whipped and hit her. Whe n released from prison, authorities warned she would be arrested again if s he worked with individuals opposing the Mengistu government. From 1978 to 1990, Ms. Woldemeskel does not claim t o have suffered further persecution. During this time, she marriedand had two children. In 1991, Ethiopia experienced a change in government w ith the election of the TGE, a group dominated by leaders of Tigrean ethnicity w ho belonged to the Ethiopian2Citations to the C.F.R. are based on the current v ersion of the regulations.

Although 8 C.F.R. § 208.13 was recently amended, se e65 Fed. Reg. 76121, 76133-34 (Dec. 6, 2000), it did not change the subs tance of the provisions applicable to Ms. Woldemeskel. In order to minimiz e potential confusion, we cite to the most recent version. -4- People’s Revolutionary Democratic Front (EPRDF), th e political group currently in power in Ethiopia. Ms. Woldemeskel claims the l eaders of the TGE targeted Ethiopians of Amhara ethnicity, asserting that she and her husband were fired as a result of their Amhara heritage. In addition, sh e and her husband were members of a political opposition group called the All Amhara People’s Organization (AAPO). Because her husband led a gro up protesting the firing of Amharas, he was allegedly arrested by the TGE in 19 92. She claims that authorities then threatened to arrest her too if sh e did not stop protesting her husband’s arrest. Shortly thereafter she obtained an Ethiopian passport and left the country. Because she was unable to obtain visa s for her children, she had to leave them in Ethiopia with a friend. II. Asylum A request for asylum involves two steps. First, th e asylum applicant has the burden of proving her statutory eligibility by establishing refugee status. 8 C.F.R. § 208.13(a) 2 ; Kapcia v. INS , 944 F.2d 702, 706 (10th Cir. 1991). In order to establish refugee status, the applicant must dem onstrate either past “persecution or a well-founded fear of [future] per secution on account of race,-5-

religion, nationality, membership in a particular s ocial group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). Although per secution is not explicitly defined, we have observed that it requires the “inf liction of suffering or harm upon those who differ (in race, religion, or politi cal opinion) in a way regarded as offensive” and requires “more than just restrict ions or threats to life and liberty.” Baka v. INS , 963 F.2d 1376, 1379 (10th Cir. 1992) (internal qu otation marks omitted). Analysis of a claim specifically b ased on a “well-founded fear of [future] persecution” includes both a subjective and an objective component. Kapcia , 944 F.2d at 706. The applicant must first prove an objective basis by “‘credible, direct, and specific evidence in the re cord, of facts that would support a reasonable fear that the petitioner faces persecu tion.’” Id. at 706-07 (quoting Aguilera-Cota v. INS , 914 F.2d 1375, 1378 (9th Cir. 1990)); see also 8 C.F.R. § 208.13(b)(2)(i)(B) (applicant must prove “reasonabl e possibility” of future persecution). If an objective basis exists, the ap plicant must show her subjective fear is genuine. Id. at 706. If the applicant proves her eligibility for refuge e status, the Attorney General then exercises discretionary judgment in ei ther granting or denying asylum. Id. at 708. In general, the Attorney General’s discre tion at this second step in an asylum claim is “extremely broad.” Id. But if an applicant demonstrates statutory eligibility based on pastpersecution, a rebuttable-6-

presumption of a reasonable fear of future persecut ion arises. 8 C.F.R. § 208.13(b)(1); Nazaraghaie v. INS , 102 F.3d 460, 462 (10th Cir. 1996). In order to rebut the presumption in favor of the favorable exercise of discretion, the INS must prove by a preponderance of evidence that the petitioner no longer has a well-founded fear of persecution because country co nditions have changed. 8 C.F.R. § 208.13(b)(1)(i)(A); Kapcia , 944 F.2d at 709. Alternatively, “the immigration judge or [the BIA] may take administrat ive notice of changed circumstances in appropriate cases, such as where the government from which the threat of persecution arises has been removed from power.” Id. (internal quotation marks and emphasis omitted). In addition, when an asylum applicant shows she exp erienced “past persecution so severe that repatriation would be in humane,” she may be eligible for a discretionary, humanitarian grant of asylum e ven when no future danger of persecution exists. Baka , 963 F.2d at 1379. According to the relevant regulation, a humanitarian grant of asylum is appro priate when the “applicant has demonstrated compelling reasons for being unwilling or unable to return . . . arising out of the severity of the past persecution .” 8 C.F.R. § 208.13(b)(1)(iii)(A).
A. Standard of Review We apply a substantial evidence standard to the BIA ’s resolution of the-7-

first step of an asylum claim–whether an asylum app licant has established refugee status: “The BIA’s determination that [the applicant is] not eligible for asylum must be upheld if ‘supported by reasonable, substan tial, and probative evidence on the record considered as a whole.’ It can be re versed only if the evidence presented by [the applicant] was such that a reason able factfinder would have to conclude that the requisite fear of persecution exi sted.” INS v. Elias-Zacarias , 502 U.S. 478, 481 (1992) (internal citation omitted ) (quoting 8 U.S.C. § 1105a(a)(4) (1995)). We will not, therefore, “weig h the evidence or . . . evaluate the witnesses’ credibility.” Kapcia , 944 F.2d at 707 (internal quotation marks omitted). At the second step of an asylum claim, w hich requires the exercise of agency discretion, we review the BIA’s decision forabuse of discretion. Rezai v.
INS , 62 F.3d 1286, 1289 (10th Cir. 1995). Recognizing the BIA’s broad discretion, we will not substitute our judgment forthat of the BIA, but do require a “rational connection between the facts found and the choice made.” Kapcia , 944 F.2d at 708 (internal quotation marks omitted). B. Eligibility for Asylum Ms. Woldemeskel argues she is eligible for asylum u nder any of the approaches discussed above: (1) humanitarian asylumbased on past persecution by the Mengistu regime; (2) asylum based on the reb uttable presumption created by past persecution; and (3) asylum based on her we ll-founded fear of-8-

persecution under the current government. The immi gration judge concluded–and the BIA agreed–that Ms. Woldemeskel w as not entitled to asylum under any of these approaches. We agree. 1. Past Persecution Concerning her request for humanitarian asylum, the BIA did not abuse its discretion in deciding that the past persecution wa s not severe enough to warrant a grant of asylum on humanitarian grounds. Ms. Wol demeskel’s imprisonment under the Mengistu regime occurred several years ag o. Afterwards, she lived in Ethiopia for many years free from harassment or dis crimination. Hence, the record shows a rational connection between the fact s in this case and the BIA’s finding that the imprisonment was not sufficiently severe. Because the BIA simply stated that the past persecution alone did not compel a grant of asylum, Ms. Woldemeskel argues th at the BIA abused its discretion by not engaging in an individualized rev iew of the evidence. Although we may, of course, review the BIA’s order for “proc edural regularity,” we have recognized the BIA need not “write an exegesis on e very contention.” Panrit v.
INS , 19 F.3d 544, 545 (10th Cir. 1994) (internal quotation marks omitted). Instead, the BIA must “consider the issues and anno unce its decision in terms sufficient to enable us, as a reviewing court, to p erceive that it has heard and considered the arguments rather than merely reacted .” Id. Given the BIA’s-9-

detailed recitation of facts and its acknowledgmentthat much time has passed since Ms. Woldemeskel’s ordeal, we are satisfied th at the BIA heard and considered all the evidence and arguments. Moreove r, we note the governing regulation explicitly requires that the asylum appl icant “demonstrate[] compelling reasons” for her unwillingness to return, 8 C.F.R. § 208.13(b)(1)(iii)(A), in order to be eligible for asylum on humanitarian grounds. Although the BIA appears to have exercised its discretion in denying her humani tarian claim, Ms. Woldemeskel has arguably failed to establish her el igibility by asserting compelling reasons for her unwillingness to return. Ms. Woldemeskel also argues the INS failed to rebutthe presumption of future persecution created by the evidence of past persecution. This argument clearly fails because the record contains considerable evidence that conditions in Ethiopia changed with the 1991 transition in power. Furthermore, both the immigration judge and the BIA acknowledged the 1991 change in government and concomitant change in country conditions. The presumption was clearly rebutted, shifting the burden back to Ms. Woldemesk el to prove she is eligible for refugee status because of a well-founded fear o f persecution under the TGE, rather than the Mengistu regime. 2. Well-Founded Fear of Persecution Ms. Woldemeskel may prove a well-founded fear of pe rsecution based on-10-

her Amhara ethnicity or political opinion in one of two ways: she may demonstrate that she would be singled out personall y for persecution in Ethiopia, or she may show she has a reasonable fear of persec ution because of her membership in a group subject to “a pattern or prac tice of persecution.” 8 C.F.R. § 208.13(b)(2)(iii)(A)-(B). The group must consist“of persons similarly situated to [her] on account of race, religion, nationality, membership in a particular social group, or political opinion.” Id. § 208.13(b)(2)(iii)(A). The BIA concluded she failed to meet her burden of proof un der either approach and we agree. Although Ms. Woldemeskel may subjectively f ear future persecution in Ethiopia, she has failed to meet her burden in prov ing an objectively reasonable fear of persecution should she return to Ethiopia. The BIA concluded the record does not support a fin ding that Ms. Woldemeskel is a member of a group currently subjec t to a pattern or practice of persecution. We agree with the BIA’s conclusion be cause, although the record does show continued political unrest and ethnic con flict in Ethiopia, it does not show that members of the AAPO or people of Amhara h eritage are subject to a pattern or practice of persecution. A pattern or p ractice of persecution has been defined as “something on the order of organized or systematic or pervasive persecution.” Makonnen v. INS , 44 F.3d 1378, 1383 (8th Cir. 1995). The record contains evidence that the EPRDP, the organization that controlled the TGE and-11-

that is now in power, may be responsible for variou s human rights violations, including extra-judicial killings and torture, but the evidence does not support the conclusion that certain groups suffer systematic orpervasive persecution. Some evidence demonstrates that the EPRDF has imprisonedand harassed members of political opposition groups and that faculty member s of Amhara ethnicity have been dismissed from the university. This evidence, however, does not support a finding of systematic and pervasive persecution. Moreover, Ms. Woldemeskel failed to prove she is si milarly situated to individuals currently targeted for harassment and d iscrimination. The evidence shows that many, if not all, of the victims of hara ssment and intimidation are AAPO leaders and outspoken activists. For example, the 1994 State Report on Ethiopia’s country conditions acknowledges that AAP O activists believed by the TGE to advocate violence or insurrection are often arrested, but regular AAPO members have not been targeted. Ms. Woldemeskel ha s failed to prove that her position in the AAPO is similar to those previouslytargeted by the government. See, e.g. , Feleke v. INS , 118 F.3d 594, 598 (8th Cir. 1997) (requiring asyl um applicant prove that his position in a political op position group was similar to those members of the group subject to persecution). In addition to finding that Ms. Woldemeskel is not similarly situated to individuals undergoing persecution, the BIA also co ncluded the evidence failed-12-

to support Ms. Woldemeskel’s claim that she will be personally singled out for persecution. Even if she and her husband were fire d because of their ethnicity, this fact alone does not constitute persecution. A s both the immigration judge and the BIA noted, governmental employees are often replaced when a new administration takes office. Furthermore, we have recognized that termination of employment or fear of unemployment does not–withoutmore–support a grant of asylum. Baka , 963 F.2d at 1379 (citing Zalega v. INS , 916 F.2d 1257, 1260 (7th Cir. 1990) (requiring substantial economic detriment to support grant of asylum)). In addition, like the BIA, we need not a ddress whether her husband’s political opinions will be imputed to Ms. Woldemesk el because the evidence in the record does not show clearly that he was arrest ed based on his political opinion and activism. In order to prove a well-fou nded fear of persecution based on her political opinion, Ms. Woldemeskel had the b urden of proving she fears particularized persecution targeted at her personal ly. Instead, the record only supports a finding that she may experience politica l alienation because she disagrees with the government’s policies. See Safaie v. INS , 25 F.3d 636, 640 (8th Cir. 1994) (noting that an asylum applicant’s disagreement with repressive governmental policies is insufficient to establish refugee status). In support of her argument that she has a well-foun ded fear of individualized persecution, Ms. Woldemeskel challen ges the BIA’s refusal to3 Because the BIA did not rely solely on her failure to follow the

regulation, we need not address Ms. Woldemeskel’s argument that, under prior BIA decisions, her failure to comply with the regul ation’s procedures does not automatically invalidate the document. Similarly, we need not discuss her argument that she did not have to comply with the r egulation because both the INS and the immigration judge conceded that a copy was sufficient. Even if the document had been authenticated under the regulatio n, the immigration judge and the BIA remained free to assess its credibility. -13- consider an allegedly official Ethiopian document, which orders her arrest for her political involvement with the AAPO. She claims th is document proves the government will seek to arrest her upon her return. The immigration judge and the BIA, however, did not consider the document bec ause it was not authenticated according to regulation, see 8 C.F.R. § 287.6(a)-(b), 3 and its timing and content raise doubts about its credibility. Th e document conveniently surfaced as Ms. Woldemeskel was preparing her asylu m application, having last been in the possession of her brother. In addition , it contains self-serving information totally unnecessary for authorization o f an arrest but useful in preparing an asylum application, such as details re garding Ms. Woldemeskel’s friend, her political activity, and her departure f rom Ethiopia. We may not weigh the evidence, and we will not question the immigrat ion judge’s or BIA’s credibility determinations as long as they are subs tantially reasonable. Given the document’s timing and content, the BIA reached a re asonable conclusion supported by substantial evidence. In short, the r ecord supports the BIA’s-14-

decision that Ms. Woldemeskel did not meet her burd en in establishing a wellfounded fear of persecution.
C. Administrative Notice Ms. Woldemeskel argues that the BIA violated her Fi fth Amendment right to due process by taking administrative notice of three facts contained in the State Department’s 1999 Country Reports on Human Ri ghts Practices and not providing her with an opportunity to respond to the se facts. Because of their specialized knowledge in certain specific subject areas, administrative agencies may “take notice of technical or scientific facts that are within the agency’s area of expertise.” Llana-Castellon v. INS , 16 F.3d 1093, 1096 (10th Cir. 1994) (internal quotation marks omitted). It is well est ablished that the BIA “may take administrative notice of commonly acknowledged fact s, which may include current events bearing on an applicant’s well-found ed fear of persecution.” Kowalczyk v. INS , 245 F.3d 1143, 1147 (10th Cir. 2001) (internal qu otation marks omitted). In addition, the BIA “may draw rea sonable inferences from the evidence which comport with common sense.” Kapcia , 944 F.2d at 705 (internal quotation marks omitted). The BIA may not, however, base its decision primari ly on facts not contained in the record without providing asylum ap plicants with notice and the opportunity to rebut inferences drawn from those fa cts. Seeid. 705-06;-15-

Kowalczyk , 254 F.3d at 1147-48. We have repeatedly recogniz ed that individuals subject to deportation are entitled to procedural due process, which provides an “‘opportunity to be heard at a meaningf ul time and in a meaningful manner.’” See, e.g. , Llana-Castellon , 16 F.3d at 1096 (internal quotation marks omitted) (quoting Mathews v. Eldridge , 424 U.S. 319, 333 (1976)). In Ms. Woldemeskel’s case, however, the BIA did notbase its decision on the administratively noticed facts, which at most m erely supplement the BIA’s conclusion that “[t]here is no basis in the record upon which to conclude that persons similarly situated as the respondent are pe rsecuted in Ethiopia simply on account of their Amhara ethnicity or their membersh ip in the AAPO.” In re Woldemeskel , No. A29 910 501, at 2 (BIA May 15, 2000). As we have already discussed, the record lacks evidence showing Ms. Wo ldemeskel had a wellfounded fear of persecution based on her AAPO membe rship or Amhara ethnicity. Ms. Woldemeskel would first have to mee t her burden of proof before the three facts from the State Department report wo uld have any detrimental effect on her case. Even if she had established statutory eligibility, the administratively noticed facts would have little impact on her case. The first fact recognizes the establishment in 1992 of a special prosecutor’s off ice committed to vindicating human rights violations under the Mengistu regime–adetail also included in the-16-

record. The second fact simply recognizes that the EPRDF formally replaced the TGE in 1995, a fact with little significance becaus e both parties acknowledge that the TGE was dominated by the EPRDF; hence, the BIA’s recognition of the 1995 transition is at most an acknowledgment that c ountry conditions today are similar to those under the TGE. The final fact not es that political opposition parties are anticipated to participate in the May 2 000 elections. We recognize that this is a misstatement of the 1999 report, whi ch indicates that opposition parties are expected to protest . But although this is a rather disconcerting erro r, the reality that opposition groups planned to prote st does not help Ms. Woldemeskel prove her case for asylum. III. Withholding of Deportation An asylum application also includes a request for w ithholding of deportation, which the Attorney General must grant if the statutory criteria are met. An applicant is entitled to withholding of deportation if the Attorney General “determines that [the applicant’s] life or freedom would be threatened . . . on account of race, religion, nationality, member ship in a particular social group, or political opinion.” 8 U.S.C. § 1253(h) ( 1994 & Supp. 1995). The burden of proof for withholding of deportation is, however, significantly higher than that for asylum. In order to demonstrate elig ibility for withholding of deportation, the applicant must establish a “clear probability of persecution”-17-

through presentation of “evidence establishing thatit is more likely than not that [the applicant] would be subject to persecution on one of the specified grounds.” INS v. Stevic , 467 U.S. 407, 429-30 (1984). Because substantial evidence supports the BIA’s decision denying the asylum clai m, Ms. Woldemeskel clearly did not carry her burden of proof under the more stringent standard required for withholding of deportation. See, e.g. , Nazaraghaie , 102 F.3d at 465; Kapcia , 944 F.2d at 709. We accordingly deny the petition for review and AFF IRM the BIA’s decision to deny asylum and withholding of deportat ion and to grant voluntary departure.