2004 D e c i sion s O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit 1-26-2004 

# L ak ew v . Atty Ge n U SA P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al D ocke t N o . 03-1172

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w . vi l l a no va . e du/thir dc ir c uit_2004/1072NOT PRECEDE NTIAL UNITED STATES COURT OF APPEALS FO R T HE TH IRD CIR CU IT
No. 03-1172
DER EJ E L AKE W, Petitioner
v.
JOHN AS HCROFT , A TTORNE Y GENERAL OF THE U NITED STATES, Respondent

_________________________________ On petiti on for revi ew of a final order of the Bo ard o f Imm igration Ap peals File No: A75-971- 187

__________________________________ Submitte d pursuant

to Third Ci rcuit

LAR 34.1(a) on January

13, 2004 Befor e: BARRY, SMITH and GR EE NB ER G, Circuit Judges , (Fil ed: Januar

y 26, 2004)

____________________ OPINI ON OF THE COURT

_____________________ SM ITH , Circuit

Judge.2

Petitioner Derej e Lakew applied for asy lum and withhol ding of removalunder the Immigrat ion and Nati onalit y Act, and for rel ief under the Unite d Nations Conventi on Against Tort

ure and Other For

ms of Cruel, Inhuman or Degrading Tr eatment or Punishment ( “CAT”). Lakew claims that he fl ed his native Ethi opia aft er being persecuted by the governm ent based o n his ethnicity and political opinion . After a hearing, the Immigr ation J udge (“IJ ”) denie d Lakew’s appli cati on, concluding that Lakew was not credible and that the documents he pre sented were fraudulent . The Board of Immigrat ion Appeals ( “BIA”) summarily affirmed. This timely a ppeal fol lowed. I. Lakew testi fied that he i s an ethni c Amhara, one of the many ethnic groups present in Eth iopia, b ut an e thnic m inority in his h om e tow n of Dilla. L akew expla ined th at, begin ning in 19 91, the Am haras in his re gion bega n to b e pers ecute d by the m ajority ethnic group in t

hat regi on, the Omoros. In 1993, Lakew and two other individuals went to the regional au thority to request protection from the gove rnmen t. Shortly thereafter, Lakew testi fied that he was arrested on t he suspic ion that

he was a member of a poli tica l opposit ion part

y, the All Amhara Peopl e’s Organi zati on (AAPO ). He cla imed that he was severely beat en, i mprisoned for five day s, and t

hreate ned with deat

h if he di d not si gn an adm ission th at he w as a m emb er of th e A AP O. H e testified that he wa s releas ed on ly after h is fathe r-in-law paid a 10,00 0 birr b ail. After his arres t, Lakew sent his wife and c hildr en to Addis Ababa, j oining t hem3

late r. Once in Addis Ababa, Lakew testi fied that he met wit h AAPO leader ship, learne d about the organization and e ventual ly joined. He testi fied that he was once again arres ted alon g w ith fo ur o ther ind ivid uals on M arch 11, 1 996 for his a ffilia tion wit h th e A AP O. He wa s de taine d fo r thre e da ys and then relea sed wh en h is bro ther paid a 10 ,000 birr b ail. Lakew testi fied that the police informed hi m that an investi gation would f ollow and he would be call ed back for questioning. In May 1996, Lakew learned that those wit

h whom he had been arr ested in March had been re-ar rest ed. Lakew eluded t he polic e and obtaine d an exit

visa t hrough his e mployer . After hi s depart ure from Ethi opia, Lakew test ifie d that t

he polic e went to hi s home in Addis Ababa looking for him. He presented the IJwith a le tter

from his wife informing him of t he polic e search and what he cha racte rized as a sub poe na for h is ap pea ran ce. Lakew arrived in the United States on M ay 25, 1997 on a non-immigrant B-2 visa with authorizat ion to r emain in t he United States unt il November 24, 1997. At a mast er calendar hearing on Apri l 19, 2000, Lakew conceded removabil ity and sought as ylum and withholding of removal under the Immigr ation and National ity Act, and for

reli ef under the CA T. At a h earing La kew subm itted, among o ther docum ents, the follow ing: (1) a June 2, 1993 l ette r from the Dis tri ct Centr al Administ rati on for the Ogado Area Dist rict Court stating that

Lakew had been arrested on suspicion of anti-governmental activi ties; (2) a Ju ne 9, 1 997 sum mo ns fro m the Sectio n 14 Police Co mm ission o rderin g La kew to appear on June 12, 1997; and (3) a July 8, 1997 summons from the Regi on 141 Lakew challenged t he str eamlini ng regulations. As we explained i n Dia v. Ash croft , No. 02-2460, s lip op. at 21 (3d Cir . Dec. 22, 2003) (en banc) , the stre amlini ng regulations are nei ther cont

rary to the I mmigrati on and National ity Act nor offensive to the due process c lause. 4 administ rati on orderi ng Lakew to appear within two day s. Without object ion, t

he government subm itted t he results of it s investigat ion into the authenti city of these docu men ts wh ich co nclud ed tha t the latter tw o do cum ents w ere fra udu lent. The IJ found Lakew not to be c redibl e for thr ee reasons . Fir st, the IJfound untenabl e Lakew’s testimony t hat he had j oined the AAPO only after being impri soned on a mere accusation of bei ng a member of that organization. Second, based on t he gov ernme nt ’s pr of

fe re d i nve st ig at io n, th e I J d et ermi ne d tha t L ak ew p re se nt edtwo fraudulen t docum ents. Third, the IJ did n ot find credib le Lakew ’s testimony that no harm came to his brother , al though he gave a 10, 000 birr bail f or Lakew, but t

hat Lakew’s wife was h arassed w hen L akew did not app ear for qu estioning. Th e IJ rejected La kew ’s applic ation. The BIA affirmed without opinion. 1 II. The IJ had jurisdi ction pur suant t o 8 C.F.R. § 208. 2(b)(2002) . The BIA had appe llate jurisd iction p ursua nt to 8 C .F.R. § 3.1(b )(200 2). W e exe rcise ap pellate juri sdict ion over t

he BIA’s order pur suant t o § 242 (b) of the Im migra tion an d N ationa lity Ac t. 8 U.S .C. § 1 252 (b); see a lso A bdu lai v. As hcro ft , 239 F.3d 542, 548 -49 (3d C ir. 2001). When the BIA defers to the I J, however, “we must revie w the decisi on of the IJ .” Gao v . I NS , 299 F .3d 26 6, 271 (3d C ir. 2002 ); Abdulai , 239 F.3d at 549 n.2.2 The government mayrebut t his pre sumption wit

h evidence t

hat the re has been a “fundamentalchange” in t he country

conditi ons such that the a pplicant’s f

ear is no longer well-fou nded. 8 C .F.R. § 208 .13(b)(1). 5 III. Lakew claims that the I J’s adver se credibili ty findings are not s upported by substantial eviden ce in the record and are im permissibly based o n the gov ernmen t’s unreli able aut

hentic ity report . Additi onally , Lakew argues t hat he met hi s burden t o show that he was entitled to a sylum and withholdi ng of removal under the Immigr ation and Nati onal it

y Ac t and the CAT. Asylum is prop er w here a n alien can s how that he qualif ies as a refug ee w ho is unable or unwilling to return t o his home country because of “persecut[ion] or who has a
we ll-foun ded fear of

perse cution on ac coun t of rac e, religion , nation ality, mem bersh ip in a parti cular s ocialgroup, or politicalopinion. ” 8 U.S.C. § 1101( a)(42) (A). A refugee claim ing a w ell fou nded fear o f pers ecutio n m ust sho w b oth tha t he is su bjectiv ely afraid that up on re turning to his h om e cou ntry he w ill be pe rsecu ted an d that th is fear is object ively

reasonabl e. INS v. C ard oza -Fo nse ca, 480 U.S. 421, 430- 31 (1987). Where a petitioner demonst

rates past per secuti on, he i s presumed t o have a well- founded fear of per sec utio n. Abd ille v. Ash croft , 242 F.3 d 47 7, 49 6 (3 d C ir. 20 01) ; 8 C .F.R . § 208.13(b )(1). 2 If an appl icant cannot meet t

he standard for asylum, i t is assumed that he
can not me et the hig her stan dar d fo r w ithh old ing of r em ova l. Abd ille , 242 F.3d at 443-44;3 Withholdi ng of removal i s appropri ate where “t he Attorney

General det ermines t

hat such ali en’s l ife or freedom would be threat ened in such c ountry on account of r ace, reli gion, national ity , membership in a particular soci al group, or poli tica l opini on.” 8 U.S.C. § 1253(h) (1). An applicant for withhol ding of removalunder the CAT bears t he burd en of

establish ing “th at it is mo re likely than not tha t he or s he w ould be tortu red if removed to the proposed count ryof removal. ” Sevo ian v. A shcro ft , 290 F.3d 166, 174-75 (3d Cir. 200 2) (quoting 8 C.F.R. § 2 08.16(c)(2)). 6 Jan usiak v . I

NS , 947 F.2d 46, 47 (3d Cir. 1991 ). 3 An IJ’s det erminat ion that the pet iti oner did not

meet his burden is r eviewable on a sub stan tial ev iden ce s tand ard
. Dia , slip op. a t 26; Abd ille , 242 F.3d at 483. “‘Subs tanti al evidence i s more than a s cinti lla, and must do more than creat e a suspi cion of the exist ence of the fa ct to be establ ished. ’” Dia , sl ip op. at 27 (quot ing Nat’l Labor Rel ations Bd. v. Columbian Enameling and Stamping Co. , 306 U.S. 292, 300 (1939)). We may
rev erse onl y wh ere th e ev iden ce c om pels a co nclu sion con trary to that o f the IJ. Id. ; 8 U.S.C. § 1252(b) (4)(B) ( “the admini strative f indings of fact ar e conclusive unless any reasonab le adjudicator w ould be c omp elled to conclu de to the co ntrary”). Lak ew claim s that the IJ imp ermis sibly relied o n the g over nm ent’s a uthen ticity rep ort w hich fou nd t hat tw o of the th ree d ocu me nts p rese nted by La kew we re fr aud ulen t. He argues that

the inve sti gation done by t he government di d not meet t he standard set out by Ezea gw una v. Ash croft , 325 F .3d 39 6 (3d Cir. 20 03). B ecau se La kew did n ot raise th is issu e be for e the IJ or the B oar d, w e do not hav e jur isdic tion to re view the q ues tion . 8 U.S .C.A . § 125 2(d); M iah v. A shcro ft , 346 F.3d 434, 439 (3d Cir. 200 3). Upon a review of the r emaining r ecord we conclude t hat the re is ample support for7

the IJ’s adverse c redibility finding. We therefore uph old the IJ’s den ial of Lak ew’s app li catio n. We wil l a ffirm.

TO THE C LERK: Please fi le the foregoing Opini on.

/s/ D. Brooks Smith Circuit Judge