UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

SENAIT GIRMA,

Petitioner,

v.

No. 98-1983

U.S. IMMIGRATION & NATURALIZATION

SERVICE,

Respondent.

On Petition for Review of an Order

of the Board of Immigration Appeals.

(A72-419-452)

Submitted: December 15, 1998

Decided: January 7, 1999

Before WILKINS, NIEMEYER, and HAMILTON, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

Richard Steven Fishbein, David Allen Garfield, Washington, D.C.,

for Petitioner. Frank W. Hunger, Assistant Attorney General, Richard

M. Evans, Assistant Director, Ellen Sue Shapiro, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE,

Washington, D.C., for Respondent.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Senait Girma petitions for review of a final order of the Board of

Immigration Appeals (Board) denying her application for asylum and

withholding of deportation. We affirm the Board's decision because

there is substantial evidence in the record as a whole that Girma does

not now have a well-founded fear of persecution on account of protected grounds if she is returned to Ethiopia.

The Immigration and Nationality Act (Act) authorizes the Attorney

General, in her discretion, to confer asylum on any refugee. See 8

U.S.C.A. § 1158(a) (West Supp. 1998). The Act defines a refugee as

a person unwilling or unable to return to his native country "because

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

race, religion, nationality, membership in a particular social group, or

political opinion." 8 U.S.C.A. § 1101(a)(42)(A) (West Supp. 1998);

M.A. v. INS, 899 F.2d 304, 307 (4th Cir. 1990) (en banc). The "wellfounded fear of persecution" standard contains both a subjective and

an objective component. An applicant may satisfy the subjective element by presenting "`candid, credible, and sincere testimony' demonstrating a genuine fear of persecution." Berroteran-Melendez v. INS,

955 F.2d 1251, 1256 (9th Cir. 1992); see Figeroa v. INS, 886 F.2d 76,

79 (4th Cir. 1989). The objective element requires a showing of specific, concrete facts that would lead a reasonable person in like circumstances to fear persecution. See Huaman-Cornelio v. Board of

Immigration Appeals, 979 F.2d 995, 999 (4th Cir. 1992). A finding

of past persecution creates a rebuttable presumption of a well-founded

fear of future persecution. See 8 C.F.R.§ 208.13(b)(1) (1998). This

presumption may be rebutted by evidence demonstrating that there is

no longer a reasonable fear of future persecution, such as when conditions in an alien's native country have changed significantly. See 8

C.F.R. § 208.13(b)(2) (1998). Eligibility for asylum can also be based

on grounds of past persecution alone even though there is "`no rea-

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sonable likelihood of present persecution.'" Baka v. INS, 963 F.2d

1376, 1379 (10th Cir. 1992) (quoting Rivera-Cruz v. INS, 948 F.2d

962, 969 (5th Cir. 1991)). To establish such eligibility, an alien must

show past persecution so severe that repatriation would be inhumane.

Id.

We must uphold the Board's determination that Girma is not eligible for asylum if the determination is "supported by reasonable, substantial, and probative evidence on the record considered as a whole."

8 U.S.C.A. § 1105a(a)(4) (West 1994).* The decision may be

reversed only if the evidence presented by Girma was such that a reasonable fact finder would have to conclude that the requisite fear of

persecution existed. See INS v. Elias-Zacarias , 502 U.S. 478, 481

(1992).

Girma is a citizen of Ethiopia, who entered the United States as a

nonimmigrant visitor in October 1991. Her attorney prepared an

application for political asylum which she signed. At the time Girma

signed the application, she related events to her attorney that had not

been included in the application. The attorney, who was ill at the

time, determined that the omissions could be rectified later and suggested that he submit the application as it was in order to obtain

Girma's employment authorization. The attorney submitted the application for political asylum with the Immigration and Naturalization

Service (Service) and died a few weeks later.

Girma was interviewed for asylum by the Service's Asylum Office

in February 1996. One month prior to the interview, Girma submitted

to the Service an affidavit setting out the events of her final months

in Ethiopia. This was the time period left out of her 1992 application.

In March 1996, the Service issued an Order to Show Cause charging

Girma with deportability under the Immigration and Nationality Act

§ 241(a)(1)(B) for overstaying her visa. She admitted the allegations

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*We note that 8 U.S.C.A. § 1105a(a)(4) was repealed by the Illegal

Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L.

No. 104-128, 110 Stat. 3009 (IIRIRA), effective April 1, 1997. Because

this case was in transition at the time the IIRIRA was passed, 8 U.S.C.A.

§ 1105a(a)(4) is still applicable under the terms of the transitional rules

contained in § 309(c) of the IIRIRA.

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of fact contained in the Order to Show Cause and conceded deportability in May 1996. At that time, Girma requested political asylum,

withholding of deportation, and alternatively voluntary departure

before the Immigration Court. The Immigration Court denied her

applications for political asylum, withholding of deportation, and voluntary departure because the Immigration Judge found Girma

enhanced the facts of her case to facilitate a grant of asylum from the

Immigration Court. Girma appealed to the Board of Immigration

Appeals. The Board upheld the Immigration Court's orders denying

political asylum, withholding of deportation and voluntary departure,

finding that Girma's testimony was not credible and that conditions

in Ethiopia have changed to such an extent that Girma no longer has

a reasonable fear of future persecution if returned. Girma timely filed

a Petition for Review with this Court.

Girma's asylum request was based on persecution under the Ethiopian Mengistu regime and later under the government that overthrew

the Mengistu regime in 1991. While in Ethiopia, Girma participated

in the Ethiopian Democratic Union (EDU), a political opposition

group. She participated in demonstrations against the Mengistu

regime, EDU meetings, and the distribution of political literature. She

was imprisoned twice, beaten, interrogated, and tortured. Her father

was imprisoned for seven years and was later killed, Girma believes,

due to his EDU activities. Girma's sister died while imprisoned. In

1991, a new Transitional Government took control of Ethiopia, but

the EDU was opposed to this government also. The new government

was dominated by members of the Ethiopian People's Revolutionary

Democratic Front (EPRDF). The affidavit Girma submitted prior to

her asylum hearing and the Immigration Court testimony contain consistent statements that the Transitional Government threatened and

warned Girma about her political activities.

Girma left Ethiopia and entered the United States in October 1991.

Once in the United States, Girma became an active member of the

Coalition of Ethiopian Democratic Forces (COEDF), a political group

that opposes the EPRDF. Following 1995 elections, the Federal Democratic Republic of Ethiopia (FDRE) took over control of Ethiopia.

The FDRE consists primarily of EPRDF factions. Girma testified that

her active participation in COEDF makes her a target of the current

Ethiopian government.

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Girma disagrees with the Board's finding that her testimony

regarding events after the Mengistu regime's fall was not credible. A

review of the record establishes that there was a misunderstanding

below concerning the date Girma submitted her affidavit to the Service which led the Immigration Court to believe Girma embellished

her story after her asylum interview in order to obtain relief. The misunderstanding concerned Girma's experiences with the Transitional

Government, which overthrew the Mengistu regime. However, even

assuming the truth of Girma's testimony concerning her encounters

with the post-Mengistu government, there is substantial evidence in

the record as a whole that because of the 1995 change in Ethiopian

government, Girma does not have a well-founded fear of persecution

on account of protected grounds today.

The Service presented evidence that the changes in Ethiopia "are

so fundamental and sweeping that most applicants claiming [persecution] during the Mengistu period would not now be in danger of abusive treatment from the new government upon returning." Bureau of

Democracy, Human Rights, and Labor, U.S. Department of State:

Ethiopia: Profile of Asylum Claims and Country Conditions 14

(1995). The record establishes that since Ethiopia's August 1995

change in leadership, the Ethiopian government has been open to

opposition political groups that renounce violence but that Girma's

political group, COEDF, has not done so. Although the current government has jailed certain COEDF members, once these persons

renounced violence, they were released. The Service has shown by a

preponderance of the evidence that since the time of Girma's persecution, conditions in Ethiopia have changed to such an extent that Girma

no longer has a reasonable fear of future persecution if returned.

Finally, Girma has not claimed, and the record does not show, that

she warrants a discretionary grant of asylum arising solely from the

severity of her past persecution. For these reasons, we affirm the

Board's order.

We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and

argument would not aid the decisional process.

AFFIRMED

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