Not for Publication in West's Federal Reporter Citation Limited Pursuant to 1st Cir. Loc. R. 32.3 

# United Stat es Court of Appeals

For the First C ircuit

No. 03-2370 AZEB GEBRE CHEBUDE, Petitioner,

v. JOHN ASHCROFT, Attorney General,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

Before Lynch, Lipez, and Howard, Circuit Judges .

Genet Getachewon brief for petitioner. Earle B. Wilson , Senior Litigation Counsel, Office of Immigration Litigation, Terri J. Scadron , Assistant Director, and Peter D. Keisler , Assistant Attorne y Ge neral, on brief for respondent. August 10, 2004-2- LYNCH, Circuit Judge . Petitioner Azeb Gebre Chebude, a native and citizen of Ethiopia, is o f Eri trean descent. In July 2000, shortly after a tw o-year war between Ethiopia and Eritrea ended, Chebude left Ethiopia and attempted to enter the United States using fraudulent documents. The INS detained h er and commenced removal proceedings. Chebude conceded removability but sought asylum, withholding of removal, and protection under the Convention Against Torture ("CAT") on the ground that, as a person of Eritrean origin, she would face discrimination and potential d eporta tion to Eritrea upon her return. An Immigration Judge deniedeach form of relief on March 19, 2002. Chebude appealed the denial of her asylum claim to the Board of Immigration Appeals (BIA), which affirmed the IJ's de cision on September 8, 2003. Because a number of Chebude's arguments on appeal were not raised in her briefs to the BIA, and substantial evidence supports the BIA's rejection of those arguments that she did raise, we affirm. I. Fighting between Ethiopia and Eritrea broke out in 1998. Chebude, who was the sole witness at her removal hearing, testified that her mother is Eritrean and h er father is Amharic. Chebude testifiedthat she lost her job as a secretary in A ugust 199 9 because her employer was afraid he would be investigated by the government for hiring Eritreans. She further testified that, also in August 1999, the police arrested two of her three brothers and-3-

forcibly deported them. Although she, her mother, and Yadic, her remaining brother, were present during one of th e arrests, they were not taken. According to Chebude, her mother was too elderly andYadic was too sick to be taken, and Chebude herself was not taken because she was the only person available to care for them.

Over the next several months, she said, the Ethiopian police came repeatedly to her house to deport her. The first time, she testified, she was at the h ospital caring for Yadic, so they did not find her. The second time, she testified, they again did not take her because Yadic had recently passed away and she was in mourning. After the forty-day mourning period had passed, she went into hiding. During that time, she testified that her mother told her that government agents had twice come to their house to inquire as to her whereabouts.

According to the State Department's country conditions report for Ethiopia in 2001, the conflict between Ethiopia and Eritrea lasted through June 2000, when the two nations signed an agre eme nt ending hostilities. The report notes that during the conflict, ma ny Eth iopians of Eritrean origin lost their jobs and

access to government services, and as many as 75,000 were detained andforcibly deported. The report goes on to note that "the Government stopped forcibly deporting Eritreans and Ethiopians of Eritrean origin after it signed the cessation of hos tilities-4-

agreement with Eritrea in June 2000" and that 2,892 such persons were repatriated in 2000.

On March 19, 2002, the IJ denied Chebude's petition for asylumand withholding of departure. Although he found Chebude to be a "credible witness," he concluded that she lacked a wellfoundedfear of future persecution. He determined that the evid ence w as not sufficient to demonstrate that Chebude had been subjectedto past persecution. He describedChebude's allegations that authorities repeatedly tried to deport her as " speculative" andno ted that , in any event, she had not been deported. The IJ also determined that Chebude was unlikely to be persecuted upon her return, citing State Department country con d itions reports that Ethiopia and Eritrea had signed a peace agreement and that Ethiopia hadstopped deporting individuals of Eritrean descent. The IJ further stated that "[t]here is no evidence that Eth iopian s [of] Eritrean descent are being denied housing or education or employment at the present time" and that Chebude's evidence on that point was "strictly an[ec]dotal and unsubstantiated." In addition, the IJ denied Chebude's CAT petition on the ground that there was

no evidence that Chebude faced torture upon her return to Ethiopia.

On April 9, 2002, Chebude appealed from the IJ's denial of her petition for asylum. She did not challenge the IJ's denial of her petition for withholding of departure or CAT protection. In her brief to the BIA, she stated, "The only issue in the instant-5-

case is whether conditions have changedin the Respondent's country

. . . to permit the Respondent to return to her country of nationalitywithout fear." She argued that the "INS has not established by preponderance of evidence [that] the government of Ethiopia has stopped deporti ng Et hiopians of Eritrean origin." Chebude's brief did not challenge the IJ's finding that she had not sufferedpast persecution or the IJ's conclusion that there was no evidence that Ethiopians of Eritrean descent were still being denied housing, education, and employment at that time.

On September 8, 2003, the BIA affirmed the IJ's denial of asylum. The BIAheld that Chebude bore the burden of demonstrating

a well-founded fear of future persecution "because the Immigration Judge correctly determined that sh e di d not establish past persecution." Citing the State Department's country conditions report, the BIA determined that Chebude had not met that burden. II. We review the BIA's decision und er the deferential substantial evidence standard. Pieterson v. Ashcroft , 364 F.3d38, 43 (1st Cir. 2004). Under that standard, we must affirm the BIA unles s the evidence not only supports a contrary conclusion, b u t compels it. Id. ; see also INS v. Elias-Zacarias , 502 U.S. 478, 481 (1992) . Where, as here, the BIA adopted the IJ's reasoning, we review that reasoning as if it were articulated by the BIA in the first instance. Pieterson , 364 F.3d at 43 n.2.-6- To be eligible for asylum, an applicant bears the burden of establishing that she meets the statutory definitio n o f a refugee under 8 U.S.C. § 1101(a)(42)(A). See 8 C.F.R. § 208.13(a). To satisfy that definition, the applicant must demonstrate "a well-foundedfear of persecu tion on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1101(a)(42)(A); see also 8 C.F.R. § 208.13(b); Khem v. Ashcroft , 342 F.3d 51, 53 (1st Cir. 2003). That fear can be demonstrated in two ways. Fi rst, the applicant can demonstrate past persecution on one of the five statutory grounds. Such a showing creates a presumption of a well-founded fear of future persecution. 8 C.F.R. § 208.13(b)(1); Khem , 342 F.3d at 53. Second, the applicant can establish a genuine and objectively reasonable fear of future persecution. 8 C.F.R. § 208.13(b)(2); El Moraghy v. Ashcroft , 331 F.3d 195, 202-03 (1st Cir. 2003).

Chebude contends that she has met her burden here. She raises two new arguments regarding her asylum claim that were not articulatedin her brief to the BIA: (1) that she demonstrated past persecution based on the deporta tio n of her brothers and the Ethiopian government's repeated attempts to deport her, and (2) that she established a genuine and objecti vely reasonable fear that, as an Ethiopian of Eritrean origin, she would be deprivedof housing, employment, access to gover nmen t services, her right to vote, and her citizenship if returned to Ethiopia. We decline to-7-

consider either argument. Arguments not raised to the BIA are waivedfor failure to exhaus t administrative remedies. Opere v. INS , 267 F.3d 10, 14 (1st Cir. 2001); Bernal -Vall ejo v. INS , 195 F.3d56, 64 (1st Cir. 1999). That Chebude mentioned these arguments in her notice of appeal to the BIA does not excuse her failure to raise them in her brief to the BIA. See Cumberland Farms, Inc. v. Montague Econ. Dev. and Indus. Corp. , 78 F.3d 10, 12 n.1 (1st Cir. 1996) (holding that appellant waived an issue raised in its notice of appeal when it did not refer to the issue in its brief). The only argument that Chebude raised to the BIA was that the State Department's country conditions report did not suffice to negate her genuine and objectively reasonable fear of deportation upon her return to Ethiopia. Sub stantial evidence supports the BIA's rejection of this argument. The 2001 country conditions report states that "the Government st op ped forcibly deporting Eritreans and Ethiopians of Eritrean origi n a fter it signed the cessation of hostilities agreement with Eritrea in June 2000" and that 2,892 such persons were repatriated in 2000. It also states that 80,000 to 100,000 individuals of Eritrean descent continued to reside in Ethiopia as of the date of the report in 2001. Chebude concededin her testimony to the IJ that "[a]t this moment currently the government is not dire ctly deporting people from Ethiopia to Eritria."-8- The country conditions report does mention that "Ethiopians of Eritrean origin have been able to obtain exit visas [to leave Ethiopia] but often are not permit ted t o return to the country." That statement, though, does not indicate that Ethiopia has resumed deportations. There are co ncerns that the peace between Eritrea and Ethiopia may not last. But we cannot say that those concerns compel the conclusion that Chebude would likely face deportation upon returning to Ethiopia.

Chebude also argues that she is entitled to withholding of departure. That claim has been waived, as she did not challenge the IJ's denial of that relief in her petition to the BIA. Opere , 267 F.3d at 14. III.

The BIA's denial of asylum is affirmed .