Not for Publication in West's Federal Reporter

Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

United States Court of Appeals

For the First Circuit

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 Getachew on brief for petitioner.

Earle B. Wilson, Senior Litigation Counsel, Office of

Immigration Litigation, Terri J. Scadron, Assistant Director, and

Peter D. Keisler, Assistant Attorney General, on brief for

respondent.

August 10, 2004
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LYNCH, Circuit Judge. Petitioner Azeb Gebre Chebude, a

native and citizen of Ethiopia, is of Eritrean descent. In July

2000, shortly after a two-year war between Ethiopia and Eritrea

ended, Chebude left Ethiopia and attempted to enter the United

States using fraudulent documents. The INS detained her 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

deportation to Eritrea upon her return. An Immigration Judge

denied each 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 decision 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 her father is Amharic. Chebude

testified that she lost her job as a secretary in August 1999

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
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forcibly deported them. Although she, her mother, and Yadic, her

remaining brother, were present during one of the arrests, they

were not taken. According to Chebude, her mother was too elderly

and Yadic 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 hospital 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

agreement ending hostilities. The report notes that during the

conflict, many Ethiopians of Eritrean origin lost their jobs and

access to government services, and as many as 75,000 were detained

and forcibly 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 hostilities
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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

asylum and withholding of departure. Although he found Chebude to

be a "credible witness," he concluded that she lacked a wellfounded fear of future persecution. He determined that the

evidence was not sufficient to demonstrate that Chebude had been

subjected to past persecution. He described Chebude's allegations

that authorities repeatedly tried to deport her as "speculative"

and noted 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 conditions reports that

Ethiopia and Eritrea had signed a peace agreement and that Ethiopia

had stopped deporting individuals of Eritrean descent. The IJ

further stated that "[t]here is no evidence that Ethiopians [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
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case is whether conditions have changed in the Respondent's country

. . . to permit the Respondent to return to her country of

nationality without fear." She argued that the "INS has not

established by preponderance of evidence [that] the government of

Ethiopia has stopped deporting Ethiopians of Eritrean origin."

Chebude's brief did not challenge the IJ's finding that she had not

suffered past 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 BIA held that Chebude bore the burden of demonstrating

a well-founded fear of future persecution "because the Immigration

Judge correctly determined that she did 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 under the deferential

substantial evidence standard. Pieterson v. Ashcroft, 364 F.3d 38,

43 (1st Cir. 2004). Under that standard, we must affirm the BIA

unless the evidence not only supports a contrary conclusion, but

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.
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To be eligible for asylum, an applicant bears the burden

of establishing that she meets the statutory definition of 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-founded fear of persecution 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. First, 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

articulated in her brief to the BIA: (1) that she demonstrated past

persecution based on the deportation of her brothers and the

Ethiopian government's repeated attempts to deport her, and (2)

that she established a genuine and objectively reasonable fear

that, as an Ethiopian of Eritrean origin, she would be deprived of

housing, employment, access to government services, her right to

vote, and her citizenship if returned to Ethiopia. We decline to
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consider either argument. Arguments not raised to the BIA are

waived for failure to exhaust administrative remedies. Opere v.

INS, 267 F.3d 10, 14 (1st Cir. 2001); Bernal-Vallejo v. INS, 195

F.3d 56, 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. Substantial evidence supports the

BIA's rejection of this argument. The 2001 country conditions

report states that "the Government stopped forcibly deporting

Eritreans and Ethiopians of Eritrean origin after 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

conceded in her testimony to the IJ that "[a]t this moment

currently the government is not directly deporting people from

Ethiopia to Eritria."
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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 permitted to return to the

country." That statement, though, does not indicate that Ethiopia

has resumed deportations. There are concerns 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.