We substitute Eric H. Holder, Jr., the current Attorney 1

General of the United States, as the Respondent in this action.

See Fed. R. App. P. 43(c)(2).

In the

United States Court of Appeals

For the Seventh Circuit

No. 08-1411

ANTCHINECHE TSEGAW AYELE, 

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney General

of the United States,1

Respondent.

Petition for Review of an Order 

of the Board of Immigration Appeals.

No. A76-853-631

ARGUED OCTOBER 27, 2008—DECIDED MAY 4, 2009

Before KANNE, WILLIAMS, and SYKES, Circuit Judges.

WILLIAMS, Circuit Judge. Antchineche Tsegaw Ayele

seeks review of a final order of the Board of Immigration

Appeals (“BIA”). The BIA summarily upheld the denial of
2 No. 08-1411

Ayele’s application for asylum, withholding of removal,

and protection under the Convention Against Torture

(“CAT”). The BIA affirmed the finding of the Immigration

Judge (“IJ”) that although Ayele was credible and her

subjective fear of future persecution was reasonable, she

failed to prove her fear was objectively reasonable. We

believe the IJ did not fully analyze Ayele’s family ties

claim because he failed to address whether her family

constituted a social group, did not discuss the treatment

of her mother and uncles, and relied on Country Reports

to deny her claim despite finding Ayele and her witness

credible. Because of these deficiencies, we grant her

petition for review, vacate the BIA’s order and remand

for further proceedings consistent with this opinion.

I. BACKGROUND

Asylum applicant Antchineche Tsegaw Ayele is an

ethnic Amhara born in Addis Ababa, Ethiopia on

March 26, 1975. The Amhara tribe has been associated

with the Mengistu regime which ruled the country before

its overthrow by the Ethiopian Peoples’ Revolutionary

Democratic Front (“EPRDF”) in May 1991. Mengistu

Haile Mariam led the former military government, which

has been accused of property confiscation and the killing

of thousands of opponents since the regime came into

power in 1974. When EPRDF forces invaded Addis

Ababa in 1991, members of the Mengistu regime and

their families fled into exile. Many were captured by

EPRDF forces and detained, and many former officials
No. 08-1411 3

Before his appointment as sports commissioner, Mr. Ayele 2

had been secretary of the YMCA in Ethiopia.

were charged with war crimes committed against

civilians during the Mengistu administration.

Ayele, her mother, Yeshibrget Belihu, and her two

sisters were among those who fled Ethiopia before the

EPRDF’s imminent invasion. Belihu and Ayele’s father,

Tsegaw Ayele (“Mr. Ayele”), were members of the Workers’ Party of Ethiopia (“WPE”), which was Mengistu’s

political party. Mr. Ayele also had served as the President

of the National Olympic Committee and Senior Vice

President of the Association of African National Olympic

Committee, as well as Minister of Regional Affairs during

the Mengistu regime since 1986. Although Mr. Ayele did

not want the minister role with the government (in fact, he

cried when he learned of his appointment), President

Mengistu appointed Mr. Ayele and he believed that if he

refused it, he or his family may have faced punishment.2

One April night in 1991, when Ayele was 15, her parents

told her and her younger sisters to pack their things

because they were leaving the country before the rebels

invaded the capital. As she, her mother and sisters prepared to depart on a morning flight to Kenya, her father

told them he would join them later, but he never did.

Ayele, her mother and her sisters arrived in Kenya to a

very different lifestyle. Because of Mr. Ayele’s prominent

position in the Mengistu government, the family had

lived a privileged life in Ethiopia. They lived in a villa, had

maids and a chauffeur, traveled frequently, and the girls
4 No. 08-1411

attended private schools. In Kenya, Ayele and her sisters

and mother lived on money sent by a family friend in

Europe. Belihu kept the girls secluded and told them to

never disclose to anyone who their parents were. During

their time in Kenya, Ayele claimed that they were mistreated by Ethiopian infiltrators, and her mother was

asked to show her passport everywhere she went. In

1992, Ayele left Kenya and headed to the United States.

Sometime after she left, Ayele learned that her mother had

been arrested in 1995 by Kenyan officers, who Ayele

alleges were bribed by Ethiopian infiltrators that

targeted individuals who had been involved in the

Mengistu regime. Ayele’s mother eventually was

released, and her mom and sisters went to London.

Ayele arrived in the United States in September 1992 on

an F-1 visa, which allowed her to attend Defiance College,

where she eventually earned a bachelor’s degree in biology. While working part-time on an H-1B visa, Ayele

attended Ball State University, where she received dual

biology and physiology master’s degrees. In 1998, Ayele

filed an asylum and withholding of removal petition,

which was denied, but her F-1 status was eventually

reinstated. Ayele fell out of status when she stopped

working in December 2002. Despite attempts to find

employment as an H-1B visa holder, Ayele did not find

a job or an employer who would petition for her permanent residency based on employment. In March 2003,

Ayele renewed her application for asylum, withholding

of removal, and protection under the CAT.
No. 08-1411 5

Ayele cannot live in the U.K. with her mother and sisters

3

because when her mother entered England in 1995, she failed

to report Ayele as her daughter. 

Meanwhile, Ayele’s mother, Belihu, gained permanent

status in the United Kingdom (“U.K.”) in 2003. While 3

in Kenya, Belihu had become a member of the All Amhara

People’s Organization (“AAPO”), a political group opposed to the EPRDF-led government. In Kenya, Belihu

was discreet about her activities with the group, but

when she moved to the U.K., she became more openly

involved and serves as treasurer and a member of the

executive committee of a U.K. AAPO branch. In 1997,

Ayele joined a Washington, D.C. branch of the AAPO,

called the All Amhara People’s Relief and Development

Association. Ayele provides financial support to the

group and writes letters on behalf of the group to

embassy officials and United States senators.

Although Ayele, and eventually her mother and sisters,

adjusted to life in their new countries, other members of

Ayele’s family were not so fortunate. When they were

living in Kenya, Ayele and her mother and sisters

learned from an aunt that after they had fled their

home, the EPRDF targeted Ayele’s father and confiscated

Mr. Ayele’s guns and arrested him. Mr. Ayele was imprisoned from June 1991 to August or September 1993,

during which time he was interrogated and tortured.

Eventually Mr. Ayele was released on bail, according to

Ayele, due to pressure from international contacts he

made while working with the African National Olympic

Committee and Red Cross. Mr. Ayele was never formally
6 No. 08-1411

Dr. Tegegne is the stepbrother of Ayele’s mother. 4

Professor Asrat Woldeyes served as the president of the 5

AAPO and called for a nonviolent, united Ethiopia. He was

arrested and convicted of sedition.

charged with any criminal offenses. Since his release

from prison, he remains under government surveillance,

he cannot leave the country, and he has been unable to

obtain a job, despite his efforts to find employment. His

extended family pays his living expenses.

Ayele’s uncle, Dr. Negussie Tegegne, who testified on

Ayele’s behalf at her removal hearing, faced a fate

similar to Ayele’s father. Dr. Tegegne served as a physi- 4

cian at a government hospital during the Mengistu administration. While living in Ethiopia after the fall of the

Mengistu regime, Dr. Tegegne was denied employment

as a physician and was imprisoned because of his AAPO

membership and his activism in providing medical care

to refugees in Addis Ababa. In September 1994, while

attending the trial of Professor Asrat Woldeyes, Dr. 5

Tegegne and other AAPO attendees were arrested. Dr.

Tegegne was incarcerated for a month and endured

torture and interrogations. He was arrested again in

December 1995. The next year, Dr. Tegegne escaped

Ethiopia and was granted asylum in the United States.

Dr. Tegegne was not the only other family member

harmed by the Ethiopian government. Dr. Tegegne testified that Ayele’s other uncle, Yigremachew Belihu, who is

the biological brother of Ayele’s mother, disappeared in
No. 08-1411 7

6 Ayele explained in an affidavit attached to her asylum

application that witnesses related that Mr. Belihu was

abducted by the EPRDF regime’s secret police. The family

presumes he is dead.

The IJ found that although Ayele filed her asylum application 7

past the one-year deadline from the date of her entry into the

United States, she was not barred from filing for asylum because her circumstances fell within the “extraordinary circumstances” exception pursuant to 8 C.F.R. § 1208.4(a)(5). The IJ

also found that Ayele’s temporary stay in Kenya did not

constitute “firm resettlement” under 8 C.F.R. § 208.15, and thus

(continued...)

October 1997, never to be heard from again. Dr. Tegegne 6

also testified that his brother, a school principal, was

killed by Oromo nationalists because the EPRDF-led

government instigated animosity against ethnic Amharas,

and another of Dr. Tegegne’s friends was killed after

the government accused him of being part of a rebel group.

After reviewing documentary evidence and hearing

testimony from Ayele and Dr. Tegegne during a removal

hearing held on August 6, 2003, the IJ denied Ayele’s

renewed asylum, withholding of removal and CAT application in a decision dated June 29, 2006. The IJ found

both Ayele and her uncle to be credible, but determined

that Ayele did not sufficiently demonstrate that her fear

of future persecution was objectively reasonable given

the current country conditions. On January 23, 2008, the

BIA affirmed, without opinion, the IJ’s decision and

allowed Ayele to voluntarily depart the United States.

Ayele petitions for review of the BIA decision ordering

her removal.7
8 No. 08-1411

(...continued) 7

she was not barred from seeking asylum in the United States.

II. ANALYSIS

We review directly the IJ’s decision where, as here, the

BIA summarily affirms the decision of the IJ without

opinion. Balliu v. Gonzales, 467 F.3d 609, 612 (7th Cir. 2006).

Our review is one of deference. Musollari v. Mukasey, 545

F.3d 505, 508 (7th Cir. 2008). We review to see if the

“determination was supported by reasonable, substantial,

and probative evidence on the record considered as a

whole.” Ogayonne v. Mukasey, 530 F.3d 514, 519 (7th Cir.

2008) (internal citation and quotation marks omitted). To

reverse a BIA decision, the petitioner must show that

the evidence compels, not merely supports, a different

result. Id.

A. Asylum claim

The Immigration and Nationality Act (“INA”) defines a

“refugee” as someone who is unable or unwilling to

return to her homeland “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.” See 8 U.S.C. § 1101(a)(42)(A);

see also Musollari, 545 F.3d at 508 (“The Attorney General

has discretion to grant asylum to an alien ‘refugee.’ ”).

Refugee status can be proven through past persecution or

fear of future persecution. Id. An applicant who demonstrates past persecution is entitled to a rebuttable presump-
No. 08-1411 9

tion of future persecution. Ingmantoro v. Mukasey, 550

F.3d 646, 649 (7th Cir. 2008). Without evidence of past

persecution, an applicant must demonstrate a wellfounded fear of future persecution. Id. at 650-51. The

applicant must satisfy both the objective and subjective

prongs of the well-founded fear standard. Id. at 651.

Ayele admits that the government never personally

persecuted her, so to succeed on her asylum petition she

must show a well-founded fear of future persecution.

Based on Ayele’s credible testimony, the IJ found that

Ayele established a subjective fear of future persecution.

Thus, only the objective component remains at issue. See

Bolante v. Mukasey, 539 F.3d 790, 794 (7th Cir. 2008) (reviewing court should not ordinarily disturb credibility finding). While the subjective component often depends

upon the applicant’s own credibility and testimony, the

objective prong requires evidence that there is a reasonable probability that the applicant “will be singled out

individually for persecution” or that “there is a pattern or

practice of persecution of an identifiable group, to which

the [applicant] demonstrates he belongs, such that the

[applicant’s] fear is reasonable.” Capric v. Ashcroft, 355

F.3d 1075, 1085 (7th Cir. 2004) (internal citations omitted).

To be objectively reasonable, an applicant must show only

that persecution is a “reasonable possibility,” not that

persecution is definite or even likely. See Ahmed v. Ashcroft,

348 F.3d 611, 618 (7th Cir. 2003); see also Kllokoqi v. Gonzales,

439 F.3d 336, 345 (7th Cir. 2005) (“The applicant may

establish a reasonable possibility of future persecution by

showing that there is even a 10 percent chance that he

will be shot, tortured, or otherwise persecuted.”). An
10 No. 08-1411

asylum applicant must show a nexus between her fear of

future persecution and one of the five protected grounds:

race, religion, nationality, membership in a particular

social group, or political opinion. Torres v. Mukasey, 551

F.3d 616, 629 (7th Cir. 2008); see also 8 U.S.C.

§ 1101(a)(42)(A).

Ayele presents three grounds for her asylum claim:

(1) her Amhara ethnicity; (2) her involvement in the

AAPO political organization; and (3) her family as a

social group. First, she contends that because she is an

ethnic Amhara, she fears future persecution because of

the current government’s disdain for Amhara people.

The IJ denied Ayele’s ethnicity claim based on State

Department Country Reports demonstrating that ethnic

Amharas currently thrive in Ethiopia and specifically

pointed to a 1997 Country Report indicating that Amharas

serve in the executive cabinet of the current government.

Ayele argues that although members of the current administration have Amharic names, they are not ethnic

Amharas. During the removal proceedings, Ayele’s

uncle, Dr. Tegegne explained that ethnic Amharas are

easily identified based on their accent. Second, Ayele

maintains that she fears persecution based on her

political opinion because if she returned to Ethiopia she

would continue her involvement with the AAPO and

would not remain silent. In his decision, the IJ pointed

to Country Reports indicating that AAPO members

are not being targeted by the EPRDF-led government.

We cannot say that the record compels the conclusion

that Ayele’s fear of future persecution on the account of
No. 08-1411 11

her ethnicity or political opinion is objectively reasonable.

The IJ pointed to case law and Country Reports explaining why he believed Ayele’s fear of future persecution based on her ethnicity and political opinion was

unfounded. He explained that Amharas serve in government positions and that as long as political opposition

groups denounce violence, the government will not

harm them. He further concluded that Ayele had not

proven she will be singled out from other Amharas and

AAPO members. See Chatta v. Mukasey, 523 F.3d 748, 752

(7th Cir. 2008). The IJ provided reasoned analysis that is

supported by substantial evidence. See Medhin v. Ashcroft,

350 F.3d 685, 690-91 (7th Cir. 2003). Therefore, we

cannot reverse the BIA’s decision on these grounds.

Ayele’s argument that she may face persecution if she

returns to Ethiopia because of her family ties fares better

than her other two grounds. Ayele made it apparent in

her asylum application and in her attorney’s closing

argument before the IJ that she feared persecution on

account of the treatment of her family and her family’s

prominent position in the Mengistu regime.

Nonetheless the IJ failed to fully analyze Ayele’s claim

that she may face persecution on account of her familial

ties. Even the government concedes that the IJ wholly

failed to discuss whether a family can constitute a social

group. The only reference to Ayele’s family in the IJ’s

analysis was the following:

In addition, if the . . . government desired to target

the respondent because she is the daughter of a

former minister in the Mengistu regime, or because
12 No. 08-1411

she is Amhara, it would stand to reason that the

government would also seek to persecute the

respondent’s father. However, based on the respondent’s own testimony, since her father’s release in

1993, he has not been physically harmed, rather,

only placed under surveillance. Thus, the fact that

the respondent’s father has been living in Ethiopia

relatively unharmed for over a decade after her

departure significantly diminishes her claim of

future persecution.

This cursory explanation causes us to question whether

the IJ fully considered Ayele’s familial ties claim. See

Chitay-Pirir v. INS, 169 F.3d 1079, 1081 (7th Cir. 1999)

(remand required because unclear whether claim fully

understood or analyzed). Indeed, it seems that the IJ was

merely using the treatment of Ayele’s father to show

that she would not be singled out because of her

ethnicity or political opinion, rather than as an analysis

of whether Ayele would face persecution based on her

family’s history. There is no reference in the IJ’s opinion

to Ayele’s fears that she will be specifically targeted

because her mother, a political activist, lives abroad and

outside of the EPRDF-led government’s reach. Moreover,

despite finding Ayele and her uncle credible, the IJ failed

to discuss the past treatment of Ayele’s two uncles. See

Sosnovskaia v. Gonzales, 421 F.3d 589, 593-94 (7th Cir. 2005)

(determining that the IJ erroneously failed to discuss

arguments and evidence presented).

Our circuit recognizes a family as a cognizable social

group under the INA, see Torres, 551 F.3d at 629 (citing Iliev
No. 08-1411 13

The government asserts that Ayele has a large family living 8

in Ethiopia unharmed, which, it argues, belies Ayele’s contention that she will be targeted because of her family ties. The

record shows that only Mr. Ayele’s stepmother and unknown

members of Belihu’s family remain in Ethiopia. In her reply

brief, Ayele explains she only knows for certain that

Mr. Ayele’s stepmother remains in Ethiopia.

v. INS, 127 F.3d 638, 642 (7th Cir. 1997)), as do our sister

circuits. See, e.g., Lopez-Soto v. Ashcroft, 383 F.3d 228, 235

(4th Cir. 2004); Jie Lin v. Ashcroft, 377 F.3d 1014, 1028 (9th

Cir. 2004); Gebremichael v. INS, 10 F.3d 28, 36 (1st Cir. 1993)

(“There can, in fact, be no plainer example of a social

group based on common, identifiable and immutable

characteristics than that of the nuclear family.”). Without

even a mention of this principle in the IJ’s opinion, we

cannot know for certain that he assessed this ground

for Ayele’s asylum request. See Chitay-Pirir, 169 F.3d

at 1081.

Every member of Ayele’s immediate family either is in

exile, has disappeared, has been imprisoned and

tortured, or is under house arrest. Her father was a 8

prominent member of the Mengistu regime, and her

mother is an AAPO activist. During her removal proceedings, Ayele’s uncle testified that her family name

was recognizable and that people would realize her

father was a minister in the Mengistu administration.

Her mother, and her uncle who was imprisoned and

tortured based on his political activism, are outside of the

reach of the government, making Ayele particularly

vulnerable. See Mema v. Gonzales, 474 F.3d 412, 417 (7th
14 No. 08-1411

Cir. 2007) (“Oft times persecutors target children of

political dissidents not because they have imputed the

parents’ political opinion to the children, but as a means

of harassing, intimidating, and influencing the behavior

of the parent.”). The IJ failed to discuss any of this evidence in light of Ayele’s claim.

As noted earlier, an asylum applicant can establish a

well-founded fear of persecution by proving either a

pattern or practice of persecution of a social group, of

which the applicant has proven she is a member, or by

proving the applicant will be singled out personally.

8 C.F.R. § 1208.13(b)(2)(iii). The regulation states:

In evaluating whether the applicant has sustained

the burden of proving that he or she has a

well-founded fear of persecution, the asylum

officer or immigration judge shall not require the

applicant to provide evidence that there is a reasonable possibility he or she would be singled

out individually for persecution if:

(A) The applicant establishes that there is

a pattern or practice in his or her

country . . . of persecution of a group of

persons similarly situated to the applicant

on account of race, religion, nationality,

membership in a particular social group, or

political opinion; and

(B) The applicant establishes his or her

own inclusion in, and identification with,

such group of persons such that his or

her fear of persecution upon return is

reasonable.
No. 08-1411 15

The government’s contention that Ayele did not fully exhaust 9

her claim that her family suffered a pattern or practice of

persecution is not persuasive. Throughout her asylum application and in her appeal to the BIA, Ayele repeatedly discusses the treatment of her family members in the past and

her fear that she may face persecution because of her family’s

history.

8 C.F.R. § 1208.13(b)(2)(iii). Although it is not entirely

clear that the IJ even considered Ayele’s social group

claim, if he did, it seems he did precisely what this regulation instructs an IJ not to do. See Banks v. Gonzales, 453

F.3d 449, 452 (7th Cir. 2006). That is, the IJ required Ayele

to prove that she would be singled out individually

without deciding whether Ayele proved a pattern or

practice of persecution of her social group.

9

Another problem with the IJ’s assessment is that despite

crediting Ayele and her uncle’s testimony, he characterized Ayele’s father as “relatively unharmed.” The IJ

explained that Mr. Ayele had not been physically

harmed since his release from prison, but was placed

merely under surveillance. This reasoning is problematic

because it fails to recognize that surveillance has been

recognized as a possible form of persecution in this circuit,

see, e.g., Diallo v. Ashcroft, 381 F.3d 687, 697 (7th Cir. 2004),

and that this circuit has never required physical harm

to demonstrate persecution, see Begzatowski v. INS, 278

F.3d 665, 670 (7th Cir. 2002) (rejecting BIA’s attempt “to

impose on asylum applicants the additional burden of

establishing permanent or serious injuries as a result of

their persecution”). Moreover, the IJ ignored evidence
16 No. 08-1411

that Mr. Ayele was unable to work because of his former

affiliation with the Mengistu regime, see Borca v. INS, 77

F.3d 210, 216 (7th Cir. 1996) (deliberate imposition of

substantial economic disadvantage may amount to persecution), and that he is forbidden from leaving the country.

Cf. Toptchev v. INS, 295 F.3d 714, 722 (7th Cir. 2002) (determining no possibility of future persecution partly

because government had not interfered with applicant

leaving country).

Finally, the IJ relied heavily on Country Reports to deny

all of Ayele’s claims, which in and of itself gives us concern. See, e.g., Niam v. Ashcroft, 354 F.3d 652, 658 (7th Cir.

2004) (criticizing immigration court’s “chronic

overreliance” on Country Reports). To the extent that

the IJ relied on the reports to assess Ayele’s family claim,

this reliance is erroneous because the IJ credited the

testimony of Ayele and her uncle, which provides the

only foundation for which one could determine that

Ayele faced the possibility of persecution because of her

family ties. See Bace v. Ashcroft, 352 F.3d 1133, 1139 (7th

Cir. 2003) (“[I]t would be improper to find that a witness’s testimony about specific events could be contradicted by a generalized State Department report broadly

discussing conditions in the applicant’s country of origin.”)

(internal quotation marks omitted). Country Reports

may inform an IJ in determining the treatment of a particular political organization or ethnic group, but Country

Reports will rarely aid the IJ in analyzing the unique

position of a family as a social group. See Galina v. INS, 213

F.3d 955, 959 (7th Cir. 2000) (“[country] reports are brief

and general, and may fail to identify specific, perhaps
No. 08-1411 17

local, dangers to particular, perhaps obscure, individuals.”). Ayele’s credible testimony should have been sufficient evidence to demonstrate the historical treatment of

her family and her fear that she would face persecution

on account of her family if she returned to Ethiopia. “It is

well-established that the credible testimony of an alien,

without more, may be sufficient to sustain an asylum

claim.” Korniejew v. Ashcroft, 371 F.3d 377, 382 (7th Cir.

2004); see also Ikama-Obambi v. Gonzales, 470 F.3d 720, 725

(7th Cir. 2006).

But in addition to the credible testimony of Ayele and

her uncle, the record also contained evidence, including

portions of the cited Country Reports, corroborating

Ayele’s assertions about the current treatment of her

father by the government. See Ghebremedhin v. Ashcroft,

385 F.3d 1116, 1119 (7th Cir. 2004) (deciding that the

history of persecution detailed in the Country Report and

the instances of mistreatment identified by the asylum

applicant leads to the conclusion that no reasonable

factfinder after having credited his testimony could

then find no well-founded fear of future persecution). The

IJ selectively chose to highlight certain portions of the

Country Reports, while ignoring other portions that were

favorable to Ayele. For example, when discussing the

2005 Country Report, the IJ mentioned the “credible”

elections in Ethiopia in 2005, but ignored information

concerning the continued wiretap surveillance of

Ethiopian political party leaders by the government.

If Ayele and her uncle’s story about the treatment of

her family members was credited, and further cor-
18 No. 08-1411

roborated by the Country Report, it is not clear why the IJ

determined that Ayele does not have an objectively

reasonable fear of persecution based on her familial ties.

Even more fundamentally, though, the IJ did not specifically address whether Ayele’s family is a particular

social group. Because of this omission, a remand for the

BIA to consider this issue is necessary. See Gonzales v.

Thomas, 547 U.S. 183, 186-88 (2006) (per curiam) (remand

required for BIA to consider whether applicant’s family

“presents the kind of kinship ties that constitute a particular social group”) (internal quotation marks omitted).

On remand, the BIA should consider the cumulative

effect of all of the hardships and treatment to which Ayele

and her family have been subjected. The BIA should

consider the former role of Ayele’s parents in the

Mengistu regime, the past treatment of her parents, and

her uncles, and the current treatment of her father. See

Zhang v. Gonzales, 408 F.3d 1239, 1249 (9th Cir. 2005) (IJ

should not evaluate events in isolation, but rather their

cumulative impact).

B. Withholding of removal and CAT relief

An applicant seeking withholding of removal under the

INA must demonstrate a “clear probability” of future

persecution based on the “alien’s race, religion,

nationality, membership in a particular social group or

political opinion.” 8 U.S.C. § 1231(b)(3)(A); see Khan v.

Filip, 554 F.3d 681, 690 (7th Cir. 2009). Applicants

seeking relief under the CAT must show that it is “more

likely than not” that they will be tortured if removed. 8
No. 08-1411 19

C.F.R. § 1208.16(c)(2); see Rapheal v. Mukasey, 533 F.3d 521,

526-27 (7th Cir. 2008). Both tests apply a more stringent

standard than that of the asylum inquiry. See Selimi v.

Ashcroft, 360 F.3d 736, 741 (7th Cir. 2004).

The IJ denied Ayele’s withholding of removal and CAT

claims based on his determination that she had not satisfied her burden of establishing that she qualified for

asylum. Because we grant her petition to review her

asylum denial, we need not reach her withholding of

removal or CAT claims. On remand, the BIA should

review these claims as it reconsiders the administrative

record. See Gomes v. Gonzales, 473 F.3d 746, 757 (7th Cir.

2007).

C. Judicial notice of the 2005 and 2007 Country Reports

Finally, we note that Ayele, in an effort to refute some

of the arguments raised by the government in its brief,

presented a supplemental appendix with her reply brief

and requested we take judicial notice of the exhibits. The

supplemental appendix included: (1) a 2005 Country

Report; (2) a 2006 Amnesty International report; (3) a 2007

Country Report; and (4) 2008 testimony by an Amnesty

International advocacy director. The government moved

to strike these materials as extra-record evidence, contending that Ayele could instead move to reopen her

case based on changed conditions and that she has

waived or not fully exhausted some of her arguments
20 No. 08-1411

Ayele offered the Country Reports as evidence of the human 10

rights abuses that continue to occur in Ethiopia, a position she

has maintained since the initial filing of her asylum application, which means the argument is not waived or unexhausted.

To the extent that Ayele relies on the Country Reports and

the Amnesty International materials to explain the various

political opposition groups, we need not consider them because we have affirmed the immigration court’s determination of her political claim.

because she did not raise them in her opening brief. We 10

do not agree, and therefore, we take judicial notice of

the Country Reports and include them in the analysis

of this case for the reasons explained below.

The IJ cited the 2005 Country Report in his decision, but

the 2005 report is not part of the administrative record.

Because the IJ relied on the report in its decision, we

took judicial notice of the 2005 report. See Nwaokolo v. INS,

314 F.3d 303, 308 (7th Cir. 2002) (taking judicial notice

of the country reports on current country conditions

crucial to the decision). We also took judicial notice of the

2007 Country Report because it provides the most recent

evidence of the current country conditions at the time

of Ayele’s appeal. See, e.g., Lhanzom v. Gonzales, 430 F.3d

833, 848 (7th Cir. 2005). Although the 2007 Country

Report was not part of the record below, we still may

take judicial notice of it. See Kebe v. Gonzales, 473 F.3d 855,

857 (7th Cir. 2007) (taking judicial notice of most recent

Country Report submitted with appellate brief, although

not submitted with applicant’s motion to reopen). The

2005 and 2007 Country Reports were relevant to whether
No. 08-1411 21

Ayele’s fear of future persecution is reasonable based

on the current conditions in Ethiopia, which formed the

basis of the IJ’s decision. See id. (directing BIA to consider

most recent country report indicating that the EPRDFled government has become more aggressive in cracking

down on opposition protestors since the May 2005 elections). We did not consider the Amnesty International

report and testimony because those documents were

submitted to us in support of Ayele’s political claim, and

we found the IJ’s analysis of that claim to be supported

by substantial evidence so there was no need to consider them.

III. CONCLUSION

Therefore, we GRANT Ayele’s petition for review, we

VACATE the BIA decision, and REMAND to the BIA for

further proceedings consistent with this opinion.

5-4-09