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Ademo v. Lynch

United States Court of Appeals, Eighth Circuit

July 30, 2015

Mohammed Emu Ademo, Petitioner,
v.
Loretta E. Lynch, Attorney General of the United States, Respondent. Mohammed Emu Ademo, Petitioner,
v.
Loretta E. Lynch, Attorney General of the United States,

Submitted October 8, 2014

Petitions for Review of Orders of the Board of Immigration Appeals.

For Mohammed Emu Ademo (13-2621, 13-3566) Petitioner: Jennifer Lerner, Cooley, Llp, New York, NY.

For Loretta E. Lynch, Attorney General of the United States, Respondent (13-2621): Scott Baniecke, U.S. Immigration & Naturalization Service, Bloomington, MN; Jeffrey Bernstein, Senior Litigation Counsel, Alison Marie Igoe, Principal Litigation Counsel, Carl H. McIntyre, U.S. Department of Justice, Civil Division, Office of Immigration Litigation, Washington, DC; Karen Yolanda Drummond, U.S. Department of Justice, Washington, DC.

For Loretta E. Lynch, Attorney General of the United States, Respondent (13-3566): Scott Baniecke, U.S. Immigration & Naturalization Service, Bloomington, MN; Jeffrey Bernstein, Senior Litigation Counsel, Karen Yolanda Drummond, Alison Marie Igoe, Principal Litigation Counsel, Carl H. McIntyre, U.S. Department of Justice, Civil Division, Office of Immigration Litigation, Washington, DC.

Before LOKEN, COLLOTON, and SHEPHERD, Circuit Judges.

OPINION

COLLOTON, Circuit Judge.

The petitioner, who identifies himself as Mohammed Emu Ademo, seeks review of a decision of the Board of Immigration Appeals denying his application for asylum, withholding of removal, and protection under the Convention Against Torture, and declining to address his request for voluntary departure. He also seeks review of a later order denying his motion to reopen proceedings. We conclude that the Board's decisions on asylum, withholding of removal, and the Convention Against Torture were supported by substantial evidence, and there was no abuse of discretion in denying the motion to reopen. We determine, however, that the Board erred by failing to address petitioner's appeal concerning voluntary departure, and we remand the case to the Board for the limited purpose of considering that point.

I.

Petitioner traveled from Ethiopia, and entered the United States in December 2002. He carried a valid Ethiopian passport and non-immigrant visitor's visa issued under the name Dame Haji Hiko. Shortly thereafter, he sought asylum. Petitioner asserted that the Ethiopian government persecuted him on account of his political opinion, and that he had a well-founded fear of persecution if he were returned. Petitioner claimed that he was detained and beaten on two separate occasions because of his membership in the Oromo ethnic group and in retaliation for his support of an organization called the Oromo Liberation Front.

There is a lengthy procedural history to this case, and it is necessary to explain the course of proceedings in some detail before addressing the petitions for review. At a hearing in 2005, petitioner testified that he was arrested and detained for six months in 2001 after a protest at his school. He said that guards beat him frequently with a rubber hose and deprived him of food, and that he feared for his life. In a point that became central to his credibility, petitioner also testified that in the midst of this detention and series of beatings, authorities allowed him to leave the prison for two days to take the Ethiopian School Leaving Certificate Exam, so that he could graduate from school. Petitioner also claimed that in 2002, he was arrested, detained, and beaten again while attending Addis Ababa Commercial College. Several months later, he explained, a college official told him that he and other students were creating problems with their activities, and that he should report to the police. Rather than engage with the police, petitioner left Ethiopia.

In June 2006, an immigration judge granted Ademo's application for asylum. The judge found it " plausible" that petitioner was really Mohammed Emu Ademo, even though he applied for a visa and used a passport under the name of Dame Haji Hiko, because petitioner admitted that he traveled under a false name, and " [i]t is not particularly uncommon for individuals who are fleeing their country to use false documents to exit the country." The IJ expressed concern about petitioner's testimony that he was allowed to leave jail to take a school finishing exam during a period of alleged persecution, stating that it " seem[ed] to be remarkable cooperation on the part of detaining authorities" and " somewhat difficult to believe." But " considering the evidence as a whole, and the general consistency of [petitioner's] testimony," the IJ found him " generally credible."

The immigration judge then found that petitioner was a victim of past persecution in Ethiopia. The judge cited petitioner's testimony that he was subjected to two detentions and periods of abuse, including one that lasted six months, and evidence of scars that petitioner displayed for the court. The IJ relied on " background documents on Ethiopia" reflecting " that there have been widespread arrests of students," and corroborating evidence from sources who confirmed petitioner's leadership role in student organizations. The finding of past persecution created a presumption that petitioner has a well-founded fear of persecution upon return to Ethiopia, see 8 C.F.R. § 1208.13(b)(1), and the IJ found no evidence of a significant change in circumstances in the country. Accordingly, the IJ granted petitioner's application for asylum.

In July 2006, however, the Department of Homeland Security moved to reopen the case based on newly discovered evidence relating to petitioner's identity that was belatedly forwarded by the State Department. The Department of Homeland Security cited petitioner's non-immigrant visa application, which was completed by petitioner in 2002 under the name Dame Haji Hiko. The application included a referral form signed by the Regional Security Officer of the United States Embassy in Ethiopia. The form identified Dame Haji Hiko as the brother of Ato Tahir Hajji, head of VIP Security for the Ethiopian Security, Immigration, and Refugees Affairs Authority. The American embassy's security officer urged that " [h]elping Ato Tahir's brother will promote the Embassy's & the U.S. interest as a whole." The Department argued that the new evidence " clearly contradicts the facts as stated by the [petitioner] during his asylum hearing, and tends to suggest that his asylum application was fraudulent."

The IJ granted the Department's motion to reopen, observing that the new evidence " raises serious challenges about [petitioner's] claims about his identity and the validity of his asylum claim." The IJ recalled that he had wanted to see the visa application before making the initial decision, and said that the ...


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