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Ayele v. Holder

May 4, 2009; as amended July 14, 2009


Petition for Review of an Order of the Board of Immigration Appeals. No. A76-853-631.

The opinion of the court was delivered by: Williams, Circuit Judge.


Before KANNE, WILLIAMS, and SYKES, Circuit Judges.

Antchineche Tsegaw Ayele seeks review of a final order of the Board of Immigration Appeals ("BIA"). The BIA summarily upheld the denial of 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.


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 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.*fn2

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 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 mis-treated 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.

Meanwhile, Ayele's mother, Belihu, gained permanent status in the United Kingdom ("U.K.")*fn3 in 2003. While in Kenya, Belihu had become a member of the All Amhara People's Organization ("AAPO"), a political group op-posed 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 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.*fn4 Dr. Tegegne served as a physician 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.*fn5 In September 1994, while attending the trial of Professor Asrat Woldeyes, Dr. 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*fn6 other uncle, Yigremachew Belihu, who is the biological brother of Ayele's mother, disappeared in October 1997, never to be heard from again. Dr. Tegegne also testified that his brother, a school principal, was killed by Oromo nationalists because the EPRDF-led government instigated animosity against ethnic Amharas, ...

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