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Belay v. Immigration and Naturalization Service

filed: January 31, 1994.

SILESHI GIZACHEW BELAY, PETITIONER,
v.
IMMIGRATION AND NATURALIZATION SERVICE RESPONDENT.



Petition for Review of a Decision of the Board of Immigration Appeals. INS No. A27-103-912

Before: Reinhardt, Brunetti and Fernandez, Circuit Judges.

MEMORANDUM

OVERVIEW

An Ethiopian alien seeks review of a decision of the Board of Immigration Appeals affirming the immigration Judge's denial of his application for asylum, 8 U.S.C. § 1158(a), and withholding of deportation, 8 U.S.C. § 1253(h). We have jurisdiction to review the deportation order pursuant to section 106 of the Immigration and Nationality Act, 8 U.S.C. § 1105(a). We deny the petition.

BACKGROUND

Petitioner Sileshi Belay is a twenty-three year old native and citizen of Ethiopia who entered the United States in August 1986 as a non-immigrant visitor. On December 10, 1986, he filed an application for political asylum with the INS, but withdrew it on January 5, 1987. He filed a second application for political asylum in 1987, which was denied. He was subsequently placed in extended voluntary departure status for two years because the U.S. government was not returning people to Ethiopia.

At his immigration hearing, Belay was found deportable for overstaying his visa, but he claimed eligibility for asylum and withholding of deportation. Belay testified that he was arrested and detained by the government six times between 1984 and 1986. Belay said that the first time he was arrested, he was kept in the dark for three days, and that the fourth time that he was arrested he was tortured. He also testified that he belonged to the Ethiopian Democratic Union, an anti-government organization, but that the government did not know of his membership in this group.

Belay believes that he is on a government blacklist due to his anti-government activities. He submitted a photocopy of a document, purportedly issued by the Ministry of National Security, that his father sent him from Ethiopia at the time of his second asylum application. The paper, dated December 28, 1986, states that Belay was "believed to have participated in anti-revolutionary activities." The INS conducted an evaluation of the paper by its Forensic Document Laboratory. The laboratory determined that the photocopy was produced by an American copy machine, and that the original was made from lined pad paper rather than bond paper, inconsistent with the production of an official document.

In 1986, Belay applied for and received an Ethiopian passport. When questioned as to why the passport was granted him, given his purported anti-government activities, he said that his mother was sick and was thus planning to go to the U.S. for medical treatment and he was going to be allowed to accompany her, and that his father bribed an immigration official. However, his exit visa was issued after his mother's death.

Discussion

I. Denial of Asylum and Withholding of Deportation.

A. Standard of Review.

Granting relief pursuant to Section 1158(a) is within the discretion of the Attorney General. INS v. Cardoza-Fonseca, 480 U.S. 421, 428 n. 5, 94 L. Ed. 2d 434, 107 S. Ct. 1207 (1987). Accordingly, we review the BIA's denial of asylum for an abuse of discretion. Acewicz v. INS, 984 F.2d 1056, 1061 (9th Cir. 1993).

The factual findings supporting the Board's asylum determination, including whether the alien has demonstrated a well-founded fear of persecution, are reviewed under the "substantial evidence" standard. Abedini v. INS, 971 F.2d 188, 191 (9th Cir. 1992). An alien who seeks reversal of the BIA's determination "must show that the evidence he presented was so compelling that no reasonable factfinder could fail to ...


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