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Getachew v. Immigration & Naturalization Service

filed*fn*: June 2, 1994.


Appeal from a Decision of the Board of Immigration Appeals. INS No. A29-281-838.

Before: James R. Browning, Harry Pregerson, and Melvin Brunetti, Circuit Judges. Opinion by Judge Pregerson.

Author: Pregerson

PREGERSON, Circuit Judge:


Samson Getachew, a native and citizen of Ethiopia, petitions for review of the Board of Immigration Appeals' denial of his applications for asylum and withholding of deportation under 8 U.S.C. §§ 1158 and 1253(h). We have jurisdiction under 8 U.S.C. § 1105a(a)(1). We grant the petition for review.


Samson Getachew arrived on our shores from Ethiopia in March of 1985 at the age of seventeen, initially entering the United States via a tourist visa. Six months later, he enrolled in community college and was granted a student visa.

In January of 1989, Getachew filed an application for asylum with the Immigration and Naturalization Service ("INS"). The INS denied his asylum application and a year later charged him with deportability for overstaying his visa. At his deportation hearing, in March of 1991, Getachew conceded deportability, but renewed his application for asylum and withholding of deportation. In his affidavit, and in testimony characterized by the Immigration Judge ("IJ") as "credible and sincere," Getachew explained the events that led to his arrival in the United States.

His departure from Ethiopia was preceded by two years of mistreatment at the hands of the Ethiopian government. In 1983, when he was fifteen years old, he was jailed by the government for 48 hours for refusing to attend monthly youth communist meetings. The meetings, organized by neighborhood security organizations called "Kebele," consisted of indoctrination "about the system in Russia." Getachew refused to attend because "I didn't believe in it." During his 48 hour detention, he was held under armed guard in a ten-by-six foot cell with eleven other older male prisoners. The cell was so crowded that he was initially forced to sleep sitting down in the corner, although a guard later relented and allowed him to sleep on a bench in the guard booth. He had to obtain permission to use the bathroom and was fed only twice (once each day). Upon his release, he was warned not to miss any more meetings.

Getachew further testified that despite the warning, he again refused to attend the meetings because he did not believe in Marxist ideology. When the authorities confronted him for his failure to attend, he tried to convince them it was because he was sick, but they did not believe him. He was again jailed, this time for 24 hours, and he was also sentenced to several months of supervised work without pay to atone for his failure to attend the meetings. Getachew described this latter punishment as a "labor camp" where he was forced to work full-time under rough conditions picking up papers and cleaning the government-run printing factory.

He testified that these experiences convinced him to attend the meetings, if only to avoid even worse punishment. He resolved to work hard in order to obtain an exit visa, and when given the opportunity, he fled Ethiopia.*fn1 After his arrival in the United States, his mother warned him never to return to Ethiopia because the government there considered him a traitor. Government officials had been asking his whereabouts, and many of his school friends with similar political views had fled Ethiopia.

Based primarily on this testimony, plus documentary evidence of conditions in Ethiopia, the IJ found that Getachew "dreads the idea of returning to Ethiopia because he believes that the government there would view him as 'a traitor basically.'" Nevertheless, despite crediting Getachew's testimony and acknowledging the abhorrent conditions in Ethiopia, the IJ denied Getachew's application, finding that Getachew had not sufficiently established persecution or a well-founded fear of persecution.*fn2

Getachew appealed to the Board of Immigration Appeals ("Board"), complaining that the IJ's decision was not supported by substantial evidence. The briefing schedule provided to the parties by the Board gave Getachew 25 days to file an appeal brief, after which the INS was granted 15 days to file an answer. Getachew prepared a timely 40-page appeal brief critical of the IJ's opinion. The INS reply brief was nearly a month late and its argument was one paragraph in length. In it, the INS adopted the reasoning set forth in the IJ's opinion and asked the Board to "take administrative notice that the Marxist party no longer is in power in the Ethiopian government."

Getachew responded by submitting a one-page "reply-brief" in which he pointed out that the INS's brief was late, that it "assumed facts not in evidence," and that the INS's brief was "not supported by any documentary evidence that conditions are now safe for the Respondent in his home ...

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