Haile Abadi Naizgi v.  ALBERTO R. GONZALES, Attorney General

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 HAILE ABADI NAIZGI,
Petitioner,
v. No. 05-1368 
ALBERTO R. GONZALES, Attorney
General,
Respondent. 
On Petition for Review of an Order of
the Board of Immigration Appeals.
(A78-316-678)
Argued: May 22, 2006
Decided: July 31, 2006
Before WILLIAMS and GREGORY, Circuit Judges, and
Henry F. FLOYD, United States District Judge for the
District of South Carolina, sitting by designation.
Petition for review denied in part and granted in part; vacated in part
and remanded by published opinion. Judge Gregory wrote the opin-
ion, in which Judge Williams and Judge Floyd joined.
COUNSEL
ARGUED: Catherine A. Reynolds, LAW OFFICE OF DAVID
GARFIELD, Washington, D.C., for Petitioner. R. Joseph Sher, Assis-
tant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Alexandria, Virginia, for Respondent. ON BRIEF:

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Paul J. McNulty, United States Attorney, Alexandria, Virginia, for
Respondent.
OPINION
GREGORY, Circuit Judge:
Haile Abadi Naizgi ("Naizgi"), an Ethiopian citizen of Eritrean eth-
nicity, petitions for review of the final decision of the Board of Immi-
gration Appeals ("BIA") denying him asylum. For the following
reasons, we deny in part and grant in part his petition for review and
remand for further proceedings.
I.
A.
In May 1998, a border dispute between Ethiopia and its former
province, Eritrea, escalated into armed conflict. Citing "national
security grounds," the Ethiopian government, controlled by the Ethio-
pian People’s Revolutionary Democratic Front ("EPRDF"), began to
arrest and deport Ethiopians of Eritrean origin without due process.
J.A. 163. Naizgi and his family, who are ethnically Eritrean, quickly
fell victim to this campaign. In June, EPRDF agents arrested the Eri-
trean owner of the company where Naizgi worked and closed down
the business. Later that month, authorities arrived at Naizgi’s Addis
Ababa home, where he lived with his father, stepmother, and two
younger stepsisters. The EPRDF agents arrested Naizgi’s father for
deportation to Eritrea and warned Naizgi’s stepmother, who was preg-
nant, that they would soon return for her and the rest of the family.
To escape detention and expulsion, Naizgi’s stepmother was able to
use a passport and visa that she had in her possession to flee with
Naizgi’s youngest stepsister to the United States. However, Naizgi
and his other stepsister stayed behind and went into hiding, leaving
most of the family’s possessions and documents in their home. When
EPRDF agents returned and found the family gone, they seized the
house and sealed the door.
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After several months, Naizgi’s remaining stepsister was able to
obtain an exit visa, and she, too, left Ethiopia, ultimately traveling to
the United States. In July 1999, Naizgi’s deported father was also able
to travel to the United States, and the family reunited in Colorado. All
were the beneficiaries of a grant of asylum in this country. Naizgi
himself remained in hiding in Ethiopia until May 2000, when he fled
across the border to Kenya. Naizgi sought asylum there, but his appli-
cation and appeal were ultimately denied. Fearing what might happen
if he returned to Ethiopia, Naizgi purchased a South African passport
and traveled to the United States in the spring of 2002, where he was
apprehended after crossing the border from Mexico.
In the course of removal proceedings thereafter, Naizgi conceded
removability and sought asylum, withholding of removal, and protec-
tion under the United Nations Convention Against Torture. For his
asylum claim, Naizgi asserted that he had a well-founded fear of per-
secution on account of his Eritrean ethnicity. In support of his claims,
Naizgi and his father testified regarding the family’s experiences in
Ethiopia at a hearing before an immigration judge ("IJ"). In response,
the Immigration and Naturalization Service (the "Service")1 submitted
the U.S. Department of State Country Report on Ethiopia’s human
rights practices for 2001, as well as the United Kingdom Assessment
of Country Conditions for Ethiopia, dated October 2002. These docu-
ments indicated that the armed conflict between Ethiopia and Eritrea
ended in 2000, and that the Ethiopian government reportedly no lon-
ger detained and deported Ethiopians of Eritrean origin. However, the
reports also showed that the EPRDF remained in power and that indi-
viduals of Eritrean origin continued to face restrictions on their right
to return to the country; were not allowed to register to vote; and were
subject to harassment, discrimination in access to social services, and
other ill-treatment from officials.
1During the pendency of these proceedings, the functions of the Immi-
gration and Naturalization Service were transferred to and reorganized
under the Department of Homeland Security. For the sake of clarity, we
will refer to the Service rather than its successor entity.
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B.
Section 1158 of Title 8 provides that the Secretary of Homeland
Security and the Attorney General have discretion to grant asylum to
any alien who is a "refugee." 8 U.S.C. § 1158(b). A "refugee" is an
alien unable or unwilling to return to his home country "because of
persecution or a well-founded fear of persecution on account of race,
religion, nationality, membership in a particular social group, or polit-
ical opinion." 8 U.S.C. § 1101(a)(42)(A).
Applicants bear the burden of proving eligibility for asylum. 8
C.F.R. § 1208.13(a). To meet their burden, applicants may show that
they have a well-founded fear of future persecution, or that they suf-
fered past persecution. Id. § 1208.13(b). Applicants who demonstrate
past persecution are presumed to have a well-founded fear of future
persecution. Id. § 1208.13(b)(1). This presumption can be rebutted
only if the IJ finds by a preponderance of the evidence that "[t]here
has been a fundamental change in circumstances such that the appli-
cant no longer has a well-founded fear of persecution" or that the
applicant could avoid future persecution by relocating to a different
region of that country and it would be reasonable to expect the appli-
cant to do so. Id. § 1208.13(b)(1)(i). The Service bears the burden of
proof for rebutting the presumption. Id. § 1208.13(b)(1)(ii).
Importantly, even if the Service meets its burden to establish that
a victim of past persecution does not have a well-founded fear of
future persecution, the applicant may still be eligible for asylum on
"humanitarian" grounds. See id. § 1208.13(b)(1)(iii). See also
Ngarurih v. Ashcroft, 371 F.3d 182, 189 (4th Cir. 2004) (describing
asylum granted under this regulation as "humanitarian asylum").
Under 8 C.F.R. § 1208.13(b)(1)(iii), the IJ may still exercise her dis-
cretion to grant asylum if "[t]he applicant has demonstrated compel-
ling reasons for being unwilling or unable to return to the country
arising out of the severity of the past persecution;" or "[t]he applicant
has established that there is a reasonable possibility that he or she may
suffer other serious harm upon removal to that country." Id.
In this case, the IJ rendered an oral decision granting Naizgi asy-
lum, but denying him withholding of removal and relief under the
Convention Against Torture. The IJ found that the evidence estab-
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lished that Naizgi had been the victim of past persecution on account
of his ethnicity. However, the IJ ultimately premised her discretionary
grant of asylum on humanitarian grounds. The IJ summarized:
The Court finds on this record that the respondent was a vic-
tim of past persecution and that he no longer has a well-
founded fear of future persecution based on the information
in this record, but for humanitarian grounds, based on the
severity of the past persecution, the Court finds that in the
exercise of discretion the application for asylum should be
granted.
J.A. 228. In discussing the continued viability of Naizgi’s well-
founded fear of persecution and his eligibility for humanitarian asy-
lum, the IJ explained her decision as follows:
The information on country conditions shows that the war
is over. Now we do not know what would happen to the
respondent if he were able to enter Ethiopia today. It is pos-
sible that he would be able to reenter and get a job and gain
access to the family property. So it is a close question on
whether his fear is objectively reasonable. I would not find
on this record that he has any fear of being deported. At a
minimum, I am willing to conclude based on the informa-
tion in the record that it would be uncomfortable for him as
an ethnic Eritrean to have to live in Ethiopia. But as I indi-
cated, I am granting this on discretionary grounds because
the respondent’s entire family has been displaced. They
have been deprived of their livelihood. They have been
deprived unfairly of their property and I would note that an
additional discretionary factor relates to the fact that the
respondent’s immediate family members are the beneficia-
ries or recipients of asylum either directly or derivatively.
J.A. 229-30.
The Service appealed the grant of asylum to the BIA. The BIA sus-
tained the appeal and ordered Naizgi’s removal, reasoning that Naizgi
was not eligible for humanitarian asylum. In so doing, the BIA did not
disturb the IJ’s finding of past persecution and indicated that it
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"[found] no error in the Immigration Judge’s conclusion that, at the
time of the hearing in January 2003, the respondent no longer had a
well-founded fear of persecution in Ethiopia on account of his Eri-
trean ancestry . . . ." J.A. 304. This petition for review followed.
II.
For purposes of our review, "administrative findings of fact are
conclusive unless any reasonable adjudicator would be compelled to
conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B). We must uphold
the BIA’s determination that Naizgi is ineligible for asylum unless
that determination is "manifestly contrary to the law and an abuse of
discretion." Id. § 1252(b)(4)(D); Ngarurih v. Ashcroft, 371 F.3d 182,
188 (4th Cir. 2004).
A.
We begin by addressing whether the BIA erred in determining that
Naizgi was ineligible for humanitarian asylum. In this case, the IJ had
premised her grant of asylum upon the persecution Naizgi and his
family endured when the government’s actions resulted in the entire
family’s expatriation and loss of their livelihoods and property. This
past persecution, the IJ concluded, was so severe as to qualify Naizgi
for a grant of humanitarian asylum. See 8 C.F.R. § 1208.13(b)(1)
(iii)(A) (providing that an alien is eligible for asylum if he has "dem-
onstrated compelling reasons for being unwilling or unable to return
to the country arising out of the severity of the past persecution"). The
BIA disagreed with this finding, reasoning that although the past per-
secution Naizgi and his family suffered was "deplorable," it did not
reach the level of severity for which the humanitarian asylum regula-
tion was designed. J.A. 304.
Under our precedent, "[e]ligibility for asylum based on severity of
persecution alone is reserved for the most atrocious abuse."
Gonahasa v. INS, 181 F.3d 538, 544 (4th Cir. 1999) (emphasis
added). We have limited the humanitarian asylum exception to "‘the
rare case where past persecution is so severe that it would be inhu-
mane to return the alien even in the absence of any risk of future per-
secution.’" Id. (quoting Vaduva v. INS, 131 F.3d 689, 690 (7th Cir.
1997)).
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Our decisions have been true to this narrow construction. For
example, in Ngarurih, we held that the petitioner could not establish
past persecution severe enough to warrant relief under 8 C.F.R.
§ 1208.13(b)(1)(iii) where, because of his political activities, the peti-
tioner had been interrogated under threat of execution; held for a
week in a dark cement cell that officials flooded with cold water at
irregular intervals; and imprisoned for several months in solitary con-
finement. 371 F.3d at 185. Likewise, in Rusu v. INS, 296 F.3d 316
(4th Cir. 2002), we concluded that the past persecution the petitioner
suffered was "not of the scale warranting a grant of asylum" where
that persecution involved interrogation, assault, and torture, including
the removal of his teeth with pliers and a screwdriver. Id. at 325.
Under this precedent, the BIA’s decision that Naizgi was ineligible
for humanitarian asylum was not manifestly contrary to law or an
abuse of discretion. Without question, the Ethiopian government’s
treatment of Naizgi and his family is both troubling and deplorable.
However, the BIA permissibly concluded that the past persecution
established on this record was not "the most atrocious abuse." See
Gonahasa, 181 F.3d at 544. Accordingly, we deny the petition for
review with respect to this aspect of the BIA’s ruling.
B.
Having dispensed with the availability of humanitarian asylum for
Naizgi, we must next review whether the BIA properly ordered his
removal. As noted above, the BIA left intact the IJ’s finding that
Naizgi suffered past persecution, entitling him to a presumption of a
well-founded fear of future persecution. Therefore, Naizgi is remov-
able only if the Service successfully rebutted this presumption by a
preponderance of the evidence. See 8 C.F.R. § 1208.13(b)(1). Naizgi
argues that the IJ never, in fact, found that changed circumstances
overcame his presumption of a well-founded fear. He therefore argues
that the BIA should have remanded his case for such a determination
to be made.
Turning first to the IJ’s opinion, close examination reveals that the
IJ indeed left open the question of whether changed circumstances
rebutted Naizgi’s presumption. Despite initially suggesting that
Naizgi no longer had a well-founded fear of future persecution, the
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IJ’s substantive analysis bespeaks a lack of decision on this issue. The
IJ stated:
The information on country conditions shows that the war
is over. Now we do not know what would happen to the
respondent if he were able to enter Ethiopia today. It is pos-
sible that he would be able to reenter and get a job and gain
access to the family property. So it is a close question on
whether his fear is objectively reasonable. I would not find
on this record that he has any fear of being deported. At a
minimum, I am willing to conclude based on the information
in the record that it would be uncomfortable for him as an
ethnic Eritrean to have to live in Ethiopia. But as I indicated,
I am granting this on discretionary grounds because the
respondent’s entire family has been displaced.
J.A. 229-30 (emphases added). This discussion lacks factual findings,
made by a preponderance of the evidence, that rebut Naizgi’s pre-
sumption of a well-founded fear of future persecution. Essentially,
rather than decide what the IJ believed was a "close question," the IJ
elided over a final conclusion on this issue because she had decided
to grant Naizgi humanitarian asylum regardless of whether his well-
founded fear persisted.2
The BIA decision did nothing to remedy this gap in the IJ’s asylum
analysis. Rather, the BIA opinion makes clear that it mistakenly
understood the IJ to have made a finding that changed circumstances
overcame Naizgi’s presumption of a well-founded fear of persecution:
"we find no error in the Immigration Judge’s conclusion that, at the
time of the hearing in January 2003, [Naizgi] no longer had a well-
founded fear of persecution in Ethiopia on account of his Eritrean
ancestry . . . ." J.A. 304 (emphases added). As a result, the BIA
reviewed the IJ’s purported finding for clear error, but did not, as the
parties have sometimes suggested, make its own finding that the pre-
sumption had been overcome. See 8 C.F.R. § 1003.1(d)(3)(i) (For the
BIA’s review, "[f]acts determined by the immigration judge . . . shall
2We note that at oral argument, counsel for the Attorney General
agreed that this was an appropriate reading of the IJ’s opinion.
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be reviewed only to determine whether the findings of the immigra-
tion judge are clearly erroneous.").3
The consequence of the IJ’s incomplete analysis and the BIA’s
mistaken understanding thereof is that the question of whether
changed circumstances rebutted Naizgi’s presumption of a well-
founded fear was never decided below. As a court of appeals, it is not
our place to settle this factual question here. Accordingly, we must
grant Naizgi’s petition for review in this respect and remand for this
issue to be resolved in the first instance. See INS v. Ventura, 537 U.S.
12, 16-17 (2002) (requiring remand where the BIA had not yet
addressed an issue relevant to the petitioner’s claim for asylum).
III.
For the foregoing reasons, we deny the petition for review with
respect to Naizgi’s arguments for humanitarian asylum. However, we
grant his petition for review with respect to his well-founded fear of
persecution. We therefore vacate that portion of the BIA’s order and
remand for further proceedings consistent with this opinion.
PETITION FOR REVIEW
DENIED IN PART AND GRANTED
IN PART; VACATED IN PART
AND REMANDED
3For this reason, we reject Naizgi’s challenge that the BIA engaged in
impermissible factfinding. See 8 C.F.R. § 1003.1(d)(3)(iv) ("Except for
taking administrative notice of commonly known facts such as current
events or the contents of official documents, the Board will not engage
in factfinding in the course of deciding appeals.").
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