Seyoum v. Gonzales

United States Court of Appeals
Fifth Circuit
F I L E D
January 25, 2006
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 05-60044
Summary Calendar
_____________
TSEGE SEYOUM,
Petitioner,
VERSUS
ALBERTO R. GONZALES,
UNITED STATES ATTORNEY GENERAL,
Respondent.
_________________________
Petition for Review of an Order of
the Board of Immigration Appeals
m A97 195 996
_________________________
Before SMITH, GARZA, and PRADO,
Circuit Judges.
PER CURIAM:*
Tsege Seyoum seeks review of the denial
by the Board of Immigration Appeals (“BIA”)
of her application for asylum, withholding of
removal, and protection under the Convention
Against Torture (“CAT”). We deny the peti-
* Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be pub-
lished and is not precedent except under the limited
(continued...)
*(...continued)
circumstances set forth in 5TH CIR. R. 47.5.4.

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tion for review.
Seyoum is a citizen of Ethiopia who has
lived in the United States since April 2003.
She alleges persecution at the hands of the
Ethiopian government for being of Oromo eth-
nicity and a suspected member of the Oromo
Liberation Front (“OLF”). She claims she was
arrested, taken to a prison named Dedessa,
and raped and beaten repeatedly over the
course of an eight-month stay. At her removal
hearings, Seyoum testified that she escaped
from Dedessa on December 31, 2002, when
the OLF raided the prison and freed its pris-
oners. She further denied membership in, or
any knowledge of, the OLF and its activities.
The immigration judge (“IJ”) denied Sey-
oum’s claims based primarily on an adverse
credibility determination. In particular, the IJ
cited a government report and affidavits sub-
mitted by Seyoum indicating that the Dedessa
prison closed in November 2002, the month
before the date of Seyoum’s alleged escape.
Furthermore, the IJ found that Seyoum’s writ-
ten statement in her asylum application contra-
dicted her testimony that she had no knowl-
edge of the OLF, and that Seyoum had failed
to provide any meaningful corroborating evi-
dence to support her allegations.
The BIA affirmed the IJ’s order without
opinion. Therefore, the decision of the IJ be-
comes the basis for this court’s review. Soad-
jede v. Ashcroft, 324 F.3d 830, 831-32 (5th
Cir. 2003).
We review for substantial evidence the fac-
tual basis for the IJ’s decision that Seyoum is
ineligible for asylum, withholding of removal,
and relief under CAT. Zhang v. Gonzales,
432 F.3d 339, 343-44 (5th Cir. 2005). On
substantial evidence review, we will not dis-
turb the IJ’s findings of fact “unless we find
not only that the evidence supports a contrary
conclusion, but that the evidence compels it.”
Chun v. INS, 40 F.3d 76, 78 (5th Cir. 1994).
The alien bears the burden of proving that “the
evidence was so compelling that no reasonable
factfinder could conclude against it.” Id.
A grant of asylum is discretionary, and to
be eligible an alien must be “unable or unwill-
ing to return to . . . [his home] country be-
cause of persecution or a well-founded fear of
persecution on account of race, religion, na-
tionality, membership in a particular social
group, or political opinion.” 8 U.S.C. § 1101-
(a)(42)(A). To demonstrate a well-founded
fear of persecution, an alien must show “a sub-
jective fear of persecution, and that fear must
be objectively reasonable.” Lopez-Gomez v.
Ashcroft, 263 F.3d 442, 445 (5th Cir. 2001).
A claim for withholding of removal, mean-
while, does not require proof of subjective
fear, Zhang, 432 F.3d at 344, but it does re-
quire an applicant to prove a “clear probabili-
ty” of future persecution if returned to his
home country, IRS v. Stevic, 467 U.S. 407,
413 (1984). Seyoum must show it is more
likely than not that “[her] life or freedom
would be threatened . . . because of [her] race,
religion, nationality, membership in a particular
social group, or political opinion.” 8 U.S.C.
§ 1231(b)(3)(A).
Finally, to secure relief under CAT, an alien
does not need to show persecution based on
one of the five protected characteristics for
claims of asylum and withholding of removal,
Efe v. Ashcroft, 293 F.3d 899, 907 (5th Cir.
2002), but he must meet the “higher bar” of
proving it is more likely than not that he will
be tortured if returned to his home country,

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id.1 To meet this burden, he may produce
evidence of past torture, an inability to relo-
cate to a safer part of the country, human
rights abuses committed within the country, or
any other relevant information. See 8 C.F.R.
§ 208.16(c)(3).
The primary evidence Seyoum presented
that she would suffer persecution or torture if
returned to Ethiopia consists of her testimony
that she experienced persecution in the past
because of her status as an ethnic minority and
her suspected affiliation with OLF. Therefore,
all three of her claims depend heavily on a fa-
vorable credibility determination.
For asylum, withholding of removal, and
CAT claims, “[t]he testimony of the applicant,
if credible, may be sufficient to sustain the
burden of proof without corroboration.”
8 C.F.R. §§ 208.13(a) (asylum); 208.16(b)
(withholding of removal); 208.16(c)(2) (CAT).
We cannot second-guess the BIA or IJ by sub-
stituting our own credibility judgment for that
of the factfinder. Chun, 40 F.3d at 78. “We
will not review decisions turning purely on the
[IJ’s] assessment of the alien petitioner’s
credibility.” Mantell v. INS, 798 F.2d 124,
127 (5th Cir. 1986).2
The IJ’s conclusion that Seyoum did not
meet her burden of persuasion on the likeli-
hood of future persecution or torture if re-
turned to Ethiopia is supported by substantial
evidence. Seyoum’s testimony that she es-
caped from Dedessa prison on December 31,
2002, contradicts not only a State Department
report but affidavits by two Ethiopian natives
submitted by Seyoum to corroborate her testi-
mony on conditions at the prison. Her written
statement indicates knowledge of the aims of
OLF, but her oral testimony suggests igno-
rance of the organization. The two affidavits
she submitted are identical, word for word,
and provide mainly hearsay evidence. Al-
1 The applicable regulation defines torture as
any act by which severe pain or suffering,
whether physical or mental, is intentionally in-
flicted on a person for such purposes as ob-
taining from him or her or a third person infor-
mation or a confession, punishing him or her
for an act he or she or a third person has com-
mitted or is suspected of having committed, or
intimidating or coercing him or her or a third
person, or for any reason based on discrimina-
tion of any kind, when such pain or suffering is
inflicted by or at the instigation of or with the
consent or acquiescence of a public official or
other person acting in an official capacity.
8 C.F.R. § 208.18(a)(1) (2000).
2 Seyoum argues that even if an adverse credi-
bility determination defeats her asylum and with-
holding-of-removal claims, it cannot foil her CAT
claim, because CAT instructs the IJ to consider the
conditions of the country of removal as well as the
applicant’s testimony. See Kamalthas v. INS, 251
F.3d 1279, 1284 (9th Cir. 2001) (remanding CAT
claim where IJ “plainly overrelied” on adverse
credibility determination without considering
country conditions); Mansour v. INS, 230 F.3d
902, 908 (7th Cir. 2000) (remanding CAT claim
where adverse credibility determination “overshad-
ow[ed]” petitioner’s torture claim). The IJ, how-
ever, did specifically consider the pattern or
practice of persecution in Ethiopia but concluded
that Seyoum did not establish that she was simi-
larly situated to any persecuted group. Further-
more, Seyoum’s testimony relates directly to the
question whether it is likely she will be tortured if
returned to Ethiopia. See Efe, 293 F.3d at 907-08
(distinguishing Kamalthas and Mansour in part
because “the credibility assessment here goes di-
rectly to the issue of whether or not [the alien] will
be tortured”).

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though a reasonable factfinder might conclude
that this evidence does not impugn the credi-
bility of Seyoum’s entire testimony, we are
certainly not compelled to reach that result.
The petition for review is DENIED.3
3 The motion of attorney Teodora Purcell to
withdraw as counsel is GRANTED.

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