United States 5th Circuit Court of Appeals Reports
TESFAMICHAEL v. GONZALES, 04-61180 (5th Cir. 10-24-2006)
SENAIT KIDANE TESFAMICHAEL; DAWIT TESSEMA-DAMTE,
Petitioners, v. ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
Respondent. No. 04-61180. United States Court of Appeals,
Fifth Circuit. Filed October 24, 2006.
Petition for Review from the Board of Immigration Appeals.
A97-7476-471.
Before JONES, Chief Judge, and WIENER and PRADO, Circuit
Judges.
EDITH H. JONES, Chief Judge.
Petitioners seek review of the decision of the Board of
Immigration Appeals (“BIA”) denying them asylum,
individually and as a married couple, from Eritrea and
Ethiopia. Finding no reversible error, we DENY the petition
for review.
BACKGROUND
Comprising Ethiopia, Eritrea, Somalia, and Sudan, the
region known as the Horn of Africa has a troubled history.
After World War II, Italy relinquished control of its
African colonies, including Eritrea. In 1952, the United
Nations federated Eritrea with Ethiopia. In the early
1960s, Ethiopia dissolved the federation and annexed
Eritrea as a province. Factions in the Eritrean province
began clamoring for independence almost immediately and
fought a brutal thirty-year war with the Ethiopian
government. These factions later joined forces with
Ethiopian groups seeking political reform to secure the
overthrow of the Marxist regime of Mengistu Haile Mariam in
1991.
Once the Mengistu regime was overthrown, Ethiopian leaders
permitted a national referendum on Eritrean independence in
1993. Registration to vote in the referendum was tied to
verification of Eritrean nationality through a detailed
form with information about a voter’s religious
affiliation, parents and grandparents, and references from
three Eritrean citizens. More than one million voters,
living in over forty different countries, selected
independence by a huge majority. Eritrea, supported by the
new Ethiopian government, declared independence in May 1993.
Relations between Ethiopia and its new neighbor proved
cordial. After several years, however, border disputes led
to war in May 1998. At the outbreak of war, the legal
status of the approximately 75,000 voters in the Eritrean
independence election who continued to live in Ethiopia
remained uncertain, and in June 1998 Ethiopia began
forcibly removing to Eritrea people who had voted in the
election. The “deportations” occurred without due process.
The deportees were often forced to stay in detention camps
briefly, and Ethiopia regularly scheduled the deportations
piecemeal to break up families.[fn1]
Petitioner Senait Kidane Tesfamichael and her family were
among those forcibly removed from Ethiopia. Senait’s
parents were originally from the Eritrean region, but
Senait was born and lived in Addis Ababa, Ethiopia, until
the deportations. At her asylum hearing, Senait testified
credibly that she heard of the deportations in 1998 and
feared removal. Shortly after the deportations began,
Senait and her Ethiopian husband, Petitioner Dawit
Tessema-Damte, attempted to escape out of Ethiopia,
possibly to Kenya. Their escape plans were foiled, however.
On a bus near the Kenyan border, police asked the
passengers for identification. Senait could not produce
any, as authorities had stripped her of her Ethiopian ID
following her vote in the Eritrean referendum.[fn2] Dawit
intervened on Senait’s behalf, but his intervention led to
both his and Senait’s arrest and detention.
As he credibly testified, Dawit spent a month in jail for
the purported crime of “smuggling Eritreans.” Until his
mother secured his release through a bond, he slept in one
room with up to forty men, received little food, and saw
other detainees with bruises caused, he believed, by
beatings. While in jail, Dawit was interrogated generally
once or twice a day, for one or two hours, about how many
people he had smuggled and how much he charged.
Dawit was able to secure Senait’s release one week after
his own by bribing officials. Back in Addis Ababa, Dawit
was twice stopped by police; both times Dawit cooperated
and was released. Fearing reprisal for his help to Senait,
and without reporting to court on the pending smuggling
charges, Dawit fled alone to Kenya, then South Africa,
where he lived from 1998 to 2003.
Ethiopian authorities found Senait in June 2000 and removed
her to Eritrea.[fn3] Senait testified that she spent three
days in a detention center without food or water, then was
forced to walk nine kilometers in an area filled with land
mines on the way to Eritrea. There, Senait reconnected with
her family and worked part-time at a gas station. She
testified that she was occasionally taunted or told to go
back to Ethiopia. She also claims that she was denied full
Eritrean citizenship and an exit visa, and that she feared
military conscription.
In 2002, two years after Senait had been removed to
Eritrea, and after the war ended,[fn4] Dawit sent for her.
Without an exit visa, Senait had to be smuggled out of
Eritrea. She traveled through Sudan and Swaziland before
reuniting with Dawit in South Africa. There, the couple
stayed for a year until they were robbed and burglarized,
crimes which scared Senait, and they decided to leave.
After traveling through Cuba, Nicaragua, Guatemala, and
Mexico, the couple arrived in the United States in March
2004.
Senait and Dawit entered the United States without visas,
and they conceded removability pursuant to 8 U.S.C.
§ 1182(a)(6)(A)(I). An Immigration Judge (“IJ”) found
them ineligible for asylum, withholding of deportation, and
relief under the Convention against Torture (“CAT”). A
single judge of the BIA affirmed.
DISCUSSION
The Ethiopian-Eritrean conflict precipitated a rash of
asylum seekers entering the United States.[fn5] Although
Petitioners are sympathetic victims of this conflict, the
BIA and this court must analyze their claims statutorily.
If petitioners do not qualify for asylum, the BIA correctly
rejected their claims.[fn6]
This court reviews the BIA’s legal conclusions de novo.
Girma v. I.N.S, 283 F.3d 664, 666 (5th Cir. 2002);
Lopez-Gomez v. Ashcroft, 263 F.3d 442, 444 (5th Cir. 2001).
We will defer to the BIA’s interpretation of immigration
regulations if the interpretation is reasonable.
Lopez-Gomez, 263 F.3d at 444. The BIA’s factual findings
are upheld if supported by substantial evidence, Long v.
Gonzales, 420 F.3d 516, 519 (5th Cir. 2005), that is,
unless the evidence is so compelling that no reasonable
factfinder could fail to find otherwise. Id.
To qualify for asylum, an alien must be a “refugee.” See 8
C.F.R. § 1208.13(a). The Immigration and
Naturalization Act defines a refugee as a person unable to
return to his or her country “because of persecution or a
well-founded fear of persecution on account of race,
religion, nationality, membership in a particular social
group, or political opinion.” 8 U.S.C. §
1101(a)(42)(A). Past persecution entails harm inflicted on
the alien on account of a statutorily enumerated ground by
the government or forces that a government is unable or
unwilling to control. 8 C.F.R. § 1208.13(b)(1). The
alternative asylum ground, a well-founded fear of
persecution, results when a reasonable person in the same
circumstances would fear persecution if deported. Jukic v.
INS, 40 F.3d 747, 749 (5th Cir. 1994).
In either case, to establish persecution, the alien’s “harm
or suffering need not be physical, but may take other
forms, such as the deliberate imposition of severe economic
disadvantage or the deprivation of liberty, food, housing,
employment or other essentials of life.” Abdel-Masieh v.
INS, 73 F.3d 579, 583 (5th Cir. 1996) (quoting Matter of
Laipenieks, 18 I & N Dec. 433, 456-457 (BIA 1983)
(citations omitted)). Nevertheless,
[i]t does not encompass all treatment that our society
regards as unfair, unjust or even unlawful or
unconstitutional. If persecution were defined that
expansively, a significant percentage of the world’s
population would qualify for asylum in this country
— and it seems most unlikely that Congress
intended such a result.
Majd v. Gonzales, 446 F.3d 590, 595(5th Cir. 2006) (quoting
Al-Fara v. Gonzales, 404 F.3d 733, 739 (3d Cir. 2005)).
The Petitioners each bring an individual claim for asylum.
Additionally, they bring a claim for asylum on the basis
that they will be separated if removed to their respective
countries. If we find error in the BIA’s decision in
resolving any of the claims, we must remand, as Senait and
Dawit would have derivative claims for relief based on
their marriage.[fn7]
A. Senait’s Claim
The BIA held that Senait was (1) a citizen of Eritrea, (2)
firmly resettled in Eritrea, and (3) unable to show past
persecution or a well-founded fear of persecution if
returned to Eritrea.
Senait takes issue with this reasoning and would have us
consider her a refugee from Ethiopia based on Ethiopia’s
forced deportation policy, which sent her to Eritrea. This
claim falters under the facts and the plain language of the
statute. As was just noted, aliens who seek asylum must
meet the definition of a “refugee.” See 8 U.S.C. §
1208.13(a); see also Eduard v. Ashcroft, 379 F.3d 182, 187
(5th Cir. 2004). The statute defines a refugee as
including:
any person who is outside any country of such person’s
nationality or, in the case of a person having no
nationality, is outside any country in which such person
last habitually resided, and who is unable or unwilling to
return to, and is unable or unwilling to avail himself or
herself of the protection of, that country because of
persecution or a well-founded fear of persecution on
account of race, religion, nationality, membership in a
particular social group, or political opinion.
8 U.S.C. § 1101(a)(42)(A) (emphasis added). The
statute thus permits an alien to seek asylum from only one
“test country”: that of the alien’s nationality, or, if the
alien is stateless, that of the country where the alien
last habitually resided. Cf. Wangchuck v. Dep’t of Homeland
Sec., 448 F.3d 524, 529 (2d Cir. 2006) (noting the error in
the BIA’s assumption that an alien could be eligible for
asylum based on a well-founded fear of persecution in
either of two countries). In Senait’s case, the BIA
adjudicated her asylum claim with reference to Eritrea. If
the BIA’s decision to use Eritrea as Senait’s test country
is supported by substantial evidence, any persecution that
Senait allegedly faced in Ethiopia is irrelevant under the
statute.
A “national” is “a person owing permanent allegiance to a
state.” 8 U.S.C. § 1101(a)(21). Senait has never
argued that she is still an Ethiopian national, as she was
divested of Ethiopian citizenship. Moreover, in her asylum
application, Senait filled in Eritrea as her “Presented
Nationality (Citizenship).” “Nationality is a status
conferred by a state.” Dhoumo v. BIA, 416 F.3d 172, 175 (2d
Cir. 2005); cf. Paripovic v. Gonzales, 418 F.3d 240 (3d
Cir. 2005) (petitioner was rendered stateless by the
dissolution of the former Yugoslavia). The BIA’s implicit
reliance on Senait’s concession that she is not an
Ethiopian national is hard to criticize.[fn8]
The BIA found that Senait was a citizen of Eritrea and
firmly resettled there.[fn9] Senait argues that she could
not have been firmly resettled in Eritrea because, as an
Ethiopian deportee, she was not granted the same rights as
non-refugee Eritreans. Yet the only thing this argument can
do is force Senait’s asylum claim into the statelessness
rubric: If Senait is a national of Eritrea, her asylum
claim must be decided through Eritrea. If Senait is not a
national of Eritrea, her asylum claims must be decided
through the country where she last habitually resided. That
country turns out also to be Eritrea.
By finding that Senait was firmly resettled in Eritrea, the
BIA implicitly found that Senait’s last habitual residency
was Eritrea, or, in any event, not Ethiopia. Cf. Al Najjar
v. Ashcroft, 257 F.3d 1262, 1294 (11th Cir. 2001)
(approving an implicit finding of “last habitual
residence”). Substantial evidence supports such a finding
under any plausible definition of last habitual
residence.[fn10]
The immigration law defines “residence” as “the place of
general abode,” which is a person’s “principal, actual
dwelling in fact, without regard to intent.” 8 U.S.C.
§ 1101(a)(33). Senait has not lived in Ethiopia
since June 2000, and she did not arrive in the United
States until March 2004. For more than two years, she lived
in Eritrea with her mother, some of her siblings, and,
while he was alive, her father. She also was employed as a
gas station cashier with Mobil Oil. After living in
Eritrea, Senait lived briefly in South Africa with Dawit,
but they chose to move away from there.
Significantly, Senait’s asylum application indicates that
she perceived Eritrea to be her test country. The form
asks: “Please list your last address where you lived before
coming to the U.S. If this is not the country where you
fear persecution, also list the last address in the country
where you fear persecution.” (Emphasis added). Senait
furnished addresses in South Africa and Eritrea; she
omitted Ethiopia. Further, when asked if she feared harm if
returned to her “home country,” she responded by invoking
hardships in Eritrea, not Ethiopia.
These facts belie any notion that Ethiopia is Senait’s
last habitual residence; the BIA’s determination to use
Eritrea as her test country is supported by substantial
evidence.
Senait next challenges the BIA’s decision that she did not
suffer past persecution and lacks a reasonable fear of
future persecution in Eritrea.[fn11] Senait argues that (1)
the Eritrean government regularly commits human rights
violations; (2) the Eritrean government required Senait,
unlike “native Eritreans,” to carry a card that identified
her as an Ethiopian refugee; (3) she was denied an exit
visa; (4) she has a “vulnerable social status” as an
Ethiopian refugee; and (5) she was “harassed and
discriminated against by the Eritrean government.” On these
points, the BIA explained that Senait’s only individualized
complaint was “that customers at the gas station where she
worked made remarks threatening that those born in Ethiopia
should be sent back there,” and that “[t]hese incidents and
alleged discrimination against Eritreans from Ethiopia fall
short of persecution.” Further, the BIA noted that there
was “no evidence” that Senait “was treated differently than
native-born Eritreans by the government.”
The BIA’s decision is supported by substantial evidence.
Senait’s fears fall far short of the required “extreme
conduct” needed to establish persecution. Her only
complaint of individualized harassment stemmed from a few
incidents where she was taunted at work. Persecution cannot
be based on “mere denigration, harassment, and threats.”
Eduard v. Ashcroft, 379 F.3d 182, 188 (5th Cir. 2004); see
also id. at 187 n. 4 (persecution “requires more than a few
isolated incidents of verbal harassment or intimidation”
(quoting Mikhailevitch v. INS, 146 F.3d 384, 390 (6th Cir.
1998))). Petitioners also point to their expert’s affidavit
that Eritreans from Ethiopia are treated “harshly,” are
“unduly discriminated against,” and are blamed for
hardships. As the expert conceded, however, many Eritrean
problems “are undoubtedly effects of the economic hardships
caused by the war overall.” Eduard holds that “[n]either
discrimination nor harassment ordinarily amounts to
persecution under the INA, even if the conduct amounts to
`morally reprehensible’ discrimination on the basis of race
or religion.” Id. at 188. Finally, the fact that Eritrea
denied Senait an exit visa does not on this record
establish persecution.[fn12] The totality of the evidence
does not compel a conclusion contrary to that of the BIA.
B. Dawit’s Claim
Dawit’s asylum claim is premised on his arrest, detention,
and charge for violating Ethiopia’s travel laws by
“smuggling Eritreans.” These acts, he asserts, amounted to
past persecution on account of his social group and imputed
political opinions. In providing parameters for the term
“persecution,” the BIA has stated:
While punishment of criminal conduct in itself is not
persecution, where that punishment entails such things as
severe beatings or being sent to a Nazi concentration camp
— i.e., is `excessive or arbitrary’ — and is
motivated by one of the specified grounds, such punishment
would constitute persecution under [immigration laws].
Abdel-Masieh, 73 F.3d at 584 (quoting Laipenieks, 18 I & N
Dec. at 456-457). In this case, the BIA held that Dawit’s
punishment “would be prosecution for a criminal act, not
persecution.”
Based on the record, substantial evidence supports the BIA
determination that Dawit did not experience past
persecution. Dawit encountered Ethiopian law enforcement
three times. First, he was arrested and detained for a
month when he and Senait were stopped at the Kenyan border
near the beginning of the Ethiopian-Eritrean border war,
and he was charged with smuggling. The detention was under
unpleasant and unduly prolonged but not brutal conditions.
Later, he was stopped twice in Addis Ababa and his bag was
searched. On neither of these latter occasions, however,
could Dawit affirm whether the police were aware of the
pending criminal charges or were conducting planned
surveillance on him.
Not only do these law enforcement encounters fail to rise
to the level of physical persecution, compare
Abdel-Masieh, 73 F.3d at 584, but it is also unclear
whether they were motivated by political or social group
animus against Dawit. There is no explanation in the record
for his being accosted in Addis Ababa. And as to the
smuggling charge, when two countries are at war, it is not
invariably persecution for each sovereign to control the
travel of persons it believes may harbor sympathy for the
enemy or who might flee the country to fight on the other
side. The background of Dawit’s detention, of course, is
the forced deportations and denationalization that both
Ethiopia and Eritrea carried out against their resident
ethnic minority and that other courts have asked the BIA to
evaluate for asylum purposes. See Haile, 421 F.3d at
494-95. Still, there is no direct connection between his
criminal charge and the “ethnic cleansing,” while there is
an obvious purpose in a country’s enforcement of passport
and travel laws during wartime.
Dawit argues that he was singled out for prosecution
because, when he identified himself as Senait’s husband,
the authorities “knew his political opinions” and sought to
punish him as a sympathizer with Eritreans. These
connections are inferences that the BIA was not required to
draw. Dawit’s interrogation over the course of his
detention seems, on the contrary, to have concerned mundane
attributes of smuggling — how many people, how much
money — rather than political inquisition.
This court recently held that “[a]sylum protects victims
of persecution on account of belief, not conduct.” Mwembie
v. Gonzales, 443 F.3d 405, 414 (5th Cir. 2006) (citing
cases). The line separating belief from conduct may not
always be clearly delineated when based on the existence of
criminal charges, but here we are not persuaded that Dawit
was persecuted on account of his beliefs or his marriage to
an Eritrean.
It follows that, because Dawit’s main expressed fear in
returning to Ethiopia is his exposure to the outstanding
criminal charge, and that charge is not sufficient to show
persecution, he has not established a well-founded fear of
future persecution. Further, Dawit does not take issue in
his appellate brief with the BIA’s observation that it is
unclear whether he would face further criminal proceedings
on return to Ethiopia for events that happened eight years
ago. Dawit has not demonstrated that the evidence he
offered “was so compelling that no reasonable factfinder
could fail to find the requisite fear of persecution.” INS
v. Elias-Zacarias, 502 U.S. 478, 484-85, 112 S. Ct. 812,
817 (1992).
C. The Spousal Separation Claim
Senait and Dawit assert that they are entitled to asylum as
a married couple for the persecution they will suffer on
account of their membership in a protected social group,
that of interethnic married couples. The “persecution” they
claim is forced separation, to wit, that Senait cannot live
with Dawit in Ethiopia and Dawit allegedly cannot live with
Senait in Eritrea. The Board dismissed this claim of
persecution, stating that “[t]he cases cited by the
respondents regarding the consideration of spousal
separation are not relevant to this case. Not every action
we would regard as unjust or unlawful amounts to
persecution.”
The Board’s conclusion is correct. There is no legal
authority that compels asylum for married couples where
deportation could separate them, and the Board found that
Senait and Dawit had not in any event proven removal would
cause them to be separated. As they did before the Board,
Petitioners rely on three cases to support their contention
that spousal separation is persecution. See Kalubi v.
Ashcroft, 364 F.3d 1134, 1141 (9th Cir. 2004); Ma v.
Ashcroft, 361 F.3d 553, 561 (9th Cir. 2004); Carrete-Michel
v. INS, 749 F.2d 490, 494 (8th Cir. 1984). We agree with
the Board that they are all distinguishable. Kalubi dealt
with discretionary entitlement, as opposed to legal
eligibility, for asylum. See 8 U.S.C. §
1158(b)(1)(A) (“Secretary of Homeland Security or the
Attorney General may grant asylum to an alien who has
applied for asylum.”); INS v. Cardoza-Fonseca, 480 U.S.
421, 444, 107 S. Ct. 1207, 1219 (1987) (stating that aliens
who “can only show a well-founded fear of persecution are
not entitled to anything, but are eligible for the
discretionary relief of asylum”). The BIA denied Kalubi
asylum on discretionary grounds because it believed he
lacked credibility. The Ninth Circuit reversed, holding,
inter alia, that if an alien is credible for purposes of
eligibility, he cannot be held incredible for purposes of
discretionary entitlement. Kalubi, 364 F.3d at 1138-39.
Also, construing a pertinent regulation, the Ninth Circuit
held only that spousal separation is a factor the BIA must
consider once it deems an alien eligible for asylum; the
court did not hold that spousal separation is related to
eligibility.
Similarly, Carrete-Michel did not deal with eligibility
for asylum, but instead involved a Mexican national who
sought suspension of deportation by demonstrating extreme
hardship, through his longstanding ties to the United
States and the separation he would face from his family.
Carrete-Michel, 749 F.2d at 492. This finding compelled the
Attorney General to suspend deportation under pre-IIRIRA
law. Id.; see also 8 U.S.C. § 1254(a)(1)
(repealed).[fn13] Carrete-Michel reflects a longstanding
immigration policy of favoring aliens who have ties to
United States citizens or lawful permanent residents
(“LPR”), see 8 U.S.C. § 1153(a). This policy is
entirely distinct from the definition of persecution under
other immigration provisions.
Finally, petitioners rely on Ma v. Ashcroft, a case
involving a husband’s asylum claim based on his wife’s
forced abortion in China. For this particularized form of
persecution, Congress has specifically provided a remedy in
8 U.S.C. § 1101(a)(42)(B). That a wife’s forced
sterilization is persecution to the husband under this law,
Matter of C-Y-Z, 21 I. & N. Dec. 915, 917-18 (BIA 1997),
does not mean that a country persecutes a husband by
forbidding his wife to live with him in that country.
Although the United States supports marriage and family
reunification, it does not follow that because two aliens
may not be able to live together in their home countries,
they are persecuted. This country denies entry to some
foreign nationals who marry a United States citizen, see 8
U.S.C. § 1182, and allows the removal of the spouse
of a U.S. citizen or LPR under certain conditions, see 8
U.S.C. § 1227. While the BIA may determine that
spousal separation, in appropriate circumstances,
constitutes persecution, it did not so find here.
The Board found, and the record fully supports, that Dawit
could not have been “persecuted” by his wife’s expulsion to
Eritrea, as he was by that time living in South Africa, had
not officially registered their marriage, and was not
connected to the expulsion. The Board also found that the
couple have not proven their inability to live together in
Eritrea. The Board cited in support of this finding three
facts: (1) Dawit and Senait never inquired officially about
the possibility of returning there together; (2) the
expert’s affidavit “only indicates that there is much
resentment against Ethiopians in Eritrea”; and (3) Dawit
would have trouble finding employment. The first and third
findings are unassailable. The second finding understates
the appellants’ expert’s affidavit, which goes to some
length detailing the discrimination that might befall both
Senait and Dawit in Eritrea due to lingering prejudice
against their ethnically mixed marriage. But predictions of
possibilities do not support a well-founded fear of
persecution, nor, as we have noted, does discrimination
alone amount to persecution. Petitioners have not
demonstrated that the Board’s findings must be overturned.
CONCLUSION
For the foregoing reasons, the petition for review of the
Board’s decision is DENIED.
[fn1] This generalized background information comes from
sources in the Administrative Record, which included, inter
alia, country reports, a question and answer series
prepared by the Department of State, and documents prepared
by the UN Refugee Agency, the Human Rights Watch, and
Amnesty International.
[fn2] Senait testified that in 1992, when she filled out
the election card in the referendum, she became a citizen
of Eritrea.
[fn3] Senait was the last of her family to be removed from
Ethiopia. At various times in 1998 and 1999, members of
Senait’s family were taken by Ethiopian police, harassed,
and sent to Eritrea.
[fn4] Ethiopia and Eritrea negotiated a peace settlement in
December 2000.
[fn5] See, e.g., Giday v. Gonzales, 434 F.3d 543 (7th Cir.
2006); Haile v. Gonzales, 421 F.3d 493 (7th Cir. 2005);
Negeya v. Gonzales, 417 F.3d 78 (1st Cir. 2005); Fessehaye
v. Gonzales, 414 F.3d 746 (7th Cir. 2005); Nuru v.
Gonzales, 404 F.3d 1207 (9th Cir. 2005); Begna v. Ashcroft,
392 F.3d 301 (8th Cir. 2004); Tsegay v. Ashcroft, 386 F.3d
1347 (10th Cir. 2004); Tolosa v. Ashcroft, 384 F.3d 906
(7th Cir. 2004).
[fn6] Petitioners do not here challenge the denial of their
claims for withholding or CAT relief.
[fn7] Although the IJ found that Petitioners did not
establish that they were married, the BIA did not make a
finding as to the issue of their marriage, instead assuming
for purposes of analysis that the couple was married under
Ethiopian law. We do the same.
[fn8] In supplemental briefing, Petitioners cited two
recent Seventh Circuit decisions dealing with refugees from
Ethiopia and Eritrea, Giday v. Gonzales, 434 F.3d 543 (7th
Cir. 2006), and Haile v. Gonzales, 421 F.3d 493 (7th Cir.
2005). Were this court to follow it, the Seventh Circuit’s
decision in Haile, noting that it is arguable that “a
program of denationalization and deportation is in fact a
particularly acute form of persecution,” id. at 496, would
be persuasive evidence that Senait suffered persecution in
Ethiopia. Yet that is not the relevant question here: Both
petitioners in Haile could use Ethiopia as their test
country, whereas the BIA found that Senait could not.
Neither of the petitioners in Haile had actually been
deported from Ethiopia, id. at 495, and the court remanded
in part so the IJ could determine “whether the petitioners
are still considered citizens by Ethiopia,” id. at 496.
Giday is similarly distinguishable: The petitioner in
Giday lived in Eritrea but was ethnically Ethiopian;
Eritrea attempted to deport the petitioner because of her
Ethiopian heritage. Eritrea remained the test country
because she had never been to Ethiopia and was not a
national there, and because once she escaped Eritrea, the
petitioner left for the United States immediately. Id. at
547.
[fn9] 8 U.S.C. § 1158(b)(2)(A)(vi) provides that the
Attorney General may not grant asylum to an otherwise
eligible refugee if “the alien was firmly resettled in
another country prior to arriving in the United States.” An
alien is firmly resettled if “he or she entered into
another country with, or while in that country received, an
offer of . . . citizenship. . . .” 8 C.F.R. §
208.15.
[fn10] The meaning of “last habitual residence” is a
question of law reviewed de novo, with agency deference
when appropriate. Paripovic, 418 F.3d at 243. Like the BIA,
we need not, and do not, determine the precise contours of
the meaning of “last habitual residence.” Under any
plausible definition of the term, Senait had not last
habitually resided in Ethiopia. It is that factual
determination that we review for substantial evidence. See
Al Najjar, 257 F.3d at 1294.
[fn11] Technically, the petitioners do not argue that
Senait suffered persecution in Eritrea, instead attacking
only the BIA’s finding that Senait was firmly resettled in
Eritrea. We will read their briefs liberally, however, and
construe their arguments against firm resettlement as
arguments that Senait suffered and fears persecution in
Eritrea.
[fn12] Senait testified that, in 2002 when she wanted to
leave Eritrea, the Eritrean government denied exit visas to
everyone between the ages of eighteen and forty.
[fn13] After IIRIRA, an alien can establish cancellation of
removal, effectively the same thing as suspension of
deportation, with ten years continuous physical presence in
the United States, good moral character, lack of certain
convictions, and a showing that “removal would result in
exceptional and extremely unusual hardship to the alien’s
spouse, parent, or child” who is a citizen or lawful
permanent resident of the United States. See 8 U.S.C.
§ 1229b(b).