United States 3rd Circuit Court of Appeals Reports
GHEBREHIWOT v. ATTORNEY GENERAL OF U.S., 05-3847 (3rd Cir. 11-3-2006) MELAKE ZERAI GHEBREHIWOT, Petitioner, v. ATTORNEY GENERAL OF THE UNITED STATES, Respondent. No. 05-3847. United States Court of Appeals, Third Circuit. Argued July 13, 2006. Opinion filed November 3, 2006.
Petition for Review of an Order of the Board of Immigration Appeals, (Agency File No. A97 447 731).
MIKAEL ABYE, ESQ. (Argued) Shearman & Sterling LLP, 525 Market Street, Suite 1500 San Francisco, CA 94105 Attorneys for Petitioner.
CHRISTOPHER J. CHRISTIE, ESQ. RICHARD M. EVANS, ESQ. United States Attorney District of New Jersey DOROTHY J. DONNELLY, ESQ. (Argued) Assistant United States Attorney 402 East State Street Trenton, NJ 08608 Attorneys for Respondent.
Before: SLOVITER, McKEE and RENDELL, Circuit Judges.
OPINION
McKEE, Circuit Judge.
Melake Zerai Ghebrehiwot, a Pentecostal Christian who is a
citizen of Eritrea, petitions for review of an order of the
Board of Immigration Appeals affirming without opinion the
Immigration Judge’s denial of his applications for asylum,
withholding of removal and relief under Article 3 of the
United Nations Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (“CAT”). For
the reasons that follow, we will grant the petition and
remand for further proceedings consistent with this
opinion.
I. FACTUAL BACKGROUND
Ghebrehiwot traveled to the United States from Sweden as a
visitor for pleasure under the Visa Waiver Program, 8
U.S.C. § 1187, on December 7, 2004. He was denied
admission because he presented a false Italian passport
that had been manufactured for him. After being referred to
an Immigration Judge he sought relief from removal by
petitioning for asylum, withholding of removal and relief
under the CAT.
Ghebrehiwot was born in Asmara, Eritrea in 1983, and is one
of eight children. His parents and all of his siblings
still live in Eritrea. Before he left Eritrea, Ghebrehiwot
had attended a university where he trained to become a
teacher.
After living in Sudan for a number of years, Ghebrehiwot
traveled to Sweden and then to the United States with the
assistance of a person named, “Abraham.” Ghebrehiwot
testified that Abraham gave him the false Italian passport
he presented upon attempting to enter the United States.
Ghebrehiwot used that passport to travel from Sweden to the
United States.[fn1] Abraham bought Ghebrehiwot’s airline
ticket and told him to come to the United States. Abraham
instructed Ghebrehiwot to return the passport to him if
admitted without any problems, and he instructed
Ghebrehiwot to apply for asylum if asked about the fake
Italian passport. Ghebrehiwot did just that when he
encountered a problem at the airport. During the ensuing
airport interview, Ghebrehiwot said that he feared
returning to Eritrea because he had fled to Sudan while a
soldier in the Eritrean army. He also said that he had been
mistreated in Sudan because of his religion. When asked if
he feared returning to Eritrea or the country of last
residence, Ghebrehiwot answered: “Yes, because they don’t
know me as a Eritrean. I don’t have nothing. If I go home
and I show them where I live and they find out that I fled
to Sudan they will kill me.”
On his application for asylum, Ghebrehiwot listed both
political opinion[fn2] and religion as the basis for asylum
and withholding of removal. He explained as follows when
asked about fearing torture: “as Amnesty International is
concerned that if I returned back I will be at serious risk
of human right violations by the government like hard
detention will follow . . . In Sudan, due to religious
practicing as before I will suffer until killed by the
Sudan government.” In his application, Ghebrehiwot stated
that he is a member of the Pentecostal Rhema Church in
Asmara.
At the hearing before the Immigration Judge, Ghebrehiwot
testified that his schooling was cut short because he was
drafted into the Eritrean army in 2001. However, he
admitted that he had practiced his Pentecostal religion
without any problems while in his home country before being
conscripted into the army. He also admitted that his family
had not experienced any problems in Eritrea. He had heard
from his family after leaving Eritrea, while he was still
living in Sudan.
During the hearing, the Immigration Judge asked
Ghebrehiwot whether his family told him anything important
he wished to tell the court.[fn3] The government claims
that Ghebrehiwot told the IJ that he “forgot.” However,
Ghebrehiwot claims that the government has misstated the
record. According to him, “the interpreter said that he had
forgotten something and Mr. Ghebrehiwot responded that his
family had provided him with documentary information.”
Ghebrehiwot claimed that being drafted into the Eritrean
army was tantamount to mistreatment because he was young
and had not finished school. He had been drafted during a
war between Eritrea and Ethiopia. After being drafted, he
was stationed on the border between Ethiopia and Sudan. He
claimed that approximately a month after being drafted, he
and seven other Eritrean soldiers were forced to flee into
Sudan when the advancing Ethiopian forces penetrated to the
Eritrean border. Ghebrehiwot claimed that once he was in
Sudan, they could not return to Eritrea because Ethiopian
forces continued to occupy the border.
In Sudan, Ghebrehiwot and the others met a fellow Eritrean
who took them to Khartoum, the capital city. There,
Ghebrehiwot was taken in by “Pastor Josieth” and became
part of a Protestant Christian Community. Ghebrehiwot
continued to live in Sudan although he never obtained legal
residency there. He testified that he never applied for
legal residency because “in order to be able to request
that, [one must] have . . . a passport.”
Ghebrehiwot explained that, although Christians live in
Sudan, it is an Islamic country, and he was Protestant.
Ghebrehiwot claimed that, in June 2002, while he was still
living in Sudan, members of the Sudanese army took him from
the church he was attending, detained him in an underground
jail, and drastically limited his access to food and
sanitation facilities. While detained, he and four others
were beaten with a hard plastic object. He claimed that, as
a result of the beating, his leg was injured, and he was
taken to a hospital for one hour — the maximum time
allowed for a hospital visit — to receive stitches.
According to his testimony, he was then immediately returned
to detention where he was denied access to any additional
treatment or medication.
Ghebrehiwot was released from prison with the assistance
of people working with the Eritrean Liberation Front
(“ELF”), an exiled party working in opposition to the
Eritrean government. He claimed that he was released on
condition that he and the others would stop practicing
Christianity. Upon his release, the ELF loyalists gave him
an identification card that was valid for 3 months.
However, according to his testimony, that card was never
renewed because he did not participate in ELF activities due
to his religious beliefs.
Following his release, he continued living with the
Sudanese pastor, and worshiping in private. According to
Ghebrehiwot, while he was in the care of Pastor Josieth and
unable to return to Eritrea, legislation was enacted in
Eritrea that limited the right to practice any but four
officially recognized religions. In May 2002, the Eritrean
government ordered all houses of worship, that were not
either Eritrean Orthodox, Roman Catholic, Lutheran or
Islamic, to close. According to Ghebrehiwot, after that
legislation was enacted, the Eritrean government
systematically rounded up and tortured hundreds of members
of non-sanctioned religions, including Pentecostals. He
said that his Eritrean pastor was arrested, held
incommunicado, and was in danger of being tortured solely
because he did not observe one of the sanctioned religions.
According to Ghebrehiwot, the Eritrean government also
banned adherents of all other religions from governmental
positions and it also attempted to purge them from the
military. He also testified about individual acts of
oppression including subjecting 60 teenage Protestant
soldiers to torture and imprisoning them in metal
containers because they were caught carrying bibles; and
threatening, beating and incarcerating 74 Pentecostal
soldiers who refused to renounce their beliefs and return
to the Eritrean Orthodox Church. Ghebrehiwot claimed that
the Eritrean government also stepped up its campaign
against political dissidents.
Ghebrehiwot testified that some of the former soldiers who
retreated with him to Sudan managed to apply for asylum in
Malta. However, the Maltese authorities rejected their
claims and returned them to Eritrea where they were
detained and held incommunicado. Although they were never
formally charged, the Eritrean president publicly stated
that he considered these detainees traitors and spies. That
they were then tortured so badly that some were paralyzed,
and others were killed.
Ghebrehiwot also explained that he feared returning to
Eritrea because he could have been tortured or killed. He
based this fear upon what he claimed happened to others who
left the Eritrean army and were subsequently returned by
the Maltese government. He explained that the torture they
were subjected to included detention “in a style called
`helicopter'[fn4] and some of them were paralyzed and . . .
others . . . faced death because they left Eritrea.”
Ghebrehiwot maintained his fear was justified even though
he conceded that, to the best of his knowledge, his brother
who is also Pentecostal, continues to live and worship in
Eritrea without experiencing any repression.
Ghebrehiwot submitted news articles and country condition
reports during his hearing before the IJ. Some of those
reports tell of deserters who sought refugee status in
other countries, including Sudan. In one article, Amnesty
International quoted a former deserter who was returned
from Malta as saying he had been tortured upon return to
Eritrea.
II. PROCEEDINGS BEFORE THE IJ AND THE BIA.
The Immigration Judge denied Ghebrehiwot’s claim without
making a credibility determination. Her decision was based
upon her conclusion that the evidence Ghebrehiwot presented
did not establish eligibility for any relief. The IJ
believed that Ghebrehiwot’s fear of returning to Eritrea
arose from his “desertion” from the army, and prosecution
for desertion does not ordinarily constitute “persecution”
for immigration purposes.[fn5] The IJ acknowledged that
legally justified prosecution can be so severe that it
rises to the level of “persecution” and an alien may
therefore establish that he/she is a “refugee” if the
unduly harsh treatment is based upon race, religion,
nationality, or membership in a social or political group.
Nonetheless, the IJ ruled that since Ghebrehiwot had not
established that his fear of prosecution for desertion was
based upon any of those protected traits, he was not
entitled to any relief.
The IJ rejected Ghebrehiwot’s claim of refugee status
based upon religious persecution because he had never
experienced problems in Eritrea related to his faith, and
his brother remained in Eritrea where he continued to
observe his religion without any problems. Although the IJ
noted that the background materials and reports Ghebrehiwot
introduced did show some conflict between the various
religious groups in Eritrea, the IJ concluded that “the
background material is not supportive of the facts
presented. . . .” She reasoned that Ghebrehiwot was “never
a target of the government” in Eritrea and therefore the
evidence did not support a finding that his subjective fear
was reasonable. Id.
After concluding that Ghebrehiwot was not entitled to
asylum, the IJ denied withholding of removal and relief
under the CAT. Her only explanation for doing so was as
follows: “The Court must necessarily deny the applicant’s
request for withholding of removal and relief under the
Convention against Torture which require a more stringent
evidentiary burden [than asylum].”
The BIA affirmed without opinion, and this petition for
review followed.
III. STANDARD OF REVIEW
Where the BIA affirms the IJ’s decision without opinion,
we review the decision of the IJ as if it were the decision
of the BIA. Zhang v. Gonzales, 405 F.3d 150, 155 (3d Cir.
2005). We review the IJ’s denial of relief to determine if
the conclusion is supported by substantial evidence. INS v.
Elias-Zacarias, 502 U.S. 478, 481 (1992). INA §
242(b)(4)(B) provides that “administrative findings of fact
are conclusive unless any reasonable adjudicator would be
compelled to conclude to the contrary.” Thus, if the
applicant “seeks to obtain judicial reversal of the [denial
of asylum], he must show that the evidence he presented was
so compelling that no reasonable fact finder could fail to
find” the requisite likelihood of persecution.
Elias-Zacarias, 502 U.S. at 483-84. “Under this standard, a
finding will stand if it is supported by reasonable,
substantial, and probative evidence in the record when
considered as a whole.” Secaida-Rosales v. INS, 331 F.3d
297, 307 (3d Cir. 2003) (citation and internal quotations
omitted). The same standard applies to the BIA’s denial of
Ghebrehiwot’s claim for withholding of removal. To reverse
the decision below, we must find that the record “not only
supports that conclusion, but compels it.” Elias-Zacarias,
502 U.S. at 481 n. 1. Finally, since the IJ did not make an
adverse credibility determination here, we proceed as if
the alien’s testimony was credible. Kayembe v. Ashcroft,
334 F.3d 231, 235 (3d Cir. 1003).
IV. GENERAL LEGAL PRINCIPLES
A. Asylum and Withholding of Removal.
The Attorney General has discretion to grant asylum to a
removable alien. See 8 U.S.C. § 1158(a). However,
that discretion can only be exercised if the alien first
establishes that he/she is a “refugee.” Id. A “refugee” is:
any person who is outside any country of such person’s
nationality or, in the case of a person having no
nationality, is outside of any country in which such
person last habitually resided, and who 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). The asylum applicant must
therefore present some evidence that removal will result in
persecution “on account of” one of the five statutory
grounds in order to establish eligibility for asylum.
An applicant who offers credible testimony regarding past
persecution is presumed to have a well-founded fear of
future persecution. Berishaj v. Ashcroft, 378 F.3d 314, 323
(3d Cir. 2004) (citation omitted). The “well-found fear of
persecution” standard involves both a subjectively genuine
fear of persecution and an objectively reasonable
possibility of persecution. INS v. Cardoza-Fonseca, 480
U.S. 421, 430-31 (1987). The subjective prong requires a
showing that the fear is genuine. Mitey v. INS, 67 F.3d
1325, 1331 (7th Cir. 1995). The objectively reasonable
prong requires ascertaining whether a reasonable person in
the alien’s circumstances would fear persecution if
returned to a given country. Zubeda v. Ashcroft, 333 F.3d
463, 469 (3d Cir. 2003) (citation omitted).
“To satisfy the objective prong, the asylum petitioner
must show he or she would be individually singled out for
persecution or that `there is a pattern or practice in his
or her country . . . of persecution of a group of persons
similarly situated to the applicant on account of race,
religion, nationality, membership in a particular social
group, or political opinion.'” Sukwanputra v. Gonzales, 434
F.3d 627, 637 (3d Cir. 2006) (quoting 8 C.F.R. §
208.13(b)(2)(iii)(A)). Although applicable regulations do
not define a “pattern or practice,” we have explained that
“the persecution of the group must be systematic,
pervasive, or organized,” to constitute a pattern or
practice. Id. (citation omitted). “In addition, as with any
claim of persecution, the acts must be committed by the
government or forces the government is either unable or
unwilling to control.” Id. (citation omitted).
Withholding of removal is mandatory once “the Attorney
General determines that [the] alien’s life or freedom would
be threatened” because of a protected trait or
activity.[fn6] 8 U.S.C. § 1231(b)(3)(A). To obtain
such relief, an alien must establish a “clear probability,”
i.e., that it is more likely than not, that he/she would
suffer persecution. See INS v. Stevic, 467 U.S. 407, 429-30
(1984). Because this standard is higher than that governing
eligibility for asylum, an alien who fails to qualify for
asylum is necessarily ineligible for withholding of
removal. Zubeda, 333 F.3d at 469-70.
B. Relief under the Convention Against Torture.
As noted earlier, Ghebrehiwot also sought protection under
Article 3 of the CAT. The CAT became binding on the United
States in November of 1994 when President Clinton delivered
the ratifying documents to the United Nations. U.N. Doc.
571 Leg/SER.E/13.IV.9 (1995); Convention, art. 27(2). The
Foreign Affairs Reform and Restructuring Act of 1998
(“FARRA”) implemented the CAT. Section 2242, Pub.L. No.
105-277, Div. G. 112 Stat. 2681-761 (Oct. 21, 1998)
(codified at 8 U.S.C. § 1231). That legislation
requires that “[n]o state . . . expel, return (‘refouler’)
or extradite a person to another state where he would be in
danger of being subjected to torture.” Id. Accordingly, “it
shall be the policy of the United States not to expel . . .
or otherwise effect the involuntary return of any person to
a country in which there are substantial grounds for
believing the person would be in danger of being subjected
to torture. . . .” Id.
“An applicant for relief . . . under [Article 3] of the
Convention Against Torture bears the burden of establishing
`that it is more likely than not that he or she would be
tortured if removed to the proposed country of removal.'”
Sevoian v. Ashcroft, 290 F.3d 166, 174-175 (3d Cir. 2002)
(quoting 8 C.F.R. § 208.16(c)(2)). “The United
States Senate specified this standard, as well as many of
the other standards that govern relief under the
Convention, in several `understandings’ that it imposed on
the United States’ ratification of the Convention Against
Torture.” Id. at 175 (citations omitted). Unlike asylum or
withholding of removal, “[the CAT] has no subjective
component, but instead requires the alien to establish, by
objective evidence, that he is entitled to relief.” Id.
(citation and internal quotations omitted). The alien’s
testimony, if credible, may be sufficient to sustain the
burden of proof without corroboration. Mansour v. INS, 230
F.3d 902, 907 (7th Cir. 2000) (citing 8 C.F.R. §
208.16(c)(2)). If an alien meets his or her burden of
proof, withholding of removal or deferring of removal is
mandatory. INA § 241(b)(3); 8 C.F.R.
§§ 208.16-208.18.
Under the applicable implementing regulations: Torture is
defined as an act by which severe pain or suffering,
whether physical or mental, is intentionally inflicted on
a person for such purposes as obtaining from him or her or
a third person information or a confession, punishing him
or her for an act he or she or a third person has
committed or is suspected of having committed, or
intimidating or coercing him or her or a third person, or
for any reason based on discrimination 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). The regulations also
provide:
(3) In assessing whether it is more likely than not that
an applicant would be tortured in the proposed country of
removal, all evidence relevant to the possibility of
future torture shall be considered, including, but not
limited to:
(I) Evidence of past torture inflicted upon the
applicant;
(ii) Evidence that the applicant could relocate to a part
of the country of removal where he or she is not likely to
be tortured;
(iii) Evidence of gross, flagrant or mass violations of
human rights within the country of removal, where
applicable; and
(iv) Other relevant information regarding conditions in
the country of removal.
8 C.F.R. § 208.16(c)(3). In determining whether
relief under the CAT is warranted, “country conditions
alone can play a decisive role in granting relief . . . and
the relevant statutory and regulatory language . . . does
not require that the prospective risk of torture be on
account of certain protected grounds.” Kamalthas v. INS,
251 F.3d 1279, 1280 (9th Cir. 2001).
However, “[i]t is significant that even cruel and inhuman
behavior by government officials may not implicate the
torture regulations.” Sevoian, 290 F.3d at 175. “Torture is
an extreme form of cruel and inhuman treatment and does not
include lesser forms of cruel and inhuman treatment or
punishment that do not amount to torture.” 8 C.F.R.
§ 208.16(c)(3)(I). Moreover, the BIA has held that
“torture covers intentional governmental acts, not
negligent acts or acts by private individuals not acting on
behalf of the government.” In re J____E____, 23 I. & N.
Dec. 291, 299 (BIA 2002). Finally, “[t]orture does not
include pain or suffering arising only from, inherent in,
or incidental to, lawful sanctions. Lawful sanctions
include judicially imposed sanctions and other enforcement
actions authorized by law, including the death penalty, but
do not include sanctions that defeat the object and purpose
of the Convention Against Torture to prohibit torture.” 8
C.F.R. § 208.18(a)(3).
V. DISCUSSION
Ghebrehiwot makes a number of arguments in support of his
petition for review. Each is discussed separately
below.[fn7]
A. Ghebrehiwot’s Well-Founded Fear of Persecution
“An alien may demonstrate that his/her [well-founded fear
of persecution] is objectively reasonable by documentary or
expert evidence about the conditions in a given country.”
Lusingo v. Ashcroft, 420 F.3d 193, 199 (3d Cir. 2005).
Ghebrehiwot claims that the IJ’s finding that he did not
establish a well-founded fear of persecution based on his
religion was error. He argues that his documentary evidence
was itself sufficient to establish a pattern and practice
of religious persecution of members of the Pentecostal
religion beginning after he fled to Sudan in November,
2001.[fn8]
Ghebrehiwot cites the State Department’s International
Religious Freedom Report 2004 (“2004 Report”) which noted
that in September 2004, “the Secretary of State designated
Eritrea as a `Country of Particular Concern’ under the
International Religious Freedom Act for particularly severe
violations of religious freedom.” 2004 Report, at 1. The
Report includes the following statement about the Eritrean
government:
The Government’s poor respect for religious freedom for
minority religious groups continued to decline during the
period covered by this report. The Government harassed,
arrested, and detained members of Pentecostal and other
independent evangelical groups’ and reform movements from
and within the Eritrean Orthodox Church, and Jehovah’s
Witnesses. There were also numerous reports of physical
torture and attempts at forced recantations. Following a
May 2002 government decree that all religious groups must
register or cease all religious activities, the
Government closed all religious facilities not belonging
to the four sanctioned religions. These closures, the
Government’s refusal to authorize any registrations, and
the restriction on holding religious meetings continued
throughout the period covered by this report.
Id.
In addition to the 2004 Report, Ghebrehiwot submitted
approximately thirty different articles which he contends
document the Eritrean government’s systematic persecution
of adherents of disfavored religions, including
Pentecostals. He claims that the articles recite incidents
of the government’s breaking up Pentecostal weddings and
arresting everyone identified as a “Pente.”[fn9] This
includes locking up children in metal shipping containers
for carrying Bibles, arresting hundreds of adults and
children simply for being members of an evangelical or
Pentecostal church, and torturing members of disfavored
religious groups until they signed statements repudiating
their faith. He notes that one of the articles reported
that his pastor was among the detainees arrested and held
incommunicado in an effort force him to abandon his faith.
In Ghebrehiwot’s view, these materials establish a pattern
and practice of persecution of members of the Pentecostal
religion.[fn10] Thus, he concludes that because he has
presented evidence that he is a Pentecostal and that there
is a pattern and practice of persecution of Pentecostals in
Eritrea, he has demonstrated a well-founded fear of future
persecution.
The government argues that Ghebrehiwot’s documentary
evidence does not support a finding of a pattern and
practice of religious persecution of Pentecostal Christians
by the Eritrean government. The government also notes that
Ghebrehiwot’s brother is also a Pentecostal Christian, and
has remained in Eritrea without experiencing religious
persecution. In the government’s view, this undermines
Ghebrehiwot’s claim. See, e.g., Krasnopivtsev v. Ashcroft,
382 F.3d 832, 839 (8th Cir. 2004) (“The reasonableness of a
fear of persecution is diminished when family members
remain in the native country unharmed, and the applicant
himself had not been singled out for abuse.”).
The government concedes that the 2004 State Department
report establishes that the State Department views Eritrea
as a country of concern, but it argues that the concern
does not rest on religious persecution. It contends the
evidence shows instances of arrests and detention of
journalists, government critics, and members of
non-registered religious groups, as well as registered
religious groups. The documentary evidence also refers to
repression of academic freedom and states that the military
may be acting independently of the government. In short,
the government contends that the materials establish a
regime that takes repressive action against those it
considers dissidents, but this does not establish a pattern
and practice of religious persecution of Pentecostal
Christians. In addition, the government suggests that
Ghebrehiwot’s evidence merely obfuscates the issue because
it establishes that any religion other than the four
state-approved religions, is referred to as “Pentecostal”
or “Pente” by factions in the government. The government
contends that discrimination on the basis of race or
religion, although reprehensible, does not automatically
establish “persecution.” Ghaly v. INS, 58 F.3d 1425, 1431
(9th Cir. 1995).
As noted above, in rejecting Ghebrehiwot’s claim, the IJ
observed that there appeared to be some conflict between
the various religious groups, but concluded that “the
background material is not supportive of the facts
presented . . .” The IJ considered Ghebrehiwot’s
documentary evidence and his testimony and concluded that
Ghebrehiwot had not demonstrated a well-founded fear of
persecution.
The IJ focused on the absence of evidence of past
persecution before Ghebrehiwot left Eritrea. However, the
IJ failed to address the 2004 Report and the other
materials Ghebrehiwot submitted that could easily
demonstrate an objective basis for a well-founded fear of
future religious persecution if Ghebrehiwot returns to
Eritrea. This record certainly suggests a pattern and
practice of persecution of Pentecostals in Eritrea after
Ghebrehiwot left. Although the government attempts to
minimize the import of much of this evidence by suggesting
that it is not limited to Pentecostals, that rejoinder is
as puzzling as it is unconvincing. The fact that
Pentecostals are not singled out for persecution and that
other religious minorities may also be persecuted does not
negate religious persecution or a well-founded fear of
future persecution based upon religion. It merely means
that the Eritrean government does not restrict its
persecution to Pentecostals.
Accordingly, we will remand to the BIA so that the IJ can
consider whether the country condition evidence submitted
by Ghebrehiwot establishes a pattern and practice of
persecution of Pentecostals by the Eritrean government
after Ghebrehiwot left Eritrea. See Sukwanputra, 434 F.3d
at 637. (“Here, the IJ found that petitioner had not
established a well-founded fear of persecution without
specifically addressing whether a pattern or practice of
persecution existed in Indonesia. Accordingly, on remand,
petitioners’ claim that there is a pattern or practice of
persecution of Chinese Christians must be considered.”).
B. Ghebrehiwot’s Status as a Deserter
As noted above, the IJ found that Ghebrehiwot was a
deserter and explained that, ordinarily, fear of
prosecution for being a deserter does not constitute
persecution.[fn11] Ghebrehiwot argues that, even assuming
arguendo that he is a deserter, he nevertheless has a
well-founded fear of persecution based upon his religious
beliefs because he will be singled out for particularly
cruel treatment merely because he does not practice one of
the favored religions. He bases that argument on Johnson v.
Gonzales, 416 F.3d 205, 212 (3d Cir. 2005). There, we
explained that “an alien may be eligible for asylum even if
the persecution he or she suffered, or fears suffering in
the future, is only partially based on a ground enumerated
in the [INA].” He also cites Nuru v. Gonzales, 404 F.3d
1207 (9th Cir. 2005). There, an Eritrean spoke out against
the Eritrean-Sudanese war while in the military. That
resulted in severe physical abuse amounting to torture at
the hands of his commanding officers. Ultimately, he
deserted and arrived in the United States where he sought
asylum. On appeal, the court ruled that the fact that he
could legitimately be punished as a deserter did not prevent
him from establishing a well-founded fear of future
persecution based on his political opinion. Id. at 1227-29.
However, apparently because of her focus on the absence of
past persecution, the IJ here did not address this claim in
this context. On remand, the BIA can consider Ghebrehiwot’s
evidence of country conditions after he left Eritrea, and
address this claim in the context Ghebrehiwot asserts
it.[fn12]
C. Well-Founded Fear of Persecution on Account of
Membership in a Social Group.
Ghebrehiwot also claims he is entitled to relief because
his return to Eritrea would result in his persecution by
the Eritrean government based upon his membership in a
particular social group. “Both courts and commentators have
struggled to define `particular social group.'” Fatin, 12
F.3d at 1238. It is not defined in the Immigration and
Nationalities Act. However, in Fatin, we noted that in
Matter of Acosta, 19 I. & N. Dec 211, 233 (BIA 1985),
overruled on other grounds by In re Mogharrabi, 19 I. & N.
Dec. 439 (BIA 1987), the BIA had interpreted “particular
social group” to refer to a “group of persons all of whom
share a common, immutable characteristic.” The BIA
explained:
The shared characteristic might be an innate one such as
sex, color or kinship ties, or in some circumstances it
might be a shared past experience such as former military
leadership or land ownership. The particular kind of group
characteristic that will qualify under this construction
remains to be determined on a case-by-case basis. However,
. . . the common characteristic that defines the group .
. . must be one that the members of the group either
cannot change, or should not be required to change because
it is fundamental to their individual identities or
consciences. Only [then] does the mere fact of group
membership become something comparable to the other four
grounds of persecution under the Act. . . .
Acosta, 19 I. & N. Dec 211, at 233-34. We adopted that
construction of “particular social group” in Fatin, holding
that it was a “permissible” construction of the
statute.[fn13] 12 F.3d at 1240. We also discussed this
phrase in Escobar v. Gonzales, 417 F.3d 363 (3d Cir. 2005).
There, after reviewing the relevant jurisprudence, we
concluded:
membership in a `particular social group’ can be
attributed to either: (1) those who possess immutable
characteristics such as race, gender or a prior position,
status or condition; or (2) those who possess a
characteristic that is capable of being changed but is of
such fundamental importance that individuals should not be
required to modify it, e.g., religion.
Id. at 367.[fn14]
Ghebrehiwot claims that his social group is “Eritrean
soldiers that were forced to retreat into Sudan by
Ethiopian forces who have been unwilling to return home
after Ethiopian forces withdrew due to a well-founded fear
of persecution based on being labeled a `traitor’ or
`spy.'”[fn15] Ghebrehiwot’s Br. at 23. He insists that,
although he is neither traitor nor spy, the Eritrean
government will impute those characteristics to him and
treat him accordingly. See Johnson, 416 F.3d at 211 (noting
that asylum relief is available based on imputed grounds).
He bolsters that claim by refering to the fate of those
Eritrean soldiers who were in Sudan with him and who were
involuntarily repatriated to Eritrea by the Maltese
government. As noted earlier, Ghebrehiwot claims they were
tortured and physically abused by the Eritrean government
to the extent that some are now paralyzed and others have
died.
However, Ghebrehiwot never made this social group argument
to the IJ. Although the did make that argument to the BIA,
the BIA merely affirmed the decision of the IJ without
opinion, and never ruled upon the social group claim.
Accordingly, that claim is not properly before us, but
Ghebrehiwot can reassert it on remand to the BIA.[fn16]
D. Disproportionate Punishment.
Ghebrehiwot further argues that even if he is a deserter
and he does not have a well-founded fear of persecution
based on his religious beliefs alone, or as a member of a
social group, he is nonetheless entitled to asylum because
the punishment he will face as a deserter will be
disproportionately greater because he is a Pentecostal. He
relies in part on Ghebremedhin v. Ashcroft, 385 F.3d 1116,
1120 (7th Cir. 2004). There, the court said: “When a
country subjects a draft evader to more serious punishment
than others who have also evaded service because of his
race, religion, nationality, social group or political
opinion, this amounts to persecution rather than simple
nationalism.” However, this argument obfuscates a more
fundamental issue. If, as Ghebrehiwot contends, he has a
well-founded fear of persecution on account of his
religious beliefs alone, little is added if he establishes
that he will receive disparate punishment for desertion
because of his religious beliefs. Ghebrehiwot appears to be
arguing that any prosecution he might receive for being a
deserter would be applied with far more vigor and/or
vindictiveness because he is also a member of a religion
that is not sanctioned. This claim is also best addressed
on remand in the context of the evidence of changed country
conditions after he left Eritrea.[fn17]
E. Denial of CAT Claim.
We have already explained that the IJ denied Ghebrehiwot’s
claim for CAT relief with no analysis. She merely stated:
“The Court must necessarily deny the applicant’s request
for withholding of removal and relief under the Convention
against Torture which require a more stringent evidentiary
burden.” App. 41. We can only assume from this explanation
that the IJ believed that if an alien did not prevail on
his/her asylum claim, any claim for relief under the CAT
must also fail. However, we have previously explained that
denial of a claim for withholding of removal or asylum
“does not control the analysis of [a] claim for relief
under the Convention Against Torture.” Zubeda, 333 F.3d at
476. “[A] claim under the Convention is not merely a subset
of claims for either asylum or withholding of removal.”
Kamalthas v. INS, 251 F.3d 1279, 1283 (9th Cir. 2001).
Claims for CAT relief and claims for asylum and withholding
of removal are “analytically distinct.”
[A]sylum and withholding of [removal] require that the
alien be both a “refugee,” and establish either a well
founded fear, or probability of persecution, “on account
of” at least one of the five specified grounds. The
Convention Against Torture is not limited to “refugees,”
nor does persecution have to be “on account of” political
opinion, religious or social group, etc. Rather, the
Convention simply seeks to prevent any country from having
to return someone to a place where it is likely he/she
will be tortured.
Zubeda, 333 F.3d at 476.
We cannot adjudicate Ghebrehiwot’s claim for CAT relief in
the first instance because our role is limited to
determining if there is substantial evidence to support the
IJ’s determinations. Since the IJ committed legal error in
holding that failure to meet the evidentiary burden for
asylum precluded relief under the CAT, we will grant the
petition for review and remand to the BIA for a
determination of Ghebrehiwot’s CAT claim in the first
instance. See Berishaj, 378 F.3d at 332 (commenting that an
IJ’s finding “that a CAT claim could not stand if the
asylum claim fell” would be legal error and grounds for
granting the petition for review).
Because we are remanding, we take care to note that the
mere fact that Ghebrehiwot may be punished as a deserter
does not necessarily mean that he cannot also establish
that he is eligible for protection under the CAT, if the
record evidence demonstrates that he will be subjected to
torture by the Eritrean government. The Attorney General’s
implementing regulations exclude “pain or suffering arising
only from, inherent in or incidental to lawful sanctions”
from the definition of torture. 8 C.F.R. §
208.18(a)(3). As we explained above, the regulation defines
“lawful sanctions” as “judicially imposed sanctions and
other enforcement actions authorized by law, . . .” but only
so long as those sanctions do not “defeat the object and
purpose of the [CAT] to prohibit torture.” Id.
Consequently, “[a] government cannot exempt torturous acts
from CAT’s prohibition merely by authorizing them as
permissible forms of punishment in its domestic law.” Nuru,
404 F.3d at 1221. “It would totally eviscerate the CAT to
hold that once someone is accused of a crime, it is a legal
impossibility for any abuse on that person to constitute
torture.” Khouzam v. Ashcroft, 361 F.3d 161, 169 (2d Cir.
2004). Therefore, “while the punishment of . . . military
deserters . . . is certainly within a country’s
sovereignty, torture cannot be `inherent in or incidental
to lawful sanction’ and is never a lawful means of
punishment.” Nuru, 404 F.3d at 1221-22 (emphasis in
original).
VI. CONCLUSION
For all of the above reasons, we will grant the petition
for review and remand to the BIA for further proceedings
consistent with this opinion.
[fn1] Ghebrehiwot concedes that he has no connection with
Italy.
[fn2] He does not elaborate upon this, or explain the nature
of his political opinion.
[fn3] Ghebrehiwot appeared at the hearing pro se.
[fn4] Ghebrehiwot testified that “helicopter” consists of
tying a prisoner’s hands and legs behind his back and then
suspending the prisoner from a tree for hours at a time.
[fn5] We realize that Ghebrehiwot does not concede that he
deserted his army post. Rather, he maintains that he was
forced to flee to Sudan by the advancing Ethiopian army and
he was not able to get back across the border. The IJ found
to the contrary. However, that finding does not alter our
analysis.
[fn6] An application for asylum is deemed to also constitute
at the same time an application for withholding of
removal. 8 C.F.R. § 1208.3(b).
[fn7] At the outset of our discussion, we noted that
Ghebrehiwot admitted that he had never been subjected to
past persecution on account of his Pentecostal religion
while in Eritrea. Indeed, the only acts of past persecution
occurred while Ghebrehiwot was in Sudan. Although
Ghebrehiwot claimed that his conscription into the Eritrean
military constituted persecution, the IJ correctly rejected
that contention. See Ambartsoumian v. Ashcroft, 388 F.3d
85, 93 (3d Cir. 2004) (citing 8 U.S.C. §
1101(a)(42)). Ghebrehiwot’s conscription did not, by
itself, constitute persecution.
Ghebrehiwot now amplifies that claim by arguing that, as a
former member of the military, he can be considered a member
of a “social group” that will be persecuted for purposes of
the Immigration and Nationalities Act. Appellant’s Br. at
23. (citing Cruz-Navarro v. INS, 232 F.3d 1024, 1029 (9th
Cir. 2000). However, as we note below, the IJ never
addressed this claim.
[fn8] Ghebrehiwot also argued before the BIA that the
materials he submitted to the IJ demonstrate a pattern and
practice of persecution of Pentecostals. Thus, he has
administratively exhausted that claim. See 8 U.S.C.
§ 1252(d)(1).
[fn9] Ghebrehiwot claims that “Pente” is a derogatory name
derived from “Pentecostal” and is applied to members of all
of Eritrea’s disfavored Evangelical churches. Ghebrehiwot’s
Br. at 18 n. 8.
[fn10] Ghebrehiwot notes that Eritrea’s pattern and practice
of religious persecution has drawn the attention of courts
in the United States. He cites Fessehaye v. Gonzales 414
F.3d 746 (7th Cir. 2005), Ghebremedhin v. Ashcroft, 385
F.3d 1116 (7th Cir. 2004), and Muhur v. Ashcroft, 355 F.3d
958 (7th Cir. 2004). However, these cases involved
persecution of Jehovah’s Witnesses, not Pentecostals. The
Eritrean government persecutes Jehovah’s Witnesses because
they do not believe in the legitimacy of any government and
they refuse to serve in the military.
[fn11] “As a general matter, . . . we have held that fear
of prosecution for violations of fairly administered laws
does not itself qualify one as a refugee or make one
eligible for withholding of removal.” Chang v. INS, 119
F.3d 1055, 1060 (3d Cir. 1997) (citation omitted). “Thus,
those who violate laws governing . . . military
conscription . . . do not merit asylum based on their fear
of punishment for the crime that they committed.” Id.
(citations omitted). See also De Valle v. INS, 901 F.2d
787, 792 (9th Cir. 1990) (“punishment received for a breach
of military discipline, such as desertion, is generally not
viewed as persecution”).
[fn12] The government agrees that if this case is remanded
to the BIA, Ghebrehiwot can assert claims previously
raised, but not addressed. See Appellee’s Br. at 15 (“This
would be appropriate especially with regard to two
arguments not addressed by the Immigration Judge, in
particular the argument of a social group based on military
deserters and the argument that the written materials were
sufficient to establish a pattern and practice of religious
discrimination”).
[fn13] In Fatin, we held that the asylum applicant’s
particular social group could consist of “Iranian women who
[found] their country’s gender-specific laws offensive and
[did] not wish to comply with them,” to the extent that
they would suffer severe consequences for their
non-compliance. 12 F.3d at 1241. The group characteristic
was its members’ shared beliefs. Those beliefs were so
fundamental that the group should not have been required to
change them. Id. However, we found that relief was properly
denied because the applicant failed to establish a
well-founded fear of persecution of the group. Id. at 1243.
[fn14] In Escobar, we held that “homeless Honduran street
children” are not a “particular social group” within the
meaning of the Immigration and Nationalities Act. 417 F.3d
at 364. We noted that the three main elements of the
claimed social group were poverty, youth and homelessness,
but that the record failed to show any differences between
the Honduran street children and poor, young and homeless
children in other parts of the word. Id. at 367. Therefore,
we concluded that “a legitimate distinction cannot be made
between groups of impoverished children who exist in almost
every country.” Id.
However, in Lukwago v. Ashcroft, 329 F.3d 157, 178-79 (3d
Cir. 2003) we held that a former child soldier who escaped
captivity by a guerilla group was a member of a “particular
social group” because his status as a former child soldier
is one cannot be changed and is fundamental to his
identity.
[fn15] As noted earlier, Ghebrehiwot claims that the
Eritrean government considers people in Ghebrehiwot’s
situation to be traitors and spies.
[fn16] See note 12, supra.
[fn17] See note 12, supra.