Tesfamichael v. Gonzales

• Decision Date: 24 October 2006
• Docket Number: No. 04-61180.,04-61180.
• Parties: Senait Kidane TESFAMICHAEL; Dawit Tessema-Damte, Petitioners, v. Alberto R. GONZALES, U.S. Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

469 F.3d 109

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.

October 24, 2006.

COPYRIGHT MATERIAL OMITTED

Brett Michael Schuman (argued), Thomas M. Peterson, Morgan, Lewis & Bockius, San Francisco, CA, for Petitioners.

Eric Warren Marsteller (argued), Civ. Div., David V. Bernal, Thomas Ward Hussey, Dir., Jamie Marie Dowd, U.S. Dept. of Justice, OIL, Washington, DC, E.M. Trominski, Dist. Dir., U.S. INS, Harlingen, TX, Caryl G. Thompson, U.S.INS, Attn: Joe A. Aguilar, New Orleans, LA, for Respondent.

Petition for Review from the Board of Immigration Appeals.

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.¹

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.² 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.³ 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,⁴ 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.⁵ 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.⁶

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, 456-57 (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.⁷

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...