Ghebremedhin v. Ashcroft

• Decision Date: 13 October 2004
• Docket Number: No. 03-3836.,No. 03-1815.,03-1815.,03-3836.
• Citation: 385 F.3d 1116
• Parties: Ghebregziabher GHEBREMEDHIN, Petitioner, v. John ASHCROFT, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

385 F.3d 1116

Ghebregziabher GHEBREMEDHIN, Petitioner, v. John ASHCROFT, Attorney General of the United States, Respondent.

No. 03-1815.

No. 03-3836.

United States Court of Appeals, Seventh Circuit.

Argued June 7, 2004.

Decided October 13, 2004.

Mary L. Sfasciotti (argued), Chicago, IL, for Petitioner.

George P. Katsivalis, Department of Homeland Security Office of the District Counsel, Chicago, IL, Michelle E. Gorden (argued), Department of Justice Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before POSNER, RIPPLE, and ROVNER, Circuit Judges.

ILANA DIAMOND ROVNER, Circuit Judge.

Ghebregziabher Ghebremedhin is a native and citizen of Eritrea, a country formed from a region of Ethiopia that became independent following a national referendum in 1993. Ghebremedhin entered the United States on a six-month tourist visa in 1997 but overstayed; the former Immigration and Naturalization Service began removal proceedings against him in 1998. Ghebremedhin conceded that he was subject to deportation but sought asylum or withholding of removal based on religious persecution. An immigration judge (IJ) concluded that Ghebremedhin had not established past persecution or a well-founded fear of future persecution and denied asylum, and the Board of Immigration Appeals (BIA) affirmed without opinion. The BIA later denied Ghebremedhin's petition to reopen that decision. Ghebremedhin has petitioned for review of both the BIA decisions. Because we conclude that the evidence Ghebremedhin presented to the IJ compelled the conclusion that he would be subject to persecution should he be forced to return to Eritrea, we grant the petition for review and reverse the decision of the BIA.

According to Ghebremedhin's petition for asylum, he fears returning to Eritrea because the government there is currently persecuting members of his church, the Jehovah's Witnesses. Jehovah's Witnesses have been denied government jobs, housing assistance, and business licenses because they refuse on religious grounds to vote or participate in national service. Ghebremedhin alleged that another Jehovah's Witness he knew, a colleague from the University of Asmara, was jailed and beaten to death for failing to perform national service, and that he personally was denied a business license and a renewal of his passport.

At the hearing on the merits of Ghebremedhin's asylum application, he testified that he had been a Jehovah's Witness since 1984. He stated that Jehovah's Witnesses cannot participate in national service (which in Eritrea generally involves military service), because they "don't intend to kill anybody because we have to love each other." Similarly, Jehovah's Witnesses do not vote because "governments ... are human and imperfect [and] would not last long." When Ghebremedhin first became a Jehovah's Witness, Eritrea had not yet gained independence from Ethiopia, and the practice of the religion was officially banned by the Ethiopian government. Ghebremedhin worried at the time that if he identified himself as a Jehovah's Witness he would be jailed. According to Ghebremedhin, after Eritrea later became an independent state, the new government viewed Jehovah's Witnesses as unpatriotic and targeted them for certain disadvantages because they had not voted in the national referendum that led to independence. Ghebremedhin testified that Jehovah's Witnesses were denied business licenses, civil service positions, and travel documents because they refused to participate in national service. On some occasions, he stated, Jehovah's Witnesses were jailed and beaten.

In his testimony, Ghebremedhin highlighted several occasions on which he personally suffered at the hands of the Eritrean government. In the summer of 1996, said Ghebremedhin, he returned to Eritrea from studies in the Netherlands to discover that the university where he taught had been taken over by the government and was requiring all of the faculty to perform national service. Because Ghebremedhin refused to serve on religious grounds, he was unable to resume his employment at the university. That same summer Ghebremedhin applied to the Eritrean government for a business license, but received a letter rejecting the application:

You have applied for a business license to open a consulting service [ ] ... [concerning] land irrigation in Asmara. We have reviewed your application and found out that you are a followe[r] of ... [the] Jehovah['s] [W]itnesses and have not registered or participated [in] the national service. We are obligated to follow the guidelines given to us by the government and have denied your application for the above reasons.

Later, Ghebremedhin continued, one of his colleagues at the university was jailed and beaten until he died of a head wound for refusing to participate in national service on account of his beliefs as a Jehovah's Witness. Shortly after receiving news of this incident in 1997, Ghebremedhin managed to travel to the United States on a passport and visa his university had obtained on his behalf during his employment there. After arriving in the United States, however, Ghebremedhin's application to renew his passport was denied by officials at the Eritrean embassy, who told him that he was no longer considered a citizen because he had not completed national service. Finally, Ghebremedhin stated that the Eritrean government arrested his brother in 1998 for refusing to engage in national service. After a number of severe beatings in jail, Ghebremedhin's brother was taken to a hospital where he eventually died.

Ghebremedhin submitted a copy of the State Department's COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES FOR 1997 as evidence that Jehovah's Witnesses face persecution in Eritrea. The country report documents that Jehovah's Witnesses, because of their refusal to vote or participate in national service, have been subjected to "widespread criticism that the members were collectively shirking their civic duty." According to the State Department, the government of Eritrea has dismissed all Jehovah's Witnesses from civil service positions, revoked their trading licenses, and refused to issue them passports and identification cards. The country report cites "economic, employment, and travel difficulties for Jehovah's Witnesses," and notes that the government has begun surveying employers to gather information about any personnel who are members of the church. Finally, the country report notes that, although national service is a requirement for all citizens of Eritrea, "harsh measures for refusal to participate in national service were applied only to Jehovah's Witnesses."

After hearing Ghebremedhin's testimony and reviewing the record, the IJ issued an oral decision denying asylum and withholding of deportation. The IJ began by assessing Ghebremedhin's credibility, noting that there were "certain aspects of his claim which raise questions," but ultimately concluding that he had "testified consistently" and that events basically occurred as he had described them. But the problem with...