Habtemicael v. Ashcroft

• Decision Date: 09 March 2004
• Docket Number: No. 02-3504.,02-3504.
• Citation: 360 F.3d 820
• Parties: Yohannes W. HABTEMICAEL, Petitioner, v. John D. ASHCROFT, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

360 F.3d 820

Yohannes W. HABTEMICAEL, Petitioner, v. John D. ASHCROFT, Attorney General of the United States, Respondent.

No. 02-3504.

United States Court of Appeals, Eighth Circuit.

Submitted: November 19, 2003.

Filed: March 9, 2004.

Andre Timothy Hanson, argued, Minneapolis, MN (Michelle S. Grant, on the brief), for appellant.

James E. Grimes, argued, USDOJ, Office of Immigration Litigation, Washington, D.C., for appellee.

Before MURPHY, LAY, and FAGG, Circuit Judges.

MURPHY, Circuit Judge.

Petitioner Yohannes Habtemicael seeks asylum and withholding of deportation, as well as relief under the Convention Against Torture (Convention). The immigration judge denied relief, and the Board of Immigration Appeals affirmed without opinion. Habtemicael appeals. We affirm the denial of asylum and withholding of deportation, but we remand Habtemicael's claim under the Convention for further findings.

Yohannes Habtemicael was born in January 1965 in Asmara, Ethiopia. Asmara is today the capital city of Eritrea, now a nation of 3.9 million people located in the Horn of Africa. The territory making up Eritrea was part of Ethiopia from 1952 until 1993, but in 1962 revolutionary forces led by the Eritrean Liberation Front (ELF) began a war for independence. In 1970 a Marxist/Leninist faction of the ELF formed the Eritrean People's Liberation Front (EPLF) which became the leading revolutionary movement in Eritrea by the mid1980s. Habtemicael was a citizen of Ethiopia and was opposed to the EPLF on ideological grounds.

Habtemicael was hired by the Ethiopian Relief and Rehabilitation Commission (ERRC) in November 1984 to supervise children's feeding centers funded by the United Nations. In the course of this work he was sent by the ERRC to Barentu, Ethiopia, a small town about 140 miles from Asmara, on May 23, 1985. About six weeks later the EPLF attacked Barentu and defeated the Ethiopian forces. Habtemicael was forced by the EPLF to help with its wounded, to bury the dead, and to undergo political reeducation. He and other able bodied men were also pressed into military service as replacements for fallen revolutionary soldiers. From August 1985 to January 1986, Habtemicael underwent further political education and military training by the EPLF. He was told by other captives that any sign of opposition to the EPLF would lead to severe torture, that any unarmed attempt to escape would be punished by underground imprisonment, and that any attempt to escape with a weapon could lead to summary execution. Habtemicael resolved nevertheless to try to escape with his rifle.

On January 2, 1986, Habtemicael was collecting firewood some distance from the EPLF camp with twenty to thirty other men. He had his rifle and a small amount of food and water with him, and he and two others decided to escape. When EPLF guards realized that the three had disappeared, a group of soldiers pursued them. The soldiers caught up with them after a few hours, and a gunfight ensued. Two EPLF soldiers were killed, but Habtemicael and his companions were able to escape with their lives. Traveling under cover of night, they fled into Sudan three days later.

Habtemicael moved to Saudi Arabia in 1989 because he feared EPLF sympathizers active in Sudan would find him if he remained there. After six years in Saudi Arabia, he was told that he would be deported unless he converted from Christianity to Islam. Because he feared retaliation for his actions against the EPLF if he were sent back to Eritrea, Ethiopia, or Sudan, Habtemicael obtained a tourist visa and fled to the United States. He entered this country on June 12, 1995 and secured a three year student visa soon after his arrival. Since then he has continued his education at Minneapolis Community College and maintained employment. He is an active member of his church and has never been arrested.

In 1991 the Ethiopian People's Revolutionary Democratic Front (EPRDF) overthrew the Ethiopian government. The United Nations sponsored peace negotiations between the EPRDF and Eritrea's EPLF in the early 1990s, which led to an internationally monitored referendum on Eritrean independence in 1993. Eritreans then voted overwhelmingly to secede from Ethiopia, and in 1993 the EPLF took control of the new Eritrean government and remains in power today, although it is now called the People's Front for Democracy and Justice. The United States recognized Eritrea as an independent sovereign nation on April 27, 1993.

Habtemicael alleges that if he were to be returned to Eritrea, it is probable that the government would persecute or torture him because of his ideological opposition to the EPLF, his escape in 1986, and his failure to make the payments required for expatriates to have an Eritrean identity card. Such a card signifies that its holder is a citizen in good standing who has fulfilled his military service requirement. If he were returned to Eritrea without an identity card, Habtemicael could be punished for failure to make the obligatory payments or conscripted into military service.

Habtemicael filed an affirmative application for asylum in this country on March 26, 1997, almost ten months before his student visa was to expire. He asserted that he had previously been the victim of political persecution by the EPLF and feared further persecution if he were to return because it now controls the Eritrean government.

Habtemicael met with an asylum officer on March 10, 1998. The officer found that his involuntary recruitment by the EPLF had not been based on his political beliefs, but was simply due to his presence in Barentu when it was taken. Since Habtemicael had not yet presented evidence that the EPLF had records of his conscription or escape, the asylum officer assumed that the Eritrean government would probably be unaware of his past and would therefore be unlikely to persecute him in the future on account of his political opinion. His asylum application was denied.

Habtemicael's student visa expired January 25, 1998, and the Immigration and Naturalization Service (INS) initiated deportation proceedings on March 18, 1998. At his appearance before an immigration judge on May 26, 1998, Habtemicael conceded deportability. He again applied for asylum and withholding of removal based on past persecution and fear of future persecution on account of political opinion. At the invitation of the immigration judge, Habtemicael also added a request for relief under Article III of the Convention Against Torture.

In an oral decision on June 25, 1999, the immigration judge found Habtemicael ineligible for asylum because there was no evidence to suggest that the EPLF had abducted or pursued him on account of his political beliefs. Any future action taken by the Eritrean government to punish Habtemicael for his escape and for the killing of EPLF soldiers would be motivated by a desire to punish a military deserter rather than the desire to persecute an ideological opponent. The immigration judge also rejected Habtemicael's argument that any punishment for his failure to support the Eritrean government financially during his time in the United States would be persecution on the basis of imputed political opinion. His failure to pay what amounts to a tax on citizens living abroad would not be viewed as a political statement, the judge concluded, and most likely Habtemicael would simply be conscripted into military service for not making the payments.

The immigration judge also found Habtemicael ineligible for relief under Article III of the Convention Against Torture. As the judge noted, the Convention defines torture to exclude pain or suffering arising from, inherent in, or incidental to lawful sanctions that do not otherwise defeat the purposes of the Convention. The pain or suffering inherent in a lawfully imposed death penalty is not considered torture under the Convention, and a government has authority to punish and even execute individuals who avoid conscription or desert military forces during wartime. The immigration judge concluded that prosecution and punishment of Habtemicael for his desertion from EPLF forces in 1986 would be a legitimate exercise of governmental power not prohibited by the Convention. Although the judge did not deny that Habtemicael "may have to answer for" his actions in 1986, he concluded that Habtemicael was not eligible for relief under the Convention. Habtemicael's alternative request for voluntary departure was denied because he did not possess any valid travel documents. Without such documentation, an alien cannot establish that he has the means to depart the United States and is therefore ineligible for voluntary departure.

Habtemicael appealed the immigration judge's rulings denying him asylum, withholding of deportation, and relief under the Convention. The Board of Immigration Appeals summarily affirmed without opinion. See 8 C.F.R. § 1003.1(a)(7) (2004). Habtemicael now appeals to this court.

We treat the immigration judge's opinion as that of the board when it has affirmed without a written opinion. Id.; Dominguez v. Ashcroft, 336 F.3d 678, 679 n. 1 (8th Cir.2003). The judge's findings of fact will be disturbed only if unsupported by substantial evidence. Francois v. INS, 283 F.3d 926, 931 (8th Cir.2002). This court must defer to the immigration judge's findings of fact and disposition of the case unless Habtemicael demonstrates that the record evidence was "so compelling that no reasonable factfinder could fail to find" him eligible for asylum, withholding of deportation, or relief under the Convention Against Torture. See INS v. Elias-Zacarias, 502 U.S. 478, 483-84, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992); 8 U.S.C. § 1252(b)(4)(B) (2004). Conclusions of law are reviewed de novo, with substantial deference to interpretations of statutes and regulations administered by the agency. Regalado-Garcia v. INS, 305 F.3d 784, 787 (8th Cir.2002).

An alien who is otherwise...