Milat v. Holder

• Decision Date: 19 June 2014
• Docket Number: Summary Calendar.,No. 13–60362,13–60362
• Citation: 755 F.3d 354
• Parties: Yohannes Ghirmay MILAT, Petitioner v. Eric H. HOLDER, Jr., U.S. Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

755 F.3d 354

Yohannes Ghirmay MILAT, Petitioner

v.Eric H. HOLDER, Jr., U.S. Attorney General, Respondent.

No. 13–60362

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

June 19, 2014.

James Feroli, Alexandria, VA, for Petitioner.

Rachel Louise Browning, Trial Attorney, Tangerlia Cox, Joseph D. Hardy, Jr., Esq., Trial Attorney, Kathryn M. McKinney, U.S. Department of Justice, Washington, DC, for Respondent.

Petition for Review of an Order of the Board of Immigration Appeals.

Before REAVLEY, PRADO, and ELROD, Circuit Judges.

EDWARD C. PRADO, Circuit Judge:

Eritrean national, Petitioner Yohannes Ghirmay Milat (“Milat”) requests asylum, withholding of removal, and protection under the Convention Against Torture. Milat claims he fled Eritrea to escape an assignment within Eritrea's National Service program, which he asserts is a program of human trafficking and not a legitimate program of military conscription. The Immigration Judge (“IJ”) denied Milat's application for asylum and withholding of removal, but granted his application for protection under the Convention Against Torture (“CAT”). The Board of Immigration Appeals (“BIA”) affirmed. Milat petitions this Court for review, arguing that the BIA erred in denying his application for asylum and withholding of removal, and that the BIA should have reopened and remanded his case for the IJ to consider new evidence. For the reasons stated below, we deny Milat's petition.

I. BACKGROUND

Milat's argument for asylum centers on his conditions of employment in Eritrea, so we begin by reviewing that history, which we draw from the administrative record. Milat studied journalism and mass communication at Asmara University. Just before graduation, he went to work for the Eritrean Ministry of Defense in what, Milat claims, was supposed to be a temporary postgraduate internship. Milat wrote articles for the Defense Ministry's official magazine, and assisted with the videotaping of official meetings. Milat avers, “It was expected that all work I produced should be supportive of government policies.”

In March 2007, Milat learned that, because the government was closing Asmara University, he would officially graduate from Meinefe College. Milat says, “When I heard that I would not be graduating from Asmara, I became very frustrated and angry at the government.” Milat believed that the “closing of Asmara was the government[']s shameful attempt to control the thinking of university students by breaking up the college into smaller components that it could more easily control.”

With the assistance of one of his college friends, Milat created a political cartoon in protest. “The design had a picture of Asmara University, a grave-cross, and a tomb. Its message was that the government was killing the university,” Milat explains.

After Milat showed the graphic to his colleagues, Milat's supervisor at the Defense Ministry, Lieutenant Colonel Asmerom, found out about it. Fortunately for Milat, Milat's supervisor was also an Asmara University alumnus, and he was sympathetic to Milat's sentiments. But he warned Milat “not to do that anymore,” and he told Milat “that next time he would have to report [Milat] to the higher authorities.” There is no evidence Lieutenant Colonel Asmerom reported the political cartoon to the authorities, however.

Milat says he “found working for the Ministry of Defense morally and professionally reprehensible,” because he “did not want to be used as a mouthpiece for the Ministry of Defense.” On cross-examination before the IJ, however, Milat admitted that his job did not require him to kill or persecute other Eritreans. Milat looked forward to the end of his internship with the Defense Ministry, he said, because he would have “preferred ... to work as a fair, objective and non-partial journalist instead of [as] a propaganda writer who advocate[s] policies of [the] Eritrean government.” Milat believed that his internship with the Ministry of Defense would end when he graduated from college in September 2007. Milat did not get his wish.

The Ministry of Defense informed Milat that he would be made a permanent member of the Defense Ministry as part of his National Service, and he would not be reassigned.

Milat presented the following evidence to the IJ to explain the Eritrean National Service program. According to a report Milat submitted to the IJ, U.S. Department of State, 2008 Human Rights Report: Eritrea (Feb. 25, 2009), ¹ the Eritrean National Service is a compulsory conscription program for men between ages 18 and 50. It includes military and civilian jobs with open-ended terms. Some National Service members are assigned to civilian jobs while nominally kept in the military; these individuals continue to receive only their National Service salary, which is very low (Milat testified he received the equivalent of between five and ten U.S. dollars per month). Anything above that amount is forfeited to the government. These employees are unable to leave their jobs or take new employment. “Security force personnel detained individuals for evading national service, generally for fewer than three days....” Further, “[d]raft evaders often were used as laborers on government development projects.”

Milat also submitted a 2009 report, Human Rights Watch, Service for Life: State Repression and Indefinite Conscription in Eritrea (2009). This report covers many of the same topics as the 2008 State Department report, but it paints a much darker picture of general conditions in Eritrea. According to this report, “[a] national network of jails and detention facilities holds those who try and avoid national service alongside political prisoners and those imprisoned solely for their religious beliefs. Torture, cruel[ ] and degrading treatment, and forced labor are routine.” Moreover, “[t]hose who try and flee the country are imprisoned or risk being shot on sight at the border. Refugees who fled ... and were forcibly repatriated have faced detention and torture upon return to Eritrea.” National Service includes military service, but also deployment “in what constitutes illegal forced labor.” “Those who try and evade national service are treated cruelly. Evaders are detained in terrible conditions, and heavy penalties are imposed on the families of those who evade service or flee the country.” “The Eritrean government considers leaving the country without a valid exit visa a crime, and absconding from National Service is viewed as tantamount to treason.” Thus, “punishments inflicted on asylum seekers who are forcibly returned are terrible, including torture and death.”

Rather than accept permanent assignment to the Defense Ministry, Milat refused to sign his mobilization forms. Instead, he contacted the Ministry of Education in an effort to obtain a different assignment.

A few months later, Milat was on his way home from work when he observed military policemen outside his home questioning his family. Believing the police were there to arrest him for evading conscription, Milat ran away to stay with a friend. Milat then decided to flee the country. Milat left Eritrea with his national identification card, but without a passport.

Milat fears return to Eritrea because he believes his former supervisor, Lieutenant Colonel Asmerom, “must have informed t[he] government” about his political cartoon critical of the government's decision to close Asmara University. Milat believes this because, he claims, “[i]t is normal operating procedure for the superior to give a full report to the government regarding the person who has fled.” He believes that the government “now considers [him] a political opponent of the regime.”

Milat's sister, Feven Ghirmay Milat, lived in Eritrea until recently. She testified before the IJ that, if her brother Milat returns to Eritrea, “[h]e would be imprisoned and would encounter other problems.” When asked to elaborate on what she meant by “other problems,” Milat's sister explained: “It's not only imprisonment that happens to people like that. Some of them are being killed and some of them have a lot of things that happen to a lot of people.”

Milat's brother, mother, and uncles remain in Eritrea. Milat testified that he still communicates with them. The IJ asked Milat why he had not submitted a letter from his mother as part of his asylum application, to corroborate his story about the police visit at his home, for example. Milat explained that he thought government officials might inspect the letter.

After he fled Eritrea, the Eritrean government furnished Milat with two passports—notwithstanding his belief that the Eritrean government considered him a political opponent. Milat obtained an Eritrean passport from the Eritrean embassy in Sudan. To obtain the passport, Milat signed a statement acknowledging he was aware of the consequences of leaving Eritrea without permission. Milat claims the Eritrean government keeps this statement on file to “be used against” him if he returns; the statement, he says, shows “that you were a traitor.” Milat used this passport to travel to the United Arab Emirates, where he lost the passport. Again, the Eritrean embassy provided him a passport, his second, and with this passport he traveled to South America. Milat also testified that the Eritrean government provided him copies of his birth certificate, university degree, and temporary certificate of graduation. On cross-examination, Milat explained that Eritrean government issued him these documents because it did not want its citizens going to the Ethiopian government to obtain these same documents. See generally Tesfamichael v. Gonzales, 469 F.3d 109, 111–12 (5th Cir.2006) (describing the history of tension between Eritrea and Ethiopia after the Ethiopian–Eritrean conflict).

Milat traveled from South America to Mexico, and then he entered the United States at or near Brownsville, Texas. The Department of Homeland Security issued a Notice to...