Tesfu v. Ashcroft, 02-2333.

• Citation: 322 F.3d 477
• Decision Date: 14 March 2003
• Docket Number: No. 02-2333.,02-2333.
• Parties: Ghidey Gebrengus TESFU, Petitioner-Appellant, v. John ASHCROFT, Attorney General, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

322 F.3d 477

Ghidey Gebrengus TESFU, Petitioner-Appellant, v. John ASHCROFT, Attorney General, Respondent-Appellee.

No. 02-2333.

United States Court of Appeals, Seventh Circuit.

Submitted^* January 22, 2003.

Decided March 14, 2003.

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Godfrey Y. Muwonge (submitted), Milwaukee, WI, for Petitioner.

George P. Katsivalis (submitted), INS, Chicago, IL, for Respondent INS.

Paul Fiorino (submitted), DOJ, Civ. Div., Immigration Lit., Washington, DC, for Respondent John D. Ashcroft.

Before FLAUM, Chief Judge, and MANION and WILLIAMS, Circuit Judges.

FLAUM, Chief Judge.

Petitioner Ghidey Gebrengus Tesfu seeks review of a final order of the Board of Immigration Appeals ("BIA") denying her petitions for asylum and withholding of deportation and ordering her removal from the United States to Eritrea, where she is a citizen. An Immigration Judge ("IJ") determined that Tesfu's claims of religious discrimination in Eritrea based on her Jehovah's Witness beliefs did not amount to past persecution or a well-founded fear of future persecution and thus found that she did not qualify for either asylum or withholding of deportation. The BIA affirmed the decision of the IJ, and for the following reasons we affirm the BIA's order.

I. BACKGROUND

Ghidey Tesfu was born in Ethiopia in 1952 and is a citizen of Eritrea. She entered the United States in March 1998 on a valid visitor's visa and has remained here since. The Immigration and Naturalization Service ("INS") issued her a Notice to Appear in January 1999, charging her under § 237(a)(1)(B) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1227(a)(1)(B), with overstaying her visa. Tesfu conceded deportability at her initial appearance and now seeks asylum under INA § 208, 8 U.S.C. § 1158, and withholding of deportation under INA § 241(b)(3), 8 U.S.C. § 1231(b)(3), due to a well-founded fear that she would be persecuted for her religious beliefs if forced to return to Eritrea.¹

Tesfu bases her asylum and withholding of deportation claims on her fear that she will be persecuted in Eritrea for resisting military service on account of her religious beliefs. As a Jehovah's Witness Tesfu cannot participate in active military service or government politics without violating a fundamental tenet of her faith. Although Tesfu has never been arrested, interrogated, imprisoned, tortured, or forcibly conscripted, she testified before the IJ that members of her immediate family had been persecuted in the past by the Eritrean government for being Jehovah's Witnesses. Specifically, three of her sons had been arrested and jailed for resisting conscription, and her husband had been fired from his job as an accountant and subsequently arrested and jailed. Tesfu also presented as evidence before the IJ the State Department's 1996 country report on Eritrea, which confirmed her claims that Jehovah's Witnesses faced various forms of discrimination by the Eritrean government.

The IJ credited Tesfu's testimony but found that her claims of persecution, both past and future, were insufficient to qualify for asylum or withholding of removal. In particular, the IJ found that Tesfu had suffered no incidents of past persecution and that her fear of future persecution was based almost entirely on her fear that she would be conscripted into military service if deported to Eritrea. Tesfu testified at the hearing that, although the State Department report indicated that women between the ages of 18 and 40 are eligible for military service in Eritrea, the maximum age had lately risen to 50 because Eritrea needs more of its citizens in active service to fight its war with Ethiopia. The IJ found this contention incredible because it was not corroborated by any other evidence; he also noted that even when Tesfu was younger she had never been recruited for military service while living in Eritrea. The IJ further reasoned that the 1999 peace agreement between Ethiopia and Eritrea promised a reduction, not an escalation, in armed conflict in the region. Given this evidence the IJ determined that Tesfu's fear of conscription was unlikely, and therefore her fear of persecution was unreasonable.

In making his decision to deny Tesfu asylum and withholding of deportation, the IJ took into account, from Tesfu's own testimony and the State Department's report, the various forms of discrimination suffered by Jehovah's Witnesses under the Eritrean government, such as dismissals from civil service, revocation of trading licenses, and denials of passports, government housing, and identification cards. The IJ then concluded that this discrimination, without more evidence that the Eritrean government maliciously mistreated Tesfu or other Jehovah's Witnesses, did not rise to the level of systematic, state-sponsored persecution or torture that the INA requires a petitioner for asylum or withholding of deportation to establish.

Tesfu argued to the BIA on appeal that the IJ had applied the incorrect legal standards to her claims and had erred in evaluating her evidence of religious persecution. The BIA affirmed the IJ's decision, finding no error in either the IJ's legal analysis or his factual determinations. In particular, the BIA agreed with the IJ that Tesfu was unlikely to suffer forced military conscription because she is past the official draft age as reported by the State Department. Moreover, the BIA noted that even if Tesfu was drafted and subsequently jailed for resisting military service, such incarceration would not by itself constitute persecution or torture for the purpose of granting asylum or withholding of deportation. See Nenadovic v. INS, 108 F.3d 124, 127 (7th Cir.1997).

II. ANALYSIS

We review the BIA's decision to deny petitions for asylum and withholding of deportation for substantial evidence, Ambati v. Reno, 233 F.3d 1054, 1059 (7th Cir.2000), and we must affirm the BIA's decision if it is supported by "reasonable, substantial, and probative evidence on the record considered as a whole." Useinovic v. INS, 313 F.3d 1025, 1029 (7th Cir.2002) (quoting Karapetian v. INS, 162 F.3d 933, 936 (7th Cir.1998)). Only where the evidence in support of the application is "so compelling that no reasonable fact finder could fail to find the requisite fear of persecution" will we reverse the Board's decision for lack of evidence. INS v. Elias-Zacarias, 502 U.S. 478, 484, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992).

The Attorney General has discretion to grant asylum to any alien who qualifies as a "refugee." INA § 208(a), 8 U.S.C. § 1158(b)(1); Toptchev v. INS, 295 F.3d 714, 719 (7th Cir.2002). A "refugee" is defined as a person outside her country of nationality who is unable or unwilling to return to, or avail herself of the protection of, 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." INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). Though "persecution" is not statutorily defined, we have repeatedly described it as "punishment or the infliction of harm for political, religious, or other reasons that this country does not recognize as legitimate." Begzatowski v. INS, 278 F.3d 665, 669 (7th Cir.2002). We have also said that persecution means more than plain harassment and may arise from actions such as "detention, arrest, interrogation, prosecution, imprisonment, illegal searches, confiscation of property, surveillance, beatings, or torture." Mitev v. INS, 67 F.3d 1325, 1330 (7th Cir.1995).

To qualify as a refugee, the asylum applicant must establish by either of two ways that she possesses a well-founded fear of future persecution based on one of the statutorily protected categories. Yadegar-Sargis v. INS, 297 F.3d 596, 601 (7th Cir.2002); see also Marquez v. INS, 105 F.3d 374, 379 (7th Cir.1997). First, she may prove that she endured past persecution in her native country. See Yadegar...