Zehatye v. Gonzales

• Decision Date: 13 July 2006
• Docket Number: No. 04-73295.,04-73295.
• Parties: Selamawit ZEHATYE, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

453 F.3d 1182

Selamawit ZEHATYE, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.

No. 04-73295.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 3, 2006.

Filed July 13, 2006.

Robert B. Jobe, Law Office of Robert B. Jobe, San Francisco, CA, for petitioner Zehatye.

Peter K. Keisler, Assistant Attorney General, Mark Waters, Assistant Director, Lisa M. Arnold, Senior Litigation Counsel, Timothy B. Walthall, Trial Counsel, U.S. Department of Justice, Washington, DC, for respondent Alberto R. Gonzales.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A79-243-418.

Before MARSHA S. BERZON, JOHNNIE B. RAWLINSON, and CONSUELO M. CALLAHAN, Circuit Judges.

CALLAHAN, Circuit Judge.

Petitioner Selamawit Zehatye challenges the Board of Immigration Appeals's ("BIA") denial of her application for asylum and withholding of removal based on her status as a Jehovah's Witness. We affirm.

I.

A. Zehatye's Arrival in the United States

Zehatye is a native and citizen of Eritrea, a country located in Northern Africa. After boarding a plane in Kenya and changing flights somewhere in Europe, she ultimately arrived at Dulles International Airport in Northern Virginia on July 13, 2002. She presented herself to immigration officials at the airport and sought asylum, explaining that she was a Jehovah's Witness and feared being "harmed or killed" if forced to return home.

Immigration officials conducted a "credible fear interview," where Zehatye stated that she was "in hiding" because her religion prevented her from "participating in politics." She further explained that she left her country in 1999 and "went to Ethiopia for 2 years," after which she "went to Kenya." She also noted that she could not financially support herself while she lived in Kenya.

The former-Immigration and Naturalization Service ("INS")¹ denied Zehatye's request for asylum and, after a brief detention, released her on a bond posted by a Mr. Yosief Tesfay. After her release, Zehatye stayed in Northern Virginia with Mr. Tesfay and his wife, Dahab Beyene, who introduced herself to immigration officials as Zehatye's sister-in-law. Soon thereafter, Ms. Beyene's brother, also a Jehovah's Witness, became acquainted with Zehatye and the two became a couple.

In September 2002, the couple moved to San Francisco and were married on December 30, 2002, five months after Zehatye's arrival to the United States.² Meanwhile, removal proceedings were underway.

The former-INS filed a Notice to Appear with the immigration court, seeking Zehatye's removal as an arriving alien not in possession of any valid document of entry, travel, identity, or nationality. In response, Zehatye conceded removability as charged and applied for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"). On June 6, 2003, a hearing was held before the Immigration Judge ("IJ"), during which Zehatye presented the following evidence.

B. Conditions in Eritrea

Zehatye was born in 1974 in Asmara, the capital city of Eritrea which, at the time, was the southernmost region of Ethiopia. In 1993, Eritrea held an internationally monitored referendum in which citizens voted overwhelmingly for independence from Ethiopia. The Eritrean People's Liberation Front led the 30-year war for independence and has controlled the country since that time.

Zehatye testified that she and her family, like most other Jehovah's Witnesses, did not vote in the 1993 referendum. Consequently, Jehovah's Witnesses as a group suffered widespread criticism that they were collectively shirking their civic duty. Zehatye claimed that despite her best efforts to avoid such criticism, her name was placed on a "list for not participating in the referendum," and that she and her family "suffered greatly."

Zehatye told the IJ that her father's carpentry business was confiscated and his trade license taken away,³ and that her family was forced to leave their home and seek shelter with relatives. She testified that she and her five siblings spent their nights "crammed in a single room."

Zehatye was able to complete high school in 1995. In 1998, fighting broke out between Eritrea and Ethiopia along the border, and continued for two years. The Eritrean government responded to the escalating conflict by calling up reserves and increasing the armed forces to approximately 300,000 soldiers. The State Department report indicated that the army resorted to "various forms of extreme physical punishment to force objectors, including some members of Jehovah's Witnesses, to perform military service."

The "Kebele," a governing organization in Zehatye's village, maintained a list of those eligible to serve in the armed forces and in 1999 posted a list that included Zehatye's name. Zehatye testified that authorities gave her one week to prepare to enter the army. She claimed that she fled Eritrea shortly thereafter, because her religious beliefs forbade her serving in the military. She also testified that she believed her life was in danger because she was under constant government surveillance.⁴

II.

The IJ denied Zehatye's asylum claim, finding that she had not established past persecution or a well-founded fear of future persecution. Likewise, he denied withholding of removal on the ground that Zehatye did not demonstrate a clear probability or real likelihood that she would be persecuted if she returned to Eritrea. Additionally, he found no evidence of torture to support a claim for relief under CAT.

The BIA summarily affirmed and Zehatye filed this timely appeal, which challenges only the denial of asylum and withholding of removal.

When the BIA summarily affirms the IJ's decision, we review the IJ's decision as the final agency action. Kebede v. Ashcroft, 366 F.3d 808, 809 (9th Cir.2004). The decision that an alien has not established eligibility for asylum or withholding of removal is reviewed for substantial evidence. Njuguna v. Ashcroft, 374 F.3d 765, 769 (9th Cir.2004). Under the substantial evidence standard, "administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B). Thus, we must uphold the IJ's determination if it is supported by reasonable, substantial, and probative evidence in the record. INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992).

III.

A. Asylum

Zehatye claims that she is eligible for asylum because she was persecuted in Eritrea on account of her religion.⁵ To qualify for asylum, an applicant must demonstrate that he or she has suffered past persecution or has a well-founded fear of future persecution. 8 U.S.C. § 1101(a)(42)(A); 8 C.F.R. § 1208.13(b). Specifically, an alien is eligible for asylum if he or she

can show past persecution on account of [race, religion, nationality, membership in a particular social group, or political opinion]. Once past persecution is demonstrated, then fear of future persecution is presumed, and the burden shifts to the government to show, by a preponderance of the evidence, that there has been a fundamental change in circumstances such that the applicant no longer has a well-founded fear of persecution, or the applicant could avoid future persecution by relocating to another part of the applicant's country. An applicant may also qualify for asylum by actually showing a well-founded fear of future persecution, again on account of[one of the five protected grounds].

Deloso v. Ashcroft, 393 F.3d 858, 863-64 (9th Cir.2005) (internal citations and quotation marks omitted).

The IJ's finding that Zehatye failed to establish past persecution or a well-founded fear of future persecution is supported by substantial evidence. The State Department report on Religious Freedom in Eritrea, dated 2002, indicated that there were less than 1500 Jehovah's Witnesses in the country and that under some circumstances, Jehovah's Witnesses are discriminated against, detained and harassed because of their missionary work. Nevertheless, the report notes that there are several Jehovah's Witness churches in Eritrea and members are not barred from meeting in private homes. The report also states that there is no indication that any persons are detained or imprisoned solely because of their religious beliefs or practices, although

the government has singled out members of Jehovah's Witnesses for harsher treatment than received by members of other faiths for [refusing to serve in the military] . . . . The maximum penalty for refusing to do national service is 3 years. Ministry of Justice officials have denied that any members of Jehovah's Witnesses were in detention without charges, although they acknowledge that some members of Jehovah's Witnesses and a number of Muslims were in jail serving sentences for convictions on charges of evading national service.

U.S. Dep't of State, ERITREA: INTERNATIONAL RELIGIOUS FREEDOM REPORT (Oct. 7, 2002) ("2002 Religious Freedom Report").

1. No Compelling Evidence of Past Persecution

Although Zehatye's case evokes sympathy, it does not compel a finding of past persecution. See, e.g., Halaim v. INS, 358 F.3d 1128, 1132 (9th Cir.2004) (holding that discrimination against Ukranian sisters on account of Pentecostal Christian religion did not compel a finding of past persecution); Kazlauskas v. INS, 46 F.3d 902, 907 (9th Cir.1995) (holding that harassment and ostracism was not sufficiently atrocious to support a humanitarian grant of asylum).

Zehatye also argues that she was persecuted because she suffered substantial economic disadvantage when the government seized her father's carpentry business and trade license, and forced her family to live with relatives. We have held that substantial economic deprivation that constitutes a threat to life or freedom can constitute persecution. See Baballah v. Ashcroft, 367 F.3d 1067, 1076 (9th Cir. 2004) (ob...