Yohannes Habtemicael v. John D. Ashcroft ( 2004 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 02-3504
___________
Yohannes W. Habtemicael, *
*
Petitioner, *
*
v. * Petition for Review of an Order of
* the Board of Immigration Appeals.
John D. Ashcroft, Attorney General *
of the United States, *
*
Respondent. *
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Submitted: November 19, 2003
Filed: March 9, 2004
___________
Before MURPHY, LAY, and FAGG, Circuit Judges.
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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.
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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
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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
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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
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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 (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 deportable may be granted asylum if he
demonstrates that he has a well founded fear that he will suffer persecution in the
proposed country of removal on account of race, religion, nationality, membership
in a particular social group, or political opinion. See 8 U.S.C. § 1158(b) (2004)
(Attorney General may grant asylum to refugees); 8 U.S.C. § 1101(a)(42)(A) (2004)
(defining refugee). An alien who establishes that he has previously been the victim
of persecution in the proposed country of removal is entitled to a rebuttable
presumption that he would in the future be similarly persecuted in that country. 8
C.F.R. § 208.16(b)(1) (2004). An alien who can establish by a clear probability that
he will be persecuted because of his political opinion qualifies for mandatory
withholding of deportation. See 8 U.S.C. § 1253(h) (pre-IIRIRA provision);1 INS v.
Aguirre-Aguirre, 526 U.S. 415, 419 (1999). Because a greater degree of certainty
must be shown by an applicant to qualify for mandatory withholding of deportation
under § 1253(h) than for asylum under § 1158(b), an alien who fails to carry his
burden of proof under §1158(b) will also fail under § 1253(h). See Janusiak v. INS,
947 F.2d 46, 47 (3d Cir. 1991).
1
Because proceedings in this case began prior to April 1, 1997, amendments
to the withholding provisions contained in the Illegal Immigrant Reform and
Immigrant Responsibility Act (IIRIRA), Pub. L. No. 104-208 (Sept. 30, 1996),
codified at 7 U.S.C. § 1231(b)(3), do not apply. Fisher v. INS, 291 F.3d 491, 496
(8th Cir. 2002); Afolayan v. INS, 219 F.3d 784, 787 (8th Cir. 2000).
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After studying the record we agree with the immigration judge that
Habtemicael failed to demonstrate past persecution on account of his political beliefs.
Even if the EPLF's program of impressing laborers and soldiers was motivated by its
political ideology, that does not mean that Habtemicael was impressed on account of
his political beliefs as required for relief under the asylum statute. See Elias-Zacarias,
502 U.S. at 482. Professor Harold G. Marcus, a distinguished professor of East
African history at Michigan State University, testified at the immigration hearing on
behalf of Habtemicael. He stated that the EPLF lost a lot of personnel in the
mid1980s and was "desperate for manpower" when Habtemicael was abducted. Its
criterion for forcing individuals into military service was simple: they sought men,
and later women, with "two legs that could move." We conclude that there was
substantial evidence in the record to support the immigration judge's finding that
Habtemicael was abducted and pursued for reasons other than his political beliefs.
Habtemicael is thus ineligible for a presumption of future persecution in Eritrea based
on past political persecution in that area.
Habtemicael also failed to establish a well founded fear or clear probability that
he would be persecuted for his political beliefs if returned to Eritrea. He testified that
the Eritrean government would interpret his escape, the shooting of two EPLF
soldiers trying to apprehend the escapees, and his lack of financial support as
evidence of antiEritrean political sentiment. The immigration judge found that any
adverse action which might be taken against Habtemicael by the Eritrean government
would be on account of his desertion from the EPLF and the deaths of its soldiers, not
on account of his politics. While Habtemicael might indeed be punished or
conscripted for his failure to contribute money to the Eritrean government, that could
not form the basis of an asylum claim because his failure to make payments did not
by itself express a political opinion. If he were conscripted, it would be because he
had not completed his military service requirement rather than because of his political
beliefs.
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Our review of the record shows that the immigration judge's finding that
Habtemicael has no well founded fear of future persecution on the basis of his
political beliefs is supported by substantial evidence. We conclude that the
immigration judge did not err in finding Habtemicael ineligible for asylum under 8
U.S.C. § 1158(b) or for withholding of deportation under 8 U.S.C. § 1253(h).
Habtemicael's remaining claim arises under Article III of the United Nations
Convention Against Torture. Article III of the Convention provides that a signatory
country may not remove a person to another nation if there are "substantial grounds
for believing that he would be in danger of being subjected to torture" in that nation.
Foreign Affairs Reform and Restructuring Act of 1998 § 2242, Pub. L. No. 105-277
(Oct. 21, 1998). The United States has signed, ratified, and codified the Convention
which became binding on it in November of 1994 upon delivery of ratifying
documents to the United Nations.
The Convention is implemented in this country by 8 C.F.R. § 208.18. As
relevant to this case it defines torture as:
any act by which severe pain or suffering, whether physical or mental,
is intentionally inflicted on a person for such purposes as . . . punishing
him or her for an act he or she or a third person has committed . . . when
such pain or suffering is inflicted by or at the instigation of or with the
consent or acquiescence of a public official or other person acting in an
official capacity.
8 C.F.R. § 208.18(a)(1) (2004). Torture does not include "pain or suffering arising
only from, inherent in or incidental to lawful sanctions," including the death penalty,
so long as those sanctions do not defeat the object and purpose of the Convention to
prohibit torture. 8 C.F.R. § 208.18(a)(3). A sanction is only considered lawful if it
is judicially imposed and otherwise authorized by law. Id.
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Habtemicael contends that he would be unlawfully or extrajudicially executed
as punishment for his actions in 1986 if returned to Eritrea, and that he may thus face
a threat of imminent death proscribed by the Convention. The immigration judge
recognized that Habtemicael could face sanctions for desertion or for the death of two
EPLF soldiers if returned to Eritrea, but the judge concluded that prosecution on these
grounds would be within the "recognized authority of a governmental entity" and
would thus not amount to torture within the meaning of the Convention. Unlike the
immigration judge's discussion of Habtemicael's asylum and withholding of removal
claims, his brief analysis of the Convention claim was inadequate.
The immigration judge made no findings as to whether the EPLF had the status
of a recognized government when Habtemicael was forced into its service in Barentu
or whether it had the authority to impress an Ethiopian citizen into military service
against the Ethiopian government. At the time Habtemicael was forced into
involuntary service in 1985 and escaped from it in 1986, the EPLF was a
revolutionary front fighting to become a recognized government independent of
Ethiopia. The United Nations monitored referendum on Eritrean independence was
not conducted until 1993, and the United States did not recognize Eritrea as a
sovereign nation until May 27 of that year — more than seven years after
Habtemicael's escape from the EPLF. Respondent asks this court to consider
evidence that the EPLF had previously established a provisional government in some
parts of Ethiopia, but the extent of its authority in 1985 and 1986 is a question for the
immigration judge in the first instance, as is any legal consequence. The position
taken by the executive branch of the government as to which entity has sovereignty
over a disputed territory is relevant to the determination. See Baker v. Carr, 369 U.S.
186, 212 (1962). If the EPLF did not have sovereign authority in 1986, then
Habtemicael as a citizen of Ethiopia may have acted lawfully in escaping and
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defending himself against recapture. The sanction of death might therefore be a
violation of the Convention Against Torture.2
Habtemicael would qualify for relief under the Convention only if he produced
evidence showing that on his return, the Eritrean government or persons acting with
its awareness and acquiescence, would more likely than not intentionally subject him
to torture. 8 C.F.R. §§ 208.16(c)(2), 208.18 (a)(6)-(8). A petitioner must establish
that he will probably be tortured, not merely that he will be punished in some way
that does not amount to torture. See 8 C.F.R. § 208.18(a)(2). See also Peripanathan
v. United States, 310 F.3d 594, 599 (8th Cir. 2002). An unlawful or extrajudicial
threat of imminent death comes within the definition of torture if it is specifically
intended to bring about prolonged mental pain or suffering. 8 C.F.R. §§ 208.18(a)(3),
(a)(4)(iii), (a)(5). This intent requirement is satisfied if prolonged mental pain or
suffering either is purposefully inflicted or is the foreseeable consequence of a
deliberate act. Zubeda v. Ashcroft, 333 F.3d 463, 473 (3d Cir. 2003).
Whether Habtemicael produced evidence sufficient to support his claim that
he would be unlawfully subjected to such a threat of imminent death by the Eritrean
government is a question for the immigration judge to resolve.3 Habtemicael testified
2
Habtemicael also argues that any sanction for his actions in 1986 would be an
ex post facto punishment in violation of international law. Cf. Landgraf v. USI Film
Prods., 511 U.S. 244, 265 (1994) (ex post facto clause expresses universal principle
that retroactive criminal sanctions are necessarily invalid); Universal Declaration of
Human Rights, Art. 11(2), adopted Dec. 10, 1948, U.N. G.A. Res. 217 (III) ("No one
shall be held guilty of any penal offense on account of any act . . . which did not
constitute a penal offense . . . when it was committed."); Eritrean Const. Art. 18(2),
ratified May 24, 1997 (expressing identical principle).
3
Under IIRIRA's transitional rules which apply to aliens such as Habtemicael
whose deportation cases were initiated prior to April 1, 1997, we must "decide the
petition only on the administrative record on which the order of removal is based."
8 U.S.C. § 1252(b)(4)(A). Neither party here has suggested that conditions in Eritrea
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that he was threatened with death if he attempted to escape from the EPLF and that
he believes that this threat would be carried out if he returned to Eritrea. Professor
Marcus testified that Habtemicael would "stick out" because he is young, lacks an
Eritrean identity card and passport, and has no papers saying that he has been in the
military making him automatically eligible for conscription. He stated that Eritrea's
highly organized and centralized government would quickly discover Habtemicael's
past and that he would likely face detention under harsh conditions, physical
mistreatment, and an unfair and perhaps secret trial. Professor Marcus indicated that
Habtemicael could be executed without judicial process, for at the time of his
testimony Eritrean deserters in an ongoing border dispute were "being shot, period."
In his judgment, "they are going to make him pay for what happened . . . in the
eighties."
The immigration judge found the uncontradicted testimony of Habtemicael and
Professor Marcus credible, and a petitioner's credible testimony alone can be
sufficient to sustain his burden of proof. 8 C.F.R. § 208.16(c)(2); Zubeda, 333 F.3d
at 471; Mansour v. INS, 230 F.3d 902, 907 (7th Cir. 2000). There is also
documentary evidence in the administrative record that appears to support the
testimony. See, e.g., U.S. Dept. of State, Bureau of Democracy, Human Rights, and
Labor, Eritrea: Country Report on Human Rights Practices for 1998 at *2-4 (February
26, 1999) (Eritrean military authorities arbitrarily arrest and detain guerillas from the
war for independence without formal charges or judicial process where they have
been accused of violating the stringent unwritten code of military conduct; Eritrean
security forces physically abused, beat, raped, and mistreated persons with impunity).
The immigration judge stated that there was no dispute that Habtemicael "may
have to answer for his desertion from the EPLF military and . . . the shooting of
EPLF soldiers while deserting," but summarily concluded that any punishment of
have changed since the administrative proceedings.
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Habtemicael would be lawful and therefore not proscribed by the Convention. The
regulations require that all evidence relevant to the possibility of future torture must
be considered, 8 C.F.R. § 208.16(c)(3), but it does not appear that the judge
considered evidence that the EPLF was not then a legitimate governmental authority,
that any Eritrean sanction for the events in 1986 might therefore be unlawful, or that
today a sanction could be imposed without judicial process. The immigration judge
also did not reach the question of whether any punishment Habtemicael might receive
would more likely than not subject him to a threat of imminent death that would
violate the Convention. When an agency makes a finding of fact without mentioning
or analyzing significant evidence, its decision should be reconsidered. Palavra v.
INS, 287 F.3d 690, 693 (8th Cir. 2002) (citing Universal Camera Corp. v. NLRB, 340
U.S. 474, 488 (1951)). See also Hernandez v. INS, 258 F.3d 806, 814 (8th Cir. 2001)
(remanding where board failed to consider evidence pertinent to asylum claim).
Without further factfinding we are unable to review the disposition of
Habtemicael's Convention claim. See Palavra, 287 F.3d at 694 (case not ripe for
appellate review where board did not consider facts pertinent to asylum claim). The
immigration court is the proper forum to make factual determinations relevant to a
claim under the Convention Against Torture. See INS v. Ventura, 537 U.S. 12, 17
(2002) (court of appeals committed clear error in not remanding to board for initial
consideration of factual questions relevant to immigration case). One of the other
cases in which the immigration judge did not fully consider the record on a claim
under the Convention was remanded by the Third Circuit "to allow clarification of the
record and an opportunity for any additional fact finding or evidence that may be
necessary." Zubeda, 333 F.3d at 479. A remand to the board is also appropriate in
this case so that additional findings can be made with respect to Habtemicael's
Convention claim. See id. at 478; Mansour, 230 F.3d at 909 (remand necessary
where board failed to consider evidence pertinent to Convention claim).
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Accordingly for the reasons stated, we affirm the board's order denying
Habtemicael's claims for asylum under 8 U.S.C. § 1158(b) and for withholding of
deportation under 8 U.S.C. § 1253(h). We vacate that part of the board's order
denying Habtemicael's claim for relief under Article III of the Convention Against
Torture and remand for further findings as to whether Habtemicael is more likely than
not to suffer torture within the meaning of the Convention if returned to Eritrea.
______________________________
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