Zehatye v. Gonzales ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SELAMAWIT ZEHATYE, 
Petitioner, No. 04-73295
v.
 Agency No.
A79-243-418
ALBERTO R. GONZALES, Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
April 3, 2006—San Francisco, California
Filed July 13, 2006
Before: Marsha S. Berzon, Johnnie B. Rawlinson, and
Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Callahan;
Dissent by Judge Berzon
7705
7708 ZEHATYE v. GONZALES
COUNSEL
Robert B. Jobe, Law Office of Robert B. Jobe, San Francisco,
California, for petitioner Zehatye.
Peter K. Keisler, Assistant Attorney General, Mark Waters,
Assistant Director, Lisa M. Arnold, Senior Litigation Coun-
sel, Timothy B. Walthall, Trial Counsel, U.S. Department of
Justice, Washington, D.C., for respondent Alberto R. Gon-
zales.
ZEHATYE v. GONZALES 7709
OPINION
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 Jeho-
vah’s Witness and feared being “harmed or killed” if forced
to return home.
Immigration officials conducted a “credible fear inter-
view,” 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 deten-
1
As of March 1, 2003, the INS ceased to exist and its enforcement func-
tions were transferred to the Bureau of Immigration and Customs Enforce-
ment within the Department of Homeland Security. See Homeland
Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135, 2142 (2002),
6 U.S.C. §§ 101-557.
7710 ZEHATYE v. GONZALES
tion, 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 her-
self 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 cou-
ple.
In September 2002, the couple moved to San Francisco and
were married on December 30, 2002, five months after Zeha-
tye’s arrival to the United States.2 Meanwhile, removal pro-
ceedings were underway.
The former-INS filed a Notice to Appear with the immigra-
tion 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 inde-
pendence 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.
2
They continue to live in San Francisco, where Zehatye is an active
Jehovah’s Witness.
ZEHATYE v. GONZALES 7711
Consequently, Jehovah’s Witnesses as a group suffered wide-
spread 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 partici-
pating in the referendum,” and that she and her family “suf-
fered 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 bor-
der, 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 sol-
diers. 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 Wit-
nesses, to perform military service.”
The “Kebele,” a governing organization in Zehatye’s vil-
lage, 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 surveil-
lance.4
3
In 1994, in accordance with a presidential decree, the Eritrean govern-
ment revoked the trading licenses of some Jehovah’s Witnesses and dis-
missed most of those who worked in the civil service.
4
Neither Zehatye’s testimony nor her declaration in support of the asy-
lum application offer any details regarding the alleged “constant surveil-
lance by government agents.”
7712 ZEHATYE v. GONZALES
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 perse-
cuted if she returned to Eritrea. Additionally, he found no evi-
dence 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 with-
holding 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 withhold-
ing of removal is reviewed for substantial evidence. Njuguna
v. Ashcroft, 374 F.3d 765, 769 (9th Cir. 2004). Under the sub-
stantial evidence standard, “administrative findings of fact are
conclusive unless any reasonable adjudicator would be com-
pelled 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 (1992).
III.
A. Asylum
[1] 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
5
Since there was no express adverse credibility finding below, we
assume that Zehatye’s factual contentions are true. Ladha v. INS, 215 F.3d
889, 901 (9th Cir. 2000).
ZEHATYE v. GONZALES 7713
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, reli-
gion, nationality, membership in a particular social
group, or political opinion]. Once past persecution is
demonstrated, then fear of future persecution is pre-
sumed, 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 qual-
ify 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).
[2] 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 Wit-
nesses 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 Jeho-
vah’s Witnesses for harsher treatment than received
7714 ZEHATYE v. GONZALES
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 FREE-
DOM 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 discrimina-
tion against Ukranian sisters on account of Pentecostal Chris-
tian 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).
[3] Zehatye also argues that she was persecuted because
she suffered substantial economic disadvantage when the gov-
ernment 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)
(observing that severe harassment, threats, violence and dis-
crimination made it virtually impossible for Israeli Arab to
earn a living). However, “mere economic disadvantage alone,
does not rise to the level of persecution.” Gormley v. Ashcroft,
364 F.3d 1172, 1178 (9th Cir. 2004); see also Ubau-Marenco
v. INS, 67 F.3d 750, 755 (9th Cir. 1995) (noting that confisca-
ZEHATYE v. GONZALES 7715
tion of entire family business without compensation because
of family’s political beliefs may not be enough, standing
alone, to support finding of economic persecution), overruled
on other grounds by Fisher v. INS, 79 F.3d 955, 963 (9th Cir.
1996); Matter of Acosta, 19 I. & N. Dec. 211, 222 (BIA 1985)
(holding that economic deprivation rises to the level of perse-
cution when it is “so severe that [it] constitutes a threat to an
individual’s life or freedom”), overruled on other grounds by
Matter of Mogharrabi, 19 I. & N. Dec. 439 (BIA 1987), over-
ruled on other grounds by Pitcherskaia v. INS, 118 F.3d 641,
647-48 (9th Cir. 1997). The government’s seizure of Zeha-
tye’s father’s business, while reprehensible, did not threaten
Zehatye’s life or freedom.6 Because this evidence does not
compel a finding of past persecution, we must uphold the IJ’s
determination that Zehatye failed to establish past persecu-
tion. 8 U.S.C. § 1252(b)(4)(B).
2. No Compelling Evidence Establishing a Well-Founded
Fear of Future Persecution
[4] Regardless of the sufficiency of the evidence of past
persecution, Zehatye maintains that she is entitled to asylum
because she has a well-founded fear of future persecution. A
well-founded fear of future persecution must be subjectively
genuine and objectively reasonable. Montecino v. INS, 915
F.2d 518, 520-21 (9th Cir. 1990).
[5] To support her claim, Zehatye points out that during the
period since she left Eritrea, the government has leveled civil
rights abuses at political dissidents. These abuses, however,
were not directed at Jehovah’s Witnesses because of their reli-
gious beliefs.7
6
Zehatye claims that her youngest sister died of pneumonia due to the
cramped living conditions that her family endured when they were forced
to live with relatives. There is no evidence, however, linking the living
conditions or the government’s conduct to the sister’s illness.
7
For example, according to various State Department reports, an
unknown number of persons were detained without charge because of
7716 ZEHATYE v. GONZALES
[6] Zehatye also contends that because she refused to serve
in the military, she will be persecuted if she is forced to return
to Eritrea. She cites to a State Department report that
describes military roadblocks, street-sweeps and house-to-
house searches to find deserters and draft evaders. The report
states:
In some instances, authorities arrested and detained
for several hours or even days individuals, including
pregnant women, children under age 18, and citizens
of other countries, who were not subject to national
service obligations or had proper documentation
showing they had completed or were exempt from
national service.
U.S. Dep’t of State, ERITREA: COUNTRY REPORTS ON HUMAN
RIGHTS PRACTICES 2002 (Mar. 31, 2003). The report does not
establish, however, that Jehovah’s Witnesses were singled out
because of their religious beliefs. Moreover, forced conscrip-
tion or punishment for evasion of military duty generally does
not constitute persecution. See Movsisian v. Ashcroft, 395
F.3d 1095, 1097 (9th Cir. 2005) (noting that forcing a citizen
to serve in the armed forces along with the rest of the coun-
try’s population does not amount to persecution) (citation
omitted).
We disagree with the dissent’s suggestion that Zehatye’s
circumstances fit within the exceptions to this rule recognized
in Canas-Segovia v. INS, 970 F.2d 599 (9th Cir. 1992), and
Barraza Rivera v. INS, 913 F.2d 1443 (9th Cir. 1990).
[7] The dissent cites our decision in Canas-Segovia, 970
F.2d at 601, for the proposition that conscientious objectors
political opinion. See e.g., U.S. Dep’t of State, ERITREA: COUNTRY REPORTS
ON HUMAN RIGHTS PRACTICES 2002 (Mar. 31, 2003); U.S. Dep’t of State,
ERITREA: COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES 2001 (Mar. 4,
2002).
ZEHATYE v. GONZALES 7717
may establish a persecution claim if they can demonstrate that
they were selected for mistreatment because of their religious
beliefs. There, however, we rejected Canas-Segovia’s argu-
ment that his refusal to serve in the military (because he was
a Jehovah’s Witness) was a religious practice for which he
was being persecuted. Id. We expressly held that “this alone
cannot satisfy the requirement of demonstrating his persecu-
tors’ motive or intent.” Id. We granted relief in Canas-
Segovia on the basis of imputed political opinion — not reli-
gion.
Similarly, the dissent’s reliance on Barraza Rivera v. INS,
913 F.2d at 1450-51, is misplaced. Barraza was ordered by a
military officer, under threat of death, to participate in the
paid killing of two men. He abandoned military service and
fled El Salvador. Barraza testified that he did not want to par-
ticipate in the assassinations because he believed they were
wrong and illegal. Id. at 1450, 1452. Indeed, as the court
noted, the murders would have been internationally con-
demned inhumane acts. Id. at 1453.
We distinguished Barraza Rivera from other “conscien-
tious objector” cases based on the fact that Barraza did not
generally oppose military service based on institutionalized
practices of the Salvadoran military. Rather, he fled from a
terrifying choice that the military forced upon him: murder
others, or be murdered himself. Id. at 1953 n.14. We held that
Barraza had established a well-founded fear of persecution
because substantial evidence demonstrated that if returned to
El Salvador, Barraza would more likely than not be forced to
participate in unconscionable assassinations or be killed for
refusing to do so. Id. at 1953-54. See Bolanos-Hernandez v.
INS, 767 F.2d 1277, 1285 (9th Cir. 1984) (holding that a spe-
cific, serious threat may establish a well-founded fear of per-
secution).
Like Barraza Rivera, the other cases cited by the dissent
require a finding of serious or disproportionate punishment
7718 ZEHATYE v. GONZALES
for refusing to serve in the military in order to qualify for asy-
lum. See, e.g., Ghebremedhin v. Ashcroft, 385 F.3d 1116,
1120 (7th Cir. 2004) (serious punishment); Mekhoukh v. Ash-
croft, 358 F.3d 118, 126 (1st Cir. 2004) (disproportionately
severe punishment); Matter of A— G—, 19 I. & N. Dec. 502,
506 (BIA 1987) (same).
[8] Zehatye presented no evidence of individualized threat,
and weak, if any, evidence that she would be singled out for
severe disproportionate punishment for refusing to serve in
the Eritrean military.8 By contrast, in Ghebremedhin, the peti-
tioner testified that his brother and a university colleague had
been incarcerated and beaten to death for refusing to serve in
the military. 385 F.3d at 1120. On this record, there is no such
evidence to compel a finding of a well-founded fear of perse-
cution. Accordingly, we must uphold the IJ’s findings. 8
U.S.C. § 1252(b)(4)(B).
[9] Finally, Zehatye contends that she could be tortured if
forced to return to Eritrea, citing a 2003 State Department
report that describes the use of physical torture such as bond-
age, heat exposure, and beatings to punish those detained for
their religious beliefs. The report references “several reports”
of torture, but does not elaborate. It specifically notes spo-
radic detention of members of the Philadelphia Church of
Asmara, the Association of Evangelical Churches, the Bethel
8
The dissent cites the 2002 Religious Freedom Report, which references
four Jehovah’s Witnesses who “have been detained for varying periods of
time, some more than five years” “without charge and without being tried
for failing to participate in national service.” The Report also notes that
the army “resorted to various forms of extreme physical punishment to
force objectors, including some members of Jehovah’s Witnesses, to per-
form military service.” We are not persuaded that “any reasonable adjudi-
cator would be compelled to conclude,” based on this evidence, that
Jehovah’s Witnesses are singled out for “severe disproportionate punish-
ment” because of their religious beliefs. Therefore, we must affirm the IJ’s
findings under the substantial evidence standard. 8 U.S.C. § 1252(b)
(4)(B).
ZEHATYE v. GONZALES 7719
Church, the Rehma Church, Pentecostal, Full Gospel and
other small churches, but does not mention the Jehovah’s Wit-
nesses. To the contrary, the report states that conditions for
Jehovah’s Witnesses are improving:
Jehovah’s Witnesses . . . faced some social discrimi-
nation because of their refusal to participate in the
1993 independence referendum and to perform
national service; however, the level of societal dis-
crimination against Jehovah’s Witnesses continued
to decline during the year.
U.S. Dep’t. of State, ERITREA: COUNTRY REPORTS ON HUMAN
RIGHTS PRACTICES 2003 (Feb. 25, 2004) (“2003 Country
Report”).
[10] This evidence does not compel a finding that Zehatye
has an objective well-founded fear of being tortured if
returned to Eritrea.9 Ladha, 215 F.3d at 897;10 see also Mar-
cos v. Gonzales, 410 F.3d 1112, 1120-21 (9th Cir. 2005)
(requiring an individualized determination that changed con-
ditions reported in Country Report will affect asylum appli-
cant’s specific situation). Accordingly, we are obligated to
uphold the IJ’s findings under the substantial evidence stan-
dard. Elias-Zacarias, 502 U.S. at 481.
9
Nor does the dissent’s citation to statements in the 2003 Country
Report regarding harassment, discrimination and detention of Jehovah’s
Witnesses. See, e.g., Al-Saher v. INS, 268 F.3d 1143, 1147 (9th Cir. 2001)
(“Torture is an extreme form of cruel and inhuman treatment and does not
include lesser forms of cruel, inhuman or degrading treatment or punish-
ment that do not amount to torture.”) (quoting 8 C.F.R. § 208.18(a)(2)),
amended by 355 F.3d 1140 (9th Cir. 2004).
10
In Ladha, we held that where an alien cannot establish past persecu-
tion, she can satisfy the objective prong of the well-founded fear analysis
either by producing specific documentary evidence or by offering credible
and persuasive testimony. 215 F.3d at 897. Zehatye fails to meet this bur-
den because the 2003 Country Report’s reference to torture is not specific
to Jehovah’s Witnesses and Zehatye offered no testimony regarding her
alleged fear of torture.
7720 ZEHATYE v. GONZALES
The dissent suggests, notwithstanding, that we should grant
review because the IJ failed to address factors pertinent to
Zahatye’s claims, citing Tukhowinich v. INS, 64 F.3d 460,
463-64 (9th Cir. 1995). Tukhowinich is inapposite. There, the
IJ denied the petitioner’s application for suspension of depor-
tation based upon a finding of no extreme hardship. Id. at 462.
The BIA affirmed the finding in a short opinion that relied
solely upon the IJ’s disposition. Id.The BIA stated that the IJ considered Ms. Tukhowinich’s
“age, marital status, good health, family ties in the United
States and in Thailand, in addition to the economic and politi-
cal conditions in the respondent’s native country.” Id. at 463(emphasis in original). In fact, however, the IJ’s opinion did
not mention any aspect of the political unrest in Thailand.
Evidence introduced at the hearing before the IJ in the form
of various newspaper clippings established that Thailand’s
democratic government had suffered a military coup on Feb-
ruary 23, 1991, yet the IJ made no mention of these events.
Id. We reversed and remanded “[b]ecause the BIA mistakenly
referred to material not actually considered by the IJ” and
because it “relied on an IJ’s opinion lacking in consideration
of all the relevant factors . . . .” Id. at 465.
By contrast, the IJ in the present case specifically consid-
ered the State Department reports that Zehatye cited in sup-
port of her asylum claim. Indeed, we respectfully disagree
with the dissent’s suggestion that the IJ “cherry-picked” only
those facts that would cast doubt on Zehatye’s asylum claim,
while misstating or failing to acknowledge facts that would
support her claim. For example, the IJ noted:
State Department reports, both for Eritrea and
Ethiopia, indicate that under some circumstances,
members of Jehovah’s Witnesses are clearly discrim-
inated against, in some cases harassed because of
their missionary work, and in some cases clearly
have trouble with secular government with regard to
ZEHATYE v. GONZALES 7721
their position vis-a-vis military service or as in the
case of Eritrea national service . . . . The State
Department indicates there is no indication that any
persons are detained or imprisoned solely because of
their religious beliefs or practices; however, the gov-
ernment has singled out members of Jehovah’s Wit-
nesses for harsher treatment than that received by
members of other faiths for similar actions. There
are members of Jehovah’s Witnesses detained with-
out charge. The maximum penalty for refusing to do
national service is three years. The ministry of jus-
tice of Eritrea has denied that any members of Jeho-
vah’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.
IJ’s Oral Decision at 14.
Although the evidence may be susceptible to more than one
rational interpretation, a reasonable fact finder could conclude
on this record that Zehatye failed to establish past persecution
or a well-founded fear of future persecution. Accordingly, we
may not substitute our judgment for that of the IJ, as the dis-
sent suggests. Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th
Cir. 2001); see also Aruta v. INS, 80 F.3d 1389, 1393 (9th Cir.
1996) (“[W]e do not reverse the BIA simply because we dis-
agree with its evaluation of the facts, but only if we conclude
that the BIA’s evaluation is not supported by substantial evi-
dence.” (internal quotation marks omitted)).
B. Withholding of Removal
[11] An application for asylum under 8 U.S.C. § 1158 is
generally considered an application for withholding of
removal under 8 U.S.C. § 1231(b)(3). 8 C.F.R. § 1208.3(b);
Ghadessi v. INS, 797 F.2d 804, 804 n.1 (9th Cir. 1986). “To
7722 ZEHATYE v. GONZALES
qualify for withholding of removal, an alien must demonstrate
that it is more likely than not that he would be subject to per-
secution on one of the specified grounds.” Al-Harbi v. INS,
242 F.3d 882, 888 (9th Cir. 2001) (internal quotation marks
omitted). “This clear probability standard for withholding of
removal is more stringent than the well-founded fear standard
governing asylum.” Id. at 888-89. The “standard has no sub-
jective component, but, in fact, requires objective evidence
that it is more likely than not that the alien will be subject to
persecution upon deportation.” INS v. Cardoza-Fonseca, 480
U.S. 421, 430 (1987).
[12] Since Zehatye could not establish her eligibility for
asylum, the IJ properly concluded that she was not eligible for
withholding of removal, which imposes a heavier burden of
proof.
IV.
The IJ’s decision to deny asylum and withholding of
removal was supported by reasonable, substantial, and proba-
tive evidence in the record. The evidence that Zehatye suf-
fered some degree of social ostracism and economic hardship
due to her religion did not rise to the level of persecution.
Gormley, 364 F.3d at 1178; Kazlauskas, 46 F.3d at 907. Addi-
tionally, the government’s mandatory conscription policy did
not establish that Zehatye had suffered past persecution or
that she had a well-founded fear of future persecution based
on her religion. Movsisian, 395 F.3d at 1097. The petition for
review is DENIED.
BERZON, Circuit Judge, dissenting:
I would grant the petition and remand for further consider-
ation.
ZEHATYE v. GONZALES 7723
The Immigration Judge’s (IJ) decision, summarily affirmed
by the Board of Immigration Appeals (BIA), held that Zeha-
tye did not establish a well-founded fear of future persecution
sufficient for asylum eligibility. That conclusion was based on
clear errors regarding some facts in the record and complete
disregard of others. For these reasons, it should not stand.
In Tukhowinich v. INS, 64 F.3d 460, 463-64 (9th Cir.
1995), we granted the petition for review where the IJ failed
to address a number of factors, pertinent to the merits of a
suspension of deportation determination, including evidence
introduced by the petitioner as to the political conditions in
her native country. In that case, we stated that “[w]hen impor-
tant aspects of the individual claim are distorted or disre-
garded, denial of relief is arbitrary. Without prescribing any
final result, we must remand such cases for proper consider-
ation.” Id. at 464 (internal quotation marks omitted).
Other circuits have taken the same approach. See Tan v.
U.S. Attorney Gen., 446 F.3d 1369, 1375 (11th Cir. 2006)
(granting a petition for review where the IJ failed to acknowl-
edge the Country Reports and newspaper articles submitted
by the petitioner and “misstated the contents of the record”);
Chen v. Gonzales, 417 F.3d 268, 272-75 (2d Cir. 2005)
(granting a petition for review where the BIA failed to con-
sider evidence in the country conditions report that corrobo-
rated petitioner’s account of persecution, stating “[w]here the
immigration court fails to consider important evidence sup-
porting a petitioner’s claim, we are deprived of the ability
adequately to review the claim and must vacate the decision
and remand for further proceedings” (internal quotation marks
omitted)); Mukamusoni v. Ashcroft, 390 F.3d 110, 123-24 (1st
Cir. 2004) (vacating a decision of the BIA and remanding for
reconsideration where the BIA failed to mention the back-
ground and country conditions evidence offered by the peti-
tioner which, even on “a quick look,” would support the
petitioner’s claim of persecution); Chen v. U.S. INS, 359 F.3d
121, 127 (2d Cir. 2004) (“[W]here the agency’s determination
7724 ZEHATYE v. GONZALES
is based on an inaccurate perception of the record, omitting
potentially significant facts, we may remand for reconsidera-
tion or rehearing . . . .”); Zubeda v. Ashcroft, 333 F.3d 463,
477-78 (3d Cir. 2003) (remanding for reconsideration where
the BIA mischaracterized the country reports and “cavalierly
dismissed the substantial documentation” contained therein);
Palavra v. INS, 287 F.3d 690, 693-94 (8th Cir. 2002) (holding
that the BIA “failed to perform its fact-finding function”
when it failed to discuss supporting evidence in the record,
and remanding for reconsideration, stating “[w]hen an agency
finds a fact without mentioning or analyzing significant evi-
dence, the agency needs to reconsider its decision”).
As these cases make clear, the substantial evidence stan-
dard does not insulate from review an IJ’s decision that
cherry-picks from the administrative record only those facts
that would cast doubt on a petitioner’s claim, while misstating
or failing to acknowledge the existence of those facts that
would lend support to an account of persecution. See Shah v.
Attorney Gen. of the U.S., 446 F.3d 429, 437 (3d Cir. 2006)
(“[W]e [do not] expect [an immigration] judge to selectively
consider evidence, ignoring that evidence that corroborates an
alien’s claims and calls into question the conclusion the judge
is attempting to reach.”). Here there were several material
misstatements or omissions that, in my view, necessitate a
remand.
First, the IJ emphasized that the only indication that Zeha-
tye was slated for conscription was that her name appeared on
a list issued by the Kebele, a local government organization.
In his oral decision, the IJ stated: “The names of individuals
residing in the Kebele are normally maintained by the Kebele
but not necessarily for military purposes or for recruitment
purposes. The respondent maintains that her name was on this
list in 1998 and that meant that she was subject to recruitment
for national service in Eritrea as a result of the hostilities.”
The IJ further remarked: “The closest this respondent ever got
ZEHATYE v. GONZALES 7725
to a national service was, according to her testimony, her
name on a list in a kebele in Asmara.”
That is simply not so. Zehatye testified — in testimony
that, as the majority agrees, must be deemed credible — that
the police came to her home and ordered her to prepare to
report for military duty, and that neighbors informed her that
the police were planning to take her into custody the very
night she fled Eritrea. So the premise for the IJ’s conclusion
that she was unlikely to be faced with the need to refuse con-
scription because of her religious beliefs were she to return to
Eritrea is just wrong.
Further, although the majority correctly states that forced
conscription, even in the face of religious objections to ser-
vice, is not necessarily persecution on a proscribed ground,
the case law in both our circuit and our sister circuits confirms
that discriminatory treatment based on the religion of those
who refuse conscription is persecution on a proscribed
ground. See Ghebremedhin v. Ashcroft, 385 F.3d 1116, 1120
(7th Cir. 2004) (“When a country subjects a draft evader to
more serious punishment than others who have also evaded
service because of his race, religion, nationality, social group,
or political opinion, this amounts to persecution rather than
simple nationalism.”); Mekhoukh v. Ashcroft, 358 F.3d 118,
126 (1st Cir. 2004) (stating that disproportionately severe
punishment on account of protected ground for failure to sub-
mit can support claim of asylum); Canas-Segovia v. INS, 970
F.2d 599, 601 (9th Cir. 1992) (holding that religious conscien-
tious objectors could establish persecution claim provided that
they could demonstrate that they were selected for mistreat-
ment for their religious beliefs); Barraza Rivera v. INS, 913
F.2d 1443, 1450-51 (9th Cir. 1990) (relying on United
Nations publication for proposition that “punishment for
desertion or draft evasion, in itself, does not constitute perse-
cution on account of race, religion, nationality, membership in
a particular social group, or political opinion . . . [b]ut dispro-
portionately severe punishment on account of any of these
7726 ZEHATYE v. GONZALES
factors does constitute persecution”); see also In re A-G-, 19
I. & N. Dec. 502, 506 (BIA 1987) (“We hold to the long-
accepted position that it is not persecution for a country to
require military service of its citizens. Exceptions to this rule
may be recognized in those rare cases where a disproportion-
ately severe punishment would result on account of one of the
five grounds enumerated in section 101(a)(42)(A) of the Act
. . . .” (citations omitted)), aff’d sub nom. M.A. v. U.S. INS,
899 F.2d 304 (4th Cir. 1990) (en banc).
Indeed, the case the majority relies upon for the proposition
that a country’s decision to require military service does not
amount to persecution states that “forced conscription or pun-
ishment for evasion of military duty generally does not con-
stitute persecution on account of a protected ground.”
Movsisian v. Ashcroft, 395 F.3d 1095, 1097 (9th Cir. 2005)
(emphasis added). Two sentences after that statement, how-
ever, Movsisian recognizes the exception to the general rule,
noting that, in that case, the petitioner presented “no evidence
that the Armenian government would target him for conscrip-
tion or punishment on account of his religion or other pro-
tected ground.” Id. (citing Canas-Segovia, 970 F.2d at 601).
Accordingly, Movsisian militates in favor of a finding of per-
secution where, as here, the petitioner’s testimony, coupled
with ample supporting evidence in the administrative record,
confirms that her refusal to submit to military service could
be met with disproportionate punishment because her objec-
tion was premised on her beliefs as a Jehovah’s Witness.
The IJ cites a denial by the Eritrean government that such
discrimination occurs, but disregards specific confirmation in
the same United States governmental publication containing
that denial, the 2002 International Religious Freedom Report
for Eritrea, that differential treatment with regard to refusal to
participate in national service does occur. That publication
states:
Most members of Jehovah’s Witnesses have refused
on religious grounds to participate in national service
ZEHATYE v. GONZALES 7727
or to vote, which has led to widespread criticism that
members of Jehovah’s Witnesses collectively were
shirking their civic duty. Some Muslims also have
objected to universal national service because of the
requirement that women perform military duty. The
Government does not excuse individuals who object
to national service for religious reasons or reasons of
conscience, nor does the Government allow alterna-
tive service. Although persons from other religious
groups, including Muslims, reportedly have been
punished in past years for failure to participate in
national service, only members of Jehovah’s Wit-
nesses have been subject to dismissal from the civil
service, revocation their trading licenses, eviction
from government-owned housing, and denial of
passports, identity cards, and exit visas. However,
there were no reports that Jehovah’s Witnesses who
performed national service and participated in the
national independence referendum were subject to
discrimination.
There is no indication that any persons are detained
or imprisoned solely because of their religious
beliefs or practices; however, the Government has
singled out members of Jehovah’s Witnesses for har-
sher treatment than that received by members of
other faiths for similar actions. At the end of the
period covered by this report, four members of Jeho-
vah’s Witnesses remained in detention without
charge and without being tried for failing to partici-
pate in national service. The individuals have been
detained for varying periods of time, some for more
than 5 years. 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
7728 ZEHATYE v. GONZALES
in jail serving sentences for convictions on charges
of evading national service.
The army resorted to various forms of extreme phys-
ical punishment to force objectors, including some
members of Jehovah’s Witnesses, to perform mili-
tary service.
U.S. DEP’T OF STATE, ERITREA: INTERNATIONAL RELIGIOUS FREE-
DOM REPORT 2002 (Oct. 7, 2002) (hereinafter “Religious Free-
dom Report”) (emphasis added). The State Department’s
2002 Country Report on Human Rights Practices for Eritrea,
also a part of the administrative record in this case, contains
substantially similar evidence of the treatment suffered by
Jehovah’s Witnesses at the hands of the Eritrean government
for failing to submit to military service, including indefinite
detention and “extreme physical punishment.” See U.S. DEP’T
OF STATE, ERITREA: COUNTRY REPORTS ON HUMAN RIGHTS
PRACTICES 2002 (Mar. 31, 2003) (hereinafter “Country
Report”). The IJ did not mention this very specific informa-
tion in United States government documents, reciting instead
the claim by the Eritrean Ministry of Justice to the contrary
— that no Jehovah’s Witnesses were in detention without
charge for evading national service.1
At a minimum, we cannot evaluate the sufficiency of the
evidence regarding whether Zehatye’s fear of future persecu-
tion was well-founded unless we know why the IJ chose to
disregard detailed, on-point statements in U.S. Government-
authored reports in favor of a self-interested denial by the Eri-
1
Notwithstanding the majority’s claim that the State Department’s 2003
Country Report “does not mention” detention of Jehovah’s Witnesses, that
report specifically states that the Eritrean government “continued to
harass, detain, and discriminate against the small community of members
of Jehovah’s Witnesses because of their refusal, on religious grounds, to
vote in the independence referendum or the refusal of some to perform
national service.” U.S. DEP’T OF STATE, ERITREA: COUNTRY REPORTS ON
HUMAN RIGHTS PRACTICES 2003 (Feb. 25, 2004).
ZEHATYE v. GONZALES 7729
trean government. I would therefore hold that the IJ’s decision
is not supported by substantial evidence. See Ibarra-Flores v.
Gonzales, 439 F.3d 614, 618 (9th Cir. 2006) (“Substantial
evidence is more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion.” (internal quotation marks omitted)).
The Country Report also dispels any notion that the stan-
dard “punishment” for draft evasion could be considered to be
simple law enforcement. “During the year, the police severely
mistreated and beat army deserters and draft evaders. The
police subjected deserters and draft evaders to various mili-
tary disciplinary actions that included prolonged sun exposure
in temperatures of up to 113 degrees Fahrenheit or the tying
of the hands and feet for extended periods of time.” More-
over, although the economic deprivation Zehatye complains
of likely does not rise to the level of persecution by itself, see
Gormley v. Ashcroft, 364 F.3d 1172, 1177-80 (9th Cir. 2004),
both the Country Report and Religious Freedom Report lend
substantial credibility to her story that her family suffered
economic discrimination at the hands of the Eritrean govern-
ment on account of their religious beliefs. When this propen-
sity to disadvantage Jehovah’s Witnesses is coupled with the
punishment generally imposed for failing to take up arms, I
believe she has demonstrated a well-founded fear of future
persecution on a proscribed ground.
The Seventh Circuit has recently held in a strikingly similar
case that the evidence contained in the 2003 Country Report
and Religious Freedom Report for Eritrea as to the persecu-
tion suffered by Jehovah’s Witnesses in Eritrea, particularly
with regard to punishment for refusing conscription, was so
compelling that no reasonable factfinder could determine that
the petitioner lacked a well-founded fear of persecution. See
Ghebremedhin, 385 F.3d at 1119-20. Citing the same lan-
guage contained in the 2002 Country Report and Religious
Freedom Report submitted in Zehatye’s case, the Seventh Cir-
cuit held that the IJ’s denial of asylum was not supported by
7730 ZEHATYE v. GONZALES
substantial evidence because of Eritrea’s predilection to incar-
cerate, occasionally indefinitely, Jehovah’s Witnesses who
refuse to serve in the military for religious reasons, and the
observation that Jehovah’s Witnesses are singled out “for
harsher treatment.” Id. at 1120. I agree with the Seventh Cir-
cuit. Seeing no practical difference between Ms. Zehatye’s
claim and that of the petitioner in Ghebremedhin,2 I would
grant the petition for review.
I add one further note: The attitude of some IJs to the asy-
lum seekers and others who appear before them has become
the subject of national attention recently. See Memorandum
from Attorney General Alberto Gonzales to Members of the
Board of Immigration Appeals (Jan. 9, 2006) (noting with
concern that recent reports have indicated that some immigra-
tion judges “fail to treat aliens appearing before them with
appropriate respect and considerations” and acknowledging
that the conduct of some immigration judges “can aptly be
described as intemperate or even abusive”); see also Cham v.
Attorney Gen. of the U.S., 445 F.3d 683, 686 (3d Cir. 2006)
(“The case now before us exemplifies the severe wound . . .
inflicted when not a modicum of courtesy, of respect, or of
any pretense of fairness is extended to a petitioner and the
case he so valiantly attempted to present.” (omission in origi-
nal) (internal quotation marks omitted)); Benslimane v. Gon-
zales, 430 F.3d 828, 830 (7th Cir. 2005) (“[T]he adjudication
of [immigration] cases at the administrative level has fallen
below the minimum standards of legal justice.”), Wang v.
Attorney Gen. of the U.S., 423 F.3d 260, 269 (3d Cir. 2005)
(“The tone, the tenor, the disparagement, and the sarcasm of
the IJ seem more appropriate to a court television show than
a federal court proceeding.”), Rivera v. Ashcroft, 394 F.3d
1129, 1135 (9th Cir. 2005) (“Both the decision issued by the
2
The majority suggests that Ghebremedhin is not apposite because in
that case, the petitioner had a personal association with individuals who
had been persecuted. Ms. Zehatye did as well: She testified that her
brother was imprisoned because of his religious beliefs.
ZEHATYE v. GONZALES 7731
IJ and her conduct of the hearing demonstrate that the IJ did
not conduct herself as an impartial judge but rather as a prose-
cutor anxious to pick holes in the petitioner’s story.” (internal
quotation marks omitted)). The overall tone of Immigration
Judge Brian Simpson’s opinion in this case is such that I can
have no confidence in his factual findings. His opinion is
belittling and patronizing as well as inaccurate, even as to less
material details.
For example, Judge Simpson suggested — but did not hold
— that Zehatye’s entire story is suspect because women may
not be conscripted in Eritrea: “The respondent claims that she
was threatened with national service and the Court cannot
find that that is inherently unworthy of belief, although it has
very little information with regard to the extent to which
females are required to perform national service and what
happened to them if they refused.” Yet, the Country Report
contained in the administrative record makes quite clear that
women in Eritrea are in fact conscripted, and subject to deten-
tion for failure to report: “The law requires women between
the ages of 18 and 40 to participate in national service. During
the year there were increased efforts to detain women draft
evaders and deserters.” (internal cross-references omitted).
The Country Report goes on to note:
During the year, the Government deployed military
police throughout the country using roadblocks,
street sweeps, and house-to-house searches to find
deserters and draft evaders. The military police
detained persons who had not completed their
national service requirement, and those who had
evaded previous drafts. There was a general public
perception that these round-ups were directed partic-
ularly at female draftees.
(internal cross-references omitted).
7732 ZEHATYE v. GONZALES
In addition, Judge Simpson’s discussion of Zehatye’s resi-
dence in Ethiopia, where she lived after fleeing Eritrea bor-
ders, to say the least, on the illogical, as well as on the
intemperate. He first expressed doubts about why Zehatye
would seek refuge in neighboring Ethiopia: “Why, therefore,
this respondent should have chosen to leave Eritrea for Ethio-
pia in 1999 is simply something this Court cannot understand
and this respondent, in the Court’s opinion, did not satisfacto-
rily answer the question.” Judge Simpson then answered his
own question, quite satisfactorily in my opinion, by detailing
Zehatye’s rationale for her flight to Ethiopia, which Judge
Simpson noted, is supported by the record: “Her answer was
because Jehovah’s Witnesses fared better in terms of their sit-
uation vis-a-vis the government of Ethiopia than the Jeho-
vah’s Witnesses in Eritrea. There is some support for that
position in terms of the position of the Ethiopian government
as indicated in the Country Reports on Ethiopia for 2001.”3
Later on in his oral decision Judge Simpson commented: “The
question that begs the answer is what was she doing in Ethio-
pia at all in 1999, much less why she remained there for two
years before going to Kenya? We may never get the answer
to these questions.”
The entire discussion on this point is quite simply baffling.
We do have the answer to why Zehatye fled to Ethiopia, as
3
In her testimony before the IJ, Zehatye stated that she left Eritrea for
Ethiopia because Jehovah’s Witnesses were treated better in Ethiopia
where there was “freedom of religion.” Zehatye also testified that although
the Ethiopian government was hostile to native Eritreans, it “wouldn’t
deport” Jehovah’s Witnesses back to Eritrea. This testimony is largely
consistent with the State Department Country Report for Ethiopia which
states: “There are more than 6,000 members of Jehovah’s Witnesses in the
country. The Government continued its policy of not deporting members
of Jehovah’s Witnesses of Eritrean origin, who might face religious
repression in Eritrea.” U.S. DEP’T OF STATE, ETHIOPIA: COUNTRY REPORTS
ON HUMAN RIGHTS PRACTICES 2001 (Mar. 4, 2002). The Country Report for
Ethiopia also states that the Ethiopian government provided land for Jeho-
vah’s Witnesses outside Addis Ababa. See id.ZEHATYE v. GONZALES 7733
Judge Simpson himself noted in his decision a mere eight
pages earlier: Jehovah’s Witnesses fared much better in Ethio-
pia than in neighboring Eritrea. Not only do we have to accept
Zehatye’s testimony on this point as credible, we have evi-
dence in the Country Report for Ethiopia to support her
account. Judge Simpson’s puzzlement as to Zehatye’s resi-
dence in Ethiopia is therefore inexplicable.
As a final example, Judge Simpson was repeatedly critical
of Zehatye’s lack of identification documents, which she testi-
fied was due to the Eritrean government’s refusal to provide
such documentation to members of the Jehovah’s Witness
faith. Again, to anyone who read the Country Report, this
would come as no surprise, as that publication specifically
states: “Jehovah’s Witnesses often were denied identification
cards, passports, exit visas, trading licenses, government
housing, and government employment unless they hid their
religion.”
Judge Simpson’s degree of suspicion of the petitioner with
regard to easily confirmable facts, as well as the intemperate
manner in which he expressed that suspicion, indicates to me
intolerance for the applicant for asylum inconsistent with fair
decisionmaking.
I would therefore grant the petition and remand for a new,
accurate determination regarding eligibility for asylum, before
a different IJ.