Nuru v. Gonzales ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UKASHU NURU, aka Ukasha Nuru, 
Petitioner, No. 03-71391
v.
 Agency No.
A77-954-387
ALBERTO R. GONZALES,* Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 1, 2004
Vacated February 23, 2005
Resubmitted March 24, 2005**
Pasadena, California
Filed April 21, 2005
Before: Stephen Reinhardt, A. Wallace Tashima, and
Kim McLane Wardlaw, Circuit Judges.
Opinion by Judge Reinhardt
*Alberto R. Gonzales is substituted for his predecessor, John Ashcroft,
as Attorney General of the United States, pursuant to Fed. R. App. P.
43(c)(2).
**The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
4451
NURU v. GONZALES 4455
COUNSEL
Steve Paek, Law Offices of Steve Paek, Los Angeles, Califor-
nia, for the petitioner.
Peter D. Keisler, Donald E. Keener, Francis W. Fraser, Office
of Immigration Litigation, Civil Division, U.S. Department of
Justice, Washington, D.C., for the respondent.
OPINION
REINHARDT, Circuit Judge:
Warfare still continues to produce cruel, inhuman, and
degrading acts of torture sanctioned or tolerated by govern-
ment officials and committed even in lands that consider
themselves civilized. The case before us involves one of those
occurrences and requires us to decide whether the law permits
the United States government to remove a victim of such
treatment to his home country where he would likely, once
again, be subjected to the infliction of severe physical pain
and suffering, if not death.
Ukashu Nuru, a native and citizen of Eritrea, petitions for
review of the Board of Immigration Appeals’ (“BIA” or
“Board”) final order of removal, including the order denying
his applications for asylum, withholding of removal, and pro-
tection under the Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment
(“CAT” or “Convention”). The immigration judge found
Nuru to be a credible witness but denied him relief on the
grounds that he had not suffered past persecution as a result
of his political opinion and that he would not be tortured if he
were returned to Eritrea. The BIA adopted these findings and
further found that Nuru’s punishment by the Eritrean military
was not disproportionately harsh and that he had not pre-
4456 NURU v. GONZALES
sented evidence that any punishment he would receive in the
future would be disproportionately harsh or would be inflicted
on account of his political beliefs.
On review, Nuru argues that it is more probable than not
that he will be tortured if he is returned to Eritrea, that he suf-
fered persecution “on account of” his political opinion in the
past, that he has a well-founded fear that he will be similarly
persecuted in the future, and that he is eligible for asylum and
entitled to withholding of removal, as well as protection under
the Convention. We agree, and remand for the grant of relief
under CAT, the award of withholding of removal, and for the
exercise of the Attorney General’s discretion with respect to
the grant of asylum.
FACTUAL AND PROCEDURAL BACKGROUND
Ukashu Nuru is married to a permanent resident of the
United States and has a U.S. citizen son. When the Immigra-
tion and Naturalization Service (“INS”)1 sought to remove
him to Eritrea on the ground that his immigration papers were
fraudulent and that he did not have a lawful visa, he applied
for asylum, withholding of removal, and protection under
Article III of the Convention. He asserted that he was tortured
by the Eritrean army as a result of his political opposition to
the war between Eritrea and Sudan.
At his hearing before the immigration judge, Nuru testified
regarding his military service in Eritrea. He reported that he
was drafted into the Eritrean military in July 1996 and under-
went more than six months of military training. He was then
assigned to the front line of the Eritrean-Sudanese conflict
where he dutifully served for some time in the Eritrean army.
He obeyed “orders,” never refusing to serve his country.
1
The INS is now called the Bureau of Citizenship and Immigration Ser-
vices. For the sake of consistency, we will refer to it as the INS throughout
this opinion.
NURU v. GONZALES 4457
Nuru testified that the Sudanese forces were better armed
and equipped than the Eritrean military, that the Eritrean
forces were not adequately trained to face their enemy, and
that his unit was attacked from the air and ground with impu-
nity. As a result, Nuru observed the death of many of his
young comrades. This troubled him. “[M]any people were
dying randomly without any protection . . . against tanks, air-
planes . . . . [W]e were helpless.” From Nuru’s point of view,
the war did not make political sense because he and his com-
rades were fighting a losing battle in a land that was not theirs
for a cause no one understood. Aside from his political oppo-
sition to the battle against the Sudanese, Nuru had no other
opposition to serving in the military or with his government.
He testified, “I did not support the government fighting with
all [its] neighbors . . . This is the only situation that I have
with the government.”
Having witnessed senseless death on the front, Nuru
decided to protest against the “nonsense” war. At a front line
unit meeting in 1997, his battalion commander instructed the
soldiers to continue fighting the losing battle against the
Sudanese forces, despite the fact that the Eritrean army had
sustained substantial casualties. Nuru could no longer “listen
to the lies and misrepresentations of [his] foolish [command-
er].” Nuru stood up and voiced his political opposition to the
war: “[W]e are fighting a nonsense war. This land is not
our[ ]s. We are dying for nothing, why are we fighting or con-
tinuing to fight?”
The battalion commander immediately rebuked Nuru for
his statements. He directed him to remain standing for the
duration of the meeting, and then forced him to kneel for
some period of time thereafter. When the meeting adjourned,
two soldiers removed all of Nuru’s possessions, stripped him
of his clothes, tied his hands and feet together behind his
back, and placed him on his abdomen. This position is known
as the “helicopter.” While he was naked and bound, his fellow
soldiers repeatedly slapped him, beat him, and whipped him
4458 NURU v. GONZALES
with a sharp belt. They chastised and censured him. He was
ordered by commanding officers “never to repeat such words
in front of other people or in a meeting.”
Unfortunately for Nuru, his punishment did not end there.
For twenty-five days, he was tied up, naked and bound in the
“helicopter” position, and left outside in the hot desert sun.
For sustenance, he was given a small ration of bread, a can of
food, and a cup of water daily.2 He was forced to urinate and
defecate in this bound position, and he was regularly beaten
and whipped until the skin broke open on his back and feet.
As a result of this cruel, inhuman, and degrading treatment,
Nuru had difficulty urinating and was unable to move without
assistance. The immigration judge stated that he was
“amazed” that no more serious form of punishment was
imposed.
Nuru eventually suffered a severe tooth infection. When he
complained, other soldiers taunted him: “[D]o you expect us
to give you any other relief while you are opposing our
orders?” Nuru pleaded for medical attention. Finally, he was
permitted to see a nurse, who prescribed a pain killer for the
infection. When the pain continued, he was transferred to a
nearby town to receive proper medical attention. He was
unguarded while seeing a dentist who extracted his infected
tooth.
Following the oral surgery, Nuru was ordered to return to
his original camp — the camp at which the officers who had
ordered him bound, whipped, beaten, and placed in the broil-
ing sun for nearly one month were stationed. Rather than
return to be further tortured, Nuru fled, ultimately to the
United States. When questioned at his removal hearing as to
why he had fled, Nuru testified that he feared his torture
would continue if he returned to the camp since he was still
2
As the government’s brief points out, Nuru agreed that on occasion he
received food twice a day. See Brief for Resp’t at 5.
NURU v. GONZALES 4459
opposed to the war. “I fled to, to save my life . . . I was tor-
tured. I had to flee,” he said.
Nuru initially hid for a few days at his parents’ house in
Asmara and then hired a smuggler to take him into Ethiopia,
where he resided with his aunt. In May 1998, a new phase of
an old war between Ethiopia and Eritrea erupted. The Ethio-
pian government issued a proclamation ordering all individu-
als of Eritrean origin to report to headquarters. When Nuru
failed to comply, he was seized by the Ethiopian government
as a suspected spy and placed in an Ethiopian detention cen-
ter, where he was denied medical attention, received meager
rations, and was kicked, doused with cold water, slapped, and
whipped.3 In February 2000, Nuru’s aunt secured his release
by bribing a security guard. Nuru then fled to Rome where he
stayed for two and a half months before entering the United
States.
In Nuru’s absence, the Eritrean military took strong actions
in reprisal against his family. After searching his parents’
home looking for him, they seized his two brothers as acces-
sories in his desertion, and forcibly closed his father’s busi-
ness. His brothers have not been heard from since. Nuru
asserts that if he is returned to Eritrea he will be “executed,
or . . . detained in a separate place that no one could save
[him],” and that the government will do this because of his
expressed opposition to the war.
Following the removal hearing, the immigration judge
issued an oral decision. He found Nuru to be a credible wit-
ness. The judge explained, “[T]he Court has little difficulty
with [Nuru’s] credibility. His elaboration of the facts that led
to his departure are certainly not in conflict . . . .” Neverthe-
less, he denied Nuru’s claims for asylum, withholding of
removal, and CAT relief.
3
Nuru has not made a claim based on the actions of the Ethiopian gov-
ernment, and neither the immigration judge nor the BIA considered the
treatment by Ethiopian authorities in their respective decisions.
4460 NURU v. GONZALES
First, the immigration judge found that Nuru was “nothing
more than a common deserter.” Despite credible testimony in
which Nuru proclaimed his moral and political opposition to
the war in Sudan and described the statements he had made
in opposition to it, and despite credible testimony that, imme-
diately after the meeting at which he made those statements,
he was subjected to cruel, inhuman, and degrading punish-
ment for 25 days, the judge concluded with respect to the asy-
lum and withholding claims that Nuru’s opposition to the war
and his flight were motivated by his “selfish” concern for his
own personal safety rather than by political conviction. “It
appears to this Court [that Nuru] was not concerned about his
injured colleagues or his dead colleagues, he was interested
about saving himself, claiming, of course, in the manner of
opinion, that he opposed the senselessness of the war.” The
judge was “convinced that there is nothing in his fleeing that
has to do with politics or any personal aversion to war short
of maybe a desire to save himself. More the acts of a personal
coward,” he declared, “than one interested in the safety of his
colleagues who are injured and dying.”
Second, the immigration judge found that 25 days of depri-
vation, whippings, and beatings did not amount to persecution
because the treatment was appropriate given the circum-
stances. As the judge put it, “[t]his Court is not convinced that
the beating the respondent received here was not [sic] out of
line in consideration of what he was doing in the middle of
a combat zone.”
Third, the immigration judge found that CAT was not
implicated. He reasoned that “[t]here is no indication [Nuru]
would fac[e] any form of torture if he was returned,” although
he acknowledged that it is “certainly a reasonable assumption
that he would be prosecuted for desertion . . . .” Accordingly,
he denied Nuru’s application in all respects.
Nuru appealed to the BIA, which adopted and affirmed the
immigration judge’s order. It additionally concluded that
NURU v. GONZALES 4461
Nuru failed to establish that “his treatment for protesting his
continued military service was disproportiona[te]ly harsh . . . .
The respondent has not presented evidence that any punish-
ment he will receive in the future will be disproportiona[te]ly
harsh on account of his political beliefs.”
Nuru seeks review of the BIA’s final order of removal and
denial of his application for asylum, withholding of removal,
and relief under the Convention, asserting that he faces perse-
cution and torture if he is returned to Eritrea.
JURISDICTION
Because Nuru’s removal proceedings began after April 1,
1997, his petition is governed by the permanent rules of the
Illegal Immigration Reform and Immigrant Responsibility Act
(“IIRIRA”), Pub. L. No. 104-302, 110 Stat. 3656 (Oct. 11,
1996). See Kalaw v. INS, 133 F.3d 1147, 1149-50 (9th Cir.
1997). We have jurisdiction over Nuru’s final removal order
including the denial of asylum and withholding of removal
pursuant to 8 U.S.C. § 1252(a)(1). See Gormley v. Ashcroft,
364 F.3d 1172, 1176 (9th Cir. 2004). We have jurisdiction to
review his CAT claim under § 2242(d) of the Foreign Affairs
Reform and Restructuring Act of 1998 (“FARRA”), Pub. L.
No. 105-277, Div. G, Title XXII, § 2242, 112 Stat. 2681-822
(1998) (codified at 8 U.S.C. § 1231). See also 8 C.F.R.
§ 1208.18(e) (“Judicial review of claims for protection from
removal under Article 3 of the Convention Against Torture.”).
STANDARD OF REVIEW
Where, as here, the BIA adopts the immigration judge’s
decision and also adds its own reasons, we review both deci-
sions. See Kataria v. INS, 232 F.3d 1107, 1112 (9th Cir.
2000) (citing Chand v. INS, 222 F.3d 1066, 1072 n.7 (9th Cir.
2000)). To the extent that the BIA simply affirms the immi-
gration judge, we review the decision of that judge as if it
were the final agency action. See Kebede v. Ashcroft, 366
4462 NURU v. GONZALES
F.3d 808, 809 (9th Cir. 2004). As to the BIA’s additional
findings, we review those findings for what they are — the
final agency action. See Ghaly v. INS, 58 F.3d 1425, 1430
(9th Cir. 1995).
We review de novo the BIA’s interpretation of purely legal
questions. See Murillo-Espinoza v. INS, 261 F.3d 771, 773
(9th Cir. 2001). Factual findings underlying the agency’s final
order, however, are reviewed for substantial evidence. See
Khup v. Ashcroft, 376 F.3d 898, 902 (9th Cir. 2004). The
agency’s eligibility and entitlement determinations must be
upheld if they are “supported by reasonable, substantial, and
probative evidence on the record considered as a whole.”
Gormley, 364 F.3d at 1176 (quoting INS v. Elias-Zacarias,
502 U.S. 478, 481 (1992)).
ANALYSIS
Nuru contends that the record compels the conclusion that
the BIA erred in denying his applications for asylum, with-
holding of removal, and relief under CAT. He alleges that he
was tortured by the Eritrean military and that he was perse-
cuted on account of his political opinion; he also asserts that
he faces further torture and persecution if he is returned to
Eritrea. These allegations and the underlying facts on which
they are based support his asylum and withholding claims, as
well as his CAT claim. We review each claim independently,
however.
I. Convention Against Torture
[1] Article III of the Convention against Torture provides
that a state may not remove a person to another nation if there
are “substantial grounds for believing that he would be in dan-
ger of being subjected to torture” in that nation. FARRA
§ 2242. The United States has signed, ratified, and codified
CAT. Accordingly, “it [is] the policy of the United States not
to expel . . . or otherwise effect the involuntary return of any
NURU v. GONZALES 4463
person to a country in which there are substantial grounds for
believing the person would be in danger of being subjected to
torture. . . .” FARRA §2242(a) (codified at note to 8 U.S.C.
§ 1231); see also Li v. Ashcroft, 312 F.3d 1094, 1103 (9th Cir.
2002).
Nuru has the burden of proof “to establish that it is more
likely than not that he . . . would be tortured if removed” to
Eritrea. Al-Saher v. INS, 268 F.3d 1143, 1147 (9th Cir. 2001)
(as amended) (alteration in original) (quoting 8 C.F.R.
§ 208.16(c)(2)). A “petitioner carries [his] burden whenever
he . . . presents evidence establishing ‘substantial grounds for
believing that he would be in danger of being subjected to tor-
ture in the country of removal.’ ” Kamalthas v. INS, 251 F.3d
1279, 1284 (9th Cir. 2001) (quoting 8 C.F.R. § 208.16(c)(3)).
Evidence of past torture is relevant “[i]n assessing whether
[torture] is more likely than not.” Kamalthas, 251 F.3d at
1282 (quoting 8 C.F.R. §§ 208.16(c)(2) and (3)). If an alien
meets his burden of proof regarding future torture, withhold-
ing of removal is mandatory under the implementing regula-
tions,4 just as it is in the case of a well-founded fear of
persecution. See Immigration and Nationality Act (“INA”)
§ 241(b)(3), 8 U.S.C. § 1231(b)(3); 8 C.F.R. §§ 1208.16 -
1208.18.
Nuru asserts that it is more likely than not that he will be
tortured if he is removed to Eritrea. He relies primarily on his
testimony regarding his past cruel, inhuman, and degrading
treatment. The immigration judge found his uncontradicted
testimony credible. But, under the applicable law, that is not
enough. “[W]hen an alien credibly testifies to certain facts,
those facts are deemed true, and the question remaining to be
answered becomes whether these facts, and their reasonable
4
We note one qualification. If the alien has committed a “particularly
serious crime” or an aggravated felony for which the term of imprison-
ment is at least five years, only deferral, not withholding, of removal is
authorized. See 8 C.F.R. §§ 1208.16(d), 1208.17.
4464 NURU v. GONZALES
inferences, satisfy the elements of the claim for relief.” Ladha
v. INS, 215 F.3d 889, 900 (9th Cir. 2000) (as amended). Here,
the immigration judge ruled that the facts testified to by Nuru
did not satisfy the elements of a torture claim.
In denying Nuru’s CAT application, the immigration judge
concluded that Nuru (1) had not been tortured and (2) had not
established that it was more likely than not that he would be
tortured if he were removed to Eritrea. He stated that there “is
no indication that he would fac[e] any form of torture if he
was returned” and that the Convention was not “at all impli-
cated.” The BIA adopted those findings on the CAT question.
We are compelled by the record to hold to the contrary.
[2] To receive relief under the Convention, Nuru must
show that the gravity of the treatment he will likely suffer if
he is removed to Eritrea rises to the level of “torture.” The
CAT and its implementing regulations define torture as
any act by which severe pain or suffering, whether
physical or mental, is intentionally inflicted on a per-
son for such purposes as obtaining from him or her
or a third person information or a confession, pun-
ishing him or her for an act he or she or a third per-
son has committed or is suspected of having
committed, or intimidating or coercing him or her or
a third person, or for any reason based on discrimi-
nation of any kind, when such pain or suffering is
inflicted by or at the instigation of or with the con-
sent or acquiescence of a public official or other per-
son acting in an official capacity.
8 C.F.R. § 1208.18(a)(1); FARRA § 2242 (same); U.N. Con-
vention Against Torture and Other Cruel, Inhuman or Degrad-
ing Treatment or Punishment, Feb. 4, 1985, art. 1.1, 1465
U.N.T.S. 85 (same).5 Thus, torture is “any act by which severe
5
The United States Senate included a reservation when it ratified the
Convention, narrowing the definition of torture with respect to “mental
NURU v. GONZALES 4465
pain or suffering, whether physical or mental, is intentionally
inflicted on a person” for the purposes of obtaining informa-
tion or a confession, punishment, intimidation, coercion, or
discrimination. See FARRA § 2242; 8 C.F.R. § 1208.18(a)(1).
[3] In assessing whether it is more likely than not that Nuru
would be tortured if he is removed to Eritrea, the implement-
ing regulations require that
all evidence relevant to the possibility of future tor-
ture . . . be considered, including, but not limited to:
(i) Evidence of past torture inflicted upon the appli-
cant; (ii) Evidence that the applicant could relocate
to a part of the country of removal where he or she
is not likely to be tortured; (iii) Evidence of gross,
flagrant or mass violations of human rights within
the country of removal, where applicable; and (iv)
Other relevant information regarding conditions in
the country of removal.
8 C.F.R. § 1208.16(c)(3). See also Kamalthas, 251 F.3d at
1282.
pain or suffering.” The reservation states that “mental pain or suffering
refers to prolonged mental harm caused by or resulting from (1) the inten-
tional infliction or threatened infliction of severe physical pain or suffer-
ing; (2) the administration or application, or threatened administration or
application, of mind altering substances or other procedures calculated to
disrupt profoundly the senses or the personality; (3) the threat of imminent
death; or (4) the threat that another person will imminently be subjected
to death, severe physical pain or suffering, or the administration or appli-
cation of mind altering substances or other procedures calculated to dis-
rupt profoundly the senses or personality.” U.S. Reservations to CAT,
available at . Because Nuru’s CAT claim is based on severe physical
(rather than mental) pain and suffering, the U.S. reservation does not
affect his claim.
4466 NURU v. GONZALES
A. Past Torture
[4] We begin our review of Nuru’s CAT claim by deter-
mining whether he was a victim of past torture. See 8 C.F.R.
§ 1208.16(c)(3)(i); Kamalthas, 251 F.3d at 1282. Past torture
is the first factor we consider in evaluating the likelihood of
future torture because past conduct frequently tells us much
about how an individual or a government will behave in the
future. Specifically, if an individual has been tortured and has
escaped to another country, it is likely that he will be tortured
again if returned to the site of his prior suffering, unless cir-
cumstances or conditions have changed significantly, not just
in general, but with respect to the particular individual.6
In the case before us, Nuru was beaten and whipped “al-
most daily,” bound nude in the desert sun in a most painful
position, and deprived of adequate food and water, for 25 con-
secutive days, thereby causing him severe physical pain and
suffering. The flesh on his back and the soles of his feet was
ripped open. His urinary system was damaged and he had so
many injuries that he could not move without assistance. The
severe form of cruel and inhuman treatment to which Nuru
was subjected by the Eritrean army falls well within the defi-
nition of torture set forth in the Convention. See Al Saher, 268
F.3d at 1147 (holding that actions that were “specifically
intended by officials to inflict severe physical pain on [the
petitioner]” constituted torture); In re G-A, 23 I. & N. Dec.
366 (B.I.A. 2002) (approving CAT relief where petitioner
would be sentenced to an Iranian prison in which prisoners
were routinely suspended from ropes, burned with cigarettes,
6
We have previously held with respect to the presumption of a well-
founded fear of persecution that in asylum and withholding of removal
cases an “ ‘individualized analysis’ of how changed conditions will affect
the specific petitioner’s situation is required. Information about general
changes in the country is not sufficient.” Garrovillas v. INS, 156 F.3d
1010, 1017 (9th Cir. 1998) (citations omitted). The same reasoning applies
in the torture context with respect to improvements in the area of human
rights violations. Individualized consideration is necessary.
NURU v. GONZALES 4467
whipped, beaten, and punched). Nevertheless, despite compel-
ling evidence that Nuru had been tortured, the immigration
judge and the BIA inexplicably concluded that he had not.
[5] In Al-Saher, 268 F.3d at 1144-48, the petitioner, an
Iraqi, was in his country’s military, and was arrested by the
Iraqi police for misrepresenting his religion and place of birth
in his application for military service. Id. Al-Saher was
detained, interrogated, and beaten by Iraqi police on two sepa-
rate occasions. The first time, he was beaten for 10 to 20 days.
Id. at 1145. He described the torturous treatment he received,
declaring that on a number of occasions two people came in,
blindfolded him, tied his hands behind his back, and beat him
to the point at which he could barely stand. Id. The second
series of beatings occurred over a shorter period of time. We
held on the basis of the undisputed facts and the Country
Report, that Al-Saher was entitled to relief under CAT.
Nuru’s claim is similar in many respects. Both applicants
were subjected to extremely harsh physical punishment by
their respective governments for a violation of the military
rules; both were members of the active military; both suffered
painful physical injuries; both fled their native lands; and both
feared that they would be subjected to a recurrence of the
harsh punitive treatment if removed to their respective coun-
tries. On the relevant facts, Nuru’s application is not distin-
guishable from Al-Saher’s; the severe physical pain and
suffering inflicted upon him by the Eritrean army is of at least
equal gravity and the evidence is, as in Al-Saher, uncontro-
verted. Thus, precedent as well as reason compels the conclu-
sion that Nuru was, in the past, subjected to torture in Eritrea.
B. Future Torture
Although past torture is ordinarily the principal factor on
which we rely when an applicant who has previously been
tortured seeks relief under the Convention, we also look to
evidence of gross, flagrant, or mass violations of human rights
within that nation and to any other relevant information
4468 NURU v. GONZALES
regarding current country conditions, as well as evidence
regarding whether that person could safely relocate to a dif-
ferent area of the country. See 8 C.F.R. § 1208.16(c)(3);
Kamalthas, 251 F.3d at 1282 (“[A]ll evidence relevant to the
possibility of future torture shall be considered, including, but
not limited to . . . [e]vidence of gross, flagrant or mass viola-
tions of human rights within the country of removal; and . . .
[o]ther relevant information regarding conditions in the coun-
try of removal.”).
[6] Initially, we note that there is no evidence in the record
that Nuru could relocate to a part of Eritrea in which he is not
likely to be tortured. This is not surprising, as it will rarely be
safe to remove a potential torture victim on the assumption
that torture will be averted simply by relocating him to
another part of the country. Next, we examine the State
Department’s Country Report for Eritrea. It is well-accepted
that country conditions alone can “play a decisive role in
granting relief under [CAT].” Id. at 1283 (holding that a nega-
tive credibility finding in an asylum claim does not preclude
relief under CAT, especially where documented country con-
ditions information corroborate the “widespread practice of
torture against Tamil males”). The 2000 Eritrean Country
Report describes major human rights violations committed by
members of the military and police. According to that Report,
Eritrean police
occasionally resort to torture and physical beatings
of prisoners . . . . [T]he police severely mistreated
and beat army deserters and draft dodgers, and the
army subjected deserters and draft dodgers to vari-
ous military disciplinary actions that included pro-
longed sun exposure in temperatures of up to 113
degrees Fahrenheit, or the tying of hands and feet for
extended periods of time.
2000 Country Report (emphasis added), available at .7 The Coun-
try Report confirms that Eritrea routinely prosecutes persons
thought to be deserters and subjects at least some of them to
torture. Although the reason that Nuru was tortured before he
fled Eritrea was because of his front-line speech in opposition
to the war and although he had neither deserted the military
nor refused to perform any military service at the time he was
subjected to the punitive treatment described above, after he
was tortured he fled the country and, as a result, failed to ful-
fill his military obligation. Accordingly, as of now, he
undoubtedly qualifies in the minds of the Eritrean authorities
as a deserter. The Country Report states that those who shirk
military service are subjected to punitive treatment that is
similar to that administered to Nuru prior to his flight. Now
that Nuru has deserted the military in an effort to save his life
and to avoid further torture, it is, as the immigration judge
acknowledges, a “reasonable assumption that he will be pros-
ecuted for desertion.” Thus, if Nuru is involuntarily returned
to Eritrea, it is more probable than not that he will suffer a
recurrence of the treatment to which he was subjected previ-
ously, treatment that we recognize as constituting “torture.”
Nuru provided additional evidence as well. He testified that
the Eritrean army has continued to look for him and that, in
his absence, it has engaged in reprisals against his family.
Subsequent to his flight to Ethiopia, his father’s business was
closed and his two brothers were forcibly kidnapped. Their
whereabouts are still unknown. The Country Report notes that
the government deployed military police in Asmara, where
Nuru’s family lives, to find deserters and draft dodgers. In
sum, Nuru’s testimony and the Country Report confirm that
7
According to subsequent Country Reports (which were not introduced
into the record) treatment of deserters in Eritrea has only worsened. The
2002 Report (available at ) states, for example, that the government has authorized the
use of deadly force against anyone resisting or attempting to flee during
searches for deserters and draft evaders.
4470 NURU v. GONZALES
those in Eritrea who desert or otherwise seek to avoid military
service are likely to find themselves subjected to torture. On
the basis of the unrefuted evidence, we are compelled to con-
clude that Nuru would more likely than not be one of those
victims.8
[7] Although torture is prohibited in all circumstances,
relief is available under CAT only if the torture is inflicted for
one of the purposes identified in the Convention: if it is
inflicted “for such purposes as” obtaining information or a
confession, punishment, intimidation, coercion, or for any rea-
son based on discrimination of any kind. See FARRA § 2242;
8 C.F.R. § 1208.18(a)(1). The “such . . . as” language makes
CAT’s list of purposes illustrative, not restrictive or exhaus-
tive. See Matter of J-E, 23 I. & N. Dec. 291, 298 (B.I.A.
2002) (“The definition of torture illustrates, but does not
define, what constitutes a proscribed or prohibited purpose.”);
S. Exec. Rep. No. 101-30, at 14 (same). Because Nuru’s past
torture was inflicted as punishment, the purpose requirement
of CAT is met, at least insofar as his past torture is concerned.
Moreover, the immigration judge found that it was “cer-
tainly a reasonable assumption that [Nuru] would be prose-
cuted for desertion” upon removal to Eritrea. It is an equally
reasonable assumption that he would be convicted of that
offense. As we have already concluded that the punishment he
8
Nuru’s treatment is also substantiated by Amnesty International’s most
recent annual report on Eritrea (which is also not a part of the record). The
Report states that “[t]orture is used as a standard form of military punish-
ment. Prisoners are commonly beaten but the special and principle [sic]
torture method is ‘tying.’ . . . The most commonly described torture
method is tying with [a] rope, and the most common form is nicknamed
‘the helicopter.’ ” Amnesty International, Eritrea: ‘You have no right to
ask’ - Government resists scrutiny on human rights, May 2004, available
at . The report
concludes that national service conscripts, members of the armed forces
deserting the army, and critics of the government are among the categories
of people who are most at risk for arbitrary detention, torture and ill-
treatment, or possible extra-judicial execution. Id.
NURU v. GONZALES 4471
would likely receive constitutes torture, the fact that he may
be punished for desertion rather than, or in addition to, his
opposition to the Sudanese war is of no consequence.
Whether used as a means of punishing desertion or some
other form of military or civilian misconduct or whether
inflicted on account of a person’s political opinion, torture is
never a lawful means of punishment.
C. Lawfulness of Torture
The immigration judge ultimately denied Nuru relief on the
ground that the punishment he received did not constitute tor-
ture because it was lawful punishment duly sanctioned by
official authority. Specifically, the judge stated that it is
within the sovereignty of the government to “require military
service of its youth [and it can] punish those violators in any
lawful manner.” He also determined that the treatment to
which Nuru was subjected by the Eritrean army was appropri-
ate, given the circumstances. As the judge declared, “[t]his
Court is not convinced that the beating the respondent
received here was not [sic] out of line in consideration of
what he was doing in the middle of a combat zone.” In this
respect, he committed clear legal error.
[8] The Convention excludes “pain or suffering arising only
from, inherent in or incidental to lawful sanctions” from the
definition of torture. CAT, art. I.1. However, because it does
not provide a definition of “lawful sanctions,” the United
States Senate was concerned when it ratified the Convention
that the “lawful sanctions” exception could be interpreted too
broadly. Although the Senate did not adopt a reservation
defining the term, it did qualify its ratification with the under-
standing that a state “could not through its domestic sanctions
defeat the object and purpose of the Convention to prohibit
torture.” 136 Cong. Rec. 36,198 (1990). In light of this quali-
fication, the Attorney General promulgated implementing reg-
ulations defining “lawful sanctions” as “judicially imposed
sanctions and other enforcement actions authorized by law,
4472 NURU v. GONZALES
including the death penalty,” but only so long as those sanc-
tions do not “defeat the object and purpose of [CAT] to pro-
hibit torture.” 8 C.F.R. § 1208.18(a)(3).9 Accordingly, Nuru is
entitled to relief under the Convention if he has shown that
“he is more likely than not to suffer intentionally-inflicted
cruel and inhuman treatment that either (1) is not lawfully
sanctioned by that country or (2) is lawfully sanctioned by
that country, but defeats the object and purpose of CAT.”
Wang v. Ashcroft, 320 F.3d 130, 134 (2d Cir. 2003) (emphasis
added).
A government cannot exempt torturous acts from CAT’s
prohibition merely by authorizing them as permissible forms
of punishment in its domestic law. Discussing the applicabil-
ity of the Convention to situations in which a state has
inflicted torturous punishment authorized by its laws, the Sec-
ond Circuit recently held that,
It would totally eviscerate the CAT to hold that once
someone is accused of a crime it is a legal impossi-
bility for any abuse inflicted on that person to consti-
tute torture . . . . When the Senate considered the
CAT, its concern over the CAT’s reference to ‘law-
ful sanctions’ led it to qualify its ratification with the
understanding that a state ‘could not through its
domestic sanctions defeat the object and purpose of
[CAT] to prohibit torture’. . . . [I]t was Congress’
9
Even aside from the implementing regulations, it is well-accepted in
international law on treaty interpretation that a party-state may not take
actions that defeat the object and purpose of the treaty or convention. See
Vienna Conv. on the L. of Treaties, May 23, 1969, art. 31(1), 1155
U.N.T.S. 331 (1969) (“A treaty shall be interpreted in good faith in accor-
dance with the ordinary meaning to be given to the terms of the treaty in
their context and in light of its object and purpose.”). Thus, the portion of
the federal regulations that limits the exclusion of lawfully imposed sanc-
tions to those that are consistent with the object and purpose of the Con-
vention is simply a reaffirmation of the rule that must in any event be
applied under controlling international law.
NURU v. GONZALES 4473
aim for the CAT’s protections to extend to situations
where the victim has been accused of a crime.
Khouzam v. Ashcroft, 361 F.3d 161, 169 (2d Cir. 2004) (cita-
tion omitted).
[9] The immigration judge’s finding that the punishment
Nuru received is lawful simply ignores the fact that the accep-
tance of Eritrea’s torturous punishment of Nuru would defeat
the object and purpose of CAT to “eliminate torture and other
cruel, inhuman or degrading treatment or punishment.” S.
Exec. Rep. No. 101-30, at 3. See also 8 C.F.R.
§ 1208.18(a)(2). While the punishment of draft dodgers, mili-
tary deserters, and even members of the military who fail to
follow military rules or orders is certainly within a country’s
sovereignty, torture cannot be “inherent in or incidental to
lawful sanction” and is never a lawful means of punishment.
The official sanctioning of torture necessarily defeats the
object and purpose of the Convention. CAT outlaws torture
absolutely: “No exceptional circumstances whatsoever,
whether a state of war or threat of war, internal political insta-
bility or any other public emergency, may be invoked as a jus-
tification for torture.” CAT, art. 2. This absolute prohibition
on torture could not be clearer.10
10
Controversy has raged, largely in the academic world, over the “tick-
ing bomb” question. Compare Alan M. Dershowitz, Why Terrorism
Works: Understanding the Threat, Responding to the Challenge 142-49
(2002) (arguing that torturing the suspect in the “ticking bomb” case is
permissible); Michael Walzer, Political Action: The Problem of Dirty
Hands, in War and Moral Responsibility 62, 69 (Marshall Cohen et al.
eds., 1974) (same), with William F. Schulz, The Torturer’s Apprentice,
The Nation, May 13, 2002, at 26 (arguing that the “ticking bomb” scenario
is flawed and that torture is never permissible). The “ticking bomb” is a
classic case familiar to all those who have survived a freshman philosophy
class: “Suppose the authorities are holding a suspect who knows where a
ticking bomb is located, a bomb that will kill hundreds of people if it
explodes. Would they be justified in torturing the suspect to procure the
information and thereby save innocent lives?” Id. That dispute is irrelevant
to the question before us. We are not presented with the use of torture in
order to obtain information, but rather, with the authorization of torture as
a means of punishment.
4474 NURU v. GONZALES
In fact, we have previously held that the prohibition on tor-
ture has attained the status of jus cogens under international
law. See Siderman de Blake v. Republic of Argentina, 965
F.2d 699, 717 (9th Cir. 1992), cert. denied, 507 U.S. 1017
(1993). Unlike customary international law which, “like inter-
national law defined by treaties and other international agree-
ments, rests on the consent of states,” jus cogens norms apply
universally to states and individuals. Id. Therefore, the pro-
scription against torture “transcend[s] such consent” of states
and individuals. Id. at 715. Despite the immigration judge’s
assertion that “the beating Nuru received was not out of line
in consideration of what he was doing in the middle of a com-
bat zone,” the prohibition on torture is categorical: Even in
war, torture is not authorized. See CAT, art. 2.2 (“No excep-
tional circumstances . . . [including] war . . . may be invoked
as a justification of torture.”). Indeed, torture is illegal under
the law of virtually every country in the world11 and under the
11
See, e.g.,18 U.S.C. § 2340-2340A (criminalizing torture); Arg. Const.
ch. 1 (Declarations, Rights and Guarantees), § 18 (“Death penalty for
political causes, any kind of tortures and whipping, are forever abol-
ished.”); Braz. Const. art. 5 (“[N]o one shall be submitted to torture or to
inhuman or degrading treatment.”); Eri. Const. ch. III, art. 16, cl. 2 (“No
person shall be subject to torture or to cruel, inhuman or degrading treat-
ment or punishment.”); Eth. Const. ch. III (Fundamental Rights and Free-
doms), pt. 1 (Human Rights), art. 28 (Crimes Against Humanity)
(“Criminal liability of persons who commit crimes against humanity . . .
such as . . . torture shall not be barred by statute of limitation. Such
offences may not be commuted by amnesty or pardon of the legislature or
any other state organ.”); Iran Const. § 3 (Rights of the People), art. 38
(“All forms of torture for the purpose of extracting confession or acquiring
information are forbidden.”); Penal Law § 277 (Isr.) (“A public servant
who does . . . the following is liable to imprisonment for three years: (1)
uses or directs the use of force or violence against a person for the purpose
of extorting from him or from anyone . . . a confession of an offense or
information relating to an offense . . .”); Japan Const. ch. III (Rights and
Duties of the People), art. 36 (“The infliction of torture by any public offi-
cer and cruel punishments are absolutely forbidden.”); Russ. Const. ch. II
(Rights and Liberties of Man and Citizen), art. 21 (Human Dignity) (“No
one may be subjected to torture, violence or any other harsh or humiliating
treatment or punishment.”); Thai. Const. ch. 3 (Rights and Liberties of the
Thai People), § 31 (“A torture, brutal act, or punishment by a cruel or
inhumane means shall not be permitted . . . .”).
NURU v. GONZALES 4475
international law of human rights.12 We cannot therefore ever
view torture as a lawful method of punishment.
D. Summary
[10] We are compelled to conclude that Nuru was tortured
by the government of Eritrea and would likely face similar
treatment if he is returned to that country. Accordingly, we
grant the petition with respect to the CAT claim and remand
it to the BIA for entry of an order granting withholding of
removal under CAT.13
12
See European Convention for the Protection of Human Rights and
Fundamental Freedoms, opened for signature Apr. 11, 1950, 213 U.N.T.S.
222, art. 3 (prohibiting torture by stating that, “[n]o one shall be subjected
to torture or to inhuman or degrading treatment or punishment”); African
Charter on Human and Peoples’ Rights, opened for signature June 27,
1981, O.A.U. Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58, art. 5 (1982)
(stating that “[a]ll forms of exploitation and degradation of man, particu-
larly . . . torture, cruel, inhuman or degrading punishment and treatment
shall be prohibited”); American Convention on Human Rights, opened for
signature Nov. 22, 1969, 1144 U.N.T.S. 123, art. 5(2) (stating that “[n]o
one shall be subjected to torture or to cruel, inhuman or degrading punish-
ment or treatment. All persons deprived of their liberty shall be treated
with respect for the inherent dignity of the human person”); Geneva Con-
vention Relative to the Treatment of Prisoners of War, opened for signa-
ture Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135, art. 17 (stating that
“[n]o physical or mental torture, nor any other form of coercion, may be
inflicted on prisoners of war to secure from them information of any kind
whatever”); Universal Declaration of Human Rights, G.A. Res. 217A,
U.N. GAOR, Dec. 10, 1948, art. 5 available at (stating that “no one shall be subjected to torture or to cruel, inhu-
man or degrading treatment or punishment”); Nuremberg Trials Final
Report, Control Council Law No. 10, art. 2(1)(c) (1945) (authorizing pros-
ecution for torture).
13
Nuru has not waived or failed to exhaust his CAT claim. The only
means that he had of raising a claim for relief under the Convention was
through an “Application For Asylum and Withholding of Removal,”
which he completed at the time the INS issued him a notice of removal.
See Eduard v. Ashcroft, 379 F.3d 182, 195 (5th Cir. 2004) (holding that
when no other application for relief under the Convention is available, a
4476 NURU v. GONZALES
II. Asylum
Nuru also contends that the BIA erred in denying his appli-
cation for asylum. The immigration judge and the BIA con-
cluded that Nuru was not eligible for asylum because he (1)
had not suffered disproportionately harsh treatment on
account of a statutory ground, and (2) did not establish that he
had a well-founded fear that he would suffer disproportion-
petitioner may raise a CAT claim through an Application For Asylum and
Withholding of Removal). In that application, he affirmed that he “fear-
[ed] being subjected to torture (severe physical or mental pain or suffering,
including rape or other sexual abuse) in [his] home country” and attached
a declaration to the application describing the past torture he suffered and
setting forth his fear of future torture. By declaring that he had a fear of
future torture on his application for asylum and presenting evidence to
support that claim at his hearing, Nuru placed his CAT claim at issue. See
8 C.F.R. § 1208.13(c)(1) (requiring the agency to consider “eligibility for
withholding of removal under the Convention . . . if the applicant requests
such consideration or if the evidence presented by the alien indicates that
the alien may be tortured in the country of removal.” (emphasis added)).
Further, the immigration judge analyzed and decided the allegations of
torture according to the standard outlined in the implementing regulations
for the Convention. See Al-Saher, 268 F.3d at 1147 (quoting 8 C.F.R.
§ 208.16(c)(2)).
Likewise, Nuru placed his CAT claim at issue before the BIA and this
court. In his notice of appeal to the BIA, Nuru expressly sought review of
the immigration judge’s denial of his asylum, withholding, and CAT
requests for relief. As well, in his brief before the BIA he squarely pre-
sented the issue of “[w]hether the Immigration Judge . . . abused his dis-
cretion in denying Petitioner’s . . . relief under Article III of [CAT].”
Throughout that brief he provided facts that established his claim of tor-
ture and legal arguments supporting a grant of relief under the Convention.
Finally, before this court, he sought to preserve his CAT claim in his
opening brief, specifically stating that he was seeking relief on that claim.
He further supported his claim for relief under CAT in a supplemental
brief. Given that Nuru’s CAT claim relies on the identical facts as the asy-
lum and withholding claims, that all the relevant facts are presented in the
record, and that all concerned had adequate notice that Nuru sought relief
under CAT, he has sufficiently and properly presented his torture claim to
the BIA and to this court. See also n.15, infra.
NURU v. GONZALES 4477
ately harsh treatment on such basis in the future. We reject
those conclusions.
A. Past Persecution
The immigration judge determined that Nuru was not per-
secuted by the Eritrean army because the beatings he received
were appropriate, given that he publicly voiced strong opposi-
tion to the war at a meeting of his military unit in the battle
area. See Admin. R. at 46 (“This Court is not convinced that
the beating the respondent received here was not [sic] out of
line in consideration of what he was doing in the middle of
a combat zone.”). Affirming that reasoning, the BIA likewise
concluded that “the respondent has failed to establish that his
treatment for protesting his continued military service was
disproportiona[te]ly harsh, particularly in light of the circum-
stances under which it occurred.” The agency’s analysis is
contrary to law.
[11] First, we have already determined that the immigration
judge and the BIA erred in failing to recognize that Nuru was
tortured by the Eritrean military. In finding that Nuru was tor-
tured, we also necessarily determined that the acts committed
by the military rose to the level of persecution. It follows that
if those acts were committed “on account of” one of the five
statutory grounds set forth in the INA, Nuru has sufficiently
established that he has been persecuted within the meaning of
the Act, and that he is entitled to a presumption that he has
a well-founded fear of future persecution.14 This is because
torture is more severe than persecution and the standard of
14
In another recent case, we found that treatment similar to that Nuru
suffered in Eritrea constituted persecution. In Ndom v. Ashcroft, 384 F.3d
743 (9th Cir. 2004), we held that credible death threats made to the peti-
tioner and 25 days spent by him in dark, crowded cells without formal
charges and with no indication of when he would be released, in shackles
that prevented him from straightening his legs, and without the benefit of
a toilet in which he could urinate rose to the level of “persecution” neces-
sary to support an asylum claim. See id. at 753.
4478 NURU v. GONZALES
proof for the CAT claim is higher than the standard of proof
for an asylum claim. Compare Kamalthas, 251 F.3d at 1284
(stating that the CAT burden of proof is “more likely than
not”) with Khup, 376 F.3d at 904 (stating that in an asylum
case, “even a ten percent chance of persecution may establish
a well-founded fear.”). This is not to say that every finding of
torture necessarily establishes an asylum or withholding
claim. As we explained in Kamalthas,
[CAT]’s reach is both broader and narrower than that
of a claim for asylum or withholding of deportation:
coverage is broader because a petitioner need not
show that he or she would be tortured ‘on account
of’ a protected ground; it is narrower, however,
because the petitioner must show that it is ‘more
likely than not’ that he or she will be tortured, and
not simply persecuted upon removal to a given coun-
try.
251 F.3d at 1283. Here, even though he established that he
was tortured, Nuru must still establish that the persecutory
treatment was on account of one of the five statutory grounds.
The forgoing analysis, however, disposes of the immigra-
tion judge’s and the BIA’s denials of Nuru’s asylum claim on
the ground that the treatment he suffered was not dispropor-
tionately harsh. That part of the agency’s decision is fore-
closed by our holding on the CAT claim. Torture is per se
disproportionately harsh; it is inherently and impermissibly
severe; and it is a fortiori conduct that reaches the level of
persecution. See, e.g., Rasaq Dipo Salaam v. INS, 229 F.3d
1234, 1240 (9th Cir. 2000) (finding torture sufficient to estab-
lish past persecution); Ratnam v. INS, 154 F.3d 990, 996 (9th
Cir. 1998) (holding that extra-prosecutorial torture, even if
conducted for a legitimate purpose, constitutes persecution);
Surinder Singh v. Ilchert, 69 F.3d 375, 379 (9th Cir. 1995)
(finding torture sufficient to establish past persecution). As
torture is universally proscribed, the conduct that comprises
NURU v. GONZALES 4479
torture is inherently disproportionate, whether for purposes of
determining “persecution” or otherwise. As we have made
clear earlier in this opinion, no one, whether on or off the bat-
tlefield, can ever lawfully be punished by means that consti-
tute torture.15
B. On Account of Political Opinion
[12] Nuru alleges that his past persecution was on account
of his “political opinion” — his views in opposition to the war
in Sudan. Political opinion constitutes one of the five statutory
grounds underlying asylum claims. See Navas v. INS, 217
F.3d 646, 655 (9th Cir. 2000).
15
The government’s argument that Nuru failed to claim past persecution
is without merit. Nuru’s brief specifically sets forth the injurious physical
acts to which he was subjected and argues that the immigration judge
erred in failing to give “the treatment he received” the proper legal signifi-
cance. He cited and relied on cases in which past persecution was at issue.
See, e.g., Pitcherskaia v. INS, 118 F.3d 641 (9th Cir. 1997). Although
Nuru’s brief could have been written more clearly and he did not utter the
magic words “past persecution,” “[w]e will not ignore the ultimate objec-
tive of [his] appeal . . . by parsing [his] brief’s language in a hyper techni-
cal manner.” Mamouzian v. Ashcroft, 390 F.3d 1129, 1136 (9th Cir. 2004);
see also Ndom, 384 F.3d at 750-51 (construing an “inartful” brief in peti-
tioner’s favor). Given Nuru’s application and the briefs and other docu-
ments filed before the agency, it is clear that one of his “ultimate
objective[s]” was to establish his entitlement to the presumption of a well-
founded fear of persecution on the basis of past persecution. Furthermore,
even if he had failed to brief past persecution, “we may review an issue
not presented in an opening brief if a failure to do so would result in a
manifest injustice.” Mamouzian, 390 F.3d at 1136 (citing Koerner v. Gri-
gas, 328 F.3d 1039, 1048-49 (9th Cir. 2003)).
Finally, even if Nuru’s failure to use the specific words “past persecu-
tion” in his brief served to deprive him of the benefit of the presumption
that arises from establishing that element of an asylum claim, the facts that
show that he was persecuted in the past would nevertheless enable him to
prevail ultimately on his claim of a well-founded fear of future persecu-
tion. See pt. II(C), infra.
4480 NURU v. GONZALES
[A]n asylum applicant must satisfy two requirements
in order to show that he was persecuted ‘on account
of’ a political opinion. First, the applicant must show
that he held (or that his persecutors believed that he
held) a political opinion. Second, the applicant must
show that his persecutors persecuted him (or that he
faces the prospect of such persecution) because of
his political opinion.
Id. at 656 (emphasis in original and internal citations omit-
ted). Nuru has met both of these requirements.
The immigration judge held that Nuru was a coward rather
than an individual with political beliefs. See Admin. R. at 46
(“The Court is equally convinced that there is nothing in his
fleeing that has to do with politics or any personal aversion
to war short of maybe a desire to save himself.”). The BIA
agreed, additionally stating “[t]he respondent has not pre-
sented evidence that any punishment he will receive in the
future will be disproportiona[te]ly harsh on account of his
political beliefs.” The record simply does not contain any evi-
dence supporting the agency’s conclusions.
Initially, Nuru bears the burden of proving that he held a
political opinion (or that one was imputed to him) at the time
he was persecuted. See Navas, 217 F.3d at 656. Nuru, who
was found to be credible, testified that at a unit meeting he
stated, “[W]e are fighting a nonsense war. This land is not
our[s]. We are dying for nothing, why are we fighting or con-
tinuing to fight?” He further testified that his motivation for
making these statements was that he “opposed the system of
government at that time, [he] did not support the government
fighting with all their neighbors, and [he spoke] loudly [his]
opposition. This is the only situation that [he has] with the
government . . . .” Not only is the content of Nuru’s speech
political, but the fact that he was punished for it and ordered
not to repeat his comments in public provides substantial evi-
dence that those who heard it believed it to be political.
NURU v. GONZALES 4481
Although the immigration judge accused Nuru of being a
“personal coward” who was “not concerned about his injured
colleagues,” there is not a jot of evidence in the record that
would support an inference that Nuru was other than sincere
in voicing his opposition to the Sudanese war; nor is there a
tittle, let alone a substantial amount, of evidence supporting
the judge’s determination that Nuru was a “personal coward”
whose actions that led up to his fleeing his homeland had
nothing “to do with politics or any personal aversion to war
short of maybe a desire to save himself.” Rather, the immigra-
tion judge’s conclusions are based on pure supposition. Such
rank speculation and conjecture “cannot be substituted for
objective and substantial evidence.” Bandari v. INS, 227 F.3d
1160, 1167 (9th Cir. 2000).
[13] Having established that he had a political opinion,
Nuru must also show that the Eritrean army persecuted him
because of that opinion. See Navas, 217 F.3d at 656. For Nuru
to satisfy his burden of establishing a causal connection
between his political opinion and his persecutor’s motivation,
he need show only that the persecution was due in part to his
opposition to the war. See Borja v. INS, 175 F.3d 732, 735-36
(9th Cir. 1999) (en banc). There can be no doubt that Nuru’s
persecutors were aware of that opposition. Nuru publicly
voiced his political opposition in front of his battalion com-
mander at a unit meeting. He testified that when he finished
making his statement, he was ordered by this commanding
officer to remain standing and that his persecution by “angry”
members of the army commenced upon the conclusion of the
meeting. He also testified that he was ordered to “never repeat
such words in front of other people or in a meeting.” Finally,
there is no evidence in the record to indicate that there was
any other reason for the persecutory treatment.16 See Nasseri
16
Neither the immigration judge nor the BIA stated that the reason for
the punishment Nuru received was that his speech was deemed to be dis-
ruptive of the morale of his fellow soldiers or of military discipline. Nor
is that a likely reason. Nuru was ordered never to express similar views
4482 NURU v. GONZALES
v. Moschorak, 34 F.3d 723, 729 (9th Cir. 1994) (finding per-
secution when there is no other logical reason for the persecu-
tory treatment); Rodriguez-Roman, 98 F.3d at 429-30 (same).17
The record contains substantial evidence compelling the con-
clusion that Nuru’s persecutors were aware of and motivated
by his political opinion. Thus, the only remaining question as
to the asylum claim is whether Nuru has a well-founded fear
of future persecution.
C. Future Persecution
[14] Because Nuru suffered past persecution on account of
political opinion, he is entitled to a presumption of a well-
founded fear of future persecution. See 8 C.F.R. § 1208.13(b).
in front of “other people.” There was no limitation as to location or as to
type of audience. Thus, it is evident that the purpose was to suppress the
content of the ideas. In any event, even if the effect on morale had been
a reason for the persecutory treatment afforded Nuru, the “on account of”
requirement would be satisfied because “political opinion” constituted
another reason therefor. See infra at 4482-84; Borja v. INS, 175 F.3d at
735-36.
17
To the extent that the immigration judge may have suggested that
Nuru was punished because he was a “common deserter,” he confuses the
reasons for Nuru’s past persecution (i.e., his political opposition to the
Sudanese conflict) with one of the grounds upon which Nuru may be per-
secuted in the future (i.e., his desertion from the military following his
punishment by torture). While the motivation for any future persecution
to which Nuru might be subjected may be relevant to the question whether
he has a well-founded fear of future persecution, it is not relevant to
whether he has established past persecution. The judge’s characterization
of Nuru as a “common deserter” is also simply incorrect factually. Nuru
dutifully served his country for nearly a year. Even when voicing his polit-
ical opposition to the war in Sudan, he did not refuse to continue fighting.
He repeatedly testified that he had no objection, religious or otherwise, to
military service; his “only situation . . . with the government” was that he
and his army colleagues were fighting a “nonsense war” and “dying for
nothing” in a “land that is not [theirs].” He fled the country only after he
was punished. There is simply no evidence to support the immigration
judge’s characterization, and it is speculative at best.
NURU v. GONZALES 4483
The burden therefore shifts to the government. See Ali v. Ash-
croft, 394 F.3d 780, 788 (9th Cir. 2005). Unless the govern-
ment carries its burden, the applicant is deemed to have
established his eligibility. See Korablina v. INS, 158 F.3d
1038, 1043 (9th Cir. 1998). Usually, the government attempts
to rebut the presumption by proving a “fundamental change
in circumstances,” such that the asylum-seeker no longer has
a well-founded fear of persecution. 8 C.F.R.
§ 1208.13(b)(1)(i)(A).
[15] The government argues, as it did to the immigration
judge and the BIA, that Nuru’s circumstances have changed
because he will be punished for desertion if he returns to Eri-
trea and desertion is a run-of-the-mill criminal act. Thus, it
contends that if Nuru is punished on his return it will be on
account of criminal wrongdoing rather than on account of his
political opinion. This argument cannot prevail, if only
because the fact that Eritrea may have more than one motiva-
tion for punishing Nuru in the future (i.e., desertion and polit-
ical opposition to the war) does not in any way undercut his
asylum claim. Like most human conduct, incarceration, perse-
cution, and torture frequently result from mixed or multiple
motives. A guerilla group may beat and torture a factory
worker in part because of a desire to extort money from him;
at the same time it may be persecuting him because he is in
its view a traitor to his class — a worker who opposes the reb-
els’ political aims and refuses to join. See Borja, 175 F.3d at
735-36. An applicant for asylum need not prove that his well-
founded fear of future persecution is based exclusively on a
ground for refugee status enumerated under 8 U.S.C.
§ 1101(a)(42)(A) (“race, religion, nationality, membership in
a particular social group, or political opinion”). Rather, so
long as one of the motives for the feared persecutory conduct
relates to a protected ground, the petitioner is eligible for
relief. See Borja, 175 F.3d at 736; Rodriguez-Roman, 98 F.3d
at 430 n.23; Harpinder Singh v. Ilchert, 63 F.3d 1501, 1509
(9th Cir. 1995) (“Persecutory conduct may have more than
4484 NURU v. GONZALES
one motive, and so long as one motive is one of the statutorily
enumerated grounds, the requirements have been satisfied.”).
Assuming ad arguendo that desertion would constitute a
lawful basis for the punishment Nuru would receive should he
be returned to Eritrea,18 he would still be able to show that he
had a well-founded fear of future persecution if the punish-
ment were also imposed in part on account of his political
opinion. Given Nuru’s past persecution on account of his
political opinion, and the reports regarding the Eritrean gov-
ernment’s harsh and extra-legal treatment of its critics, the
presence of such a mixed-motive would certainly be more
likely than not in Nuru’s case.
In INS v. Ventura, 537 U.S. 12 (2002) (per curiam), the
Supreme Court held that it is the responsibility of the BIA to
determine the issue of changed circumstances19 in the first
instance. See id. at 14. Ventura does not preclude our decision
here, however. Other than the irrelevant argument that the
Eritrean government will now have an additional ground for
punishing Nuru, the INS has made no assertions concerning
changed circumstances, either before the immigration judge
or the BIA, or on review here, and has offered no evidence,
documentary or otherwise, to that end. Indeed, the record
18
The government asserts that the punishment Nuru suffered prior to his
desertion was not disproportionate and, by implication, that the post-
removal conduct would not be either. Although punishment for desertion
is permissible under international law, the punitive sanction of torture is
never lawful and is per se disproportionate. See pt. I(C), supra. Because
the record reflects that upon his return Nuru would likely suffer persecu-
tory treatment similar to that which he suffered in the past, persecutory
treatment that we have already deemed to constitute torture, the govern-
ment’s argument cannot stand; we repeat: torture is never proportionate.
19
At the time of the Court’s decision in Ventura, the regulations permit-
ted the government to rebut the presumption of a well-founded fear with
evidence of changed country conditions. Since then, the regulations have
been amended so that the government may rebut that presumption with
evidence of changed circumstances. See 8 C.F.R. § 1208.13(b)(1)(i)(A).
NURU v. GONZALES 4485
before us contains no evidence that circumstances or country
conditions in Eritrea have changed at all, let alone changed
sufficiently to rebut the presumption that Nuru has a well-
founded fear of future persecution. To the contrary, the coun-
try report suggests that, if anything, conditions are growing
worse. “In these circumstances, to provide the INS with
another opportunity to present evidence of changed country
conditions when it twice had the chance, but failed to do so,
would be exceptionally unfair.” Baballah v. Ashcroft, 367
F.3d 1067, 1078 n.11 (9th Cir. 2004) (as amended). See
Ndom, 384 F.3d at 756. “Under some circumstances . . . such
as where the government has made no arguments before the
immigration judge or the BIA concerning changed conditions,
we do not remand.” Mamouzian, 390 F.3d at 1135 (citations
omitted). The INS has made it clear in Nuru’s case, as it has
in others we have considered, that it does not assert any
change in circumstances, and that there is, therefore, no such
issue for the Board to determine initially.
Finally, even if Nuru were precluded from relying on the
presumption of a well-founded fear of future persecution, we
would still be compelled to hold that he has established such
a fear. This is so because, as we explained supra at pt. I, it is
highly probable that Nuru will be tortured if he is returned to
Eritrea, and torture is the ultimate form of persecutory con-
duct. If the motivation for the torture that awaits Nuru is in
part based on political opinion, he will have easily met the
lesser burden of establishing a well-founded fear of persecu-
tion. See Mansour v. Ashcroft, 390 F.3d 667, 673 (9th Cir.
2004) (outlining the standard for establishing a well-founded
fear). Although Nuru’s flight from his country (and possibly
the military) might provide a substantial part of the motiva-
tion for the persecutory actions in which his government
would likely engage on his return, there is little doubt that the
political opposition Nuru expressed to the Sudanese war while
in the military would also play a part in the future retaliatory
conduct. Presumption or not, the fact of past persecution of an
individual on account of a statutorily protected ground must
4486 NURU v. GONZALES
be given substantial weight when evaluating the reasons for
renewed persecution of that person at a later date, regardless
of any change in circumstances. Because the agency reached
the future persecution issue in Nuru’s case and resolved it
against Nuru, the question of a Ventura remand does not arise
in connection with that ruling.
[16] We hold that the government has not rebutted the pre-
sumption of a well-founded fear and that Nuru is eligible for
asylum. Alternatively, we hold that, even without the pre-
sumption, Nuru has established the requisite fear of future
persecution on account of political opinion. Because the ulti-
mate decision to grant asylum is discretionary, we remand for
a determination of whether Nuru is to be granted that relief.
See Mamouzian, 390 F.3d at 1135; 8 U.S.C. § 1158(b)(1).
III. Withholding of Removal
[17] The finding of past persecution also triggers a pre-
sumption that Nuru has shown a clear probability of future
persecution. See Ndom, 384 F.3d at 756; 8 C.F.R.
§ 1208.16(b)(1)(i). Again, there is nothing in the record to
rebut that presumption and the government fails to argue that
the presumption is or could be rebutted. The only arguments
it offers are ones we have already rejected: 1) that the punish-
ment Nuru faces will be imposed for reasons other than his
political opinion, and 2) that the punishment will not be dis-
proportionately harsh. Again, as we have explained in connec-
tion with Nuru’s asylum claim, on this record the undisputed
facts of Nuru’s case, even without the presumption, establish
the existence of a clear probability of future persecution. Nuru
is, therefore, entitled to withholding of removal under
IIRIRA. See 8 U.S.C. § 1231(b)(3).
IV. Immigration Judge
[18] Finally, it appears to us that the immigration judge’s
treatment of Nuru during the hearing and his characterization
NURU v. GONZALES 4487
of Nuru’s behavior was arbitrary and capricious. Some of the
judge’s comments both during the hearing and when issuing
his oral ruling were highly caustic and without substance.
Having initially labeled Nuru a “common deserter” who acted
more like a “personal coward than one interested in the safety
of his colleagues who are injured and dying,” he refused
Nuru’s counsel’s request to present closing argument and sug-
gested without basis in the record that counsel’s coaching
could diminish Nuru’s “believability.” Given his comments
during the hearing and our strikingly different appraisal of the
record, we order that the case be assigned to a different immi-
gration judge who will afford Nuru the impartiality to which
all applicants are entitled. See Garrovillas v. INS, 156 F.3d
1010, 1015, 1016 n.4 (9th Cir. 1998) (“The parties would be
far better served by the assignment to those proceedings of a
different [immigration judge].”).
CONCLUSION
Nuru has met his CAT burden. It is more likely than not
that he will be tortured if he is returned to Eritrea. Accord-
ingly, he is entitled to mandatory withholding of removal on
the basis of his claim under the Convention.
Because Nuru has a well-founded fear of persecution on
account of a statutorily protected ground, he is also eligible
for asylum. We grant the petition and remand for the exercise
of discretion with respect to the asylum claim.
We also conclude that Nuru has demonstrated that “it is
more likely than not that [he] would be subject to persecution
in the country to which he would be returned.” INS v.
Cardoza-Fonseca, 480 U.S. 421, 423 (1987) (quotation marks
omitted). He is therefore entitled to withholding of removal
on his withholding claim under IIRIRA.
Additionally, we direct that this case be assigned to a dif-
ferent immigration judge upon remand.
4488 NURU v. GONZALES
PETITION FOR REVIEW GRANTED; REMANDED
FOR FURTHER PROCEEDINGS IN CONFORMITY
WITH THIS OPINION.