Yohannes Ghirmay Milat v. Eric Holder, Jr. , 755 F.3d 354 ( 2014 )

Case: 13-60362 Document: 00512670413 Page: 1 Date Filed: 06/19/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-60362
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
June 19, 2014
YOHANNES GHIRMAY MILAT,
Lyle W. Cayce
Clerk
Petitioner
v.
ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
Before REAVLEY, PRADO, and ELROD, Circuit Judges.
EDWARD C. PRADO, Circuit Judge:
Eritrean national, Petitioner Yohannes Ghirmay Milat (“Milat”)
requests asylum, withholding of removal, and protection under the Convention
Against Torture. Milat claims he fled Eritrea to escape an assignment within
Eritrea’s National Service program, which he asserts is a program of human
trafficking and not a legitimate program of military conscription. The
Immigration Judge (“IJ”) denied Milat’s application for asylum and
withholding of removal, but granted his application for protection under the
Convention Against Torture (“CAT”). The Board of Immigration Appeals
(“BIA”) affirmed. Milat petitions this Court for review, arguing that the BIA
erred in denying his application for asylum and withholding of removal, and
Case: 13-60362 Document: 00512670413 Page: 2 Date Filed: 06/19/2014
No. 13-60362
that the BIA should have reopened and remanded his case for the IJ to consider
new evidence. For the reasons stated below, we deny Milat’s petition.
I. BACKGROUND
Milat’s argument for asylum centers on his conditions of employment in
Eritrea, so we begin by reviewing that history, which we draw from the
administrative record. Milat studied journalism and mass communication at
Asmara University. Just before graduation, he went to work for the Eritrean
Ministry of Defense in what, Milat claims, was supposed to be a temporary
postgraduate internship. Milat wrote articles for the Defense Ministry’s
official magazine, and assisted with the videotaping of official meetings. Milat
avers, “It was expected that all work I produced should be supportive of
government policies.”
In March 2007, Milat learned that, because the government was closing
Asmara University, he would officially graduate from Meinefe College. Milat
says, “When I heard that I would not be graduating from Asmara, I became
very frustrated and angry at the government.” Milat believed that the “closing
of Asmara was the government[’]s shameful attempt to control the thinking of
university students by breaking up the college into smaller components that it
could more easily control.”
With the assistance of one of his college friends, Milat created a political
cartoon in protest. “The design had a picture of Asmara University, a grave-
cross, and a tomb. Its message was that the government was killing the
university,” Milat explains.
After Milat showed the graphic to his colleagues, Milat’s supervisor at
the Defense Ministry, Lieutenant Colonel Asmerom, found out about it.
Fortunately for Milat, Milat’s supervisor was also an Asmara University
alumnus, and he was sympathetic to Milat’s sentiments. But he warned Milat
“not to do that anymore,” and he told Milat “that next time he would have to
2
Case: 13-60362 Document: 00512670413 Page: 3 Date Filed: 06/19/2014
No. 13-60362
report [Milat] to the higher authorities.” There is no evidence Lieutenant
Colonel Asmerom reported the political cartoon to the authorities, however.
Milat says he “found working for the Ministry of Defense morally and
professionally reprehensible,” because he “did not want to be used as a
mouthpiece for the Ministry of Defense.” On cross-examination before the IJ,
however, Milat admitted that his job did not require him to kill or persecute
other Eritreans. Milat looked forward to the end of his internship with the
Defense Ministry, he said, because he would have “preferred . . . to work as a
fair, objective and non-partial journalist instead of [as] a propaganda writer
who advocate[s] policies of [the] Eritrean government.” Milat believed that his
internship with the Ministry of Defense would end when he graduated from
college in September 2007. Milat did not get his wish.
The Ministry of Defense informed Milat that he would be made a
permanent member of the Defense Ministry as part of his National Service,
and he would not be reassigned.
Milat presented the following evidence to the IJ to explain the Eritrean
National Service program. According to a report Milat submitted to the IJ,
U.S. Department of State, 2008 Human Rights Report: Eritrea (Feb. 25, 2009), 1
the Eritrean National Service is a compulsory conscription program for men
between ages 18 and 50. It includes military and civilian jobs with open-ended
terms. Some National Service members are assigned to civilian jobs while
nominally kept in the military; these individuals continue to receive only their
National Service salary, which is very low (Milat testified he received the
equivalent of between five and ten U.S. dollars per month). Anything above
that amount is forfeited to the government. These employees are unable to
1 Reports from the U.S. Department of State are “the most appropriate and perhaps
the best resource . . . to obtain information on political situations in foreign nations.” Rojas
v. I.N.S., 937 F.2d 186, 190 n.1 (5th Cir. 1991).
3
Case: 13-60362 Document: 00512670413 Page: 4 Date Filed: 06/19/2014
No. 13-60362
leave their jobs or take new employment. “Security force personnel detained
individuals for evading national service, generally for fewer than three days
. . . .” Further, “[d]raft evaders often were used as laborers on government
development projects.”
Milat also submitted a 2009 report, Human Rights Watch, Service for
Life: State Repression and Indefinite Conscription in Eritrea (2009). This
report covers many of the same topics as the 2008 State Department report,
but it paints a much darker picture of general conditions in Eritrea. According
to this report, “[a] national network of jails and detention facilities holds those
who try and avoid national service alongside political prisoners and those
imprisoned solely for their religious beliefs. Torture, cruel[] and degrading
treatment, and forced labor are routine.” Moreover, “[t]hose who try and flee
the country are imprisoned or risk being shot on sight at the border. Refugees
who fled . . . and were forcibly repatriated have faced detention and torture
upon return to Eritrea.” National Service includes military service, but also
deployment “in what constitutes illegal forced labor.” “Those who try and
evade national service are treated cruelly. Evaders are detained in terrible
conditions, and heavy penalties are imposed on the families of those who evade
service or flee the country.” “The Eritrean government considers leaving the
country without a valid exit visa a crime, and absconding from National
Service is viewed as tantamount to treason.” Thus, “punishments inflicted on
asylum seekers who are forcibly returned are terrible, including torture and
death.”
Rather than accept permanent assignment to the Defense Ministry,
Milat refused to sign his mobilization forms. Instead, he contacted the
Ministry of Education in an effort to obtain a different assignment.
A few months later, Milat was on his way home from work when he
observed military policemen outside his home questioning his family.
4
Case: 13-60362 Document: 00512670413 Page: 5 Date Filed: 06/19/2014
No. 13-60362
Believing the police were there to arrest him for evading conscription, Milat
ran away to stay with a friend. Milat then decided to flee the country. Milat
left Eritrea with his national identification card, but without a passport.
Milat fears return to Eritrea because he believes his former supervisor,
Lieutenant Colonel Asmerom, “must have informed t[he] government” about
his political cartoon critical of the government’s decision to close Amsara
University. Milat believes this because, he claims, “[i]t is normal operating
procedure for the superior to give a full report to the government regarding the
person who has fled.” He believes that the government “now considers [him] a
political opponent of the regime.”
Milat’s sister, Feven Ghirmay Milat, lived in Eritrea until recently. She
testified before the IJ that, if her brother Milat returns to Eritrea, “[h]e would
be imprisoned and would encounter other problems.” When asked to elaborate
on what she meant by “other problems,” Milat’s sister explained: “It’s not only
imprisonment that happens to people like that. Some of them are being killed
and some of them have a lot of things that happen to a lot of people.”
Milat’s brother, mother, and uncles remain in Eritrea. Milat testified
that he still communicates with them. The IJ asked Milat why he had not
submitted a letter from his mother as part of his asylum application, to
corroborate his story about the police visit at his home, for example. Milat
explained that he thought government officials might inspect the letter.
After he fled Eritrea, the Eritrean government furnished Milat with two
passports—notwithstanding his belief that the Eritrean government
considered him a political opponent. Milat obtained an Eritrean passport from
the Eritrean embassy in Sudan. To obtain the passport, Milat signed a
statement acknowledging he was aware of the consequences of leaving Eritrea
without permission. Milat claims the Eritrean government keeps this
statement on file to “be used against” him if he returns; the statement, he says,
5
Case: 13-60362 Document: 00512670413 Page: 6 Date Filed: 06/19/2014
No. 13-60362
shows “that you were a traitor.” Milat used this passport to travel to the
United Arab Emirates, where he lost the passport. Again, the Eritrean
embassy provided him a passport, his second, and with this passport he
traveled to South America. Milat also testified that the Eritrean government
provided him copies of his birth certificate, university degree, and temporary
certificate of graduation. On cross-examination, Milat explained that Eritrean
government issued him these documents because it did not want its citizens
going to the Ethiopian government to obtain these same documents. See
generally Tesfamichael v. Gonzales, 469 F.3d 109, 111–12 (5th Cir. 2006)
(describing the history of tension between Eritrea and Ethiopia after the
Ethiopian–Eritrean conflict).
Milat traveled from South America to Mexico, and then he entered the
United States at or near Brownsville, Texas. The Department of Homeland
Security issued a Notice to Appear in immigration court charging Milat as
subject to removal as an alien present in the United States illegally in violation
of 8 U.S.C. § 1182(a)(6)(A)(i) (commonly referred to as section 212(a)(6)(A)(i) of
the Immigration and Nationality Act).
After listening to testimony and considering the record, the IJ issued an
oral decision denying Milat’s application for asylum and withholding of
removal, and granting his application for protection under the CAT. The IJ
found that Milat did not establish past persecution within the meaning of the
Immigration and Nationality Act (“INA”). The IJ observed that the evidence
did not establish that the police’s reason for the visit to the Milat’s family home
was to arrest him. The IJ also concluded Milat failed to show well-founded
fear of persecution because his flight from Eritrea amounted to desertion—
failure to fulfill his National Service obligation. Further, the IJ reasoned that
there is no evidence Milat’s supervisor reported his political cartoon to
authorities, so there was no reason to conclude the knowledge of his political
6
Case: 13-60362 Document: 00512670413 Page: 7 Date Filed: 06/19/2014
No. 13-60362
cartoon should be imputed to the government. Finally, the IJ concluded Milat
had not shown that his conscription in the National Service would force him to
participate in inhumane conduct as a journalist for the Ministry of Defense.
The IJ did, however, grant his application for CAT relief based on the Eritrean
government’s practices and its appalling human rights record.
On appeal, the BIA affirmed the IJ’s findings and denied Milat’s request
for remand so the IJ could consider new evidence. Milat timely petitioned for
review to this Court.
II. JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction to review legal claims raised in a petition for review
of a BIA decision. 8 U.S.C. § 1252(a)(2)(D); Ramos–Bonilla v. Mukasey, 543
F.3d 216, 219 (5th Cir. 2008). “However, a petitioner must exhaust all
administrative remedies before appealing to this court.” Id. (citing § 1252(d)). 2
We review the BIA’s legal conclusions de novo. Orellana–Monson v. Holder,
685 F.3d 511, 517 (5th Cir. 2012). 3 We review the factual findings for
substantial evidence. Wang v. Holder, 569 F.3d 531, 536 (5th Cir. 2009). Our
review of factual findings is narrow in scope. We will not substitute our
judgment for the factfinder’s on credibility determinations. Orellana–Monson,
685 F.3d at 518. And we will reverse for lack of substantial evidence only if we
decide “not only that the evidence supports a contrary conclusion, but also that
the evidence compels it.” Chen v. Gonzales, 470 F.3d 1131, 1334 (5th Cir. 2006)
(internal quotation marks omitted); see also Wang, 569 F.3d at 538 (“[W]e must
2 The government contends Milat did not present his argument based on the
distinction between legitimate and illegitimate conscription in his appeal to the BIA, and
therefore, this argument is unexhausted. Our review of the record, however, shows Milat
presented this argument to the BIA. Thus, we find this issue is exhausted and reach the
merits.
3 A legal conclusion that represents the BIA’s interpretation of an ambiguous statute
it administers is not reviewed de novo, however—instead, the interpretation is entitled to
Chevron deference. Orellana–Monson, 685 F.3d at 517.
7
Case: 13-60362 Document: 00512670413 Page: 8 Date Filed: 06/19/2014
No. 13-60362
defer to the BIA’s factual findings unless the evidence is so compelling that no
reasonable fact finder could fail to find otherwise.” (internal quotation marks
omitted)).
III. DISCUSSION
Milat petitions for review of the BIA’s decision denying his asylum
application and his application for withholding of removal, and he raises two
issues. (A) Milat argues the BIA erred in concluding that Milat did not show
persecution. Milat argues the BIA’s error arises from its suppositions that the
Eritrean government could lawfully prosecute him for evading conscription,
and that Milat did not show persecution on account of his political opinions as
expressed through a political cartoon. (B) Milat also argues the BIA should
have remanded his case back to the IJ for reconsideration in light of newly
discovered evidence concerning human rights violations in Eritrea. Because
Milat does not challenge the IJ’s ruling granting him relief under the CAT, we
do not review this decision. The government opposes the petition arguing any
punishment Milat would receive on return to Eritrea “would be the result of
his failure to reenlist in the Eritrean National Service,” and not on account of
a protected ground under the INA such as for his political opinion. The
government also argues the BIA “acted well within its considerable discretion
in denying . . . Milat’s motion to remand.” These issues are addressed in turn
below.
A. The BIA’s Decision Denying Asylum and Upholding Removal
Milat challenges the BIA’s decision denying his asylum application and
denying his application for withholding of removal. Because “the failure to
establish a well-founded fear for asylum eligibility also forecloses eligibility for
withholding of removal,” Orellana–Monson, 685 F.3d at 518, we address
Milat’s asylum-application argument first. See id. (explaining “the asylum
standard is more lenient than the standard for withholding of removal”).
8
Case: 13-60362 Document: 00512670413 Page: 9 Date Filed: 06/19/2014
No. 13-60362
“Section 208(a) of the Immigration and Nationality Act authorizes the
Attorney General, in his discretion, to grant asylum to an alien who is a
‘refugee’ as defined in the Act . . . .” I.N.S. v. Elias–Zacarias, 502 U.S. 478, 481
(1992) (citation omitted). The statute defines “refugee” as any person “who is
unable or unwilling to return” to the country of the person’s nationality
“because of persecution or a well-founded fear of persecution on account of [1]
race, [2] religion, [3] nationality, [4] membership in a particular social group,
or [5] political opinion . . . .” 8 U.S.C. § 1101(a)(42)(A). Thus, to obtain asylum,
the applicant must demonstrate either past persecution or a reasonable, well-
founded fear of future persecution on account of one of the five enumerated
factors. 8 C.F.R. § 208.13(b); Zamora–Morel v. I.N.S., 905 F.2d 833, 837 (5th
Cir. 1990).
In this case, Milat argues he is unable or unwilling to return to Eritrea
under only one of the protected factors—persecution on account of his political
opinion. To demonstrate persecution “on account of” political opinion, the
burden is on the alien to prove his “political opinion was or will be at least one
central reason for persecuting the applicant.” 8 U.S.C. § 1158(b)(1)(B)(i).
“[A]lthough a statutorily protected ground need not be the only reason for
harm, it cannot be ‘incidental, tangential, superficial, or subordinate to
another reason for harm.’” Shaikh v. Holder, 588 F.3d 861, 864 (5th Cir. 2009).
Milat argues he has suffered past persecution, and has a well-founded
fear of future persecution, because he evaded his conscription into the Eritrean
National Service and he will be punished if he returns. Thus, Milat’s appeal
turns in part on whether the Eritrean National Service, of itself, constitutes
persecution on account of political opinion under the INA.
The parties disagree about the legal significance of Eritrean National
Service and the Eritrean government’s practices enforcing its conscription
laws. Milat argues that courts distinguish between “circumstances whe[re]
9
Case: 13-60362 Document: 00512670413 Page: 10 Date Filed: 06/19/2014
No. 13-60362
conscription is illegitimate” and “normal circumstances [where] a country
maintains the right to conscript citizens for military service and to punish
them . . . for refusing to serve.” For this proposition, Milat relies on persuasive
authority from the BIA and other circuits. The government concedes that
“punishment for avoiding military service may constitute persecution” in some
cases. But the government argues these situations fall within limited
exceptions that apply only if the result is a “disproportionately severe
punishment on account of a protected ground,” such as political opinion, or
would effectively conscript the alien “to engage in inhumane conduct.” Because
Milat’s case does not fall within these exceptions, the government argues we
should deny his petition for review.
In accordance with the view of the other circuits that have considered
the question, we hold that punishment for violation of conscription laws of
general applicability does not in itself constitute “persecution” on account of
political opinion under § 1101(a)(42)(A). See Elias–Zacarias, 502 U.S. at 481–
82 (rejecting view that a political “organization’s attempt to conscript a person
into its military forces necessarily constitutes ‘persecution on account of . . .
political opinion’” (alteration in original)); see also Deborah Anker, Law of
Asylum in the United States § 4.6 (2014) (“[P]rosecution for refusal to obey
compulsory military service laws ‘generally does not constitute persecution
. . . .’” (quoting Movsisian v. Ashcroft, 395 F.3d 1095, 1097 (9th Cir. 2005)).
Further, we conclude that prosecution for avoiding military conscription may
constitute “persecution” only if the applicant shows either (1) the penalty
imposed would be disproportionately severe on account of a protected ground,
or (2) the applicant would be required to engage in inhumane conduct as part
of military service. Arbabian v. I.N.S., 995 F.2d 222, 1993 WL 209978, at *1
10
Case: 13-60362 Document: 00512670413 Page: 11 Date Filed: 06/19/2014
No. 13-60362
(5th Cir. June 4, 1993) (unpublished) (citing Alonzo v. INS, 915 F.2d 546, 548
(9th Cir. 1990); Barraza Rivera v. INS, 913 F.2d 1443, 1451 (9th Cir. 1990)). 4
We have consistently reached this conclusion in unpublished opinions, 5
and after careful consideration, we reach the same conclusion here. We are
guided by the Supreme Court’s decision in analogous circumstances in Elias–
Zacarias, and we are persuaded by the decisions of our sister circuits and the
BIA on similar facts. In Elias–Zacarias, the “principal question presented . . .
[was] whether a guerilla organization’s attempt to coerce a person into
performing military service necessarily constitutes ‘persecution on account of
. . . political opinion.’” 502 U.S. at 479. There, guerrillas invaded the home of
Elias–Zacarias in Guatemala, their faces masked by bandanas, and harangued
Elias–Zacarias and his parents to get him to join them in their war against the
Guatemalan government. The guerrillas eventually left, but they told Elias–
Zacarias that they would be back and he should think it over. Elias–Zacarias
4 We decline Milat’s invitation to decide whether Eritrean National Service is, as a
general matter, illegitimate human trafficking. Cf. M.A. v. U.S. I.N.S., 899 F.2d 304, 312
(4th Cir.1990) (en banc) (“International law and Board precedent are very clear that a
sovereign nation enjoys the right to enforce its laws of conscription, and the penalties for
evasion are not considered persecution.”). We instead analyze his petition under the
standards applied by the BIA and our sister circuits.
5 See, e.g., Gebregergish v. Holder, 538 F. App’x 582, 583 (5th Cir. Aug. 16, 2013) (per
curiam) (“‘International law and Board precedent are very clear that a sovereign nation
enjoys the right to enforce its laws of conscription, and the penalties for evasion are not
considered persecution.’ Gebregergish thus cannot establish past persecution based on the
punishment he received for refusing to accept transfer to the Army. Neither has Gebregergish
established that his fear of future persecution based on his military desertion and pursuit of
asylum will support the relief he seeks.” (citations and footnote omitted)); Paz-Caballero v.
I.N.S., 47 F.3d 427, 1995 WL 71383, at *2 (5th Cir. Feb. 2, 1995) (unpublished) (“Conscription,
without more, is not persecution under the [INA]. International law and Board precedent
are very clear that a sovereign nation enjoys the right to enforce its laws of conscription, and
the penalties for evasion are not considered persecution.” (internal quotation marks
omitted)); Arbabian, 1993 WL 209978, at *1 (“Prosecution for failure to perform compulsory
military service is not persecution, unless 1) the petitioner would be subjected to
disproportionately severe punishment on account of political views or 2) the service would
have compelled the petitioner to perform inhumane acts outside the ordinary course of war.”).
11
Case: 13-60362 Document: 00512670413 Page: 12 Date Filed: 06/19/2014
No. 13-60362
did not want to join because he feared the government would retaliate, and he
fled. The Ninth Circuit held “acts of conscription by a nongovernmental group
constitute persecution on account of political opinion,” and Elias–Zacarias had
a well-founded fear of conscription and, therefore, persecution. Id. at 480. The
Supreme Court reversed.
The Court explained that the fact “the guerillas seek to fill their ranks
. . . [to] pursue their political goals . . . does not render the forced recruitment
‘persecution on account of . . . political opinion.’” Id. at 482. An applicant for
asylum fleeing conscription “still has to establish that the record . . . compels
the conclusion that he has a ‘well-founded fear’ that the guerrillas will
persecute him because of that political opinion, rather than because of his
refusal to fight with them.” Id. at 483. Because Elias–Zacarias sought judicial
reversal of the BIA’s determination denying asylum, the Court ruled “he must
show that the evidence he presented was so compelling that no reasonable
factfinder could fail to find the requisite fear of persecution. That he has not
done.” Id. at 483–84. Thus, under Elias–Zacarias, Milat’s argument that “any
punishment for escape [from conscription]. . . would be persecution” is
therefore unavailing. A fear of persecution based only on a refusal to be
conscripted into military service is not sufficient. Milat must show that he
fears persecution from the Eritrean government because of his political
opinion, rather than because of his refusal to serve.
Our sister circuits have concluded that an asylum applicant’s fear of
punishment for evading military service establishes a well-founded fear of
persecution in only two circumstances: the applicant must either establish that
he would face disproportionate and severe punishment for refusing to serve on
account of a protected ground, or that military service will necessarily require
12
Case: 13-60362 Document: 00512670413 Page: 13 Date Filed: 06/19/2014
No. 13-60362
the applicant to participate in inhumane conduct. 6 The Ninth Circuit’s
decision in Zehayte v. Gonzales is illustrative. 453 F.3d 1182 (9th Cir. 2006).
There, Zehayte, an Eritrean national, entered the United States and sought
asylum. Zehayte appealed the IJ’s decision denying her asylum application.
Zehayte made arguments similar to Milat’s here. She argued, inter alia, that
she had a well-founded fear of persecution “because she refused to serve in the
6 See, e.g., Mohammed v. U.S. Att’y Gen., 547 F.3d 1340, 1346 (11th Cir. 2008)
(rejecting argument that the asylum applicant had “established a well-founded fear of
persecution based on the reasonable possibility of forced service in the Eritrean military”
because the applicant “had to prove either that he would be disproportionately punished for
refusing to serve in the Eritrean military or that he would be forced to join an internationally
condemned military.”); Ghebrehiwot v. Att’y Gen. of U.S., 467 F.3d 344, 355 n.11 (3d Cir.
2006) (“[T]hose who violate laws governing . . . military conscription . . . do not merit asylum
based on their fear of punishment for the crime that they committed.” (internal quotation
marks omitted) (second and third alterations in original)); Habtemicael v. Ashcroft, 370 F.3d
774, 780 (8th Cir. 2004) (“The immigration judge found that any adverse action which might
be taken against Habtemicael by the Eritrean government would be on account of his
desertion from the EPLF and the deaths of its soldiers, not on account of his politics. While
Habtemicael might indeed be punished or conscripted for his failure to contribute money to
the Eritrean government, that could not form the basis of an asylum claim because his failure
to make payments did not by itself express a political opinion. If he were conscripted, it would
be because he had not completed his military service requirement rather than because of his
political beliefs. Our review of the record shows that the immigration judge’s finding that
Habtemicael has no well founded fear of future persecution on the basis of his political beliefs
is supported by substantial evidence.”); Mekhoukh v. Ashcroft, 358 F.3d 118, 126 (1st Cir.
2004) (“[A] sovereign nation enjoys the right to enforce its laws of conscription, and normal
penalties for evasion generally are not considered persecution[;] two types of asylum claims
can arise based on avoidance of military service. First, an alien may be eligible for asylum if
‘refusal to serve in the military results not in normal draft evasion penalties, but rather in
disproportionately severe punishment on account of one of the five grounds enumerated in
the [INA].’ Second, an alien is eligible for asylum if ‘the alien would be associated with a
military whose acts are condemned by the international community as contrary to the basic
rules of human conduct.’” (footnote and citations omitted)); M.A. v. U.S. I.N.S., 899 F.2d 304,
312 (4th Cir. 1990) (en banc) (“International law and Board precedent are very clear that a
sovereign nation enjoys the right to enforce its laws of conscription, and that penalties for
evasion are not considered persecution. The Board also properly acknowledged that an
exception to this rule will be recognized and an alien will be considered eligible for asylum in
those rare cases in which either (1) the alien would be associated with a military whose acts
are condemned by the international community as contrary to the basic rules of human
conduct, or (2) refusal to serve in the military results not in normal draft evasion penalties,
but rather in disproportionately severe punishment on account of one of the five grounds
enumerated in section 1101(a)(42)(A) of the [INA].” (footnote and citations omitted)).
13
Case: 13-60362 Document: 00512670413 Page: 14 Date Filed: 06/19/2014
No. 13-60362
military, [and] she will be persecuted if she is forced to return to Eritrea.” Id.
at 1186. Like Milat, Zehayte was conscripted into the Eritrean National
Service and was assigned to the army, and she fled the country to evade
conscription. Zehayte claimed that as a Jehovah’s Witness, her religious
beliefs forbade her from serving in the military. The Ninth Circuit rejected
these arguments and denied Zahayte’s petition for review. The court explained
“forced conscription or punishment for evasion of military duty generally does
not constitute persecution.” Id. at 1187. Further, the court held Zehayte’s
circumstances did not “fit within the exceptions to this rule.” Id. The court
explained Zehayte did not present evidence that she would have been required
to participate in activities “internationally condemned [as] inhumane,” or that
“she would be singled out for severe disproportionate punishment for refusing
to serve in the Eritrean military.” Id. at 1187–88. We reached the same
conclusion in our unpublished opinion in Paz-Caballero for the same reasons.
1995 WL 71383, at *2–4 (holding “[c]onscription, without more, is not
persecution under the [INA],” and denying petition for review in part because
“Paz-Caballero has made no showing that he was singled out for any [reason
other than his potential as an effective soldier]”).
Applying this rule, we conclude that the IJ’s decision denying Milat’s
application for asylum was supported by substantial evidence. Although the
evidence is conflicting, 7 the State Department report suggests that evasion of
Eritrean National Service obligations generally results in brief detentions. See
Rojas, 937 F.2d at 190 n.1 (noting that reports from the State Department are
“the most appropriate and perhaps the best resource . . . to obtain information
on political situations in foreign nations”). Moreover, Milat does not point to
any direct evidence that he would be singled out and disproportionately
7 Some evidence in the record suggests that the Eritrean government subjects the
country’s citizens to inhumane treatment for evading the National Service.
14
Case: 13-60362 Document: 00512670413 Page: 15 Date Filed: 06/19/2014
No. 13-60362
punished for evading conscription on account of his political views. The IJ and
BIA could have reasonable concluded based on the evidence that officials at the
Ministry of Defense did not know about his political inclinations. He did not
speak with his mother or other family members about why the police came to
the family home. He could only speculate as to whether his former supervisor,
Lieutenant Colonel Asperom, reported him to the authorities for his political
cartoon critical of the government’s decision to close Asmara University. Nor
does he indicate that his request for a reassignment within the National
Service itself would be viewed as an expression of political opposition to the
government.
Moreover, Milat admitted on cross-examination that the Eritrean
government repeatedly furnished him with travel documents, his university
certificate, and other information after he had fled the country. This evidence
tends to undermine his argument that the Eritrean government views him as
a political opponent. Without evidence that the Eritrean government knew of
his political opinions or that the government may have imputed some political
opinion to him due to his desire for a reassignment within the National Service,
the IJ and the BIA reasonably concluded Milat had not shown that any
persecution would be because of his political opinions. See Elias–Zacarias, 502
U.S. at 483 (holding that an applicant for asylum fleeing conscription “still has
to establish that the record . . . compels the conclusion that he has a ‘well-
founded fear’ that the guerrillas will persecute him because of that political
opinion, rather than because of his refusal to fight with them.”). Further,
Milat’s testimony indicated that he was not personally required to participate
in any inhumane activities as a journalist at the Ministry of Defense, nor did
he establish that he would be required to perform inhumane activities were he
to return.
15
Case: 13-60362 Document: 00512670413 Page: 16 Date Filed: 06/19/2014
No. 13-60362
Therefore, the record on which the BIA rendered its decision does not
compel a finding that Milat either was persecuted on account of his political
opinion, or that he has a well-founded fear that he would be persecuted on
account of his political beliefs were he to return to Eritrea. See Chen, 470 F.3d
at 1134. Milat therefore has failed to show that he is entitled to asylum.
Because Milat is not entitled to asylum, he also is not entitled to withholding
of removal. See Orellana–Monson, 685 F.3d at 518.
B. Motion to Remand
Milat argues the BIA abused its discretion in denying his motion to
remand his case to the IJ for rehearing based on the following new evidence:
the United Nations 2000 Protocol to Prevent, Suppress and Punish Trafficking
in Persons, Especially Women and Children, Supplementing the United
Nations Convention Against Transnational Organized Crime; the State
Department’s 2012 Trafficking in Persons Report; the State Department’s
2011 Country Report on Human Rights Practices; the United Nations 1967
International Covenant on Civil and Political Rights; the 2012 report of the
U.S. Commission on International Religious Freedom; the 2011 report of the
United Nations High Commissioner for Refugees (“UNHCR”) providing
guidelines for assessing the protective needs of asylum seekers from Eritrea;
the Department of Labor’s 2010 and 2009 Findings on the Worst Forms of
Child Labor; and a United Nations Security Council resolution from December
2011 condemning Eritrea for its aggression as to neighboring Djibouti.
We review the denial of a motion to remand “under a highly deferential
abuse-of-discretion standard.” See Zhao v. Gonzales, 404 F.3d 295, 303 (5th
Cir. 2005); Wang v. Ashcroft, 260 F.3d 448, 451–52 (5th Cir. 2001) (explaining
that a motion to remand for the consideration of new evidence is considered to
be the same in substance as a motion to reopen a removal proceeding). This
Court will affirm this decision “so long as it is not capricious, racially invidious,
16
Case: 13-60362 Document: 00512670413 Page: 17 Date Filed: 06/19/2014
No. 13-60362
utterly without foundation in the evidence, or otherwise so irrational that it is
arbitrary rather than the result of any perceptible rational approach.” Zhao,
404 F.3d at 304 (citation and internal quotations marks omitted). “A motion
to [remand for new evidence] shall not be granted unless it appears to the
Board that evidence sought to be offered is material and was not available and
could not have been discovered or presented at the former hearing . . . .” 8
C.F.R. § 1003.2(c)(1); see also Matter of Ige, 20 I. & N. Dec. 880, 883 (BIA 1994).
Here, the United Nations documents from 1967 and 1980 were available
when Milat’s case was before the IJ and could have been presented then. Those
documents could not serve as a basis for a remand. See 8 C.F.R. § 1003.2(c)(1).
The State Department’s documents from 2011 and 2012 cover similar material
but paint a darker picture of Eritrea than the 2008 report does. The UNHCR
report describes the National Service program and the steep penalties for
evasion, penalties that include “detention for long periods often in inhumane
conditions, torture and forced labour.” The report also notes the grounds for
seeking asylum under the INA and states that “[i]n practice, the punishment
for desertion or evasion is so severe and disproportionate such as to amount to
persecution.” The report further states that “[r]efusal to perform national
service may be regarded by the Eritrean authorities as an expression of
political opposition to the Government,” and that “[p]ersons who evade or
desert military service may be regarded as disloyal and treasonous towards
the Government, and therefore punished for their perceived disloyalty.”
These documents tend to suggest that the Eritrean National Service is a
hybrid of traditional military conscription and a system of forced labor akin to
slavery. However, the documents on which the BIA rendered its decision
denying asylum also suggested this, though to a lesser degree. Moreover, the
documents do not establish that Milat would have had any political opinions
imputed to him beyond possibly a general opposition to the Eritrean
17
Case: 13-60362 Document: 00512670413 Page: 18 Date Filed: 06/19/2014
No. 13-60362
government based on his escape from the country to avoid the National Service.
Additionally, Milat was granted relief under the CAT. Thus, the apparently
increased possibility of torture were he to be returned to Eritrea was no longer
an issue when the BIA was considering whether to remand the case because
Milat will not be going back to Eritrea. 8 Thus, the denial of the motion for
remand was not arbitrary or irrational based on the record before the BIA at
the time it denied the motion. See Zhao, 404 F.3d at 304.
IV. CONCLUSION
We recognize that the evidence indicates the practices of the Eritrean
government in enforcing its program of National Service are coercive and
disturbing. We also note that some of the evidence submitted in support of
Milat’s motion for remand indicates that refusal to participate in National
Service may be imputed as political opposition to the Government. On this
record, however, we cannot say the IJ’s finding was unsupported by substantial
evidence, nor can we say the BIA’s denial of Milat’s motion for remand was
irrational or arbitrary. Therefore, Milat’s PETITION IS DENIED.
8 Milat filed a letter under Federal Rule of Appellate Procedure 28(j) to notify the
Court of the BIA’s decision in Gebrengus; however, Milat’s reliance on Gebrengus is misplaced
because that decision is distinguishable. In Gebrengus, the petitioner was conscripted into
the National Service in the eleventh grade. When he declined, he was taken to a detention
camp, where he was held in a cell and poorly fed. He fled after five days and ultimately made
his way to the United States. He was denied asylum, withholding of removal, and relief
under the CAT. On appeal to the BIA, the petitioner submitted a 2012 trafficking report and
a 2012 religious freedom report, which the petitioner argued “demonstrate that the national
service program is essentially involuntary servitude.” The BIA granted the motion for
remand “[i]n light of this additional evidence about current country conditions.”
Unlike Milat the petitioner in Gebrengus was denied asylum, withholding of removal,
and protection under the Convention Against Torture, and the BIA remanded for
consideration to decide whether the petitioner might be entitled to relief under the CAT,
among other issues. In contrast, here, Milat received protection under the CAT. Further,
the petitioner in Gebrengus refused to participate in National Service at all, whereas Milat
merely sought reassignment from one branch of National Service to another before he fled
the country. Thus, Milat and the petitioner in Gebrengus were not identically situated, and
Gebrengus does not render the denial of Milat’s motion for remand irrational or arbitrary so
as to constitute an abuse of discretion. See Zhao, 404 F.3d at 304.
18