Hagos Gidey v. Garland

Case: 21-60182 Document: 00516800497 Page: 1 Date Filed: 06/26/2023
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
No. 21-60182
FILED
June 26, 2023
____________
Lyle W. Cayce
Simon Hagos Gidey, Clerk
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
______________________________
Petition for Review of an Order of the Board of Immigration Appeals
Agency No. A213 482 834
______________________________
Before Smith, Clement, and Wilson, Circuit Judges.
Per Curiam:*
Simon Hagos Gidey, purportedly a native and citizen of Eritrea, was
served with a notice to appear for arriving in the United States without a visa
or other valid entry document. He conceded removal and applied for asylum,
withholding of removal, and relief under the Convention Against Torture
(CAT). The immigration judge (IJ) denied his applications. Gidey appealed
to the Board of Immigration Appeals (BIA), which dismissed his appeal.
Gidey petitioned this court for review. We deny the petition.
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 21-60182 Document: 00516800497 Page: 2 Date Filed: 06/26/2023
No. 21-60182
Gidey testified as follows at his removal hearing. He was born in 1994
and raised primarily by his mother in Senafe, Eritrea. His father was a soldier.
In 2016, Gidey’s father was arrested, and his family’s income plummeted.
To make up for the shortfall, Gidey started working at a bakery in May 2016.
He completed eleventh grade a month later and, per Eritrean law, was
required to report to a military camp to begin compulsory military service.
Gidey shortly received two summonses from Eritrean authorities directing
him to report. He ignored them because he knew he would be arrested if he
reported and because he needed to support his family financially. He further
explained that he opposes Eritrean military service because it is “like
slavery,” “human rights are not respected,” it is unpaid, it lasts indefinitely,
and “[soldiers] are [] servant[s] of the officials.”
In October 2016, after Eritrean authorities arrested Gidey’s mother,
he turned himself in. He was detained for two weeks. During that time, he
was beaten and interrogated. He escaped detention by scaling a prison fence
and traveled by foot through Eritrea into Ethiopia. Gidey was questioned by
Ethiopian authorities, received a ration card, and completed forms to obtain
refugee status. He was transported to a refugee camp called Hitsats, where
he lived for about three years. Gidey testified that he was politically active
there and openly expressed his views against the Eritrean government.
According to Gidey, after Ethiopia and Eritrea entered into a peace
treaty, agents of the Eritrean government began entering Ethiopian refugee
camps to kidnap Eritreans. In August 2019, Gidey fled to Brazil with the
assistance of a smuggler who took Gidey’s ration card, but supplied Gidey
with an Ethiopian passport that had Gidey’s identifying information on it.
Gidey arrived in Laredo, Texas in February 2020 and applied for admission
to enter the United States. In support, Gidey submitted a declaration, birth
certificate, handwritten baptismal certificate, letters from his family
members, and country conditions evidence.
2
Case: 21-60182 Document: 00516800497 Page: 3 Date Filed: 06/26/2023
No. 21-60182
The IJ held that Gidey’s testimony was “lacking in persuasiveness
and that corroboration was necessary.” Specifically, the IJ faulted Gidey for
failing to produce the military summonses and proof of his employment at
the bakery. Gidey explained that he could not provide the summonses
because he did not ask his family in Eritrea to send them. He clarified that he
assumed his family had thrown them away. As for proof of employment at
the bakery, Gidey proffered only a letter from his mother, which the IJ found
insufficient because she was an interested witness not subject to cross-
examination.
Further, the IJ found that Gidey’s “identity was questionable as
well.” Though acknowledging that Gidey provided a birth certificate and
handwritten baptismal certificate, the IJ found that neither document had
been authenticated. The IJ also noted that Gidey had obtained an “Ethiopian
passport that allowed him to travel through many different countries on his
way to the United States.” This fact, in conjunction with “the manner in
which [Gidey] allegedly obtained his Ethiopian passport” and “the alleged
length of time [Gidey] indicated he was in Ethiopia,” led the IJ to conclude
that Gidey’s “nationality could be Eritrean or Ethiopian.” Given the lack of
corroboration, the IJ found that Gidey could not meet his burden to show
entitlement to relief.1
Gidey appealed to the BIA, which upheld the IJ’s determination that
Gidey’s claims were not sufficiently corroborated and rejected Gidey’s
explanations for his failure to corroborate.2 Gidey now seeks our review.
_____________________
1
The IJ, assuming Gidey’s persuasiveness, alternatively analyzed Gidey’s claims
on the merits and reached the same result.
2
The BIA also considered the merits of Gidey’s claims in the alternative and
reached the same result.
3
Case: 21-60182 Document: 00516800497 Page: 4 Date Filed: 06/26/2023
No. 21-60182
“We review the order of the BIA and the ruling of the IJ to the extent
it influences the order of the BIA.” Rui Yang v. Holder, 664 F.3d 580, 584
(5th Cir. 2011). We review for substantial evidence the BIA’s determinations
that Gidey was not eligible for asylum, withholding of removal, or CAT relief.
Chen v. Gonzales, 470 F.3d 1131, 1134 (5th Cir. 2006). When we review for
substantial evidence, “reversal is improper unless we decide not only that the
evidence supports a contrary conclusion, but also that the evidence compels
it.” Id. (citation and quotation marks omitted). Gidey bears the burden of
establishing his entitlement to asylum, withholding of removal, and CAT
relief. Rui Yang, 664 F.3d at 584, 588–89. He fails to meet his burden, as he
has not shown that the evidence compels a conclusion contrary to that
reached by the BIA. See id.Insofar as he argues that the BIA erred by requiring him to submit
corroborating evidence, this argument fails. See id. at 585–87. Moreover, the
BIA’s conclusion that Gidey reasonably could have provided the requisite
corroborating evidence is supported by substantial evidence. See id. at 587.
Finally, the country conditions evidence that Gidey submitted does not
establish that it is more likely than not that he will be persecuted, much less
tortured, in the country of removal because Gidey failed to persuade the IJ of
his identity, i.e., that he is a native and citizen of Eritrea. True enough, the
BIA has granted CAT relief to Eritreans “based on the Eritrean
government’s practices and its appalling human rights record,” Milat v.
Holder, 755 F.3d 354, 364 (5th Cir. 2014), but Gidey’s CAT claim falters, like
his others, because he has not provided sufficient evidence that he is Eritrean,
as opposed to Ethiopian. Gidey thus failed to prove that he falls into the
categories of people who, per the country conditions evidence in the record,
may be tortured in Eritrea: Eritrean nationals who evade military service and
Eritreans who leave the country illegally.
PETITION DENIED.
4