Selamawit Zehatye v. Alberto R. Gonzales, Attorney General

453 F.3d 1182, 2006 U.S. App. LEXIS 17489, 2006 WL 1928473

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 13, 2006
• Docket: 04-73295
• Status: Published

Opinions

CALLAHAN, Circuit Judge.

Petitioner Selamawit Zehatye challenges the Board of Immigration Appeals’s (“BIA”) denial of her application for asylum and withholding of removal based on her status as a Jehovah’s Witness. We affirm.

I.

A. Zehatye’s Arrival in the United States

Zehatye is a native and citizen of Eritrea, a country located in Northern Africa. After boarding a plane in Kenya and changing flights somewhere in Europe, she ultimately arrived at Dulles International Airport in Northern Virginia on July 13, 2002. She presented herself to immigration officials at the airport and sought asylum, explaining that she was a Jehovah’s Witness and feared being “harmed or killed” if forced to return home.

Immigration officials conducted a “credible fear interview,” where Zehatye stated that she was “in hiding” because her religion prevented her from “participating in politics.” She further explained that she left her country in 1999 and “went to Ethiopia for 2 years,” after which she “went to Kenya.” She also noted that she could not financially support herself while she lived in Kenya.

The former-immigration and Naturalization Service (“INS”)¹ denied Zehatye’s request for asylum and, after a brief detention, released her on a bond posted by a Mr. Yosief Tesfay. After her release, Zehatye stayed in Northern Virginia with Mr. Tesfay and his wife, Dahab Beyene, who introduced herself to immigration officials as Zehatye’s sister-in-law. Soon thereafter, Ms. Beyene’s brother, also a Jehovah’s Witness, became acquainted with Zehatye and the two became a couple.

In September 2002, the couple moved to San Francisco and were married on December 30, 2002, five months after Zehatye’s arrival to the United States.² Meanwhile, removal proceedings were underway.

The former-INS filed a Notice to Appear with the immigration court, seeking Zehatye’s removal as an arriving alien not in possession of any valid document of entry, travel, identity, or nationality. In response, Zehatye conceded removability as charged and applied for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). On June 6, 2003, a hearing was held before the Immigration Judge (“IJ”), during which Zehatye presented the following evidence.

B. Conditions in Eritrea

Zehatye was born in 1974 in Asmara, the capital city of Eritrea which, at the time, was the southernmost region of Ethiopia. In 1993, Eritrea held an internationally monitored referendum in which citizens voted overwhelmingly for independence from Ethiopia. The Eritrean People’s Liberation Front led the 30-year war for independence and has controlled the country since that time.

Zehatye testified that she and her family, like most other Jehovah’s Witnesses, did not vote in the 1993 referendum. Consequently, Jehovah’s Witnesses as a group suffered widespread criticism that they were collectively shirking their civic duty. Zehatye claimed that despite her best efforts to avoid such criticism, her name was placed on a “list for not participating in the referendum,” and that she and her family “suffered greatly.”

Zehatye told the IJ that her father’s carpentry business was confiscated and his trade license taken away,³ and that her family was forced to leave their home and seek shelter with relatives. She testified that she and her five siblings spent their nights “crammed in a single room.”

Zehatye was able to complete high school in 1995. In 1998, fighting broke out between Eritrea and Ethiopia along the border, and continued for two years. The Eritrean government responded to the escalating conflict by calling up reserves and increasing the armed forces to approximately 300,000 soldiers. The State Department report indicated that the army resorted to “various forms of extreme physical punishment to force objectors, including some members of Jehovah’s Witnesses, to perform military service.”

The “Rebele,” a governing organization in Zehatye’s village, maintained a list of those eligible to serve in the armed forces and in 1999 posted a list that included Zehatye’s name. Zehatye testified that authorities gave her one week to prepare to enter the army. She claimed that she fled Eritrea shortly thereafter, because her religious beliefs forbade her serving in the military. She also testified that she believed her life was in danger because she was under constant government surveillance.⁴

II.

The IJ denied Zehatye’s asylum claim, finding that she had not established past persecution or a well-founded fear of future persecution. Likewise, he denied withholding of removal on the ground that Zehatye did not demonstrate a clear probability or real likelihood that she would be persecuted if she returned to Eritrea. Additionally, he found no evidence of torture to support a claim for relief under CAT.

The BIA summarily affirmed and Zehatye filed this timely appeal, which challenges only the denial of asylum and withholding of removal.

When the BIA summarily affirms the IJ’s decision, we review the IJ’s decision as the final agency action. Kebede v. Ashcroft, 366 F.3d 808, 809 (9th Cir.2004). The decision that an alien has not established eligibility for asylum or withholding of removal is reviewed for substantial evidence. Njuguna v. Ashcroft, 374 F.3d 765, 769 (9th Cir.2004). Under the substantial evidence standard, “administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). Thus, we must uphold the IJ’s determination if it is supported by reasonable, substantial, and probative evidence in the record. INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992).

III.

A. Asylum

Zehatye claims that she is eligible for asylum because she was persecuted in Eritrea on account of her religion.⁵ To qualify for asylum, an applicant must demonstrate that he or she has suffered past persecution or has a well-founded fear of future persecution. 8 U.S.C. § 1101(a)(42)(A); 8 C.F.R. § 1208.13(b). Specifically, an alien is eligible for asylum if he or she

can show past persecution on account of [race, religion, nationality, membership in a particular social group, or political opinion]. Once past persecution is demonstrated, then fear of future persecution is presumed, and the burden shifts to the government to show, by a preponderance of the evidence, that there has been a fundamental change in circumstances such that the applicant no longer has a well-founded fear of persecution, or the applicant could avoid future persecution by relocating to another part of the applicant’s country. An applicant may also qualify for asylum by actually showing a well-founded fear of future persecution, again on account of[one of the five protected grounds].

Deloso v. Ashcroft, 393 F.3d 858, 863-64 (9th Cir.2005) (internal citations and quotation marks omitted).

The IJ’s finding that Zehatye failed to establish past persecution or a well-founded fear of future persecution is supported by substantial evidence. The State Department report on Religious Freedom in Eritrea, dated 2002, indicated that there were less than 1500 Jehovah’s Witnesses in the country and that under some circumstances, Jehovah’s Witnesses are discriminated against, detained and harassed because of their missionary work. Nevertheless, the report notes that there are several Jehovah’s Witness churches in Eritrea and members are not barred from meeting in private homes. The report also states that there is no indication that any persons are detained or imprisoned solely because of their religious beliefs or practices, although

the government has singled out members of Jehovah’s Witnesses for harsher treatment than received by members of other faiths for [refusing to serve in the military].... The maximum penalty for refusing to do national service is 3 years. Ministry of Justice officials have denied that any members of Jehovah’s Witnesses were in detention without charges, although they acknowledge that some members of Jehovah’s Witnesses and a number of Muslims were in jail serving sentences for convictions on charges of evading national service.

U.S. Dep’t of State, Eritrea: International Religious Freedom Report (Oct. 7, 2002) (“2002 Religious Freedom Report”).

1. No Compelling Evidence of Past Persecution

Although Zehatye’s case evokes sympathy, it does not compel a finding of past persecution. See, e.g., Halaim v. INS, 358 F.3d 1128, 1132 (9th Cir.2004) (holding that discrimination against Ukranian sisters on account of Pentecostal Christian religion did not compel a finding of past persecution); Kazlauskas v. INS, 46 F.3d 902, 907 (9th Cir.1995) (holding that harassment and ostracism was not sufficiently atrocious to support a humanitarian grant of asylum).

Zehatye also argues that she was persecuted because she suffered substantial economic disadvantage when the government seized her father’s carpentry business and trade license, and forced her family to live with relatives. We have held that substantial economic deprivation that constitutes a threat to life or freedom can constitute persecution. See Baballah v. Ashcroft, 367 F.3d 1067, 1076 (9th Cir.2004) (observing that severe harassment, threats, violence and discrimination made it virtually impossible for Israeli Arab to earn a living). However, “mere economic disadvantage alone, does not rise to the level of persecution.” Gormley v. Ashcroft, 364 F.3d 1172, 1178 (9th Cir.2004); see also Ubau-Marenco v. INS, 67 F.3d 750, 755 (9th Cir.1995) (noting that confiscation of entire family business without compensation because of family’s political beliefs may not be enough, standing alone, to support finding of economic persecution), overruled on other grounds by Fisher v. INS, 79 F.3d 955, 963 (9th Cir.1996); Matter of Acosta, 19 I. & N. Dec. 211, 222 (BIA 1985) (holding that economic deprivation rises to the level of persecution when it is “so severe that [it] constitutes a threat to an individual’s life or freedom”), overruled on other grounds by Matter of Mogharrabi, 19 I. & N. Dec. 439 (BIA 1987), overruled on other grounds by Pitcherskaia v. INS, 118 F.3d 641, 647-48 (9th Cir.1997). The government’s seizure of Zehatye’s father’s business, while reprehensible, did not threaten Zehatye’s life or freedom.⁶ Because this evidence does not compel a finding of past persecution, we must uphold the IJ’s determination that Zehatye failed to establish past persecution. 8 U.S.C. § 1252(b)(4)(B).

2. No Compelling Evidence Establishing a Well-Founded Fear of Future Persecution

Regardless of the sufficiency of the evidence of past persecution, Zehatye maintains that she is entitled to asylum because she has a well-founded fear of future persecution. A well-founded fear of future persecution must be subjectively genuine and objectively reasonable. Montecino v. INS, 915 F.2d 518, 520-21 (9th Cir.1990).

To support her claim, Zehatye points out that during the period since she left Eritrea, the government has leveled civil rights abuses at political dissidents. These abuses, however, were not directed at Jehovah’s Witnesses because of their religious beliefs.⁷

Zehatye also contends that because she refused to serve in the military, she will be persecuted if she is forced to return to Eritrea. She cites to a State Department report that describes military roadblocks, street-sweeps and house-to-house searches to find deserters and draft evaders. The report states:

In some instances, authorities arrested and detained for several hours or even days individuals, including pregnant women, children under age 18, and citizens of other countries, who were not subject to national service obligations or had proper documentation showing they had completed or were exempt from national service.

U.S. Dep’t of State, ERITREA: COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES 2002 (Mar. 31, 2003). The report does not establish, however, that Jehovah’s Witnesses were singled out because of their religious beliefs. Moreover, forced conscription or punishment for evasion of military duty generally does not constitute persecution. See Movsisian v. Ashcroft, 395 F.3d 1095, 1097 (9th Cir.2005) (noting that forcing a citizen to serve in the armed forces along with the rest of the country’s population does not amount to persecution) (citation omitted).

We disagree with the dissent’s suggestion that Zehatye’s circumstances fit within the exceptions to this rule recognized in Canas-Segovia v. INS, 970 F.2d 599 (9th Cir.1992), and Barraza Rivera v. INS, 913 F.2d 1443 (9th Cir.1990).

The dissent cites our decision in CanasSegovia, 970 F.2d at 601, for the proposition that conscientious objectors may establish a persecution claim if they can demonstrate that they were selected for mistreatment because of their religious beliefs. There, however, we rejected CanasSegovia’s argument that his refusal to serve in the military (because he was a Jehovah’s Witness) was a religious practice for which he was being persecuted. Id. We expressly held that “this alone cannot satisfy the requirement of demonstrating his persecutors’ motive or intent.” Id. We granted relief in Canas-Segovia on the basis of imputed political opinion — not religion.

Similarly, the dissent’s reliance on Barraza Rivera v. INS, 913 F.2d at 1450-51, is misplaced. Barraza was ordered by a military officer, under threat of death, to participate in the paid killing of two men. He abandoned military service and fled El Salvador. Barraza testified that he did not want to participate in the assassinations because he believed they were wrong and illegal. Id. at 1450, 1452. Indeed, as the court noted, the murders would have been internationally condemned inhumane acts. Id. at 1453.

We distinguished Barraza Rivera from other “conscientious objector” cases based on the fact that Barraza did not generally oppose military service based on institutionalized practices of the Salvadoran military. Rather, he fled from a terrifying choice that the military forced upon him: murder others, or be murdered himself. Id. at 1453 n. 14. We held that Barraza had established a well-founded fear of persecution because substantial evidence demonstrated that if returned to El Salvador, Barraza would more likely than not be forced to participate in unconscionable assassinations or be killed for refusing to do so. Id. at 1453-54. See Bolanos-Hernandez v. INS, 767 F.2d 1277, 1285 (9th Cir.1984) (holding that a specific, serious threat may establish a well-founded fear of persecution).

Like Barraza Rivera, the other cases cited by the dissent require a finding of serious or disproportionate punishment for refusing to serve in the military in order to qualify for asylum. See, e.g., Ghebremedhin v. Ashcroft, 385 F.3d 1116, 1120 (7th Cir.2004) (serious punishment); Mekhoukh v. Ashcroft, 358 F.3d 118, 126 (1st Cir.2004) (disproportionately severe punishment); Matter of A — G—, 19 I. & N. Dec. 502, 506 (BIA 1987) (same).

Zehatye presented no evidence of individualized threat, and weak, if any, evidence that she would be singled out for severe disproportionate punishment for refusing to serve in the Eritrean military.⁸ By contrast, in Ghebremedhin, the petitioner testified that his brother and a university colleague had been incarcerated and beaten to death for refusing to serve in the military. 385 F.3d at 1120. On this record, there is no such evidence to compel a finding of a well-founded fear of persecution. Accordingly, we must uphold the IJ’s findings. 8 U.S.C. § 1252(b)(4)(B).

Finally, Zehatye contends that she could be tortured if forced to return to Eritrea, citing a 2003 State Department report that describes the use of physical torture such as bondage, heat exposure, and beatings to punish those detained for their religious beliefs. The report references “several reports” of torture, but does not elaborate. It specifically notes sporadic detention of members of the Philadelphia Church of Asmara, the Association of Evangelical Churches, the Bethel Church, the Rehma Church, Pentecostal, Full Gospel and other small churches, but does not mention the Jehovah’s Witnesses. To the contrary, the report states that conditions for Jehovah’s Witnesses are improving:

Jehovah’s Witnesses ... faced some social discrimination because of their refusal to participate in the 1993 independence referendum and to perform national service; however, the level of societal discrimination against Jehovah’s Witnesses continued to decline during the year.

U.S. Dep’t. of State, Eritrea: Country Reports On Human Rights Practices 2003 (Feb. 25, 2004) (“2003 Country Report”).

This evidence does not compel a finding that Zehatye has an objective well-founded fear of being tortured if returned to Eritrea.⁹ Ladha, 215 F.3d at 897;¹⁰ see also Marcos v. Gonzales, 410 F.3d 1112, 1120-21 (9th Cir.2005) (requiring an individualized determination that changed conditions reported in Country Report will affect asylum applicant’s specific situation). Accordingly, we are obligated to uphold the IJ’s findings under the substantial evidence standard. Elias-Zacarias, 502 U.S. at 481, 112 S.Ct. 812.

The dissent suggests, notwithstanding, that we should grant review because the IJ failed to address factors pertinent to Zahatye’s claims, citing Tukhowinich v. INS, 64 F.3d 460, 463-64 (9th Cir.1995). Tukhowinich is inapposite. There, the IJ denied the petitioner’s application for suspension of deportation based upon a finding of no extreme hardship. Id. at 462. The BIA affirmed the finding in a short opinion that relied solely upon the IJ’s disposition. Id.

The BIA stated that the IJ considered Ms. Tukhowinich’s “age, marital status, good health, family ties in the United States and in Thailand, in addition to the economic and political conditions in the respondent’s native country.” Id. at 463 (emphasis in original). In fact, however, the IJ’s opinion did not mention any aspect of the political unrest in Thailand. Evidence introduced at the hearing before the IJ in the form of various newspaper clippings established that Thailand’s democratic government had suffered a military coup on February 23, 1991, yet the IJ made no mention of these events. Id. We reversed and remanded “[bjeeause the BIA mistakenly referred to material not actually considered by the IJ” and because it “relied on an IJ’s opinion lacking in consideration of all the relevant factors ....” Id. at 465.

By contrast, the IJ in the present case specifically considered the State Department reports that Zehatye cited in support of her asylum claim. Indeed, we respectfully disagree with the dissent’s suggestion that the IJ “cherry-picked” only those facts that would cast doubt on Zehatye’s asylum claim, while misstating or failing to acknowledge facts that would support her claim. For example, the IJ noted:

State Department reports, both for Eritrea and Ethiopia, indicate that under some circumstances, members of Jehovah’s Witnesses are clearly discriminated against, in some cases harassed because of their missionary work, and in some cases clearly have trouble with secular government with regard to their position vis-a-vis military service or as in the case of Eritrea national service.... The State Department indicates there is no indication that any persons are detained or imprisoned solely because of their religious beliefs or practices; however, the government has singled out members of Jehovah’s Witnesses for harsher treatment than that received by members of other faiths for similar actions. There are members of Jehovah’s Witnesses detained without charge. The maximum penalty for refusing to do national service is three years. The ministry of justice of Eritrea has denied that any members of Jehovah’s Witnesses were in detention without charges, although they acknowledge that some members of Jehovah’s Witnesses and a number of Muslims were in jail serving sentences for convictions on charges of evading national service.

IJ’s Oral Decision at 14.

Although the evidence may be susceptible to more than one rational interpretation, a reasonable fact finder could conclude on this record that Zehatye failed to establish past persecution or a well-founded fear of future persecution. Accordingly, we may not substitute our judgment for that of the IJ, as the dissent suggests. Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir.2001); see also Aruta v. INS, 80 F.3d 1389, 1393 (9th Cir.1996) (“[W]e do not reverse the BIA simply because we disagree with its evaluation of the facts, but only if we conclude that the BIA’s evaluation is not supported by substantial evidence.” (internal quotation marks omitted)).

B. Withholding of Removal

An application for asylum under 8 U.S.C. § 1158 is generally considered an application for withholding of removal under 8 U.S.C. § 1231(b)(3). 8 C.F.R. § 1208.3(b); Ghadessi v. INS, 797 F.2d 804, 804 n. 1 (9th Cir.1986). “To qualify for withholding of removal, an alien must demonstrate that it is more likely than not that he would be subject to persecution on one of the specified grounds.” Al-Harbi v. INS, 242 F.3d 882, 888 (9th Cir.2001) (internal quotation marks omitted). “This clear probability standard for withholding of removal is more stringent than the well-founded fear standard governing asylum.” Id. at 888-89. The “standard has no subjective component, but, in fact, requires objective evidence that it is more likely than not that the alien will be subject to persecution upon deportation.” INS v. Cardoza-Fonseca, 480 U.S. 421, 430, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987).

Since Zehatye could not establish her eligibility for asylum, the IJ properly concluded that she was not eligible for withholding of removal, which imposes a heavier burden of proof.

IY.

The IJ’s decision to deny asylum and withholding of removal was supported by reasonable, substantial, and probative evidence in the record. The evidence that Zehatye suffered some degree of social ostracism and economic hardship due to her religion did not rise to the level of persecution. Gormley, 364 F.3d at 1178; Kazlauskas, 46 F.3d at 907. Additionally, the government’s mandatory conscription policy did not establish that Zehatye had suffered past persecution or that she had a well-founded fear of future persecution based on her religion. Movsisian, 395 F.3d at 1097. The petition for review is DENIED.

1 . As of March 1, 2003, the INS ceased to exist and its enforcement functions were transferred to the Bureau of Immigration and Customs Enforcement within the Department of Homeland Security. See Homeland Security Act of 2002, Pub.L. No. 107-296, 116 Stat. 2135, 2142 (2002), 6 U.S.C. §§ 101-557.

2 . They continue to live in San Francisco, where Zehatye is an active Jehovah’s Witness.

3 . In 1994, in accordance with a presidential decree, the Eritrean government revoked the trading licenses of some Jehovah's Witnesses and dismissed most of those who worked in the civil service.

4 . Neither Zehatye's testimony nor her declaration in support of the asylum application offer any details regarding the alleged "constant surveillance by government agents.”

5 . Since there was no express adverse credibility finding below, we assume that Zehatye's factual contentions are true. Ladha v. INS, 215 F.3d 889, 901 (9th Cir.2000).

6 . Zehatye claims that her youngest sister died of pneumonia due to the cramped living conditions that her family endured when they were forced to live with relatives. There is no evidence, however, linking the living conditions or the government's conduct to the sister’s illness.

7 . For example, according to various State Department reports, an unknown number of persons were detained without charge because of political opinion. See e.g., U.S. Dep't of State, Eritrea: Country Reports On Human Rightspractices 2002 (Mar. 31, 2003); U.S. Dep't of State, Eritrea: Country Reports On Human Rights Practices 2001 (Mar. 4, 2002).

8 . The dissent cites the 2002 Religious Freedom Report, which references four Jehovah’s Witnesses who "have been detained for varying periods of time, some more than five years” "without charge and without being tried for failing to participate in national service.” The Report also notes that the army “resorted to various forms of extreme physical punishment to force objectors, including some members of Jehovah’s Witnesses, to perform military service.” We are not persuaded that "any reasonable adjudicator would be compelled to conclude,” based on this evidence, that Jehovah's Witnesses are singled out for "severe disproportionate punishment” because of their religious beliefs. —Therefore, we must affirm the IJ's findings under-the^ substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B).

9 . Nor does the dissent's citation to statements in the 2003 Country Report regarding harassment, discrimination and detention of Jehovah's Witnesses. See, e.g., Al-Saher v. INS, 268 F.3d 1143, 1147 (9th Cir.2001) ("Torture is an extreme form of cruel and inhuman treatment and does not include lesser forms of cruel, inhuman or degrading treatment or punishment that do not amount to torture.”) (quoting 8 C.F.R. § 208.18(a)(2)), amended by 355 F.3d 1140 (9th Cir.2004).

10 .In Ladha, we held that where an alien cannot establish past persecution, she can satisfy the objective prong of the well-founded fear analysis either by producing specific documentary evidence or by offering credible and persuasive testimony. 215 F.3d at 897. Ze^hatye fails to meet this burden because the 2003 Country Report's reference to torture is not specific to Jehovah's Witnesses and Zehatye offered no testimony regarding her alleged fear of torture.