                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-19-2004

Woldemariam v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-4518




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                                             NOT PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT
                   __________

                      No. 03-4518
                      __________

            NIGHISTI WOLDERMARIAM ;
          ISAAC GHEBRETNSAE BELETSE,
                              Petitioners,

                            v.

                 JOHN ASHCROFT,
         Attorney General of the United States;
SECRETARY OF DEPARTMENT OF HOMELAND SECURITY,

                                      Respondents
                       __________

            On Petition for Review of An Order
          from the Board of Immigration Appeals

         (BIA Nos. A78-514-483 & A78-514-478)
                      __________

       Submitted Under Third Circuit L.A.R. 34.1(a)
                  September 28, 2004
                     ___________

    Before: ROTH, BARRY, and GARTH, Circuit Judges

            (Opinion Filed: October 19, 2004)
                      __________

                        OPINION
                       __________
Garth, Circuit Judge:

       Nighisti Woldermariam and her husband, Isaac Ghebretnsae Beletse, petition for

review of an order of the Board of Immigration Appeals (“BIA”). That order affirmed

the decision of the Immigration Judge (“IJ”), which had denied petitioners’ applications

for asylum, withholding of removal, and for protection under the Convention Against

Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We will deny the Petition

for Review.

                                              I.

       Because we write only for the parties, it is not necessary to recite the facts of this

case in detail. It is sufficient to note that this Petition originates from the ongoing conflict

between Ethiopia and Eritrea, the root cause of which was Eritrea’s 30-year struggle for

independence, finally achieved in the early 1990s. In May 1998, Ethiopia and Eritrea

again went to war, and Ethiopia began persecuting its citizens of Eritrean descent by

revoking business licenses, dismissing them from government jobs, and deporting them.

Among those deported by Ethiopia were Woldermariam and Beletse, as well as their two

children and Beletse’s mother, based on their Eritrean descent.

       Upon arriving in Eritrea, the Eritrean authorities detained Woldermariam for two

hours because she was unable to establish her Eritrean origin. Only after her husband and

mother-in-law also testified to her Eritrean descent did the Eritrean authorities allow her

to rejoin her family. Woldermariam has testified, moreover, that she endured further



                                              -2-
hostility while living in Eritrea. Specifically, because she was from the Tigray region in

Ethiopia, the Eritreans viewed her with suspicion and hatred, thus creating an

uncomfortable and precarious situation. The real source of friction, though, between

Woldermariam and Beletse and the Eritrean authorities was Beletse’s refusal to report for

duty upon being conscripted into the Eritrean military.

       When Beletse failed to report for duty, allegedly because he considered the war

against Ethiopia unjust, the Eritrean police, on three separate occasions, came to his home

in search of him. During the last of the three visits, the police forced their way into the

home, and when Woldermariam asserted that she had no knowledge of her husband’s

whereabouts, the police beat her with their fists and kicked her. After this incident,

Woldermariam and Beletse decided to flee Eritrea, leaving their children behind to live

with Beletse’s mother. They first settled in Sudan for four months and then Nairobi for

fifteen months before finally entering the United States on or about April 3, 2001.

      Because Woldermariam and Beletse entered the United States without valid entry

documents, the INS filed Notices to Appear (“NTAs”) on April 13, 2001, alleging that

Woldermariam and Beletse were natives and citizens of Eritrea and charging them with

being subject to removal under 8 U.S.C. § 1182(a)(7)(A). Woldermariam and Beletse

admitted the allegations in the NTAs and conceded removability, but requested asylum,

withholding of removal and protection under the CAT.1

       1
       Petitioners’ nationality at birth and citizenship has not been determined, notwithstanding
the admitted allegations in the NTAs. The confusion stems from petitioners’ initial and revised

                                              -3-
       At the merits hearing on December 27, 2002, the IJ, in an oral decision, found that

Woldermariam and Beletse were not eligible for asylum, withholding of removal or

protection under the CAT. Thereafter, Woldermariam and Beletse appealed to the BIA.

The BIA first found that they had failed to establish past persecution, a well-founded fear

of future persecution, or a clear probability of persecution or torture upon their return to

Eritrea. In particular, the BIA, accepting as true both Beletse’s forced conscription and

Woldermariam’s beating by the Eritrean authorities, determined that neither event

amounted to persecution and, in any event, had not been based on a protected ground. The

BIA also found that Woldermariam failed to establish persecution based on the mere fact

that her Eritrean neighbors viewed her with suspicion due to her Tigray ethnicity. Further,

while the background materials described ethnic tensions and incidents of violence toward

Ethiopian deportees during the Eritrean-Ethiopian war, the BIA found that Woldermariam

and Beletse failed to establish that a reasonable person in such circumstances would fear

persecution.

       Additionally, in response to Woldermariam and Beletse’s argument that the IJ

erroneously concluded that they were citizens of Eritrea, thus ignoring their request for

protection from Ethiopia, the BIA noted that they had, at best, only ambiguously raised a

claim for protection from Ethiopia. The BIA then concluded that, even if they properly

raised such a claim, it would deny their requests for asylum, withholding of removal, and


asylum applications, which state that Beletse is a native of Ethiopia and a citizen of Eritrea and
Woldermariam is a native and citizen of Ethiopia.

                                                -4-
relief under the CAT, for involuntary deportation, alone, does not rise to the level of

persecution, nor did the background materials establish a reasonable possibility of

persecution or torture upon their return to Ethiopia.

       The BIA, upon taking administrative notice of the 2002 Country Report, observed

that the war between Ethiopia and Eritrea ended in June 2000, and Ethiopia had ceased

their policy of detention and forced exile for Ethiopian citizens of Eritrean descent. 2002

Country Report at 1-2, 9, 18-19, available at

http://www.state.gov/g/drl/rls/hrrpt/2002/18203.htm. Consequently, the BIA dismissed

their appeal and ordered them removed to Eritrea or, in the alternative, to Ethiopia. This

Petition for Review followed.

                                                II.

          Section 208(b) of the INA, 8 U.S.C. § 1158(b), provides that the Attorney General

has discretion to grant asylum to refugees. The INA defines a refugee as a person who is

unable or unwilling to return to his country “because of persecution or a well-founded

fear of persecution on account of race, religion, nationality, membership in a particular

social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). The asylum applicant

bears the burden of establishing that he satisfies these requirements. 8 C.F.R. § 208.13(a)

(2003).

        To successfully petition for withholding of removal under 8 U.S.C. §

1231(b)(3)(A), an alien must “show that if returned to his country, it is more likely than



                                                -5-
not that the alien’s life or freedom would be threatened on account of race, religion,

nationality, membership in a particular social group, or political opinion.” Amanfi v.

Ashcroft, 328 F.3d 719, 726 (3d Cir. 2003); see also 8 U.S.C. § 1231(b)(3)(A). Inasmuch

as establishing eligibility for withholding of removal requires a showing of a “clear

probability of persecution,” the standard for withholding of removal is more stringent

than the standard for asylum. Li Wu Lin v. INS, 238 F.3d 239, 244 (3d Cir. 2001).

       To qualify for relief under the United Nations CAT, and Other Cruel, Inhuman or

Degrading Treatment or Punishment, 1465 U.N.T.S. 85, 23 I.L.M. 1027 (1984), an

applicant must prove that he is more likely than not to be tortured in the country of

removal, a standard which is also more stringent than the standard for asylum.

Abdulrahman v. Ashcroft, 330 F.3d 587, 591 n.2 (3d Cir. 2003) (citing 8 C.F.R. §§

208.16(c)(2) & (4)).

       Where, as here, the BIA did not expressly adopt or defer to the IJ’s findings, we

review only the decision of the BIA. Abdulai v. Ashcroft, 239 F.3d 542, 548-49 (3d Cir.

2001). Under the governing law, we must ascertain whether the BIA’s factual

determinations are supported by substantial evidence. Senathirajah v. INS, 157 F.3d 210,

216 (3d Cir. 1998). In Abdille v. Ashcroft, we held that “‘persecution’ and ‘well-founded

fear of persecution’ are all findings of fact that we review under the deferential

substantial evidence standard” and the BIA’s findings must be upheld “unless the

evidence not only supports a contrary conclusion, but compels it.” 242 F.3d 477, 483-84



                                             -6-
(3d Cir. 2001). We will reverse “only if a reasonable fact-finder would have to conclude

that the requisite fear of persecution existed.” Id. at 484 (citation omitted).

                                                III.

       Applying the deferential substantial evidence standard to this Petition, we

conclude that Woldermariam and Beletse have failed to demonstrate that “any reasonable

adjudicator would be compelled to conclude” that they were entitled to asylum. 8 U.S.C.

§ 1252(b)(4)(B). 2 Substantial evidence supports the BIA’s determinations that

Woldermariam and Beletse failed to establish either past persecution or a well-founded

fear of future persecution.

A.     Past Persecution

        To establish eligibility for asylum based on past persecution, a petitioner must

prove not only that he or she has actually suffered persecution, but also that such

persecution was on account of one of the statutorily protected grounds. Abdulrahman v.

Ashcroft, 330 F.3d at 592; Lukwago v. Ashcroft, 329 F.3d 157, 167-68 (3d Cir. 2003).

We have previously held that persecution is an “extreme concept” that “does not

encompass all treatment that our society regards as unfair, unjust, or even unlawful or

unconstitutional.” Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir. 1993); Lukwago, 329 F.3d at



       2
         Because the standards for prevailing on a withholding of removal claim and a request for
relief under the Convention are more stringent than the standard applicable to an asylum
application, denial of petitioners’ asylum applications by definition compels denial of petitioners’
withholding of removal and Convention relief claims. See Zubeda v. Ashcroft, 333 F.3d 463,
469-70 (3d Cir. 2003).

                                                -7-
168-69. Rather, we have defined persecution as including “threats to life, confinement,

torture, and economic restrictions so severe that they constitute a real threat to life or

freedom.” Lukwago, 329 F.3d at 168 (quoting Lin v. INS, 238 F.3d 239, 244 (3d Cir.

2001)). For the reasons that follow, the factual events upon which Woldermariam and

Beletse rely in arguing for asylum do not rise to the level of persecution.

       First, insofar as Beletse claims persecution based upon his forced conscription into

the Eritrean military, the BIA properly rejected that claim. We have previously

recognized the general notion “‘that a sovereign nation enjoys the right to enforce its laws

of conscription, and that penalties for evasion are not considered persecution.’” Lukwago,

329 F.3d at 169-70 (quoting M.A. v. United States INS, 899 F.2d 304, 312 (4th Cir.1990)

(en banc )).

       Second, the purported beating of W oldermariam by the Eritrean authorities, a

solitary incident causing no serious injuries, does not evince conduct so severe that it

constitutes a real threat to life or freedom.3 Even assuming that the beating was severe

enough to constitute persecution, Woldermariam has nonetheless failed to show that such

beating was on account of a protected ground under the INA (8 U.S.C. § 1101(a)(42)(A)),

and was not based on the mere fact that the Eritrean authorities thought she was

deliberately lying to protect her husband, as determined by the BIA. That distinction is


       3
         Petitioners attempt to introduce “new information” indicating that the police not only
beat Woldermariam, but raped her as well. We will not consider this new information because it
was not considered by the BIA. See Alleyne v. INS, 879 F.2d 1177, 1182 (3d Cir.1989) (noting
that this Court may not consider particular issues not raised in an appeal to the Board).

                                              -8-
crucial here, and while Woldermariam argues that “it can safely be assumed that at least a

partial motive for here [sic] physical and psychological abuse was due to her ethnic

background and as a result of a political opinion imputed to her as a result of her

association with her husband,” mere conjecture will not suffice. Pet.’s Br. at 31. The

administrative record is devoid of any evidence tending to establish the requisite nexus

between the beating and a protected ground set forth in the statute. Because forced

conscription, without more, is not persecution, the ill-treatment Woldermariam received

based on her husband’s evasion of the conscription process cannot be held to constitute

persecution.

       Third, the involuntary deportation by the Ethiopian authorities of Woldermariam

and Beletse does not constitute persecution. Such involuntary deportation by Ethiopia to

Eritrea (a country which previously had been part of Ethiopia and the place where both

Beletse and Woldermariam’s father were from) during a time of war between Eritrea and

Ethiopia, while perhaps unfair or unjustified, does not, in our view, come within the

narrow parameters of conduct so extreme as to constitute persecution. See Fatin, 12 F.3d

at 1240.

       Finally, the other events cited by Woldermariam–the temporary detainment upon

arrival in Eritrea and the hostile social environment–are not sufficiently serious to rise

beyond the level of harassment. As such, we conclude that Woldermariam and Beletse

have failed to establish past persecution.



                                             -9-
B.     Well-Founded Fear of Persecution 4

       An applicant who fails to demonstrate past persecution may still qualify for asylum

by showing that he or she has a well-founded fear of persecution on account of race,

religion, nationality, membership in a particular social group, or political opinion if

returned to his or her native country. The term “well-founded fear has both a subjective

and objective component.” Abdille, 242 F.3d at 495-96. An applicant must “show that he

has a subjective fear of persecution that is supported by objective evidence that

persecution is a reasonable possibility.” Id. at 496 (citation omitted). As in Abdille, here

there is no challenge to petitioners’ subjective fear of persecution. However, the question

remains whether that fear is objectively reasonable. On appeal, Woldermariam and

Beletse have the burden of showing that the record would compel a reasonable

adjudicator to find that they have a well-founded fear of future persecution based on an

enumerated statutory ground.

       The BIA, citing to the evidence of country conditions in the record, concluded that

Woldermariam and Beletse did not establish that they have a well-founded fear of future

persecution, finding that a reasonable person in their circumstances would not fear



       4
        Petitioners do not appear to challenge the BIA’s finding that they failed to establish a
well-founded fear of future persecution if they are removed to Ethiopia, as opposed to Eritrea.
Issues not raised and argued in an opening brief are deemed abandoned and waived. See Kost v.
Kozakiewicz, 1 F.3d 176, 182 (3d Cir. 1993). In any event, relying on the more recent Country
Report from 2002, the BIA noted that Ethiopia has ceased its practice of involuntary deportation
of Ethiopians of Eritrean descent. We agree that this defeats any claim of future persecution
based upon removal to Ethiopia.

                                              -10-
persecution. Woldermariam and Beletse have not identified any record evidence that

would compel a reversal of this finding.

       Beletse contends that he will suffer disproportionate punishment for evading the

conscription process, thus establishing a well-founded fear of future persecution. It is

true that in certain situations where the refusal to serve in the military results not in

normal draft evasion penalties, but rather in disproportionately severe punishment, such

punishment might constitute persecution. This case, however, does not present one of

those situations.

        Beletse’s fear of disproportionately severe punishment lacks evidentiary support.

At the very least, the record evidence does not require the abandonment of the general

principle, applied by the BIA, that forced military conscription does not constitute

persecution.5 Similarly, Woldermariam’s objective basis for fear of future persecution

rests on her past experience of physical abuse and the uncomfortable social environment

she experienced in Eritrea. The BIA, however, concluded that such conduct does not

constitute persecution. Accordingly, Woldermariam’s reliance on that conduct to

establish a well-founded fear of future persecution is unavailing.

       We therefore hold that the BIA’s conclusions that Woldermariam and Beletse

failed to establish past persecution or a well-founded fear of future persecution are


       5
        Beletse bases this claim, in part, on his purported submission of a 2004 document which
purportedly indicates that “those who flee the conscription process may be jailed or even
disappeared [sic].” Pet.’s Br. at 38. As this document was not part of the record reviewed by the
BIA, we do not consider it. See 8 U.S.C. § 1252(b)(4)(A).

                                              -11-
supported by substantial evidence.

      We will DENY the Petition for Review of the BIA’s decision.




                                        -12-
