                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-3-2006

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Precedential or Non-Precedential: Precedential

Docket No. 05-3847




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                                        PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT

                    No: 05-3847

         MELAKE ZERAI GHEBREHIWOT,

                           Petitioner

                          v.

          ATTORNEY GENERAL OF THE
               UNITED STATES,

                          Respondent

        Petition for Review of an Order of the
            Board of Immigration Appeals
           (Agency File No. A97 447 731)

                Argued: July 13, 2006

     Before: SLOVITER, McKEE and RENDELL,
                  Circuit Judges

          (Opinion filed: November 3, 2006)

MIKAEL ABYE, ESQ. (Argued)
Shearman & Sterling LLP

                          1
525 Market Street, Suite 1500
San Francisco, CA 94105
Attorneys for Petitioner

CHRISTOPHER J. CHRISTIE, ESQ.
RICHARD M. EVANS, ESQ.
United States Attorney
District of New Jersey
DOROTHY J. DONNELLY, ESQ. (Argued)
Assistant United States Attorney
402 East State Street
Trenton, NJ 08608
Attorneys for Respondent

                          OPINION

McKEE, Circuit Judge.

        Melake Zerai Ghebrehiwot, a Pentecostal Christian who
is a citizen of Eritrea, petitions for review of an order of the
Board of Immigration Appeals affirming without opinion the
Immigration Judge’s denial of his applications for asylum,
withholding of removal and relief under Article 3 of the United
Nations Convention Against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment (“CAT”). For the
reasons that follow, we will grant the petition and remand for
further proceedings consistent with this opinion.

              I. FACTUAL BACKGROUND

       Ghebrehiwot traveled to the United States from Sweden

                                2
as a visitor for pleasure under the Visa Waiver Program, 8
U.S.C. § 1187, on December 7, 2004. He was denied admission
because he presented a false Italian passport that had been
manufactured for him. After being referred to an Immigration
Judge he sought relief from removal by petitioning for asylum,
withholding of removal and relief under the CAT.

       Ghebrehiwot was born in Asmara, Eritrea in 1983, and
is one of eight children. His parents and all of his siblings still
live in Eritrea. Before he left Eritrea, Ghebrehiwot had
attended a university where he trained to become a teacher.

       After living in Sudan for a number of years,
Ghebrehiwot traveled to Sweden and then to the United States
with the assistance of a person named, “Abraham.”
Ghebrehiwot testified that Abraham gave him the false Italian
passport he presented upon attempting to enter the United
States. Ghebrehiwot used that passport to travel from Sweden
to the United States.1 Abraham bought Ghebrehiwot’s airline
ticket and told him to come to the United States. Abraham
instructed Ghebrehiwot to return the passport to him if admitted
without any problems, and he instructed Ghebrehiwot to apply
for asylum if asked about the fake Italian passport.
Ghebrehiwot did just that when he encountered a problem at the
airport. During the ensuing airport interview, Ghebrehiwot said
that he feared returning to Eritrea because he had fled to Sudan
while a soldier in the Eritrean army. He also said that he had


       1
         Ghebrehiwot concedes that he has no connection
with Italy.

                                3
been mistreated in Sudan because of his religion. When asked
if he feared returning to Eritrea or the country of last residence,
Ghebrehiwot answered: “Yes, because they don’t know me as
a Eritrean. I don’t have nothing. If I go home and I show them
where I live and they find out that I fled to Sudan they will kill
me.”

        On his application for asylum, Ghebrehiwot listed both
political opinion2 and religion as the basis for asylum and
withholding of removal. He explained as follows when asked
about fearing torture: “as Amnesty International is concerned
that if I returned back I will be at serious risk of human right
violations by the government like hard detention will follow .
. . In Sudan, due to religious practicing as before I will suffer
until killed by the Sudan government.” In his application,
Ghebrehiwot stated that he is a member of the Pentecostal
Rhema Church in Asmara.

       At the hearing before the Immigration Judge,
Ghebrehiwot testified that his schooling was cut short because
he was drafted into the Eritrean army in 2001. However, he
admitted that he had practiced his Pentecostal religion without
any problems while in his home country before being
conscripted into the army. He also admitted that his family had
not experienced any problems in Eritrea. He had heard from his
family after leaving Eritrea, while he was still living in Sudan.



       2
         He does not elaborate upon this, or explain the nature
of his political opinion.

                                4
       During the hearing, the Immigration Judge asked
Ghebrehiwot whether his family told him anything important he
wished to tell the court.3 The government claims that
Ghebrehiwot told the IJ that he “forgot.”          However,
Ghebrehiwot claims that the government has misstated the
record. According to him, “the interpreter said that he had
forgotten something and Mr. Ghebrehiwot responded that his
family had provided him with documentary information.”

       Ghebrehiwot claimed that being drafted into the Eritrean
army was tantamount to mistreatment because he was young
and had not finished school. He had been drafted during a war
between Eritrea and Ethiopia. After being drafted, he was
stationed on the border between Ethiopia and Sudan. He
claimed that approximately a month after being drafted, he and
seven other Eritrean soldiers were forced to flee into Sudan
when the advancing Ethiopian forces penetrated to the Eritrean
border. Ghebrehiwot claimed that once he was in Sudan, they
could not return to Eritrea because Ethiopian forces continued
to occupy the border.

       In Sudan, Ghebrehiwot and the others met a fellow
Eritrean who took them to Khartoum, the capital city. There,
Ghebrehiwot was taken in by “Pastor Josieth” and became part
of a Protestant Christian Community. Ghebrehiwot continued
to live in Sudan although he never obtained legal residency
there. He testified that he never applied for legal residency
because “in order to be able to request that, [one must] have. .


       3
           Ghebrehiwot appeared at the hearing pro se.

                                5
. a passport.”
        Ghebrehiwot explained that, although Christians live in
Sudan, it is an Islamic country, and he was Protestant.
Ghebrehiwot claimed that, in June 2002, while he was still
living in Sudan, members of the Sudanese army took him from
the church he was attending, detained him in an underground
jail, and drastically limited his access to food and sanitation
facilities. While detained, he and four others were beaten with
a hard plastic object. He claimed that, as a result of the beating,
his leg was injured, and he was taken to a hospital for one hour
– the maximum time allowed for a hospital visit – to receive
stitches. According to his testimony, he was then immediately
returned to detention where he was denied access to any
additional treatment or medication.

       Ghebrehiwot was released from prison with the
assistance of people working with the Eritrean Liberation Front
(“ELF”), an exiled party working in opposition to the Eritrean
government. He claimed that he was released on condition that
he and the others would stop practicing Christianity. Upon his
release, the ELF loyalists gave him an identification card that
was valid for 3 months. However, according to his testimony,
that card was never renewed because he did not participate in
ELF activities due to his religious beliefs.

       Following his release, he continued living with the
Sudanese pastor, and worshiping in private. According to
Ghebrehiwot, while he was in the care of Pastor Josieth and
unable to return to Eritrea, legislation was enacted in Eritrea
that limited the right to practice any but four officially
recognized religions. In May 2002, the Eritrean government

                                6
ordered all houses of worship, that were not either Eritrean
Orthodox, Roman Catholic, Lutheran or Islamic, to close.
According to Ghebrehiwot, after that legislation was enacted,
the Eritrean government systematically rounded up and tortured
hundreds of members of nonsanctioned religions, including
Pentecostals. He said that his Eritrean pastor was arrested,
held incommunicado, and was in danger of being tortured solely
because he did not observe one of the sanctioned religions.

       According to Ghebrehiwot, the Eritrean government also
banned adherents of all other religions from governmental
positions and it also attempted to purge them from the military.
 He also testified about individual acts of oppression including
subjecting 60 teenage Protestant soldiers to torture and
imprisoning them in metal containers because they were caught
carrying bibles; and threatening, beating and incarcerating 74
Pentecostal soldiers who refused to renounce their beliefs and
return to the Eritrean Orthodox Church. Ghebrehiwot claimed
that the Eritrean government also stepped up its campaign
against political dissidents.

       Ghebrehiwot testified that some of the former soldiers
who retreated with him to Sudan managed to apply for asylum
in Malta. However, the Maltese authorities rejected their claims
and returned them to Eritrea where they were detained and held
incommunicado. Although they were never formally charged,
the Eritrean president publicly stated that he considered these
detainees traitors and spies. That they were then tortured so
badly that some were paralyzed, and others were killed.

       Ghebrehiwot also explained that he feared returning to

                               7
Eritrea because he could have been tortured or killed. He based
this fear upon what he claimed happened to others who left the
Eritrean army and were subsequently returned by the Maltese
government. He explained that the torture they were subjected
to included detention “in a style called ‘helicopter’4 and some
of them were paralyzed and . . . others . . . faced death because
they left Eritrea.”

        Ghebrehiwot maintained his fear was justified even
though he conceded that, to the best of his knowledge, his
brother who is also Pentecostal, continues to live and worship
in Eritrea without experiencing any repression.

       Ghebrehiwot submitted news articles and country
condition reports during his hearing before the IJ. Some of
those reports tell of deserters who sought refugee status in other
countries, including Sudan.          In one article, Amnesty
International quoted a former deserter who was returned from
Malta as saying he had been tortured upon return to Eritrea.

 II. PROCEEDINGS BEFORE THE IJ AND THE BIA.

       The Immigration Judge denied Ghebrehiwot’s claim
without making a credibility determination. Her decision was
based upon her conclusion that the evidence Ghebrehiwot
presented did not establish eligibility for any relief. The IJ


       4
        Ghebrehiwot testified that “helicopter” consists of
tying a prisoner’s hands and legs behind his back and then
suspending the prisoner from a tree for hours at a time.

                                8
believed that Ghebrehiwot’s fear of returning to Eritrea arose
from his “desertion” from the army, and prosecution for
desertion does not ordinarily constitute “persecution” for
immigration purposes.5 The IJ acknowledged that legally
justified prosecution can be so severe that it rises to the level of
“persecution” and an alien may therefore establish that he/she
is a “refugee” if the unduly harsh treatment is based upon race,
religion, nationality, or membership in a social or political
group. Nonetheless, the IJ ruled that since Ghebrehiwot had not
established that his fear of prosecution for desertion was based
upon any of those protected traits, he was not entitled to any
relief.

       The IJ rejected Ghebrehiwot’s claim of refugee status
based upon religious persecution because he had never
experienced problems in Eritrea related to his faith, and his
brother remained in Eritrea where he continued to observe his
religion without any problems. Although the IJ noted that the
background materials and reports Ghebrehiwot introduced did
show some conflict between the various religious groups in
Eritrea, the IJ concluded that “the background material is not
supportive of the facts presented. . ..” She reasoned that
Ghebrehiwot was “never a target of the government” in Eritrea


       5
         We realize that Ghebrehiwot does not concede that
he deserted his army post. Rather, he maintains that he was
forced to flee to Sudan by the advancing Ethiopian army and
he was not able to get back across the border. The IJ found to
the contrary. However, that finding does not alter our
analysis.

                                 9
and therefore the evidence did not support a finding that his
subjective fear was reasonable. Id.

      After concluding that Ghebrehiwot was not entitled to
asylum, the IJ denied withholding of removal and relief under
the CAT. Her only explanation for doing so was as follows:
“The Court must necessarily deny the applicant’s request for
withholding of removal and relief under the Convention against
Torture which require a more stringent evidentiary burden [than
asylum].”

      The BIA affirmed without opinion, and this petition for
review followed.

               III. STANDARD OF REVIEW

       Where the BIA affirms the IJ’s decision without opinion,
we review the decision of the IJ as if it were the decision of the
BIA. Zhang v. Gonzales, 405 F.3d 150, 155 (3d Cir. 2005).
We review the IJ’s denial of relief to determine if the
conclusion is supported by substantial evidence. INS v. Elias-
Zacarias, 502 U.S. 478, 481 (1992). INA § 242(b)(4)(B)
provides that “administrative findings of fact are conclusive
unless any reasonable adjudicator would be compelled to
conclude to the contrary.” Thus, if the applicant “seeks to
obtain judicial reversal of the [denial of asylum], he must show
that the evidence he presented was so compelling that no
reasonable fact finder could fail to find” the requisite likelihood
of persecution. Elias-Zacarias, 502 U.S. at 483-84. “Under
this standard, a finding will stand if it is supported by
reasonable, substantial, and probative evidence in the record

                                10
when considered as a whole.” Secaida-Rosales v. INS, 331
F.3d 297, 307 (3d Cir. 2003) (citation and internal quotations
omitted). The same standard applies to the BIA’s denial of
Ghebrehiwot’s claim for withholding of removal. To reverse
the decision below, we must find that the record “not only
supports that conclusion, but compels it.” Elias-Zacarias, 502
U.S. at 481 n.1. Finally, since the IJ did not make an adverse
credibility determination here, we proceed as if the alien’s
testimony was credible. Kayembe v. Ashcroft, 334 F.3d 231,
235 (3d Cir. 1003).

          IV. GENERAL LEGAL PRINCIPLES
          A. Asylum and Withholding of Removal.

       The Attorney General has discretion to grant asylum to
a removable alien. See 8 U.S.C. § 1158(a). However, that
discretion can only be exercised if the alien first establishes that
he/she is a “refugee.” Id. A “refugee” is:

               any person who is outside any
               country of such person’s
               nationality or, in the case of a
               person having no nationality, is
               outside of any country in which
               such person last habitually resided,
               and who is unable or unwilling to
               avail himself or herself of the
               protection of that country because
               of persecution or a well-founded
               fear of persecution on account of
               race, religion, nationality,

                                11
               membership in a particular social
               group, or political opinion.

8 U.S.C. § 1101(a)(42)(A).          The asylum applicant must
therefore present some evidence that removal will result in
persecution “on account of” one of the five statutory grounds in
order to establish eligibility for asylum.

       An applicant who offers credible testimony regarding
past persecution is presumed to have a well-founded fear of
future persecution. Berishaj v. Ashcroft, 378 F.3d 314, 323 (3d
Cir. 2004) (citation omitted).       The “well-found fear of
persecution” standard involves both a subjectively genuine fear
of persecution and an objectively reasonable possibility of
persecution. INS v. Cardoza-Fonseca, 480 U.S. 421, 430-31
(1987). The subjective prong requires a showing that the fear
is genuine. Mitey v. INS, 67 F.3d 1325, 1331 (7th Cir. 1995).
The objectively reasonable prong requires ascertaining whether
a reasonable person in the alien’s circumstances would fear
persecution if returned to a given country. Zubeda v. Ashcroft,
333 F.3d 463, 469 (3d Cir. 2003) (citation omitted).

       “To satisfy the objective prong, the asylum petitioner
must show he or she would be individually singled out for
persecution or that ‘there is a pattern or practice in his or her
country . . . of persecution of a group of persons similarly
situated to the applicant on account of race, religion, nationality,
membership in a particular social group, or political opinion.’”
Sukwanputra v. Gonzales, 434 F.3d 627, 637 (3d Cir. 2006)
(quoting 8 C.F.R. § 208.13(b)(2)(iii)(A)). Although applicable
regulations do not define a “pattern or practice,” we have

                                12
explained that “the persecution of the group must be systematic,
pervasive, or organized,” to constitute a pattern or practice. Id.
(citation omitted). “In addition, as with any claim of
persecution, the acts must be committed by the government or
forces the government is either unable or unwilling to control.”
Id. (citation omitted).

       Withholding of removal is mandatory once “the Attorney
General determines that [the] alien’s life or freedom would be
threatened” because of a protected trait or activity.6 8 U.S.C. §
1231(b)(3)(A). To obtain such relief, an alien must establish a
“clear probability,” i.e., that it is more likely than not, that
he/she would suffer persecution. See INS v. Stevic, 467 U.S.
407, 429-30 (1984). Because this standard is higher than that
governing eligibility for asylum, an alien who fails to qualify
for asylum is necessarily ineligible for withholding of removal.
Zubeda, 333 F.3d at 469-70.

     B. Relief under the Convention Against Torture.

       As noted earlier, Ghebrehiwot also sought protection
under Article 3 of the CAT. The CAT became binding on the
United States in November of 1994 when President Clinton
delivered the ratifying documents to the United Nations. U.N.
Doc. 571 Leg/SER.E/13.IV.9 (1995); Convention, art. 27(2).
The Foreign Affairs Reform and Restructuring Act of 1998


       6
         An application for asylum is deemed to also constitute
at the same time an application for withholding of removal. 8
C.F.R. § 1208.3(b).

                               13
(“FARRA”) implemented the CAT. Section 2242, Pub.L. No.
105-277, Div. G. 112 Stat. 2681-761 (Oct. 21, 1998) (codified
at 8 U.S.C. § 1231). That legislation requires that “[n]o state .
. . expel, return (‘refouler’) or extradite a person to another state
where he would be in danger of being subjected to torture.” Id.
Accordingly, “it shall be the policy of the United States not to
expel. . . or otherwise effect the involuntary return of any
person to a country in which there are substantial grounds for
believing the person would be in danger of being subjected to
torture. . . .” Id.

         “An applicant for relief . . . under [Article 3] of the
Convention Against Torture bears the burden of establishing
‘that it is more likely than not that he or she would be tortured
if removed to the proposed country of removal.’” Sevoian v.
Ashcroft, 290 F.3d 166, 174-175 (3d Cir. 2002) (quoting 8
C.F.R. § 208.16(c)(2)). “The United States Senate specified
this standard, as well as many of the other standards that govern
relief under the Convention, in several ‘understandings’ that it
imposed on the United States’ ratification of the Convention
Against Torture.” Id. at 175 (citations omitted). Unlike asylum
or withholding of removal, “[the CAT] has no subjective
component, but instead requires the alien to establish, by
objective evidence, that he is entitled to relief.” Id. (citation and
internal quotations omitted). The alien’s testimony, if credible,
may be sufficient to sustain the burden of proof without
corroboration. Mansour v. INS, 230 F.3d 902, 907 (7th Cir.
2000) (citing 8 C.F.R. § 208.16(c)(2)). If an alien meets his or
her burden of proof, withholding of removal or deferring of
removal is mandatory. INA § 241(b)(3); 8 C.F.R. §§ 208.16 -
208.18.

                                 14
      Under the applicable implementing regulations:
      Torture is defined as an act by which severe pain
      or suffering, whether physical or mental, is
      intentionally inflicted on a person for such
      purposes as obtaining from him or her or a third
      person information or a confession, punishing
      him or her for an act he or she or a third person
      has committed or is suspected of having
      committed, or intimidating or coercing him or her
      or a third person, or for any reason based on
      discrimination of any kind, when such pain or
      suffering is inflicted by or at the instigation of or
      with the consent or acquiescence of a public
      official or other person acting in an official
      capacity.

8 C.F.R. § 208.18(a)(1). The regulations also provide:

      (3) In assessing whether it is more likely than not
      that an applicant would be tortured in the
      proposed country of removal, all evidence
      relevant to the possibility of future torture shall
      be considered, including, but not limited to:
      (I) Evidence of past torture inflicted upon the applicant;
      (ii) Evidence that the applicant could relocate to
      a part of the country of removal where he or she
      is not likely to be tortured;
      (iii) Evidence of gross, flagrant or mass violations
      of human rights within the country of removal,
      where applicable; and
      (iv) Other relevant information regarding

                                 15
       conditions in the country of removal.

8 C.F.R. § 208.16(c)(3). In determining whether relief under
the CAT is warranted, “country conditions alone can play a
decisive role in granting relief . . . and the relevant statutory and
regulatory language . . . does not require that the prospective
risk of torture be on account of certain protected grounds.”
Kamalthas v. INS, 251 F.3d 1279, 1280 (9th Cir. 2001).

       However, “[i]t is significant that even cruel and inhuman
behavior by government officials may not implicate the torture
regulations.” Sevoian, 290 F.3d at 175. “Torture is an extreme
form of cruel and inhuman treatment and does not include lesser
forms of cruel and inhuman treatment or punishment that do not
amount to torture.” 8 C.F.R. § 208.16(c)(3)(I). Moreover, the
BIA has held that “torture covers intentional governmental acts,
not negligent acts or acts by private individuals not acting on
behalf of the government.” In re J-E-, 23 I. & N. Dec. 291, 299
(BIA 2002). Finally, “[t]orture does not include pain or
suffering arising only from, inherent in, or incidental to, lawful
sanctions. Lawful sanctions include judicially imposed
sanctions and other enforcement actions authorized by law,
including the death penalty, but do not include sanctions that
defeat the object and purpose of the Convention Against
Torture to prohibit torture.” 8 C.F.R. § 208.18(a)(3).

                        V. DISCUSSION

       Ghebrehiwot makes a number of arguments in support of



                                 16
his petition for review. Each is discussed separately below.7

  A. Ghebrehiwot’s Well-Founded Fear of Persecution

       “An alien may demonstrate that his/her [well-founded
fear of persecution] is objectively reasonable by documentary
or expert evidence about the conditions in a given country.”
Lusingo v. Ashcroft, 420 F.3d 193, 199 (3d Cir. 2005).
Ghebrehiwot claims that the IJ’s finding that he did not
establish a well-founded fear of persecution based on his
religion was error. He argues that his documentary evidence


      7
         At the outset of our discussion, we noted that
Ghebrehiwot admitted that he had never been subjected to
past persecution on account of his Pentecostal religion while
in Eritrea. Indeed, the only acts of past persecution occurred
while Ghebrehiwot was in Sudan. Although Ghebrehiwot
claimed that his conscription into the Eritrean military
constituted persecution, the IJ correctly rejected that
contention. See Ambartsoumian v. Ashcroft, 388 F.3d 85, 93
(3d Cir. 2004) (citing 8 U.S.C. § 1101(a)(42)).
Ghebrehiwot’s conscription did not, by itself, constitute
persecution.
        Ghebrehiwot now amplifies that claim by arguing that,
as a former member of the military, he can be considered a
member of a “social group” that will be persecuted for
purposes of the Immigration and Nationalities Act.
Appellant’s Br. at 23. (citing Cruz-Navarro v. INS, 232 F.3d
1024, 1029 (9th Cir. 2000). However, as we note below, the
IJ never addressed this claim.

                              17
was itself sufficient to establish a pattern and practice of
religious persecution of members of the Pentecostal religion
beginning after he fled to Sudan in November, 2001.8
       Ghebrehiwot cites the State Department’s International
Religious Freedom Report 2004 (“2004 Report”) which noted
that in September 2004, “the Secretary of State designated
Eritrea as a ‘Country of Particular Concern’ under the
International Religious Freedom Act for particularly severe
violations of religious freedom.” 2004 Report, at 1. The
Report includes the following statement about the Eritrean
government:
              The Government’s poor respect for
              religious freedom for minority
              religious groups continued to
              decline during the period covered
              by this report. The Government
              harassed, arrested, and detained
              members of Pentecostal and other
              independent evangelical groups’
              and reform movements from and
              within the Eritrean Orthodox
              Church, and Jehovah’s Witnesses.
              There were also numerous reports
              of physical torture and attempts at


      8
        Ghebrehiwot also argued before the BIA that the
materials he submitted to the IJ demonstrate a pattern and
practice of persecution of Pentecostals. Thus, he has
administratively exhausted that claim. See 8 U.S.C. §
1252(d)(1).

                              18
             forced recantations. Following a
             May 2002 government decree that
             all religious groups must register or
             cease all religious activities, the
             Government closed all religious
             facilities not belonging to the four
             sanctioned religions.         These
             closures, the Government’s refusal
             to authorize any registrations, and
             the restriction on holding religious
             meetings continued throughout the
             period covered by this report.

Id.

       In addition to the 2004 Report, Ghebrehiwot submitted
approximately thirty different articles which he contends
document the Eritrean government’s systematic persecution of
adherents of disfavored religions, including Pentecostals. He
claims that the articles recite incidents of the government’s
breaking up Pentecostal weddings and arresting everyone
identified as a “Pente.”9 This includes locking up children in
metal shipping containers for carrying Bibles, arresting
hundreds of adults and children simply for being members of an
evangelical or Pentecostal church, and torturing members of


      9
        Ghebrehiwot claims that “Pente” is a derogatory name
derived from “Pentecostal” and is applied to members of all
of Eritrea’s disfavored Evangelical churches. Ghebrehiwot’s
Br. at 18 n.8.

                              19
disfavored religious groups until they signed statements
repudiating their faith. He notes that one of the articles
reported that his pastor was among the detainees arrested and
held incommunicado in an effort force him to abandon his faith.

       In Ghebrehiwot’s view, these materials establish a
pattern and practice of persecution of members of the
Pentecostal religion.10 Thus, he concludes that because he has
presented evidence that he is a Pentecostal and that there is a
pattern and practice of persecution of Pentecostals in Eritrea, he
has demonstrated a well-founded fear of future persecution.

       The government argues that Ghebrehiwot’s documentary
evidence does not support a finding of a pattern and practice of
religious persecution of Pentecostal Christians by the Eritrean
government. The government also notes that Ghebrehiwot’s
brother is also a Pentecostal Christian, and has remained in
Eritrea without experiencing religious persecution. In the
government’s view, this undermines Ghebrehiwot’s claim. See,


       10
         Ghebrehiwot notes that Eritrea’s pattern and practice
of religious persecution has drawn the attention of courts in
the United States. He cites Fessehaye v. Gonzales 414 F.3d
746 (7th Cir. 2005), Ghebremedhin v. Ashcroft, 385 F.3d
1116 (7th Cir. 2004), and Muhur v. Ashcroft, 355 F.3d 958
(7th Cir. 2004). However, these cases involved persecution
of Jehovah’s Witnesses, not Pentecostals. The Eritrean
government persecutes Jehovah’s Witnesses because they do
not believe in the legitimacy of any government and they
refuse to serve in the military.

                               20
e.g., Krasnopivtsev v. Ashcroft, 382 F.3d 832, 839 (8th Cir.
2004) (“The reasonableness of a fear of persecution is
diminished when family members remain in the native country
unharmed, and the applicant himself had not been singled out
for abuse.”).

        The government concedes that the 2004 State
Department report establishes that the State Department views
Eritrea as a country of concern, but it argues that the concern
does not rest on religious persecution. It contends the evidence
shows instances of arrests and detention of journalists,
government critics, and members of non-registered religious
groups, as well as registered religious groups. The documentary
evidence also refers to repression of academic freedom and
states that the military may be acting independently of the
government. In short, the government contends that the
materials establish a regime that takes repressive action against
those it considers dissidents, but this does not establish a pattern
and practice of religious persecution of Pentecostal Christians.
   In addition, the government suggests that Ghebrehiwot’s
evidence merely obfuscates the issue because it establishes that
any religion other than the four state-approved religions, is
referred to as “Pentecostal” or “Pente” by factions in the
government. The government contends that discrimination on
the basis of race or religion, although reprehensible, does not
automatically establish “persecution.” Ghaly v. INS, 58 F.3d
1425, 1431 (9th Cir. 1995).

      As noted above, in rejecting Ghebrehiwot’s claim, the IJ
observed that there appeared to be some conflict between the
various religious groups, but concluded that “the background

                                21
material is not supportive of the facts presented. . .” The IJ
considered Ghebrehiwot’s documentary evidence and his
testimony and concluded that Ghebrehiwot had not
demonstrated a well-founded fear of persecution.

       The IJ focused on the absence of evidence of past
persecution before Ghebrehiwot left Eritrea. However, the IJ
failed to address the 2004 Report and the other materials
Ghebrehiwot submitted that could easily demonstrate an
objective basis for a well-founded fear of future religious
persecution if Ghebrehiwot returns to Eritrea. This record
certainly suggests a pattern and practice of persecution of
Pentecostals in Eritrea after Ghebrehiwot left. Although the
government attempts to minimize the import of much of this
evidence by suggesting that it is not limited to Pentecostals, that
rejoinder is as puzzling as it is unconvincing. The fact that
Pentecostals are not singled out for persecution and that other
religious minorities may also be persecuted does not negate
religious persecution or a well-founded fear of future
persecution based upon religion. It merely means that the
Eritrean government does not restrict its persecution to
Pentecostals.

      Accordingly, we will remand to the BIA so that the IJ
can consider whether the country condition evidence submitted
by Ghebrehiwot establishes a pattern and practice of
persecution of Pentecostals by the Eritrean government after
Ghebrehiwot left Eritrea. See Sukwanputra, 434 F.3d at 637.
(“Here, the IJ found that petitioner had not established a well-
founded fear of persecution without specifically addressing
whether a pattern or practice of persecution existed in

                                22
Indonesia. Accordingly, on remand, petitioners’ claim that
there is a pattern or practice of persecution of Chinese
Christians must be considered.”).

            B. Ghebrehiwot’s Status as a Deserter

       As noted above, the IJ found that Ghebrehiwot was a
deserter and explained that, ordinarily, fear of prosecution for
being a deserter does not constitute persecution.11 Ghebrehiwot
argues that, even assuming arguendo that he is a deserter, he
nevertheless has a well-founded fear of persecution based upon
his religious beliefs because he will be singled out for
particularly cruel treatment merely because he does not practice
one of the favored religions. He bases that argument on
Johnson v. Gonzales, 416 F.3d 205, 212 (3d Cir. 2005). There,
we explained that “an alien may be eligible for asylum even if
the persecution he or she suffered, or fears suffering in the
future, is only partially based on a ground enumerated in the


       11
          “As a general matter, . . . we have held that fear of
prosecution for violations of fairly administered laws does
not itself qualify one as a refugee or make one eligible for
withholding of removal.” Chang v. INS, 119 F.3d 1055, 1060
(3d Cir. 1997) (citation omitted). “Thus, those who violate
laws governing . . . military conscription . . . do not merit
asylum based on their fear of punishment for the crime that
they committed.” Id. (citations omitted). See also De Valle v.
INS, 901 F.2d 787, 792 (9th Cir. 1990) (“punishment
received for a breach of military discipline, such as desertion,
is generally not viewed as persecution”).

                              23
[INA].” He also cites Nuru v. Gonzales, 404 F.3d 1207 (9th
Cir. 2005). There, an Eritrean spoke out against the Eritrean-
Sudanese war while in the military. That resulted in severe
physical abuse amounting to torture at the hands of his
commanding officers. Ultimately, he deserted and arrived in
the United States where he sought asylum. On appeal, the court
ruled that the fact that he could legitimately be punished as a
deserter did not prevent him from establishing a well-founded
fear of future persecution based on his political opinion. Id. at
1227-29.

        However, apparently because of her focus on the absence
of past persecution, the IJ here did not address this claim in this
context. On remand, the BIA can consider Ghebrehiwot’s
evidence of country conditions after he left Eritrea, and address
this claim in the context Ghebrehiwot asserts it.12

  C. Well-Founded Fear of Persecution on Account of
            Membership in a Social Group.

       Ghebrehiwot also claims he is entitled to relief because


       12
          The government agrees that if this case is remanded
to the BIA, Ghebrehiwot can assert claims previously raised,
but not addressed. See Appellee’s Br. at 15 (“This would be
appropriate especially with regard to two arguments not
addressed by the Immigration Judge, in particular the
argument of a social group based on military deserters and
the argument that the written materials were sufficient to
establish a pattern and practice of religious discrimination”).

                                24
his return to Eritrea would result in his persecution by the
Eritrean government based upon his membership in a particular
social group. “Both courts and commentators have struggled
to define ‘particular social group.’” Fatin, 12 F.3d at 1238. It
is not defined in the Immigration and Nationalities Act.
However, in Fatin, we noted that in Matter of Acosta, 19 I. &
N. Dec 211, 233 (BIA 1985), overruled on other grounds by In
re Mogharrabi, 19 I. & N. Dec. 439 (BIA 1987), the BIA had
interpreted “particular social group” to refer to a “group of
persons all of whom share a common, immutable
characteristic.” The BIA explained:

              The shared characteristic might be
              an innate one such as sex, color or
              kinship ties, or in some
              circumstances it might be a shared
              past experience such as former
              military leadership or land
              ownership. The particular kind of
              group characteristic that will
              qualify under this construction
              remains to be determined on a
              case-by-case basis. However, . . .
              the common characteristic that
              defines the group . . . must be one
              that the members of the group
              either cannot change, or should not
              be required to change because it is
              fundamental to their individual
              identities or consciences. Only
              [then] does the mere fact of group

                              25
              membership become something
              comparable to the other four
              grounds of persecution under the
              Act . . ..

Acosta, 19 I. & N. Dec 211, at 233-34. We adopted that
construction of “particular social group” in Fatin, holding that
it was a “permissible” construction of the statute.13 12 F.3d at
1240. We also discussed this phrase in Escobar v. Gonzales,
417 F.3d 363 (3d Cir. 2005). There, after reviewing the
relevant jurisprudence, we concluded:
               membership in a ‘particular social
               group’ can be attributed to either:
               (1) those who possess immutable
               characteristics such as race, gender
               or a prior position, status or
               condition; or (2) those who possess


       13
         In Fatin, we held that the asylum applicant’s
particular social group could consist of “Iranian women who
[found] their country’s gender-specific laws offensive and
[did] not wish to comply with them,” to the extent that they
would suffer severe consequences for their noncompliance.
12 F.3d at 1241. The group characteristic was its members’
shared beliefs. Those beliefs were so fundamental that the
group should not have been required to change them. Id.
However, we found that relief was properly denied because
the applicant failed to establish a well-founded fear of
persecution of the group. Id. at 1243.


                              26
                a characteristic that is capable of
                being changed but is of such
                fundamental importance that
                individuals should not be required
                to modify it, e.g., religion.

Id. at 367.14

       Ghebrehiwot claims that his social group is “Eritrean
soldiers that were forced to retreat into Sudan by Ethiopian
forces who have been unwilling to return home after Ethiopian
forces withdrew due to a well-founded fear of persecution


       14
          In Escobar, we held that “homeless Honduran street
children” are not a “particular social group” within the
meaning of the Immigration and Nationalities Act. 417 F.3d
at 364. We noted that the three main elements of the claimed
social group were poverty, youth and homelessness, but that
the record failed to show any differences between the
Honduran street children and poor, young and homeless
children in other parts of the word. Id. at 367. Therefore, we
concluded that “a legitimate distinction cannot be made
between groups of impoverished children who exist in almost
every country.” Id.
       However, in Lukwago v. Ashcroft, 329 F.3d 157, 178-
79 (3d Cir. 2003) we held that a former child soldier who
escaped captivity by a guerilla group was a member of a
“particular social group” because his status as a former child
soldier is one cannot be changed and is fundamental to his
identity.

                                27
based on being labeled a ‘traitor’ or ‘spy.’”15 Ghebrehiwot’s Br.
at 23. He insists that, although he is neither traitor nor spy, the
Eritrean government will impute those characteristics to him
and treat him accordingly. See Johnson, 416 F.3d at 211
(noting that asylum relief is available based on imputed
grounds). He bolsters that claim by refering to the fate of those
Eritrean soldiers who were in Sudan with him and who were
involuntarily repatriated to Eritrea by the Maltese government.
As noted earlier, Ghebrehiwot claims they were tortured and
physically abused by the Eritrean government to the extent that
some are now paralyzed and others have died.

      However, Ghebrehiwot never made this social group
argument to the IJ. Although the did make that argument to the
BIA, the BIA merely affirmed the decision of the IJ without
opinion, and never ruled upon the social group claim.
Accordingly, that claim is not properly before us, but
Ghebrehiwot can reassert it on remand to the BIA.16

               D. Disproportionate Punishment.

        Ghebrehiwot further argues that even if he is a deserter
and he does not have a well-founded fear of persecution based
on his religious beliefs alone, or as a member of a social group,


       15
         As noted earlier, Ghebrehiwot claims that the
Eritrean government considers people in Ghebrehiwot’s
situation to be traitors and spies.
       16
            See note 12, supra.

                                  28
he is nonetheless entitled to asylum because the punishment he
will face as a deserter will be disproportionately greater because
he is a Pentecostal. He relies in part on Ghebremedhin v.
Ashcroft, 385 F.3d 1116, 1120 (7th Cir. 2004). There, the court
said: “When a country subjects a draft evader to more serious
punishment than others who have also evaded service because
of his race, religion, nationality, social group or political
opinion, this amounts to persecution rather than simple
nationalism.” However, this argument obfuscates a more
fundamental issue. If, as Ghebrehiwot contends, he has a well-
founded fear of persecution on account of his religious beliefs
alone, little is added if he establishes that he will receive
disparate punishment for desertion because of his religious
beliefs. Ghebrehiwot appears to be arguing that any
prosecution he might receive for being a deserter would be
applied with far more vigor and/or vindictiveness because he is
also a member of a religion that is not sanctioned. This claim is
also best addressed on remand in the context of the evidence of
changed country conditions after he left Eritrea.17

                    E. Denial of CAT Claim.

       We have already explained that the IJ denied
Ghebrehiwot’s claim for CAT relief with no analysis. She
merely stated: “The Court must necessarily deny the applicant’s
request for withholding of removal and relief under the
Convention against Torture which require a more stringent
evidentiary burden.” App. 41. We can only assume from this


       17
            See note 12, supra.

                                  29
explanation that the IJ believed that if an alien did not prevail
on his/her asylum claim, any claim for relief under the CAT
must also fail. However, we have previously explained that
denial of a claim for withholding of removal or asylum “does
not control the analysis of [a] claim for relief under the
Convention Against Torture.” Zubeda, 333 F.3d at 476. “[A]
claim under the Convention is not merely a subset of claims for
either asylum or withholding of removal.” Kamalthas v. INS,
251 F.3d 1279, 1283 (9th Cir. 2001). Claims for CAT relief
and claims for asylum and withholding of removal are
“analytically distinct.”
              [A]sylum and withholding of
              [removal] require that the alien be
              both a “refugee,” and establish
              either a well founded fear, or
              probability of persecution, “on
              account of” at least one of the five
              s p ecif ied g r o u n d s .    The
              Convention Against Torture is not
              limited to “refugees,” nor does
              persecution have to be “on account
              of” political opinion, religious or
              social group, etc. Rather, the
              Convention simply seeks to prevent
              any country from having to return
              someone to a place where it is
              likely he/she will be tortured.

Zubeda, 333 F.3d at 476.

       We cannot adjudicate Ghebrehiwot’s claim for CAT

                               30
relief in the first instance because our role is limited to
determining if there is substantial evidence to support the IJ’s
determinations. Since the IJ committed legal error in holding
that failure to meet the evidentiary burden for asylum precluded
relief under the CAT, we will grant the petition for review and
remand to the BIA for a determination of Ghebrehiwot’s CAT
claim in the first instance. See Berishaj, 378 F.3d at 332
(commenting that an IJ’s finding “that a CAT claim could not
stand if the asylum claim fell” would be legal error and grounds
for granting the petition for review).

       Because we are remanding, we take care to note that the
mere fact that Ghebrehiwot may be punished as a deserter does
not necessarily mean that he cannot also establish that he is
eligible for protection under the CAT, if the record evidence
demonstrates that he will be subjected to torture by the Eritrean
government. The Attorney General’s implementing regulations
exclude “pain or suffering arising only from, inherent in or
incidental to lawful sanctions” from the definition of torture. 8
C.F.R. § 208.18(a)(3). As we explained above, the regulation
defines “lawful sanctions” as “judicially imposed sanctions and
other enforcement actions authorized by law, . . .” but only so
long as those sanctions do not “defeat the object and purpose of
the [CAT] to prohibit torture.” Id.          Consequently, “[a]
government cannot exempt torturous acts from CAT’s
prohibition merely by authorizing them as permissible forms of
punishment in its domestic law.” Nuru, 404 F.3d at 1221. “It
would totally eviscerate the CAT to hold that once someone is
accused of a crime, it is a legal impossibility for any abuse on
that person to constitute torture.” Khouzam v. Ashcroft, 361
F.3d 161, 169 (2d Cir. 2004).            Therefore, “while the

                               31
punishment of . . . military deserters . . . is certainly within a
country’s sovereignty, torture cannot be ‘inherent in or
incidental to lawful sanction’ and is never a lawful means of
punishment.” Nuru, 404 F.3d at 1221-22 (emphasis in original).

                     VI. CONCLUSION

       For all of the above reasons, we will grant the petition
for review and remand to the BIA for further proceedings
consistent with this opinion.




                               32
