United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS February 6, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-60171
Summary Calendar
TESFAY MICHALY YOHANNS,
Petitioner,
versus
JOHN ASHCROFT, U.S. ATTORNEY GENERAL,
Respondent.
--------------------
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A79 105 461
--------------------
Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Tesfay Michaly Yohanns petitions this court for review of an
order of the Board of Immigration Appeals (BIA) affirming the
denial of his applications for asylum, withholding of removal,
and withholding of removal pursuant to the Convention Against
Torture (CAT). We review questions of law de novo; factual
findings will be upheld if they are supported by substantial
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 03-60171
-2-
evidence. See Efe v. Ashcroft, 293 F.3d 899, 903 (5th Cir. 2002).
Yohanns argues that the BIA erred by finding that his
shooting of a superior officer during his desertion from the
Eritrean military was a serious nonpolitical crime that rendered
him ineligible for asylum or withholding of removal. See
8 U.S.C. § 1158(b)(2)(A)(iii); 8 U.S.C. § 1231(b)(3)(B)(iii).
Yohanns has not shown that the evidence compels a contrary
conclusion. See Efe v. Ashcroft, 293 F.3d 899, 905 (5th Cir.
2002). The finding that Yohanns committed a serious non-
political crime prior to his arrival in the United States renders
him ineligible for asylum or withholding of removal.
See 8 U.S.C. § 1158 (b) (2) (A) (iii) (asylum); 8 U.S.C.
§ 1231(b)(3)(B)(iii) (withholding of removal).
Yohanns also asserts that, if he were returned to Eritrea,
he would face death for desertion and for shooting his superior
officer; he asserts that this would constitute torture under the
CAT. However, the implementing regulations expressly provide
that torture “does not include pain or suffering from, inherent
in or incidental to lawful sanctions . . . . including the death
penalty.” 8 C.F.R. § 208.18(a)(3). Yohanns has not shown that
the IJ erred by denying him relief under the CAT.
Accordingly, Yohanns’ petition for review is DENIED.