Tesfamichael v. Gonzales

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 24, 2006

_______________________ Charles R. Fulbruge III
Clerk
No. 04-61180
_______________________

SENAIT KIDANE TESFAMICHAEL; DAWIT TESSEMA-DAMTE,

Petitioners,

versus

ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,

Respondent.

Petition for Review from
the Board of Immigration Appeals
A97-7476-471

Before JONES, Chief Judge, and WIENER and PRADO, Circuit Judges.

EDITH H. JONES, Chief Judge:

Petitioners seek review of the decision of the Board of

Immigration Appeals (“BIA”) denying them asylum, individually and

as a married couple, from Eritrea and Ethiopia. Finding no

reversible error, we DENY the petition for review.

BACKGROUND

Comprising Ethiopia, Eritrea, Somalia, and Sudan, the

region known as the Horn of Africa has a troubled history. After

World War II, Italy relinquished control of its African colonies,

including Eritrea. In 1952, the United Nations federated Eritrea

with Ethiopia. In the early 1960s, Ethiopia dissolved the

federation and annexed Eritrea as a province. Factions in the
Eritrean province began clamoring for independence almost

immediately and fought a brutal thirty-year war with the Ethiopian

government. These factions later joined forces with Ethiopian

groups seeking political reform to secure the overthrow of the

Marxist regime of Mengistu Haile Mariam in 1991.

Once the Mengistu regime was overthrown, Ethiopian

leaders permitted a national referendum on Eritrean independence in

1993. Registration to vote in the referendum was tied to

verification of Eritrean nationality through a detailed form with

information about a voter’s religious affiliation, parents and

grandparents, and references from three Eritrean citizens. More

than one million voters, living in over forty different countries,

selected independence by a huge majority. Eritrea, supported by

the new Ethiopian government, declared independence in May 1993.

Relations between Ethiopia and its new neighbor proved

cordial. After several years, however, border disputes led to war

in May 1998. At the outbreak of war, the legal status of the

approximately 75,000 voters in the Eritrean independence election

who continued to live in Ethiopia remained uncertain, and in June

1998 Ethiopia began forcibly removing to Eritrea people who had

voted in the election. The “deportations” occurred without due

process. The deportees were often forced to stay in detention

2
camps briefly, and Ethiopia regularly scheduled the deportations

piecemeal to break up families.1

Petitioner Senait Kidane Tesfamichael and her family were

among those forcibly removed from Ethiopia. Senait’s parents were

originally from the Eritrean region, but Senait was born and lived

in Addis Ababa, Ethiopia, until the deportations. At her asylum

hearing, Senait testified credibly that she heard of the

deportations in 1998 and feared removal. Shortly after the

deportations began, Senait and her Ethiopian husband, Petitioner

Dawit Tessema-Damte, attempted to escape out of Ethiopia, possibly

to Kenya. Their escape plans were foiled, however. On a bus near

the Kenyan border, police asked the passengers for identification.

Senait could not produce any, as authorities had stripped her of

her Ethiopian ID following her vote in the Eritrean referendum.2

Dawit intervened on Senait’s behalf, but his intervention led to

both his and Senait’s arrest and detention.

As he credibly testified, Dawit spent a month in jail for

the purported crime of “smuggling Eritreans.” Until his mother

secured his release through a bond, he slept in one room with up to

forty men, received little food, and saw other detainees with

bruises caused, he believed, by beatings. While in jail, Dawit was

1
This generalized background information comes from sources in the
Administrative Record, which included, inter alia, country reports, a question
and answer series prepared by the Department of State, and documents prepared by
the UN Refugee Agency, the Human Rights Watch, and Amnesty International.
2
Senait testified that in 1992, when she filled out the election card
in the referendum, she became a citizen of Eritrea.

3
interrogated generally once or twice a day, for one or two hours,

about how many people he had smuggled and how much he charged.

Dawit was able to secure Senait’s release one week after

his own by bribing officials. Back in Addis Ababa, Dawit was twice

stopped by police; both times Dawit cooperated and was released.

Fearing reprisal for his help to Senait, and without reporting to

court on the pending smuggling charges, Dawit fled alone to Kenya,

then South Africa, where he lived from 1998 to 2003.

Ethiopian authorities found Senait in June 2000 and

removed her to Eritrea.3 Senait testified that she spent three

days in a detention center without food or water, then was forced

to walk nine kilometers in an area filled with land mines on the

way to Eritrea. There, Senait reconnected with her family and

worked part-time at a gas station. She testified that she was

occasionally taunted or told to go back to Ethiopia. She also

claims that she was denied full Eritrean citizenship and an exit

visa, and that she feared military conscription.

In 2002, two years after Senait had been removed to

Eritrea, and after the war ended,4 Dawit sent for her. Without an

exit visa, Senait had to be smuggled out of Eritrea. She traveled

through Sudan and Swaziland before reuniting with Dawit in South

3
Senait was the last of her family to be removed from Ethiopia. At
various times in 1998 and 1999, members of Senait’s family were taken by
Ethiopian police, harassed, and sent to Eritrea.
4
Ethiopia and Eritrea negotiated a peace settlement in December 2000.

4
Africa. There, the couple stayed for a year until they were robbed

and burglarized, crimes which scared Senait, and they decided to

leave. After traveling through Cuba, Nicaragua, Guatemala, and

Mexico, the couple arrived in the United States in March 2004.

Senait and Dawit entered the United States without visas,

and they conceded removability pursuant to 8 U.S.C.

§ 1182(a)(6)(A)(I). An Immigration Judge (“IJ”) found them

ineligible for asylum, withholding of deportation, and relief under

the Convention against Torture (“CAT”). A single judge of the BIA

affirmed.

DISCUSSION

The Ethiopian-Eritrean conflict precipitated a rash of

asylum seekers entering the United States.5 Although Petitioners

are sympathetic victims of this conflict, the BIA and this court

must analyze their claims statutorily. If petitioners do not

qualify for asylum, the BIA correctly rejected their claims.6

This court reviews the BIA’s legal conclusions de novo.

Girma v. I.N.S, 283 F.3d 664, 666 (5th Cir. 2002); Lopez-Gomez v.

Ashcroft, 263 F.3d 442, 444 (5th Cir. 2001). We will defer to the

BIA’s interpretation of immigration regulations if the interpreta-

5
See, e.g., Giday v. Gonzales, 434 F.3d 543 (7th Cir. 2006); Haile v.
Gonzales, 421 F.3d 493 (7th Cir. 2005); Negeya v. Gonzales, 417 F.3d 78 (1st Cir.
2005); Fessehaye v. Gonzales, 414 F.3d 746 (7th Cir. 2005); Nuru v. Gonzales, 404
F.3d 1207 (9th Cir. 2005); Begna v. Ashcroft, 392 F.3d 301 (8th Cir. 2004);
Tsegay v. Ashcroft, 386 F.3d 1347 (10th Cir. 2004); Tolosa v. Ashcroft, 384 F.3d
906 (7th Cir. 2004).
6
Petitioners do not here challenge the denial of their claims for
withholding or CAT relief.

5
tion is reasonable. Lopez-Gomez, 263 F.3d at 444. The BIA’s

factual findings are upheld if supported by substantial evidence,

Long v. Gonzales, 420 F.3d 516, 519 (5th Cir. 2005), that is,

unless the evidence is so compelling that no reasonable factfinder

could fail to find otherwise. Id.

To qualify for asylum, an alien must be a “refugee.” See

8 C.F.R. § 1208.13(a). The Immigration and Naturalization Act

defines a refugee as a person unable to return to his or her

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). Past persecution entails harm inflicted on the

alien on account of a statutorily enumerated ground by the

government or forces that a government is unable or unwilling to

control. 8 C.F.R. § 1208.13(b)(1). The alternative asylum ground,

a well-founded fear of persecution, results when a reasonable

person in the same circumstances would fear persecution if

deported. Jukic v. INS, 40 F.3d 747, 749 (5th Cir. 1994).

In either case, to establish persecution, the alien’s

“harm or suffering need not be physical, but may take other forms,

such as the deliberate imposition of severe economic disadvantage

or the deprivation of liberty, food, housing, employment or other

essentials of life.” Abdel-Masieh v. INS, 73 F.3d 579, 583

(5th Cir. 1996) (quoting Matter of Laipenieks, 18 I & N Dec. 433,

456-457 (BIA 1983) (citations omitted)). Nevertheless,

6
 [i]t does not encompass all treatment that our society
regards as unfair, unjust or even unlawful or
unconstitutional. If persecution were defined that
expansively, a significant percentage of the world’s
population would qualify for asylum in this country — and
it seems most unlikely that Congress intended such a
result.

Majd v. Gonzales, 446 F.3d 590, 595(5th Cir. 2006) (quoting Al-Fara

v. Gonzales, 404 F.3d 733, 739 (3d Cir. 2005)).

The Petitioners each bring an individual claim for

asylum. Additionally, they bring a claim for asylum on the basis

that they will be separated if removed to their respective

countries. If we find error in the BIA’s decision in resolving any

of the claims, we must remand, as Senait and Dawit would have

derivative claims for relief based on their marriage.7

A. Senait’s Claim

The BIA held that Senait was (1) a citizen of Eritrea,

(2) firmly resettled in Eritrea, and (3) unable to show past

persecution or a well-founded fear of persecution if returned to

Eritrea.

Senait takes issue with this reasoning and would have us

consider her a refugee from Ethiopia based on Ethiopia’s forced

deportation policy, which sent her to Eritrea. This claim falters

under the facts and the plain language of the statute. As was just

noted, aliens who seek asylum must meet the definition of a

7
Although the IJ found that Petitioners did not establish that they
were married, the BIA did not make a finding as to the issue of their marriage,
instead assuming for purposes of analysis that the couple was married under
Ethiopian law. We do the same.

7
“refugee.” See 8 U.S.C. § 1208.13(a); see also Eduard v. Ashcroft,

379 F.3d 182, 187 (5th Cir. 2004). The statute defines a refugee

as including:

any person who is outside any country of such person’s
nationality or, in the case of a person having no
nationality, is outside any country in which such person
last habitually resided, and who is unable or unwilling
to return to, and 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, membership in a
particular social group, or political opinion.

8 U.S.C. § 1101(a)(42)(A) (emphasis added). The statute thus

permits an alien to seek asylum from only one “test country”: that

of the alien’s nationality, or, if the alien is stateless, that of

the country where the alien last habitually resided. Cf. Wangchuck

v. Dep’t of Homeland Sec., 448 F.3d 524, 529 (2d Cir. 2006) (noting

the error in the BIA’s assumption that an alien could be eligible

for asylum based on a well-founded fear of persecution in either of

two countries). In Senait’s case, the BIA adjudicated her asylum

claim with reference to Eritrea. If the BIA’s decision to use

Eritrea as Senait’s test country is supported by substantial

evidence, any persecution that Senait allegedly faced in Ethiopia

is irrelevant under the statute.

A “national” is “a person owing permanent allegiance to

a state.” 8 U.S.C. § 1101(a)(21). Senait has never argued that

she is still an Ethiopian national, as she was divested of

Ethiopian citizenship. Moreover, in her asylum application, Senait

filled in Eritrea as her “Presented Nationality (Citizenship).”

8
“Nationality is a status conferred by a state.” Dhoumo v. BIA,

416 F.3d 172, 175 (2d Cir. 2005); cf. Paripovic v. Gonzales,

418 F.3d 240 (3d Cir. 2005) (petitioner was rendered stateless by

the dissolution of the former Yugoslavia). The BIA’s implicit

reliance on Senait’s concession that she is not an Ethiopian

national is hard to criticize.8

The BIA found that Senait was a citizen of Eritrea and

firmly resettled there.9 Senait argues that she could not have been

firmly resettled in Eritrea because, as an Ethiopian deportee, she

was not granted the same rights as non-refugee Eritreans. Yet the

only thing this argument can do is force Senait’s asylum claim into

the statelessness rubric: If Senait is a national of Eritrea, her

asylum claim must be decided through Eritrea. If Senait is not a

8
In supplemental briefing, Petitioners cited two recent Seventh
Circuit decisions dealing with refugees from Ethiopia and Eritrea, Giday v.
Gonzales, 434 F.3d 543 (7th Cir. 2006), and Haile v. Gonzales, 421 F.3d 493 (7th
Cir. 2005). Were this court to follow it, the Seventh Circuit’s decision in
Haile, noting that it is arguable that “a program of denationalization and
deportation is in fact a particularly acute form of persecution,” id. at 496,
would be persuasive evidence that Senait suffered persecution in Ethiopia. Yet
that is not the relevant question here: Both petitioners in Haile could use
Ethiopia as their test country, whereas the BIA found that Senait could not.
Neither of the petitioners in Haile had actually been deported from Ethiopia, id.
at 495, and the court remanded in part so the IJ could determine “whether the
petitioners are still considered citizens by Ethiopia,” id. at 496.
Giday is similarly distinguishable: The petitioner in Giday lived in
Eritrea but was ethnically Ethiopian; Eritrea attempted to deport the petitioner
because of her Ethiopian heritage. Eritrea remained the test country because she
had never been to Ethiopia and was not a national there, and because once she
escaped Eritrea, the petitioner left for the United States immediately. Id. at
547.
9
8 U.S.C. § 1158(b)(2)(A)(vi) provides that the Attorney General may
not grant asylum to an otherwise eligible refugee if “the alien was firmly
resettled in another country prior to arriving in the United States.” An alien
is firmly resettled if “he or she entered into another country with, or while in
that country received, an offer of . . . citizenship . . . .” 8 C.F.R. § 208.15.

9
national of Eritrea, her asylum claims must be decided through the

country where she last habitually resided. That country turns out

also to be Eritrea.

By finding that Senait was firmly resettled in Eritrea,

the BIA implicitly found that Senait’s last habitual residency was

Eritrea, or, in any event, not Ethiopia. Cf. Al Najjar v.

Ashcroft, 257 F.3d 1262, 1294 (11th Cir. 2001) (approving an

implicit finding of “last habitual residence”). Substantial

evidence supports such a finding under any plausible definition of

last habitual residence.10

The immigration law defines “residence” as “the place of

general abode,” which is a person’s “principal, actual dwelling in

fact, without regard to intent.” 8 U.S.C. § 1101(a)(33). Senait

has not lived in Ethiopia since June 2000, and she did not arrive

in the United States until March 2004. For more than two years,

she lived in Eritrea with her mother, some of her siblings, and,

while he was alive, her father. She also was employed as a gas

station cashier with Mobil Oil. After living in Eritrea, Senait

lived briefly in South Africa with Dawit, but they chose to move

away from there.

10
The meaning of “last habitual residence” is a question of law
reviewed de novo, with agency deference when appropriate. Paripovic, 418 F.3d
at 243. Like the BIA, we need not, and do not, determine the precise contours
of the meaning of “last habitual residence.” Under any plausible definition of
the term, Senait had not last habitually resided in Ethiopia. It is that factual
determination that we review for substantial evidence. See Al Najjar, 257 F.3d
at 1294.

10
 Significantly, Senait’s asylum application indicates that

she perceived Eritrea to be her test country. The form asks:

“Please list your last address where you lived before coming to the

U.S. If this is not the country where you fear persecution, also

list the last address in the country where you fear persecution.”

(Emphasis added). Senait furnished addresses in South Africa and

Eritrea; she omitted Ethiopia. Further, when asked if she feared

harm if returned to her “home country,” she responded by invoking

hardships in Eritrea, not Ethiopia.

These facts belie any notion that Ethiopia is Senait’s

last habitual residence; the BIA’s determination to use Eritrea as

her test country is supported by substantial evidence.

Senait next challenges the BIA’s decision that she did

not suffer past persecution and lacks a reasonable fear of future

persecution in Eritrea.11 Senait argues that (1) the Eritrean

government regularly commits human rights violations; (2) the

Eritrean government required Senait, unlike “native Eritreans,” to

carry a card that identified her as an Ethiopian refugee; (3) she

was denied an exit visa; (4) she has a “vulnerable social status”

as an Ethiopian refugee; and (5) she was “harassed and

discriminated against by the Eritrean government.” On these

11
Technically, the petitioners do not argue that Senait suffered
persecution in Eritrea, instead attacking only the BIA’s finding that Senait was
firmly resettled in Eritrea. We will read their briefs liberally, however, and
construe their arguments against firm resettlement as arguments that Senait
suffered and fears persecution in Eritrea.

11
points, the BIA explained that Senait’s only individualized

complaint was “that customers at the gas station where she worked

made remarks threatening that those born in Ethiopia should be sent

back there,” and that “[t]hese incidents and alleged discrimination

against Eritreans from Ethiopia fall short of persecution.” Fur-

ther, the BIA noted that there was “no evidence” that Senait “was

treated differently than native-born Eritreans by the government.”

The BIA’s decision is supported by substantial evidence.

Senait’s fears fall far short of the required “extreme conduct”

needed to establish persecution. Her only complaint of individua-

lized harassment stemmed from a few incidents where she was taunted

at work. Persecution cannot be based on “mere denigration,

harassment, and threats.” Eduard v. Ashcroft, 379 F.3d 182, 188

(5th Cir. 2004); see also id. at 187 n.4 (persecution “requires

more than a few isolated incidents of verbal harassment or

intimidation” (quoting Mikhailevitch v. INS, 146 F.3d 384, 390 (6th

Cir. 1998))). Petitioners also point to their expert’s affidavit

that Eritreans from Ethiopia are treated “harshly,” are “unduly

discriminated against,” and are blamed for hardships. As the

expert conceded, however, many Eritrean problems “are undoubtedly

effects of the economic hardships caused by the war overall.”

Eduard holds that “[n]either discrimination nor harassment

ordinarily amounts to persecution under the INA, even if the

conduct amounts to ‘morally reprehensible’ discrimination on the

basis of race or religion.” Id. at 188. Finally, the fact that

12
Eritrea denied Senait an exit visa does not on this record

establish persecution.12 The totality of the evidence does not

compel a conclusion contrary to that of the BIA.

B. Dawit’s Claim

Dawit’s asylum claim is premised on his arrest,

detention, and charge for violating Ethiopia’s travel laws by

“smuggling Eritreans.” These acts, he asserts, amounted to past

persecution on account of his social group and imputed political

opinions. In providing parameters for the term “persecution,” the

BIA has stated:

While punishment of criminal conduct in itself is not
persecution, where that punishment entails such things as
severe beatings or being sent to a Nazi concentration
camp — i.e., is ‘excessive or arbitrary’ — and is
motivated by one of the specified grounds, such
punishment would constitute persecution under
[immigration laws].

Abdel-Masieh, 73 F.3d at 584 (quoting Laipenieks, 18 I & N Dec. at

456-457). In this case, the BIA held that Dawit’s punishment

“would be prosecution for a criminal act, not persecution.”

Based on the record, substantial evidence supports the

BIA determination that Dawit did not experience past persecution.

Dawit encountered Ethiopian law enforcement three times. First, he

was arrested and detained for a month when he and Senait were

stopped at the Kenyan border near the beginning of the Ethiopian-

12
Senait testified that, in 2002 when she wanted to leave Eritrea, the
Eritrean government denied exit visas to everyone between the ages of eighteen
and forty.

13
Eritrean border war, and he was charged with smuggling. The

detention was under unpleasant and unduly prolonged but not brutal

conditions. Later, he was stopped twice in Addis Ababa and his bag

was searched. On neither of these latter occasions, however, could

Dawit affirm whether the police were aware of the pending criminal

charges or were conducting planned surveillance on him.

Not only do these law enforcement encounters fail to rise

to the level of physical persecution, compare Abdel-Masieh, 73 F.3d

at 584, but it is also unclear whether they were motivated by

political or social group animus against Dawit. There is no

explanation in the record for his being accosted in Addis Ababa.

And as to the smuggling charge, when two countries are at war, it

is not invariably persecution for each sovereign to control the

travel of persons it believes may harbor sympathy for the enemy or

who might flee the country to fight on the other side. The

background of Dawit’s detention, of course, is the forced

deportations and denationalization that both Ethiopia and Eritrea

carried out against their resident ethnic minority and that other

courts have asked the BIA to evaluate for asylum purposes. See

Haile, 421 F.3d at 494-95. Still, there is no direct connection

between his criminal charge and the “ethnic cleansing,” while there

is an obvious purpose in a country’s enforcement of passport and

travel laws during wartime.

Dawit argues that he was singled out for prosecution

because, when he identified himself as Senait’s husband, the

14
authorities “knew his political opinions” and sought to punish him

as a sympathizer with Eritreans. These connections are inferences

that the BIA was not required to draw. Dawit’s interrogation over

the course of his detention seems, on the contrary, to have

concerned mundane attributes of smuggling — how many people, how

much money — rather than political inquisition.

This court recently held that “[a]sylum protects victims

of persecution on account of belief, not conduct.” Mwembie v.

Gonzales, 443 F.3d 405, 414 (5th Cir. 2006) (citing cases). The

line separating belief from conduct may not always be clearly

delineated when based on the existence of criminal charges, but

here we are not persuaded that Dawit was persecuted on account of

his beliefs or his marriage to an Eritrean.

It follows that, because Dawit’s main expressed fear in

returning to Ethiopia is his exposure to the outstanding criminal

charge, and that charge is not sufficient to show persecution, he

has not established a well-founded fear of future persecution.

Further, Dawit does not take issue in his appellate brief with the

BIA’s observation that it is unclear whether he would face further

criminal proceedings on return to Ethiopia for events that happened

eight years ago. Dawit has not demonstrated that the evidence he

offered “was so compelling that no reasonable factfinder could fail

to find the requisite fear of persecution.” INS v. Elias-Zacarias,

502 U.S. 478, 484-85, 112 S. Ct. 812, 817 (1992).

15
C. The Spousal Separation Claim

Senait and Dawit assert that they are entitled to asylum

as a married couple for the persecution they will suffer on account

of their membership in a protected social group, that of inter-

ethnic married couples. The “persecution” they claim is forced

separation, to wit, that Senait cannot live with Dawit in Ethiopia

and Dawit allegedly cannot live with Senait in Eritrea. The Board

dismissed this claim of persecution, stating that “[t]he cases

cited by the respondents regarding the consideration of spousal

separation are not relevant to this case. Not every action we

would regard as unjust or unlawful amounts to persecution.”

The Board’s conclusion is correct. There is no legal

authority that compels asylum for married couples where deportation

could separate them, and the Board found that Senait and Dawit had

not in any event proven removal would cause them to be separated.

As they did before the Board, Petitioners rely on three cases to

support their contention that spousal separation is persecution.

See Kalubi v. Ashcroft, 364 F.3d 1134, 1141 (9th Cir. 2004); Ma v.

Ashcroft, 361 F.3d 553, 561 (9th Cir. 2004); Carrete-Michel v. INS,

749 F.2d 490, 494 (8th Cir. 1984). We agree with the Board that

they are all distinguishable. Kalubi dealt with discretionary

entitlement, as opposed to legal eligibility, for asylum. See 8

U.S.C. § 1158(b)(1)(A) (“Secretary of Homeland Security or the

Attorney General may grant asylum to an alien who has applied for

16
asylum.”); INS v. Cardoza-Fonseca, 480 U.S. 421, 444, 107 S. Ct.

1207, 1219 (1987) (stating that aliens who “can only show a well-

founded fear of persecution are not entitled to anything, but are

eligible for the discretionary relief of asylum”). The BIA denied

Kalubi asylum on discretionary grounds because it believed he

lacked credibility. The Ninth Circuit reversed, holding, inter

alia, that if an alien is credible for purposes of eligibility, he

cannot be held incredible for purposes of discretionary

entitlement. Kalubi, 364 F.3d at 1138-39. Also, construing a

pertinent regulation, the Ninth Circuit held only that spousal

separation is a factor the BIA must consider once it deems an alien

eligible for asylum; the court did not hold that spousal separation

is related to eligibility.

Similarly, Carrete-Michel did not deal with eligibility

for asylum, but instead involved a Mexican national who sought

suspension of deportation by demonstrating extreme hardship,

through his longstanding ties to the United States and the

separation he would face from his family. Carrete-Michel, 749 F.2d

at 492. This finding compelled the Attorney General to suspend

deportation under pre-IIRIRA law. Id.; see also 8 U.S.C.

§ 1254(a)(1) (repealed).13 Carrete-Michel reflects a longstanding

13
After IIRIRA, an alien can establish cancellation of removal,
effectively the same thing as suspension of deportation, with ten years
continuous physical presence in the United States, good moral character, lack of
certain convictions, and a showing that “removal would result in exceptional and
extremely unusual hardship to the alien’s spouse, parent, or child” who is a
citizen or lawful permanent resident of the United States. See 8 U.S.C. §
1229b(b).

17
immigration policy of favoring aliens who have ties to United

States citizens or lawful permanent residents (“LPR”), see 8 U.S.C.

§ 1153(a). This policy is entirely distinct from the definition of

persecution under other immigration provisions.

Finally, petitioners rely on Ma v. Ashcroft, a case

involving a husband’s asylum claim based on his wife’s forced

abortion in China. For this particularized form of persecution,

Congress has specifically provided a remedy in 8 U.S.C.

§ 1101(a)(42)(B). That a wife’s forced sterilization is

persecution to the husband under this law, Matter of C-Y-Z, 21 I.

& N. Dec. 915, 917-18 (BIA 1997), does not mean that a country

persecutes a husband by forbidding his wife to live with him in

that country.

Although the United States supports marriage and family

reunification, it does not follow that because two aliens may not

be able to live together in their home countries, they are

persecuted. This country denies entry to some foreign nationals

who marry a United States citizen, see 8 U.S.C. § 1182, and allows

the removal of the spouse of a U.S. citizen or LPR under certain

conditions, see 8 U.S.C. § 1227. While the BIA may determine that

spousal separation, in appropriate circumstances, constitutes

persecution, it did not so find here.

The Board found, and the record fully supports, that

Dawit could not have been “persecuted” by his wife’s expulsion to

Eritrea, as he was by that time living in South Africa, had not

18
officially registered their marriage, and was not connected to the

expulsion. The Board also found that the couple have not proven

their inability to live together in Eritrea. The Board cited in

support of this finding three facts: (1) Dawit and Senait never

inquired officially about the possibility of returning there

together; (2) the expert’s affidavit “only indicates that there is

much resentment against Ethiopians in Eritrea”; and (3) Dawit would

have trouble finding employment. The first and third findings are

unassailable. The second finding understates the appellants’

expert’s affidavit, which goes to some length detailing the

discrimination that might befall both Senait and Dawit in Eritrea

due to lingering prejudice against their ethnically mixed marriage.

But predictions of possibilities do not support a well-founded fear

of persecution, nor, as we have noted, does discrimination alone

amount to persecution. Petitioners have not demonstrated that the

Board’s findings must be overturned.

CONCLUSION

For the foregoing reasons, the petition for review of the

Board’s decision is DENIED.

19