Asres v. Holder

Case: 08-60130 Document: 00511023342 Page: 1 Date Filed: 02/09/2010

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
February 9, 2010

No. 08-60130 Charles R. Fulbruge III
Clerk

GIRMAY AYUHUNEY ASRES

Petitioner
v.

ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL

Respondent

Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A94 922 850

Before WIENER, GARZA, and ELROD, Circuit Judges.
PER CURIAM:*
Petitioner Girmay Ayuhuney Asres seeks review of the order of the Board
of Immigration Appeals (“BIA”) affirming the immigration judge’s (“IJ’s) decision
denying relief under the Convention Against Torture (“CAT”) and ordering that
he be removed from the United States. Concluding that the BIA’s and the IJ’s
decisions are supported by substantial evidence, we deny Asres’s petition.

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
 Case: 08-60130 Document: 00511023342 Page: 2 Date Filed: 02/09/2010

No. 08-60130

I. FACTS AND PROCEEDINGS
Asres is a native and citizen of Eritrea who was born in 1974. He claims
that prior to his 2006 arrival in the United States, he was conscripted into, and
later deserted, the Eritrean military. According to Asres, he served in the
military from 1994 to 1996 and again from 1998 to 2006. He claims to have been
imprisoned twice during his periods of military service — once for fifteen months
because he was unable to dig a hole because of an injury that a superior had
inflicted on Asres’s hand after he had asked about democracy and repeatedly
requested leave to visit his family, and once for thirteen months after inquiring
about a friend named Yonatan who allegedly was killed by military officers
because they thought he had betrayed them. Asres testified that prison
conditions were bad and that he, along with others, had suffered torture and
seen prisoners taken away to be killed. Asres contends that in January 2006, he
escaped from prison while being taken to the restroom. He then hid for several
months before crossing into Sudan and subsequently traveling through several
countries, finally arriving in the United States later that year.
When Asres entered the United States, the Department of Homeland
Security apprehended him and determined that he was inadmissible under 8
U.S.C. § 1182(a)(7)(A)(i)(I) because he did not possess a valid entry document.
Asres was referred to an asylum officer for a “credible fear” interview because
he had indicated an intention to apply for asylum and expressed a fear of
persecution or torture.1 In that interview, Asres testified that he feared
returning to Eritrea because he had escaped from a prison there and believed
that the government of Eritrea would kill him for having done so. Determining
that Asres had made credible statements and had established a credible fear of
torture, the asylum officer concluded that Asres demonstrated “a significant

1
See 8 U.S.C. § 1225(b)(1)(A)(I), (ii); 8 C.F.R. § 1235.3(b)(4).

2
 Case: 08-60130 Document: 00511023342 Page: 3 Date Filed: 02/09/2010

No. 08-60130

possibility that he could establish eligibility for relief under the [CAT].”
Therefore, in late December 2006, the officer issued Asres a Notice to Appear
before an IJ for full consideration of his claims.2 Asres then submitted a Form
I-589, Application for Asylum and for Withholding of Removal.3
At his initial appearance before the IJ, Asres conceded removability and
requested (1) asylum, (2) withholding of removal, and (3) protection under the
CAT. The IJ held a hearing on the merits in April 2007. Only Asres testified at
that hearing, but he submitted documentary evidence which included human
rights reports about Eritrea and three photographs that purported to show him
in military uniform. The IJ issued an oral decision concluding that Asres was
not credible and that he had failed to sustain his burden of proving eligibility for
relief. The IJ held that Asres lacked credibility because, inter alia, he “did not
testify in a forthright and direct manner and appeared to be evasive although he
was asked on more than one occasion to focus in and try to answer the question
that was asked.” The IJ further based his credibility determination on many
perceived inconsistencies among Asres’s representations. The IJ held that
Asres’s asylum and withholding of removal claims failed because he had not
shown a well-founded fear of persecution based on any of the five statutory
grounds — race, religion, nationality, membership in a particular social group,
or political opinion.4 As for Asres’s CAT claim, the IJ determined that although
Eritrean security forces have used torture, that fact alone was insufficient “to
establish the respondent’s eligibility for relief in the absence of credible evidence
or testimony specific to this respondent.”

2
See 8 C.F.R. § 208.30(f) (outlining procedures for a positive credibility finding).
3
The Form I-589 also may be used to apply for CAT relief.
4
See 8 U.S.C. § 1101(a)(42)(A) (defining “refugee”). Although asylum requires only a
“well-founded fear,” withholding of removal requires that persecution be “more likely than
not.” See Mwembie v. Gonzales, 443 F.3d 405, 410 n.9 (5th Cir. 2006).

3
 Case: 08-60130 Document: 00511023342 Page: 4 Date Filed: 02/09/2010

No. 08-60130

Proceeding pro se, Asres appealed only the IJ’s denial of CAT protection
to the BIA. Consequently, the asylum and withholding of removal claims are no
longer at issue.
Later that year, the BIA affirmed the IJ’s decision denying relief,
concluding that “[b]ecause the respondent did not testify credibly with respect
to the central facts offered in support of his claim to CAT protection, we find no
reversible error in the Immigration Judge’s determination that [Asres] did not
prove that he will more likely than not be subjected to future torture in Eritrea.”
Having retained counsel, Asres filed the instant petition for review of the
BIA’s decision.5 Here, Asres urges primarily that the IJ’s adverse credibility
determination was applicable only to his claims for asylum and withholding of
removal, not to his desertion-based CAT claim. He also contends that his age,
34 years old, confirms his deserter status, explaining that all Eritrean men of his
age were conscripted into military service. The Attorney General responds that
the BIA and IJ justifiably considered Asres’s lack of credibility and were
unconvinced that he had deserted the military.
II. ANALYSIS
A. Standard of Review
A petition for review filed in the court of appeals is the exclusive means of
judicial review of any claim under the CAT.6 We generally have authority to
review only the BIA’s decision, not the IJ’s.7 Yet, when, as here, the BIA affirms
the IJ in reliance on his reasoning, we review both decisions.8

5
On March 20, 2008, we summarily granted Asres’s unopposed motion for a stay of
removal pending review. Because our decision today disposes of Asres’s petition, we now lift
the stay.
6
See 8 U.S.C. § 1252(a)(4). This rule is subject to specific exceptions listed in § 1252(e).
7
Wang v. Holder, 569 F.3d 531, 536 (5th Cir. 2009).
8
Ahmed v. Gonzales, 447 F.3d 433, 437 (5th Cir. 2006); see Wang, 569 F.3d at 536.

4
 Case: 08-60130 Document: 00511023342 Page: 5 Date Filed: 02/09/2010

No. 08-60130

We review the BIA’s and the IJ’s legal holdings de novo and their factual
findings for substantial evidence.9 Under the standard of substantial evidence,
we uphold factual findings “unless the evidence is so compelling that no
reasonable factfinder could fail to find otherwise.” 10
It is the fact-finder’s duty to assess credibility, and we may not “substitute
[our] judgment for that of the BIA or IJ with respect to factual findings based on
credibility determinations.” 11 We will not reject credibility determinations
unless they are “unsupported by the record and are based on pure speculation
or conjecture.” 12 “As we have previously made emphatically clear, we will not
review decisions turning purely on the immigration judge’s assessment of the
alien petitioner’s credibility.”13

9
Efe v. Ashcroft, 293 F.3d 899, 903 (5th Cir. 2002).
10
Tesfamichael v. Gonzales, 469 F.3d 109, 113 (5th Cir. 2006).
11
Wang, 569 F.3d at 537.
12
Id. Our recent opinion in Wang interpreted the 2005 REAL ID Act § 101(a)(3), (c),
(h)(2), Pub. L. 109-13, 119 Stat. 302, which amended the standards for evaluating witness
credibility in asylum cases. Id. We noted that the amendment conferred even greater
discretion on the IJ to determine credibility, and we adopted the Second Circuit’s standard
that “‘an IJ may rely on any inconsistency or omission in making an adverse credibility
determination as long as the ‘totality of the circumstances’ establishes that an asylum
applicant is not credible . . . . We defer therefore to an IJ’s credibility determination unless,
from the totality of the circumstances, it is plain that no reasonable fact-finder could make
such an adverse credibility ruling.’” Id. at 538 (quoting Lin v. Mukasey, 534 F.3d 162, 167 (2d
Cir. 2008) (emphasis in original)). Like Asres, the Wang petitioner pursued a CAT claim.
Because the IJ made his credibility determination regarding asylum in the same proceeding
in which he considered the CAT claim, it is logical that the same deferential standard applies
to our review of credibility determinations in both asylum and CAT claims. In any event, in
today’s case, Asres does not challenge directly the IJ’s credibility determination, only the scope
of its effect.
13
Chun v. INS, 40 F.3d 76, 78 (5th Cir. 1994) (per curiam) (internal quotation marks
omitted).

5
 Case: 08-60130 Document: 00511023342 Page: 6 Date Filed: 02/09/2010

No. 08-60130

B. CAT Framework
Article 3 of the CAT provides:
1. No State Party shall expel, return (“refouler”) or extradite a
person to another State where there are substantial grounds for
believing that he would be in danger of being subjected to torture.

2. For the purpose of determining whether there are such grounds,
the competent authorities shall take into account all relevant
considerations including, where applicable, the existence in the
State concerned of a consistent pattern of gross, flagrant or mass
violations of human rights.14
Under the CAT, Asres had the burden of proving that if he were removed
to Eritrea, it is more likely than not that he would be tortured by, or with the
consent or acquiescence of, public officials.15 This determination is one of fact in
which the IJ must consider “all evidence relevant to the possibility of further
torture.” 16 Additionally, a CAT claim is “separate from the claims for asylum
and withholding of removal and should receive separate analytical attention.”17

14
United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, art. 3, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85,
113.
15
See 8 C.F.R. § 208.16(c)(2). The applicable regulation defines “torture” as follows:

[A]ny 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.

Id. § 208.18(a)(1).
16
8 C.F.R. § 208.16(c)(3) (providing a non-exhaustive list of relevant evidence); see
Zhang v. Gonzales, 432 F.3d 339, 344 (5th Cir. 2005).
17
Efe v. Ashcroft, 293 F.3d 899, 906–07 (5th Cir. 2002); see Chen v. Gonzales, 470 F.3d
1131, 1139 (5th Cir. 2006) (explaining that CAT claims differ from asylum claims because a

6
 Case: 08-60130 Document: 00511023342 Page: 7 Date Filed: 02/09/2010

No. 08-60130

Because each different type of claim for relief has different statutory
requirements, a petitioner’s arguments in favor of CAT relief might not be
factually related to his asserted grounds for relief under another claim. For this
reason, an adverse credibility determination in the asylum context need not
necessarily affect the disposition of a petitioner’s CAT claim.18
C. Application of the IJ’s Adverse Credibility Determination
Asres contends that he deserted the Eritrean military and that, as a
deserter, the government of Eritrea would torture him. He theorizes that the
BIA and the IJ reached their contrary conclusions by impermissibly relying on
the IJ’s adverse credibility determination, which Asres asserts was applicable
only to his asylum and withholding of removal claims (based on past
persecution), not his claimed deserter status on which his CAT claim was based
(for probability of future torture). Even though Asres challenges the influence
that the adverse credibility determination had on his CAT claim, he does not
actually challenge that determination. Our inquiry begins — and ends — with
the dispositive question whether substantial evidence supports the conclusion
that Asres failed to establish that he deserted the Eritrean military. (Of course,
if there were evidence that Asres did not desert but that Eritrea nevertheless
would consider him a deserter, that would alter our analysis.)
Both the Seventh and Ninth Circuits have remanded CAT claims to the
BIA when it relied on prior credibility determinations that were unrelated or

CAT claim (1) need not be based on one of the five asylum grounds, (2) must prove torture, not
simply persecution (or a well-founded fear of persecution), and (3) must prove likelihood of
torture by “more likely than not,” a higher standard than “well-founded fear”); Efe, 293 F.3d
at 906 (requiring that a petitioner’s successful withholding of removal claim show that it was
“‘more likely than not’ that his life or freedom would be threatened by persecution on account
of one of the five categories mentioned under asylum” (quoting 8 C.F.R. § 208.16(b)(1)).
18
See, e.g., Mansour v. INS, 230 F.3d 902, 908 (7th Cir. 2000).

7
 Case: 08-60130 Document: 00511023342 Page: 8 Date Filed: 02/09/2010

No. 08-60130

insignificant to the CAT claims.19 In Mansour, the Seventh Circuit remanded
a case to the BIA for further proceedings because the court was “not comfortable
with allowing a negative credibility determination in the asylum context to wash
over the torture claim; especially when the prior adverse credibility
determination is not necessarily significant” to the CAT claim.20 As an Assyrian
Christian, the petitioner in Mansour based his CAT claim on Iraq’s abuses of his
ethnic and religious group, as documented by the State Department’s Country
Report on Human Rights Practices (“Country Report”) for Iraq.21 In contrast,
that petitioner’s asylum claim was “not centere[ed] . . . around his
ethnic/religious background”; it instead related to alleged past abuses and his
status as a military deserter.22 Because the two claims “differ[ed] enough in
nature,” each warranted individual treatment and the credibility determination
in the asylum context could not be relied on to defeat the CAT claim.23
Like the Seventh Circuit before it, the Ninth Circuit in Kamalthas
remanded a petitioner’s analytically independent CAT claim to the BIA for
further proceedings.24 In that case, the Sri Lankan petitioner claimed that as
a Tamil male, he would be tortured in violation of the CAT on his repatriation.25
The BIA previously had rejected the petitioner’s asylum claim, determining that
his account of past persecution lacked credibility.26 The Kamalthas court rejected

19
See Kamalthas v. INS, 251 F.3d 1279 (9th Cir. 2001); Mansour, 230 F.3d 902.
20
230 F.3d at 908.
21
Id.
22
Id. at 905–06, 909.
23
Id. at 909.
24
251 F.3d at 1284.
25
Id. at 1280.
26
Id.

8
 Case: 08-60130 Document: 00511023342 Page: 9 Date Filed: 02/09/2010

No. 08-60130

the BIA’s overreliance on its prior adverse credibility determination and
cautioned that the finding was not necessarily determinative of the CAT claim.27
In vacating and remanding to the BIA for further proceedings, the court
recognized evidence that corroborated the petitioner’s claim of the widespread
torture of Tamil males.28
In Efe v. Ashcroft, we described Mansour and Kamalthas as decisions in
which the courts “remanded cases for further consideration of CAT claims due
to overreliance on an adverse credibility ruling.” 29 Yet, in our Efe decision, we
held that Mansour and Kamalthas were inapplicable when the “credibility
assessment . . . goes directly to the issue” of torture vel non.30 The Efe petitioner
contended that the Nigerian government would torture him because he had
killed a police officer during a political demonstration.31 The IJ determined that
the petitioner lacked credibility about, inter alia, his claimed involvement in the
demonstration and whether he had killed the officer.32 In denying relief under
the CAT, we concluded that Mansour and Kamalthas were distinguishable as
cases that addressed claims of “a general situation of torture among men of a
certain ethnic or religious background shared by the alien.” 33 The Efe petitioner

27
Id. at 1284.
28
Id.
29
293 F.3d 899, 907 (5th Cir. 2002).
30
Id. at 907–08.
31
Id. at 901.
32
Id. at 902.
33
Id. at 907 (emphasis added).

9
 Case: 08-60130 Document: 00511023342 Page: 10 Date Filed: 02/09/2010

No. 08-60130

made no such claim, instead alleging that he would be arrested and tortured for
his acts.34
Efe controls the instant case. Asres’s CAT claim depended on the IJ’s
believing that Asres had deserted the Eritrean military. Similarly, the Efe
petitioner’s CAT claim depended on the IJ’s believing that the petitioner would
be tortured for a specific act, his murder of a police officer.35 In contrast, the
Mansour and Kamalthas petitioners’ CAT claims depended on each petitioner’s
immutable characteristics — either being an Assyrian Christian or a Tamil male
— which were not disputed.36
As in Efe, the IJ’s determination that Asres lacked credibility was relevant
to his CAT claim, and the IJ and the BIA did not err in considering it.37 When
Asres’s testimony is disregarded for lack of credibility, the only independent
evidence supporting his claims were the photographs purporting to show him in
uniform. The IJ determined, however, that it was “not clear” whether the
individual in the photographs was in fact Asres. The IJ also stated that even if
Asres was the individual depicted in the photos, they would show only that he
was once in the military, not necessarily that he deserted. The rejection of his
only proffered evidence, along with the adverse credibility determination, is
sufficient to deny Asres’s petition for review on the basis that the evidence is not
so compelling that no reasonable fact-finder could rule in favor of the Attorney

34
Id. at 907–08.
35
Id.
36
Kamalthas v. INS, 251 F.3d 1279, 1283 (9th Cir. 2001); Mansour, 230 F.3d at 908.
37
Nor do we agree with Asres that the IJ, and subsequently the BIA, conflated his
asylum and CAT claims. Review of the IJ’s decision confirms that he did not believe Asres was
credible, generally or specifically as to desertion. And, the BIA clearly understood Asres’s
argument, which it described as a claim “that he is a deserter . . . and for this reason he faces
a probability of suffering future torture at the hands of Eritrean officials in the event of his
return.”

10
 Case: 08-60130 Document: 00511023342 Page: 11 Date Filed: 02/09/2010

No. 08-60130

General.38 And, because Asres failed to establish that he deserted the Eritrean
military, we do not reach the question whether Eritrean officials would torture
a deserter following his repatriation. We pause briefly, however, to entertain
Asres’s claim that his age alone — 34 years old — entitles him to relief.
According to the Amnesty International Report on Eritrea for 2005,
“[n]ational service, compulsory for all men and women aged between 18 and 40[,]
continued to be extended indefinitely.” 39 In the Attorney General’s view, the 18-
to-40-year range constitutes 22 years of eligibility, not mandatory service. Asres
would have us (1) hold that any Eritrean between the ages of 18 and 40 who is
not currently serving in the military is eligible for relief under the CAT as a
deserter (assuming that Eritrea in fact tortures its deserters), and (2) ignore any
possibility for exceptions to the rule of 22 consecutive years of service, something
that is at best unlikely, or in the Attorney General’s words, “absurd, for it would
mean that [the] majority of the able-bodied persons and almost all women of
childbearing age would be serving in the military.” In his briefing to us, Asres
appears to recognize that “not every Eritrean man falling in that age range
presently serves in the military.” Yet, he contends that his age nevertheless
proves his case. Given our deferential standard of review — substantial
evidence — Asres’s argument on this point is unpersuasive. Once we

38
If presented with different facts, we might demand an individual credibility
determination on CAT-specific issues. See Singh v. Ashcroft, 398 F.3d 396, 404–06 (6th Cir.
2005) (requiring such specificity). Because Asres’s putative bases for relief were all
intertwined such that the IJ’s credibility determination was applicable to his CAT claim, we
demand no such specificity. See Alemu v. Gonzales, 403 F.3d 572, 576 (8th Cir. 2005)
(“[S]eparate analysis is required only when there is evidence that an alien might be tortured
for reasons unrelated to her claims for asylum and withholding of removal.”).
39
Providing different information than Amnesty International, the Country Report for
Eritrea states that all men between 18 and 45 years old and women between 18 and 27 years
old must “participate in the national service program, which included military training and
civilian work programs. Some citizens reported enlistment in the national service for many
years with no prospective end date.” Both reports are part of the record on appeal.

11
 Case: 08-60130 Document: 00511023342 Page: 12 Date Filed: 02/09/2010

No. 08-60130

acknowledge that at least some Eritreans in Asres’s age group are not in the
military and did not desert, without additional evidence from Asres, we conclude
that the evidence does not compel holding that any reasonable fact-finder would
have ruled in his favor on the basis of his age.
III. CONCLUSION
We deny Asres’s petition for review because the IJ’s and the BIA’s
decisions are supported by substantial evidence.
PETITION DENIED.

12