Case: 11-60859 Document: 00512013312 Page: 1 Date Filed: 10/09/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 9, 2012
No. 11-60859
Summary Calendar Lyle W. Cayce
Clerk
YOSIEF ANDEBRHAN FESSEHAYE,
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. A201 105 784
Before DAVIS, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
Yosief Andebrhan Fessehaye, a native-citizen of Eritrea, petitions for
review of the Board of Immigration Appeals’ (BIA) dismissal of his appeal from
an immigration judge’s (IJ’s) order denying asylum and withholding of removal,
but granting relief under the Convention Against Torture, with removal to be
withheld in accordance with Article III. He contends he was entitled to asylum
based on past persecution and a well-founded fear of future persecution because
of political opinion and his desertion from the Eritrean military.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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Fessehaye does not challenge the BIA’s determination that he was not
entitled to withholding of removal; thus, any challenge here is waived. Thuri v.
Ashcroft, 380 F.3d 788, 793 (5th Cir. 2004). Moreover, Fessehaye raises, for the
first time on appeal: (1) the BIA should have considered his familial associations
because a nuclear family is a “cognizable social group”; (2) background evidence
established a pattern of persecution against similarly-situated persons –
“national service deserters, draft evaders, illegal emigrants and failed asylum
seekers”; and (3) if returned to Eritrea, he would be subjected to disproportionate
punishment, including summary execution for desertion. Because Fessehaye did
not exhaust his administrative remedies on these issues, they cannot be
considered. 8 U.S.C. § 1252(d)(1).
Generally, only the BIA decision is reviewable, Zhu v. Gonzales, 493 F.3d
588, 593 (5th Cir. 2007), but review of the IJ’s ruling is permissible when, as
here, the BIA has “adopted all or part of the IJ’s reasoning”, or the ruling
impacts the BIA’s decision. Enriquez-Gutierrez v. Holder, 612 F.3d 400, 407 (5th
Cir. 2010). The BIA’s rulings of law are reviewed de novo; its findings of fact, for
substantial evidence. Zhu, 493 F.3d at 594. Under the substantial evidence
standard, reversal is improper unless “any reasonable adjudicator would be
compelled to conclude to the contrary”. 8 U.S.C. § 1252(b)(4)(B); Chen v.
Gonzales, 470 F.3d 1131, 1134 (5th Cir. 2006) (noting the rule codifies the
substantial-evidence standard).
The Secretary of Homeland Security or the Attorney General may grant
asylum to aliens who qualify as refugees. 8 U.S.C. § 1158(b)(1). A refugee is a
person outside of his country who is unable or unwilling to return “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). “Persecution” means “infliction of suffering or harm,
under government sanction, upon persons who differ in a way regarded as
offensive (e.g., race, religion, political opinion, etc.), in a manner condemned by
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civilized governments”. Abdel-Masieh v. INS, 73 F.3d 579, 583 (5th Cir. 1996)
(internal quotation marks and citation omitted).
Absent evidence of past persecution, Fessehaye must establish a
well-founded fear of future persecution by showing a subjective fear of
persecution, which is also objectively reasonable. E.g., Lopez-Gomez v. Ashcroft,
263 F.3d 442, 445 (5th Cir. 2001). He must also demonstrate “the persecutors
know of his political opinion” and “will likely persecute him because of it”.
Ontunez-Tursios v. Ashcroft, 303 F.3d 341, 351 (5th Cir. 2002) (emphasis in
original). Prosecution for violating a country’s laws generally does not constitute
persecution, unless the punishment was motivated by one of the protected
grounds, and the punishment is excessive or arbitrary. E.g., Abdel-Masieh, 73
F.3d at 584.
Fessehaye asserts the evidence established he suffered past persecution
for expressing a political opinion by speaking out about perceived injustices and
preferential treatment in the military. According to Fessehaye, the BIA erred
by: (1) concluding his first arrest was for “not following a chain of command”;
and (2) failing to conclude his second arrest was primarily the result of
repeatedly questioning policies during meetings, and secondarily because the
Government imputed his father’s political beliefs to him. He further contends
the BIA did not fully consider the record evidence, and failed to assess his fear
of future harm based upon his military desertion, simply relying on his failure
to establish past persecution.
To the extent Fessehaye asserts the BIA failed to consider his testimony,
supporting documents, or corroborative background evidence, the record reflects
both the BIA and the IJ expressly considered all evidence presented. Moreover,
Fessehaye’s own testimony supports the BIA’s conclusion that his first arrest in
2003 resulted from military insubordination, not the expression of political
opinion: He testified that after his arrest in 2003, he was told his detainment
was for improperly speaking out of turn to his commander in a meeting.
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Further, although Fessehaye testified that he continued to publicly air his
grievances, he was not re-arrested until six years later, in 2009. Again, his
testimony supports the BIA’s conclusion that the second arrest was motivated
primarily by the Government’s desire to ascertain information about his missing
father (a former army captain), and not by Fessehaye’s expression of his political
opinion. According to Fessehaye, although the second arrest occurred after he
spoke publicly at a military meeting, he likely would have been arrested even if
he had not spoken because officials were interested in his father’s whereabouts.
He also testified that prison officials interrogated him several times about his
father’s location, and he received beatings when he provided unsatisfactory
answers. Fessehaye did not provide any testimony to demonstrate officials
questioned him regarding his own political opinions during his 15-month prison
stay; nor did he demonstrate officials persecuted him because they imputed his
father’s political beliefs to him. E.g., In re S-P-, 21 I. & N. Dec. 486, 489 (B.I.A.
1996). As the IJ noted, Fessehaye neither testified to what his father’s political
opinions or activities were, nor explained what concerned officials aside from his
father’s disappearance.
Fessehaye’s assertion that the BIA failed to assess his fear of future harm
based on his military desertion is meritless, given the BIA’s specific conclusion
that he “failed to carry the burden to show any harm would be on account of a
listed reason” necessary for refugee status for asylum, and that prosecution for
desertion or failure to complete military duties was “not persecution as required
for relief under the Act”. Fessehaye’s testimony about fear of future persecution
only asserted, given his arrest history and subsequent desertion of the military,
he would be in “great danger” if returned to Eritrea. He did not assert he would
be subject to “disproportionately severe punishment” on account of his race,
religion, nationality, membership in a particular social group, or political
opinion, or that his service in the Eritrean military would require him to engage
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in “inhuman conduct”. E.g., Matter of R-R-, 20 I. & N. Dec. 547, 551 (B.I.A.
1992).
DENIED. As noted, removal is to be withheld in accordance with
Article III of the Convention Against Torture.
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