Yohannes Ghirmay Milat v. Eric Holder, Jr.
2014 U.S. App. LEXIS 11594
| 5th Cir. | 2014Background
- Milat, Eritrean national, seeks asylum, withholding, and CAT protection; claims National Service is unlawful trafficking, not legitimate conscription.
- IJ denies asylum and withholding but grants CAT relief; BIA affirms and declines remand for new evidence.
- Milat contends he faced persecution for his political opinions expressed via a critical cartoon and his evasion of conscription.
- Record shows Milat worked for Eritrean Defense Ministry, protested a university closure, and sought reassignment within National Service.
- Milat fled Eritrea with IDs/passports after concerns of government pursuit; later travels show documents provided by Eritrean authorities.
- Key authorities discuss whether conscription penalties constitute persecution and the standards for remand based on new evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether BIA erred in denying asylum on political-opinion grounds | Milat argues punishment for evading conscription persecuted for political opinion. | GOVERNMENT contends such punishment is not persecution absent special circumstances. | Not persecuted on account of political opinion; asylum denied. |
| Whether BIA abused discretion in denying remand for new evidence | Milat asserts new evidence warrants reopening for reconsideration. | Government argues evidence is not material or not unavailable at prior hearing. | Remand denial affirmed; evidence not sufficient to require reopening. |
Key Cases Cited
- Elias–Zacarias, 502 U.S. 478 (1992) (conscription by nongovernmental groups not necessarily persecution)
- Orellana–Monson v. Holder, 685 F.3d 511 (5th Cir. 2012) (de novo review of legal conclusions; substantial-evidence standard for facts)
- Rosas v. I.N.S., 937 F.2d 186 (5th Cir. 1991) (State Department reports as informative in political situations)
- Zehayte v. Gonzales, 453 F.3d 1182 (9th Cir. 2006) (well-founded fear requires disproportionate punishment or inhumane service as exceptions)
- M.A. v. U.S. I.N.S., 899 F.2d 304 (4th Cir. 1990) (conscription penalties generally not persecution; exceptions exist)
- Chen v. Gonzales, 470 F.3d 1134 (5th Cir. 2006) (substantial-evidence standard and credibility concerns)