Selamawit Zehatye v. Alberto R. Gonzales, Attorney General
453 F.3d 1182
9th Cir.
2006
Check Treatment
Docket

*1 would police.”3 Einstein’s owners do advice. well to heed

AFFIRMED. ZEHATYE, Petitioner,

Selamawit GONZALES, Attorney R.

Alberto

General, Respondent.

No. 04-73295.

United States Court of Appeals,

Ninth Circuit.

Argued April and Submitted 2006. July

Filed 2006. Quotes, (last 14, 2006). http://www.space- Albert Einstein visited June andmotion.cona/Albert-Einstein-Quotes.htm *2 sought at the airport

tion officials and asylum, explaining that she was a Jeho- being and “harmed vah’s Witness feared if or killed” forced return home. a “credi- Immigration officials conducted interview,” fear stated ble where Jobe, Robert B. B. Law Office of Robert hiding” “in her reli- that she was Francisco, Jobe, CA, petitioner for San in gion prevented “participating her from Zehatye. politics.” further that she explained She Keisler, Attorney Peter K. Assistant country in “went to left her 1999 and Waters, Director, General, Mark Assistant years,” Ethiopia for after which she Counsel, Arnold, Litigation M. Senior Lisa Kenya.” She noted that she “went to also Walthall, Counsel, U.S. Timothy B. Trial financially while could not herself DC, Justice, Washington, of Department Kenya. she lived in for Alberto R. Gonzales. respondent former-immigration and Natural- (“INS”)1 Zehatye’s

ization denied Service and, a brief de- request after tention, her on a posted released a bond release, Tesfay. Mr. Yosief After her Ze- BERZON, MARSHA S. Before stayed in with hatye Virginia Northern RAWLINSON, B. and JOHNNIE wife, Beyene, his Tesfay Mr. and Dahab CALLAHAN, M. Circuit CONSUELO immigration offi- who introduced herself to Judges. Zehatye’s Soon cials as sister-in-law. CALLAHAN, Judge. Circuit thereafter, brother, Beyene’s also a Ms. Witness, acquainted Jehovah’s became challenges Petitioner Selamawit couple. a Zehatye and the two became with Immigration Appeals’s the Board (“BIA”) asy- her application denial of couple moved September In withholding of on lum and removal based and on Francisco were married to San as a Jehovah’s Witness. We status 30, 2002, after Ze- five months December affirm. States.2 hatye’s arrival the United Meanwhile, un- proceedings were removal

I. derway. Zehatye’s A. Arrival in the United Ap- former-INS filed a Notice States court, seeking immigration pear with the arriving as an alien Eri- removal a native citizen of Zehatye is and trea, possession valid document country Africa. a located Northern travel, nationality. identity, Kenya entry, boarding plane After removability Zehatye conceded response, flights Europe, she changing somewhere applied asylum, with- charged and at International ultimately arrived Dulles removal, under holding protection July Airport Virginia Northern (“CAT”). Against Torture presented immigra- the Convention 2002. She herself 107-296, 1, 2003, Stat. Pub.L. ceased to exist Act of No. 1. As of March the INS (2002), §§ 101-557. U.S.C. trans its enforcement functions Immigration Bureau of and Cus ferred to the Francisco, Department They continue to live in San toms Enforcement within the Witness. Security Zehatye is an Security. See where active Homeland Homeland 6, 2003, hearing partment was held before army On June indicated that the (“IJ”), Immigration Judge during resorted to “various forms of extreme Zehatye presented following evi- which physical punishment objectors, in- force dence. cluding some members of Jehovah’s Wit- *3 nesses, perform military service.” B. in Conditions Eritrea “Rebele,” The governing organization Asmara, Zehatye in was born 1974 in Zehatye’s in village, maintained list of which, capital city of Eritrea at the eligible those to serve in the armed forces time, was the region southernmost posted and in 1999 a list that included 1993, Ethiopia. In Eritrea an held inter- Zehatye’s name. Zehatye testified that nationally monitored in referendum which gave prepare authorities her one week to overwhelmingly citizens voted for indepen- to enter the army. She claimed that she Ethiopia. dence from The Eritrean Peo- thereafter, fled shortly Eritrea ple’s 30-year Liberation Front led the war her beliefs forbade serving independence and has controlled the military. She also testified that she country since that time. danger believed her life was in because she testified she and her fami- was under government constant surveil- ly, Witnesses, like most other Jehovah’s lance.4 did not vote the 1993 referendum. Con- sequently, group Jehovah’s Witnesses as a II. widespread suffered criticism that collectively shirking duty. their civic claim, The IJ denied asylum Zehatye claimed that despite her best ef- finding that she had not past established criticism, forts to avoid such her name was persecution aor well-founded fear fu- placed on a participating “list for not in the Likewise, ture he denied referendum,” family and that she and her withholding of ground removal on the greatly.” “suffered Zehatye did not prob- demonstrate a clear

Zehatye told the IJ that her father’s ability or real likelihood that she would be carpentry business was confiscated and his persecuted if she returned to Eritrea. Ad- trade away,3 license taken and that her ditionally, he found no evidence of torture family was forced to leave their home and support a claim for relief under CAT. seek shelter with relatives. She testified summarily The BIA affirmed and Zeha- that she siblings and her five spent their tye filed timely appeal, this which chal- nights “crammed in a single room.” lenges only asylum the denial of and with- complete high was able to holding of removal. school 1995. In fighting broke out summarily When the BIA affirms between Eritrea and Ethiopia along the decision, the IJ’s we review the IJ’s deci border, and years. continued for two sion agency as the final action. Kebede v. government Eritrean responded to the es- Cir.2004). Ashcroft, calating by calling conflict up reserves and increasing the approxi- armed forces to decision that an alien has not estab 300,000 mately soldiers. The State De- eligibility asylum lished withholding presidential in accordance with a Zehatye's testimony 4. Neither nor her decla- decree, the Eritrean revoked the ration application trading licenses of some Jehovah's Witnesses regarding alleged offer details "con- and dismissed most of those who worked in by government agents.” stant surveillance the civil service. Ashcroft, v. evi- Deloso for substantial is reviewed removal (internal quota- citations and Ashcroft, 374 F.3d Njuguna dence. omitted). Cir.2004). marks the substantial tion Under standard, find- “administrative evidence Zehatye failed finding that The IJ’s any rea- conclusive unless of fact are ings or a past persecution well- to establish compelled be adjudicator would sonable sup fear of future founded contrary.” to the U.S.C. conclude The State ported by substantial evidence. 1252(b)(4)(B). Thus, uphold we must § Freedom Department report supported if it is the IJ’s determination Eritrea, there indicated that dated reasonable, substantial, evi- probative than 1500 Jehovah’s Witnesses were less *4 v. Elias-Zacari- in the record. INS dence cir country and that under some 812, 117 478, 481, 112 as, S.Ct. 502 U.S. cumstances, are dis Jehovah’s Witnesses (1992). L.Ed.2d and harassed against, criminated detained missionary Never of their work. because

III. theless, notes that there are Asylum A. in Eri churches several Jehovah’s Witness from and members are not barred trea for eligible is Zehatye claims that she report also meeting private homes. The Eri- persecuted she was asylum because any is no indication that states that there quali- To religion.5 of her on account trea solely imprisoned are detained or persons must demon- asylum, applicant an fy for prac or of their beliefs past has suffered that he or she strate tices, although fear of has a well-founded persecution or singled U.S.C. out mem- government has persecution. future 1208.13(b). 1101(a)(42)(A); § 8 C.F.R. for harsher § bers of Jehovah’s Witnesses eligible members of an alien than received Specifically, treatment [refusing if or to serve he she other faiths for penalty The maximum military].... account of on past persecution can show years. is 3 refusing to do national service [race, nationality, membership religion, officials have denied Ministry of Justice political group, social particular in a of Wit- dem- that members persecution is opinion]. past Once without onstrated, in detention persecu- fear of future nesses then they acknowledge although and the burden shifts presumed, charges, tion is show, by a prepon- Witnesses members of Jehovah’s some evidence, jail there has derance of the of Muslims were and a number in circum- change a fundamental on been for convictions serving sentences longer no applicant that the stances such national service. charges evading of persecution, of a fear has well-founded State, Eritrea: of Dep’t Internation- per- future could avoid applicant or the (Oct. Religious Freedom al of part to another by relocating secution (“2002 2002) Report”). Freedom An country. applicant applicant’s Per- Past Compelling Evidence 1. No of actually asylum by qualify also secution of future fear showing a well-founded sympa- Zehatye’s case evokes Although of account again of[one persecution, finding past a of compel thy, it does grounds]. protected the five INS, v. true. Ladha contentions are factual express adverse credibil- there was no 5. Since Cir.2000). (9th below, Zehatye's F.3d ity finding we assume that INS, See, e.g., grounds by Halaim v. 358 ruled on other Matter Mo- (holding F.3d (BIA 1987), gharrabi, 19 I. & N. Dec. 439 against that discrimination sis- Ukranian grounds by overruled on other Pitchersk- ters on account of Pentecostal Christian aia religion compel finding past did not Cir.1997). government’s seizure of persecution); Kazlauskas v. 46 F.3d Zehatye’s business, father’s repre- while Cir.1995) (holding that hensible, did not threaten life or harassment and ostracism was not suffi- freedom.6 Because this evidence does not ciently atrocious to a humanitarian compel finding past persecution, we grant asylum). uphold must the IJ’s determination that argues also that she was Zehatye failed to past persecu- establish persecuted because she suffered substan 1252(b)(4)(B). § tion. 8 U.S.C. disadvantage gov tial economic when the carpentry ernment seized her father’s Compelling 2. No Establishing Evidence license, business and trade and forced her a Well-Founded Fear Future Per-

family to live with relatives. We have held secution economic deprivation substantial *5 Regardless sufficiency constitutes a threat life or freedom can the evi- of of persecution. constitute See Baballah v. dence past persecution, Zehatye main- of (9th 1067, Ashcroft, 367 F.3d 1076 Cir. tains that she is entitled to 2004) (observing harassment, that severe she has a well-founded fear of per- future threats, violence and discrimination made secution. A well-founded fear of future virtually impossible it for Israeli Arab to persecution subjectively must be genuine living). However, earn a “mere economic objectively reasonable. Montecino v. alone, disadvantage does not rise INS, (9th 518, Cir.1990). 915 F.2d persecution.” level of Gormley v. Ash support claim, To points out (9th 1172, croft, Cir.2004); 1178 that during period since she left Eri- INS, see also Ubau-Marenco trea, has leveled civil (9th 750, Cir.1995) (noting that confis rights political abuses at dissidents. cation of family entire business without abuses, however, These were not directed compensation family’s political because of at Jehovah’s Witnesses because of their enough, alone, beliefs not be standing religious beliefs.7 finding of economic persecu tion), overruled on other grounds by Fish Zehatye also contends that because 955,

er v. Cir.1996); she refused to serve in the military, she Acosta, 211, Matter 19 I. & N. Dec. of (BIA 1985) will persecuted be if she is forced to return (holding that economic depriva tion rises to Eritrea. She cites to a Depart the level of State when it is “so severe that ment report constitutes a military [it] threat describes road to an freedom”), blocks, individual’s or life over- street-sweeps and house-to-house youngest 6. claims that her example, according sister died 7. For to various State De- pneumonia partment reports, cramped living due to the con- an unknown number of persons charge were detained without family ditions that her be- they endured when political opinion. e.g., cause of Dep't See U.S. were forced to live with relatives. There is no State, evidence, however, linking Country Reports living On Human condi- Eritrea: (Mar. 2003); Rightspractices U.S. government's tions or the conduct to the sis- State, Dep't of Country Reports On Eritrea: ter’s illness. (Mar. Rights 2002). Human Practices imputed political opinion and draft evad- basis of to find deserters reli- searches —not gion. ers. The states: instances, arrested authorities some Similarly, the dissent’s reliance on Bar- for several hours or even and detained 1450-51, raza Rivera v. 913 F.2d at individuals, including pregnant days misplaced. Barraza was ordered

women, age under and citi- children officer, death, military under threat countries, of other who were zens participate paid killing of two men. obligations or to national service military He abandoned service and fled El showing they proper had documentation Barraza Salvador. testified that he did na- completed exempt had or were from not want to in the assassina- tional service. wrong tions because he believed State, Indeed, illegal. ERITREA: Id. at Dep’t COUN noted, the court the murders would have TRY REPORTS ON HUMAN RIGHTS (Mar. 2003). internationally The been condemned inhumane PRACTICES 2002 establish, however, acts. Id. at 1453. report does not singled Jehovah’s Witnesses were out be distinguished Barraza Rivera We from Moreover, of their beliefs. cause objector” other “conscientious cases based punishment for eva conscription forced generally on the fact that Barraza did not military duty generally does not sion oppose military service based institu Movsisian v. constitute See practices tionalized of the Salvadoran mili Ashcroft, 395 F.3d Cir. Rather, tary. terrifying he fled from a 2005) (noting forcing citizen to serve upon choice that the forced him: along in the armed with the rest of forces *6 others, or murder be murdered himself. country’s not amount population the does Id. at 1453 n. 14. We held that Barraza (citation omitted). persecution) per had established a well-founded fear of disagree sugges- We with the dissent’s secution because substantial evidence dem Salvador, El tion that circumstances fit with- onstrated that if returned to exceptions recognized likely rule in Barraza more than not the this would be (9th INS, Canas-Segovia participate v. 970 F.2d 599 forced to in unconscionable as Cir.1992), refusing and Barraza Rivera v. 913 sassinations or be killed for to do (9th Cir.1990). Bolanos-Hernan F.2d 1443 so. Id. at 1453-54. See 767 1285 dez v. F.2d Cir. The dissent cites our decision in Canas- 1984) (holding specific, that a serious Segovia, proposi- 970 F.2d at for the a well-founded fear of threat establish objectors may tion that conscientious es- persecution). they a claim if can tablish Rivera, that Barraza the other cases demonstrate were selected Like require finding the mistreatment because of their be- cited dissent There, however, rejected disproportionate punishment liefs. we Canas- serious military to serve in the in order to Segovia’s argument refusing his refusal (because See, asylum. e.g., qualify serve in the he was a Ghebreme Witness) Ashcroft, religious practice was a dhin v. Jehovah’s Cir.2004) (serious Mekhoukh being persecuted. punishment); for which he was Id. (1st 118, 126 expressly Ashcroft, held that “this alone cannot Cir. We 2004) punish demonstrating (disproportionately severe satisfy requirement the G—, ment); 19 I. & N. Dec. persecutors’ his motive or intent.” Id. We Matter A—of (BIA 1987) (same). granted Canas-Segovia relief no Zehatye presented evidence indi- To contrary, Witnesses. threat, weak, any, if vidualized evi- report states that conditions for Jehovah’s singled out for dence she would be improving: Witnesses are disproportionate punishment severe for re- ... Jehovah’s Witnesses faced some fusing military.8 to serve in the Eritrean social discrimination because of their Ghebremedhin, contrast, By peti- refusal to in the 1993 inde- tioner testified that his brother and a uni- pendence referendum perform and to versity colleague had been incarcerated service; however, national the level of refusing beaten death for to serve societal discrimination against Jeho- military. in the F.3d at 1120. On this vah’s Witnesses continued to decline record, compel there is no such evidence to during year. finding of a persecu- well-founded fear of Country State, Dep’t. U.S. Eritrea: tion. Accordingly, uphold we must Reports Rights Practices On Human 1252(b)(4)(B). § findings. IJ’s 8 U.S.C. (Feb. 2004) (“2003 Country Report”). Finally, Zehatye contends that she could This compel evidence does not a finding Eritrea, if be tortured forced to return to objective has an well-founded citing Department report a 2003 State being fear of tortured if returned to Erit physical describes the use of torture such Ladha, 897;10 rea.9 215 F.3d at see also bondage, exposure, beatings heat Gonzales, Marcos v. 1120- punish those detained for their religious (requiring an individual beliefs. references “several re- torture, ized ports” changed determination that but does not elaborate. conditions reported Country It specifically sporadic asy *7 ment, 8. The dissent cites the 2002 Free- discrimination and detention of Jeho- Report, See, dom which references four Jehovah’s e.g., vah's Witnesses. Al-Saher v. vary- Witnesses who "have been detained for (9th Cir.2001) ("Torture time, ing periods of some more than five is an extreme form of cruel and inhuman years” charge being "without and without treatment and does not include lesser forms failing tried for to in national ser- cruel, degrading inhuman or treatment or army vice.” The also notes that the punishment torture.”) that do not amount to physi- “resorted to various forms of extreme (quoting 208.18(a)(2)), § by 8 C.F.R. amended punishment including cal objectors, force (9th Cir.2004). 355 F.3d 1140 Witnesses, per- some members of Jehovah’s military persuad- form We are service.” not Ladha, 10.In we held that where an alien "any adjudicator ed that reasonable would be past persecution, cannot establish she can sat- conclude,” compelled based on this evi- isfy objective prong of the well-founded dence, singled that Jehovah's Witnesses are analysis by producing specific fear either doc- out disproportionate punishment” for "severe umentary by offering evidence or credible and —Therefore, religious of their beliefs. because persuasive testimony. 215 F.3d at 897. Ze- findings we must affirm IJ's under-the^ ^hatye fails to meet this burden because the substantial evidence standard. 8 U.S.C. Country Report's reference to torture is 1252(b)(4)(B). § specific to Jehovah's Witnesses and Zeha- tye testimony regarding alleged Nor does the offered dissent's citation to statements no Country Report regarding in the 2003 fear harass- of torture. in some cases harassed notwithstanding, against, nated suggests, The dissent grant work, review because missionary should their and in that we because of pertinent factors failed to address IJ clearly have some cases trouble with claims, Tukhowinich v. citing Zahatye’s government regard secular with their Cir.1995). INS, 64 F.3d military position vis-a-vis service or as There, the IJ inapposite. Tukhowinich is the case of Eritrea national service.... for sus- application the petitioner’s denied Department indicates there is The State upon a find- deportation based pension any persons are de- no indication hardship. Id. at 462. no extreme ing of solely imprisoned tained or finding in a short BIA affirmed The practices; their beliefs or how- solely upon the IJ’s that relied opinion ever, singled out has disposition. Id. members of Jehovah’s Witnesses considered BIA stated that the IJ by harsher treatment than that received status, “age, marital Ms. Tukhowinich’s faiths for ac- members of other similar health, in the family ties United good tions. There are members of Jehovah’s Thailand, in to the addition States and charge. detained without Witnesses in the political conditions economic refusing maximum to do penalty at 463 country.” native Id. respondent’s years. The national service is three however, fact, original). (emphasis justice ministry of of Eritrea has denied any mention as- opinion did not the IJ’s members of Jehovah’s Wit- unrest in Thailand. political pect hearing introduced at the before Evidence nesses were detention without newspaper in the form of various the IJ charges, although they acknowledge that Thailand’s demo- clippings established some members of Jehovah’s Witnesses government had suffered cratic jail of Muslims were in and a number February yet the IJ coup on serving sentences for convictions on events. Id. We made no mention of these charges evading national service. “[bjeeause and remanded reversed Decision at 14. IJ’s Oral mistakenly referred to material not BIA and because actually considered the IJ” suscepti- the evidence be Although lacking in opinion it “relied on an IJ’s interpreta- than one rational ble to more the relevant fac- consideration of all tion, fact could con- a reasonable finder ....” Id. at 465. tors record that failed clude on this contrast, case By present the IJ in the or a well-found- past persecution establish Depart- specifically considered the State According- of future ed fear reports cited ment *8 for judgment not substitute our ly, we Indeed, respect- we asylum of her claim. IJ, suggests. that of the as the dissent fully disagree suggestion with the dissent’s 1157, 1162 Apfel, v. 240 F.3d Osenbrock “cherry-picked” only those the IJ INS, Cir.2001); also Aruta v. see on facts that would cast doubt (9th Cir.1996) (“[W]e 1389, do F.3d claim, misstating failing asylum while simply the BIA because we not reverse acknowledge facts that would facts, of the disagree with its evaluation example, the IJ noted: claim. For BIA’s only if we conclude that the but Eri- both for Department reports, State by supported is not substantial evaluation that under Ethiopia, trea and indicate (internal marks omit- quotation evidence.” circumstances, of Jeho- some members ted)). clearly discrimi- are vah’s Witnesses BERZON, Withholding Judge, dissenting:

B. of Removal Circuit asylum grant petition I would and application An for under 8 remand for further consideration. generally § considered an U.S.C. 1158 is un application withholding for of removal (IJ) decision, Immigration Judge’s 1231(b)(3). § der 8 U.S.C. 8 C.F.R. summarily by affirmed the Board of Immi- INS, 1208.3(b); § v. Ghadessi F.2d (BIA), gration Appeals Zehatye held that Cir.1986). 804, qualify “To 804 n. did not establish a well-founded fear of removal, withholding an alien must persecution future sufficient for eli- likely that it is more than not demonstrate gibility. That conclusion was based on subject he would be regarding clear errors some facts in the grounds.” one Al-Harbi specified complete disregard record and of others. (9th Cir.2001) 882, 242 F.3d reasons, For these it should not stand. (internal omitted). quotation marks “This In Tukhowinich v. clear probability withholding standard (9th Cir.1995), 463-64 granted pe- we stringent of removal is more than the well- tition for review where the IJ failed to asylum.” governing founded fear standard factors, address a number of pertinent Id. at The “standard has no 888-89. sub suspension the merits of a deportation but, fact, jective component, requires determination, including evidence intro- objective likely evidence that it is more by petitioner duced political as to the than not that the alien will be country. conditions her native In that persecution upon deportation.” INS v. case, we stated that important “[w]hen Cardoza-Fonseca, 480 U.S. 107 aspects of the individual claim are distort- (1987). S.Ct. 94 L.Ed.2d 434 disregarded, ed or denial of relief is arbi- Zehatye Since could not establish her trary. prescribing any Without final re- eligibility asylum, properly the IJ con- sult, we must remand such cases for eligible cluded that she for with- was (inter- proper consideration.” Id. at 464 removal, holding imposes which a heavi- omitted). quotation nal marks cir- Other er proof. burden of cuits have taken approach. the same See Gen., Attorney Tan v. U.S.

IY. (granting petition deny asylum The IJ’s decision to for review where the IJ failed to acknowl- withholding supported by edge of removal was Country Reports newspaper reasonable, substantial, probative evi- articles submitted the petitioner and dence in the record. The record”); evidence that “misstated the contents of the degree Gonzales, suffered some social Chen v. (2d Cir.2005) hardship ostracism and economic due to (granting petition for re- her religion did not rise to the level of view where the BIA failed to consider 1178; Gormley, 364 F.3d at evidence in the country conditions Kazlauskas, Additionally, 46 F.3d at 907. petitioner’s corroborated account of government’s mandatory conscription persecution, stating immigra- “[w]here policy did not establish that had tion court fails to important consider evi- *9 past persecution suffered or that claim, she had a supporting petitioner’s dence a we persecution well-founded fear of future deprived are ability adequately of the Movsisian, based on religion. her 395 review the claim and must vacate the de- petition F.3d at 1097. The for review is cision and remand for proceed- further (internal DENIED. omitted)); ings” quotation marks First, emphasized only the IJ that the Ashcroft, 390 F.3d v. Mukamusoni (1st Cir.2004) indication that was slated for con- (vacating a decision 123-24 appeared was that her name on a remanding scription for reconsider- BIA and of the Kebele, by govern- a local BIA failed to mention the list issued the the ation where decision, oral country organization. conditions evi- ment his and background which, the IJ stated: “The names of individuals by petitioner offered the dence look,” residing normally the in the Kebele are main- quick support “a would even on necessarily v. tained the Kebele but not persecution); claim of Chen petitioner’s Cir.2004) (2d military purposes or for recruitment 359 F.3d (“[W]here purposes. respondent maintains that agency’s the determination is her name was on this list in 1998 and that perception an inaccurate based on record, that omitting potentially significant meant she was recruitment facts, for reconsideration for national service Eritrea as a result we remand Ashcroft, v. of the hostilities.” The IJ further re- rehearing....”); or Zubeda (re- (3d Cir.2003) respondent marked: “The closest this ever 477-78 was, got according where the to a national service manding for reconsideration testimony, in a country reports the her name on list BIA mischaracterized kebele in Asmara.” “cavalierly dismissed the substantial therein); Pa- contained documentation” simply That is not so. testi- lavra v. that, testimony majority fied—in as the Cir.2002) that the BIA “failed to (holding agrees, must be deemed credible—that the it fact-finding function” when perform its police came to her home and ordered her supporting to discuss evidence failed military duty, prepare record, remanding for reconsider- the that neighbors police informed her the ation, agency an finds a stating “[w]hen custody to take her into the planning mentioning analyzing sig- fact or without prem- very night she fled Eritrea. So evidence, agency needs to re- nificant ise for the IJ’s conclusion she was decision”). its consider the need to re- unlikely to be faced with of her conscription fuse clear, cases make the substan- As these just to return to Eritrea is beliefs were she tial evidence standard does not insulate wrong. cherry- from review an IJ’s decision that Further, correctly although majority only record picks from the administrative conscription, even doubt on a states forced those facts would cast service, claim, religious objections to is misstating while or fail- face of petitioner’s necessarily persecution proscribed on a acknowledge the of those ing to existence our circuit ground, the case law both that would lend to an account facts confirms that dis- Attorney and our sister circuits See Shah v. Gen. (3d Cir.2006) the reli- U.S., criminatory treatment based on of (“[W]e conscription refuse is immigration] gion of those who expect [do not] [an ground. See evidence, proscribed on a judge selectively ig- consider Ashcroft, F.3d an noring that evidence that corroborates Ghebremedhin (“When country sub- question alien’s claims and calls into pun- jects to more serious judge attempting to a draft evader conclusion the reach.”). also evaded than others who have several materi- ishment Here there were race, religion, na- that, of his my service because al misstatements or omissions opinion, tionality, group, political view, social necessitate a remand. *10 him target conscription rather than ment would for or persecution this amounts to nationalism.”); Mekhoukh v. Ash simple punishment religion on account of his or (1st Cir.2004) (stat 118, 126 croft, protected ground.” (citing 358 F.3d other Id. Ca- 601). punish severe ing disproportionately that nas-Segovia, 970 F.2d at Accord- ground for protected ment on account of militates in of a ingly, Movsisian favor asy claim of can failure to submit where, here, finding persecution INS, lum); Canas-Segovia petitioner’s testimony, coupled ample with Cir.1992) (holding that reli supporting evidence in administrative objectors could estab gious conscientious record, that confirms her refusal to submit provided they claim that persecution lish service could be met with dis- could demonstrate that were selected proportionate punishment because her ob- religious for their be for mistreatment jection premised was on her beliefs as liefs); Barraza Rivera v. Jehovah’s Witness. (relying The IJ cites a denial the Eritrean proposition for publication United Nations that such discrimination oc- that or draft “punishment for desertion curs, disregards specific but confirmation evasion, itself, in not perse does constitute in the same United governmental States race, religion, cution on account of nation denial, publication containing that the 2002 ality, membership particular in a social International Freedom ... group, political opinion dispro or [b]ut Eritrea, that differential treatment portionately punishment severe on account regard with to refusal participate of these factors does constitute national service does occur. That publica- A-G-, persecution”); also In re 19 I. & see tion states: (BIA 1987) (“We N. Dec. hold to Most members Jehovah’s Witnesses long-accepted position that it is not religious grounds have refused on persecution country require for a mili participate vote, in national service or to tary Exceptions service of its citizens. which has led to widespread criticism recognized this rule be those rare members Jehovah’s Witnesses disproportionately cases where a severe collectively shirking their civic punishment would result on account of one duty. objected Some Muslims also grounds of the five enumerated section have ” (citations 101(a)(42)(A) of the Act .... to universal national service because of omitted)), M.A. v. requirement sub nom. perform women aff'd (4th Cir.1990) (en banc). 899 F.2d 304 military duty. The Government does object not excuse individuals who to na- Indeed, majority the case the relies tional religious service for reasons or upon proposition country’s for the that a conscience, reasons of nor does the Gov- require military decision to service does ernment allow Al- alternative service. persecution amount states that though persons from other punishment conscription “forced Muslims, groups, including reportedly military duty generally evasion of does not punished past years have been pro- constitute on account of a service, failure to in national ground.” Ashcroft, tected Movsisian v. only Cir.2005) members of Jehovah’s Witnesses (empha- added). have been to dismissal from the sis sentences after Two service, civil statement, however, trading revocation their li- recognizes Movsisian censes, rule, exception government-owned eviction from general noting to the that, case, petitioner presented housing, passports, identity and denial of cards, However, “no evidence that govern- the Armenian and exit visas. there

1193 part of the administrative record in this reports no that Jehovah’s Wit- were case, national service performed substantially contains similar nesses who evi- indepen- in the national participated by dence the treatment suffered Jeho- were to dis- dence referendum vah’s Witnesses at the hands of the Eritre- crimination. government failing an for to submit any persons service, indication that including There is no indefinite deten- imprisoned solely be- are detained physical punishment.” tion and “extreme Dep’t Country prac- their beliefs or cause of State, See U.S. Of Eritrea: tices; however, Rights the Government has Reports On Human Practices members of Jehovah’s Wit- singled out (Mar. 2003) (hereinafter “Country Re- treatment than that nesses for harsher port”). very The IJ did not mention this by of other faiths for received members information in specific gov- United States peri- At similar actions. the end documents, reciting ernment instead the four by report, od covered this mem- by Ministry claim the Eritrean of Justice bers of Jehovah’s Witnesses remained contrary' no to the Jehovah’s Wit- —that charge in detention without and without charge nesses were in detention without failing tried being for national evading service.1 The individuals have national service. minimum, At a we cannot evaluate the varying periods been detained for sufficiency of regarding evidence time, years. some more than 5 The persecu whether fear of future penalty refusing maximum to do na- why tion was well-founded unless we know years. Ministry of tional service is 3 detailed, disregard on-point the IJ chose officials have denied that Justice statements U.S. Government-authored members of Jehovah’s Witnesses reports favor of a self-interested denial charges, although without detention I government. the Eritrean would they acknowledge that some members therefore hold the IJ’s decision is not and a of Jehovah’s Witnesses number supported by substantial evidence. See jail serving Muslims were sentences Gonzales, Ibarra-Flores v. charges evading for convictions (9th Cir.2006) (“Substantial evidence is national service. more than a mere scintilla. It means such army to various forms of The resorted relevant evidence as reasonable mind physical punishment extreme to force might accept adequate objectors, including some members (internal quotation marks conclusion.” Witnesses, perform mili- Jehovah’s omitted)). tary service. Country Report dispels any also Dep’t State, Eritrea: U.S. Internation- Of “punishment” for notion that the standard Report (Oct. 7, al Freedom be considered to be draft evasion could 2002) (hereinafter “Religious Freedom Re- “During the added). simple law enforcement. De- port”) (emphasis State severely year, police mistreated Country on Hu- partment’s Eritrea, army also a beat deserters and draft evaders. Rights man Practices for refusal, Notwithstanding majority’s because of their on reli- claim that Witnesses Department's Country Report gious grounds, independence the State to vote in the "does not mention" detention of perform referendum or the refusal of some Witnesses, report specifically states national service." Dep't State, Eri- Of "continued to ha- the Eritrean rass, detain, Rights Reports Country On Human Prac- trea: against and discriminate 25, 2004). (Feb. tices community small of members of Jehovah’s *12 subjected The deserters and draft “for harsher treatment.” Id. at 1120. I police military ac- disciplinary to various agree evaders with the Seventh Seeing Circuit. no prolonged exposure tions that included sun practical difference Zehatye’s between Ms. up degrees in of to 113 temperatures petitioner claim and that of the in Ghebre- tying of the Fahrenheit or the hands and medhin,2 I grant would the petition for periods of time.” feet for extended More- review. over, although deprivation the economic I add one further note: The attitude of likely of does not rise complains asylum some IJs to the seekers and others itself, persecution by of to the level see appear who before them has become the Gormley Ashcroft, 364 F.3d 1177- subject of national recently. attention See (9th Cir.2004), Country Report both the Attorney Memorandum from General Al Religious Report Freedom lend sub- berto Gonzales to Members of the Board credibility story to her that her stantial (Jan. 2006) (not Immigration Appeals of family discrimination at suffered economic ing with concern that recent reports have the hands of the Eritrean on indicated that immigration judges some religious account their beliefs. of When “fail to treat appearing aliens before them disadvantage this propensity Jehovah’s appropriate with respect and consider coupled punishment the Witnesses is with acknowledging ations” and that the con generally imposed failing up to take duct immigration judges of some “can apt arms, I has believe she demonstrated a ly intemperate be described as or even persecution well-founded fear of future abusive”); Attorney see also Cham v. Gen. proscribed ground. a U.S., (3d Cir.2006) the 445 F.3d recently in Seventh Circuit has held (“The case now before exemplifies us the that strikingly similar case the evidence severe wound ... inflicted when not a Country in Report contained the 2003 courtesy, modicum of respect, or of Religious Report Freedom Eritrea as pretense of fairness peti is extended to a by to the suffered tioner and the valiantly case he so at Eritrea, particularly Witnesses with re- (omission tempted present.” original) gard punishment refusing conscrip- (internal quotation omitted)); marks Bens tion, that compelling was so no reasonable Gonzales, limane v. peti- factfinder could determine that the Cir.2005) (“[T]he adjudication [immigra tioner lacked a well-founded perse- fear of cases at tion] the administrative level has Ghebremedhin, cution. See 385 F.3d at fallen below the minimum standards of Citing language 1119-20. the same con- legal justice.”), Wang v. Attorney Gen. Country tained in Report the U.S., (3d Cir.2005) Freedom submitted (“The tone, tenor, disparagement, case, the Seventh Circuit held and the sarcasm of the IJ seem more the IJ’s denial of was not appropriate to a court television show than supported by substantial evidence because proceeding.”), federal court Rivera v. incarcerate, predilection to Eritrea’s oc- Ashcroft, casionally indefinitely, Cir. Jehovah’s Wit- 2005) (“Both nesses the decision who refuse to serve issued the IJ reasons, for religious and the and her conduct of hearing observation demon singled Jehovah’s Witnesses are out strate that the IJ did not conduct herself majority suggests 2. The Ghebremedhin persecuted. who had been Ms. did case, apposite petition- because in that as well: She testified that her brother was personal er had a imprisoned association with individuals because of his beliefs. completed their national judge pros- require- but rather as a service impartial anas pick petition- ment, holes in the previ- ecutor anxious and those who had evaded (internal quotation marks omit- story.” er’s general public ous drafts. There was a ted)). Immigration overall tone of perception round-ups these Simpson’s opinion in this case Judge Brian particularly directed at female draftees. I can have no confidence his is such that (internal omitted). cross-references *13 findings. opinion belittling factual His is addition, Judge Simpson’s discussion inaccurate, as well as even patronizing and Zehatye’s Ethiopia, residence in where details. as to less material borders, fleeing she lived after Eritrea example, Judge Simpson suggest- For least, say illogical, the on the as well on as not hold—that en- ed—but did the He first intemperate. expressed story suspect tire is because women why doubts about would seek ref- conscripted in Eritrea: “The re- not be in uge neighboring Ethiopia: “Why, there- claims that she threatened spondent was fore, respondent should have chosen this cannot with national service the Court Ethiopia to leave Eritrea for in 1999 is unworthy inherently find that is simply something this Court cannot under- belief, although very it has little informa- respondent, stand and this in the Court’s regard to the extent to which tion with satisfactorily not opinion, did answer the required perform females are national question.” Judge Simpson then answered if happened and what to them service satisfactorily my in question, quite his own Yet, Country Report the con- refused.” opinion, by detailing Zehatye’s rationale tained in the administrative record makes flight Ethiopia, Judge for her which in in that women Eritrea are quite clear noted, Simpson supported by is the record: conscripted, fact detention “Her Jehovah’s answer was because Wit- requires report: for failure to “The law nesses fared better in terms of their situa- ages of and 40 to women between the Ethiopia tion vis-a-vis the During in national service. the in than the Eritrea. Jehovah’s Witnesses year increased efforts to detain there were (in- position There is some for that evaders and deserters.” women draft omitted). position Ethiopian gov- terms of the The ternal cross-references Country in the Re- ernment as indicated Country Report goes on to note: Ethiopia on for 2001.”3 Later on ports During year, the Government de- Judge Simpson his oral decision com- military police throughout ployed begs question mented: the an- roadblocks, “The country using sweeps, street doing Ethiopia at swer is what was she searches to find des- and house-to-house why all in much less she remained erters and draft evaders. Kenya? years going for two before persons detained who had there police IJ, country. The Govern- testimony stat- vah’s Witnesses in the In her before Ethiopia policy deporting ed that she left Eritrea for ment its of not continued Witnesses were treated better in Jehovah's Witnesses of Eritrean members of Jehovah’s Ethiopia "freedom of reli- where there was religious repression origin, might who face although gion.” Zehatye also testified that Eritrea.” Ethiopia: Dep’t State, Coun- Of Ethiopian government na- was hostile to Rights try Reports On Human Practices Eritreans, deport” "wouldn't tive it 4, 2002). (Mar. Country Report Ethi- testimony back to Eritrea. This is Witnesses Ethiopian govern- opia also states that largely Department State consistent with the provided for Jehovah’s Witnesses ment land Country Report Ethiopia which states: See id. outside Addis Ababa. 6,000 members of Jeho- "There are more than get the answer to mayWe never these COMMISSION, FEDERAL TRADE

questions.” Plaintiff-Appellee, point The entire discussion on this quite simply baffling. We do have the why Zehatye to Ethiopia, answer to fled as LLC; CYBERSPACE.COM French Judge Simpson himself noted in his deci- N.V.; Publishing Dreams Electronic eight pages sion a mere earlier: Jehovah’s LLC; Olympic Ventures Telecommu- Ethiopia fared much better in Witnesses Inc; Eisenberg, nications Ian Defen- than in neighboring only Eritrea. Not do dants, accept Zehatye’s testimony

we have to credible, point this we have evidence Country Ethiopia sup- *14 Settlement; Hebard, Coto Chris port Judge Simpson’s puzzle- her account. Defendants-Appellants. Zehatye’s Ethiopia ment as residence in inexplicable. is therefore Commission, Federal Trade example, Judge Simpson As a final was Plaintiff-Appellee,

repeatedly critical of lack of documents, identification which she testi- government’s fied was due to the Eritrean LLC; Cyberspace.com Settlement; Coto provide refusal to such documentation to Publishing Llc; Electronic Ventures members of the Jehovah’s faith. Witness Hebard, Defendants, Chris Again, anyone Country who read the Report, this would come as no surprise, as that publication specifically states: “Jeho- N.V.; French Olympic Dreams Tele

vah’s Witnesses often were denied identifi- Inc; communications Ian Eisen cards, visas, passports, cation exit trading berg, Defendants-Appellants. licenses, government housing, govern- 04-35428, Nos. 04-35431. employment ment unless hid their religion.” United Appeals, States Court of

Judge degree Simpson’s suspicion Ninth Circuit. petitioner regard easily with con- Argued and Submitted March 2006. facts, firmable as well as intemperate expressed manner which he suspi- July Filed cion, indicates to me intolerance for the

applicant inconsistent with fair

decisionmaking.

I grant would therefore petition new,

remand for a accurate determination

regarding eligibility asylum, before a

different IJ. notes will affect detention of situation). lum applicant’s specific members Philadelphia Church of Accord Asmara, ingly, Evangelical obligated the Association of we are uphold the IJ’s Churches, Church, findings the Bethel the Rehma under the substantial evidence Church, Pentecostal, Elias-Zacarias, Full Gospel and other standard. at churches, 481, 112 small but does not mention the S.Ct. 812.