Haile, Temesgen W. v. Gonzales, Alberto R. , 421 F.3d 493 ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 03-3953 & 04-3161
TEMESGEN W. HAILE,
Petitioner,
v.
ALBERTO R. GONZALES, Attorney General
of the United States,
Respondent.
____________
No. 04-4014
EVERUSALEM M. TEKELU,
Petitioner,
v.
ALBERTO R. GONZALES, Attorney General
of the United States,
Respondent.
____________
On Petitions for Review of Orders
of the Board of Immigration Appeals.
Nos. A77-977-298 & A79-276-969
____________
ARGUED AUGUST 2, 2005—DECIDED AUGUST 29, 2005
____________
Before COFFEY, MANION, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. The petitioners in these cases
(which we consolidate for decision) are Ethiopians of
2 Nos. 03-3953, 04-3161 & 04-4014
Eritrean descent who left Ethiopia during its two-year
war with Eritrea—a period marked by the arrest and
deportation from Ethiopia of thousands of ethnic Eritreans.
Hostilities between the two countries officially ended in
June 2000, but the petitioners nevertheless claim to fear
persecution based on their ethnicity if they are returned to
Ethiopia. They also insist that Ethiopia will no longer
recognize them as citizens. The same immigration judge (IJ)
denied both petitioners’ requests for asylum, withholding of
removal, and relief under the Convention Against Torture.
He based his decision in part on the principle (which we
have endorsed, see De Souza v. INS, 999 F.2d 1156, 1159
(7th Cir. 1993)) that a country has the sovereign right to
bestow or deny citizenship as it sees fit. At issue here,
however, is whether Ethiopia has the sovereign right to
discriminate against ethnic Eritreans by stripping them of
their citizenship. Unable to affirm that principle, we
remand both of these cases for further proceedings.
Everusalem Tekelu was born in Ethiopia in 1979, be-
fore Eritrea became a separate state. Tekelu’s mother
participated in the Eritrean independence movement
and voted in the 1993 independence referendum. Tekelu
herself did not vote in the referendum and in fact has never
been to Eritrea. After the war began, Tekelu’s mother and
brother were taken from her home and deported to Eritrea.
Fearing that she too would be arrested and deported,
Tekelu used her Ethiopian passport to travel to Kenya and
from there to Thailand, where she stayed for several years.
At some point, she lost her Ethiopian passport, which she
needed in order to renew her visitor’s visa. She tried to
obtain a replacement from the Ethiopian consulate, but her
request was denied. She was able, however, to obtain an
Eritrean passport based on her Eritrean ethnicity. She
eventually came to the United States and applied for
asylum.
The IJ denied Tekelu’s application, identifying four
Nos. 03-3953, 04-3161 & 04-4014 3
reasons: (1) Tekelu had an Eritrean passport, suggesting to
the IJ that she had been accepted as a citizen of Eritrea and
thus had “firmly resettled” in another country under
8 U.S.C. § 1158(b)(2)(vi), disqualifying her for asylum;
(2) Tekelu herself had not suffered persecution, nor
could she base her asylum claim on the persecution her
family had suffered, given this court’s rejection of the
idea of “derivative persecution,” see Ciorba v. Ashcroft,
323 F.3d 539, 545 (7th Cir. 2003); (3) future persecution
was unlikely, given that the Ethiopian government had
largely stopped deporting Eritreans after hostilities
ended in 2000, and Tekelu herself was in any event an
unlikely target for deportation, having been born in Ethio-
pia and not having participated in the Eritrean independ-
ence movement; and (4) although Tekelu claimed
that Ethiopia would not accept her as a citizen because
of her Eritrean ethnicity and her lost passport, such
decisions about citizenship were within Ethiopia’s sovereign
authority, see Faddoul v. INS, 37 F.3d 185, 189 (5th Cir.
1994); De Souza v. INS, 999 F.2d at 1159. The Board of
Immigration Appeals (BIA) affirmed the IJ’s decision
without elaboration.
Temesgen Haile’s narrative is similar to Tekelu’s. He was
born in Ethiopia to Eritrean parents in 1976. His entire
family has since left Ethiopia, some as legal immigrants to
the United States, others as refugees to Switzerland and
elsewhere. Haile himself escaped to Kenya during the war,
leaving his Ethiopian passport behind, and eventually
arrived in the United States. His asylum application was
denied, primarily on the grounds that he did not suffer
persecution and, because he did not participate in the
Eritrean independence process, would not likely suffer
persecution if returned to Ethiopia. Although Haile insisted
that the Ethiopian government would not recognize him as
a citizen, the IJ considered that to be within Ethiopia’s
discretionary authority, and concluded that Haile’s alleged
4 Nos. 03-3953, 04-3161 & 04-4014
“statelessness” did not entitle him to asylum. After the BIA
affirmed without comment, Haile moved to reopen his case
based on new evidence of country conditions, see 8 C.F.R.
§ 1003.2(c)(3)(ii), but the BIA found that the evidence he
presented was either not material to his claim or was
already available before it issued its earlier decision, and so
denied his motion.
The core of each of these cases is the IJ’s determination
that the petitioner did not suffer individual persecution. We
do not find fault with that determation. The IJ considered
evidence in the record that Ethiopia’s deportation efforts
were directed primarily at ethnic Eritreans who had
demonstrated (in the government’s eyes, at least) some form
of political connection to Eritrea—for example, by partici-
pating in the independence referendum. Observing that the
petitioners did not have any such connection and were not
among those who were arrested and deported, the IJ
reasonably concluded that neither of them was in fact the
object of persecution. The IJ also reasonably relied on
reports that Ethiopia stopped deporting ethnic Eritreans
after the war. See Medhin v. Ashcroft, 350 F.3d 685(7th Cir. 2003) (discussing State Department report stating
that mass deportations from Ethiopia had ended); but cf.
Mengistu v. Ashcroft, 355 F.3d 1044, 1047-48 (7th Cir. 2004)
(discussing evidence of continued persecution of Eritreans
despite the war’s end). And although Tekelu argues that the
deportation of her mother and brother amounts to persecu-
tion of her, we see no error in the IJ’s finding otherwise
based on our holdings rejecting claims of derivative persecu-
tion. See Ciorba, 323 F.3d at 545; Ambati v. Reno, 233 F.3d
1054, 1060 (7th Cir. 2000); Tamas-Mercea v. Reno, 222 F.3d
417, 424 (7th Cir. 2000).
The IJ also considered the petitioners’ claim that they had
been or would be stripped of their Ethiopian citizenship, but
concluded that such treatment would not amount to
persecution because a country has a right to determine who
Nos. 03-3953, 04-3161 & 04-4014 5
is or is not a citizen. This reasoning is problematic—it fails
to acknowledge the fundamental distinction between
denying someone citizenship and divesting someone of
citizenship. The IJ relied on a Fifth Circuit decision holding
that denial of citizenship is not persecution, Faddoul v.
INS, 37 F.3d at 189 (“The decision to bestow or deny
citizenship is deeply-rooted in national sovereignty and
must be left to the individual nation’s discretion.”), which
cited a similar case from this court, De Souza v. INS,
999 F.2d at 1159 (“It is well within the discretion of the
Kenyan government to decide who its citizens will be.”). But
in each of those cases, as we noted in Bucur v. INS,
109 F.3d 399, 404 (7th Cir. 1997), the petitioner never was
a citizen of the country in question, despite having been
born there. (Faddoul was a Palestinian born and raised in
Saudi Arabia; De Souza was born and raised in Kenya, to
parents from the former Portuguese colony of Goa.) Here, in
contrast, the petitioners were considered citizens of Ethio-
pia before the war’s outbreak. Neither Faddoul nor
De Souza—nor any other case of which we are aware—
suggests that a government has the sovereign right to strip
citizenship from a class of persons based on their ethnicity.
It is arguable that such a program of denationalization
and deportation is in fact a particularly acute form of
persecution. We have suggested, for example, that “a
campaign of expulsions” based on ethnicity, even where not
orchestrated by the government, would constitute persecu-
tion, see Bucur, 109 F.3d at 403 (7th Cir. 1997), and a
leading authority on asylum law has asserted that
“[e]xpulsion of citizens or nationals almost invariably
constitutes persecution,” see Deborah E. Anker, Law of
Asylum in the United States (3d ed. 1999) at 246. Histori-
cally, denationalization has been a precursor to even worse
things—it was one of the first steps taken by the Nazi
regime against the Jews, see, e.g., Lucy S. Dawidowicz, The
War Against the Jews, 1933-1945 (1975) at 67-69 (discuss-
6 Nos. 03-3953, 04-3161 & 04-4014
ing the Reich Citizenship Law of 1935, which stripped
German Jews of their citizenship); see also Guchshenkov v.
Ashcroft, 366 F.3d 554, 559 (7th Cir. 2004) (“The
Nuremberg Laws, which subjected the Jews in Nazi
Germany to persecution, were laws, but that doesn’t mean
that Jews were not persecuted. ”). One human-rights group
has expressed concern about the increasing use of denation-
alization as a political weapon, particularly in Africa, see
Open Society Justice Initiative, “Statelessness, Discrimina-
tion and Denationalization: Emerging Problems Requiring
Action,” Statement to the African Commission on Human
and Peoples’ Rights (April 29, 2005), available at
http://www.justiceinitiative.org/db/resource2?res_id=102706
(expressing concern that “[t]he victims of this form of
persecution are unable to challenge it as it occurs under the
guise of states’ sovereign rights”).
Whether denationalization as such amounts to persecu-
tion, and whether it is persecution in these cases, we
are not yet able to say. The meaning of “persecution”
in immigration law remains ill-defined, see Sahi v. Gonza-
les, 416 F.3d 587, 2005 WL 1713417 at *2 (7th Cir. July 25,
2005), and primary responsibility for determining that
meaning lies with the Board of Immigration Appeals, see
id., which to our knowledge has not addressed this question.
Nor does the record as it stands permit an individualized
assessment of these cases—the IJ believed that denational-
ization could never amount to persecution, so he did
not determine whether the petitioners are still con-
sidered citizens by Ethiopia, and we have not found any
definitive statement in the record concerning the national-
ity status of ethnic Eritreans who have left Ethiopia
by means other than deportation. We therefore must
remand these cases for additional factual findings and legal
consideration.
Two additional issues require further mention. First, the
Nos. 03-3953, 04-3161 & 04-4014 7
IJ in Tekelu’s case reasoned that she was ineligible for
asylum not only because of the absence of past or likely
future persecution, but because she was able to obtain an
Eritrean passport and so could be considered “firmly reset-
tled” in Eritrea, see 8 U.S.C. § 1158(b)(2)(A)(vi), even though
she has never actually been to Eritrea. Tekelu argues that
this was incorrect, pointing to the definition of “firm resettle-
ment” in 8 C.F.R. § 208.15, which requires (among other
things) that the alien “entered” into another country. See
Diallo v. Ashcroft, 381 F.3d 687, 692-93 (7th Cir. 2004). The
government does not contest this point, and we agree that
“firm resettlement” is not a basis for affirming the IJ’s
decision.
Second, one of Haile’s petitions for review challenges the
BIA’s decision refusing to reopen his case based on new
evidence he submitted concerning the Ethiopian govern-
ment’s treatment of ethnic Eritreans. He states that the
material he submitted—primarily a report by Human
Rights Watch issued in January 2003—was not available to
him “at the time of his hearing.” But the relevant question
for the BIA when it considers a motion to reopen based on
new evidence is not whether that material was available at
the time of the hearing before the immigration judge, but
whether it was available before the BIA itself rendered a
final decision in the case. See Simtion v. Ashcroft, 393 F.3d
733, 737 (7th Cir. 2004). Haile does not argue that his
proffered materials were not available before that point, so
we deny his second petition for review.
The IJ concluded in both of these cases that it would
not be persecution for the Ethiopian government to
divest the petitioners of their citizenship based on their
ethnicity. That conclusion is not supported by the cases on
which the IJ relied, and we are not prepared to endorse
it now. We therefore GRANT the petitions for review in Case
No. 03-3953 and Case No. 04-4014 and REMAND the cases
for further proceedings. Because the BIA acted within its
8 Nos. 03-3953, 04-3161 & 04-4014
discretion in denying Haile’s motion to reopen, we DENY the
petition for review in Case No. 04-3161.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-29-05