Temesgen Haile v. Eric Holder, Jr. ( 2010 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-4187
T EMESGEN W OLDU H AILE,
Petitioner,
v.
E RIC H. H OLDER, JR.,
Attorney General of the United States,
Respondent.
Petition to Review an Order of the
Board of Immigration Appeals.
No. A079 276 969.
A RGUED N OVEMBER 6, 2009—D ECIDED JANUARY 6, 2010
Before P OSNER, K ANNE, and R OVNER, Circuit Judges.
P OSNER, Circuit Judge. The petitioner was born in Addis
Ababa, the capital of Ethiopia, in 1976. His parents were of
Eritrean origin, but at the time Eritrea was a part of
Ethiopia and both they and he were Ethiopian citizens.
In 1993 Eritrea separated amicably from Ethiopia. In
anticipation of Eritrean independence the parents had
moved there the previous year, and after Eritrea became
independent they acquired Eritrean citizenship and
2 No. 08-4187
renounced their Ethiopian citizenship. But the petitioner,
though a minor (he was 16 or 17), stayed behind.
In 1998 Ethiopia and Eritrea went to war, and Ethiopia
indiscriminately rounded up and expelled some 75,000
Ethiopian citizens. See Human Rights Watch, “The
Horn of Africa War,” Jan. 29, 2003,
www.hrw.org/en/node/12364/section/1 (visited Dec. 14,
2009). The petitioner fled the country before he could
be expelled, and eventually wound up in the United
States and sought asylum, contending that he’d been
stripped of his Ethiopian citizenship and that this was
persecution. The immigration judge denied asylum on
the ground that since a country has a right to determine
who is a citizen, taking away a person’s citizenship is
not, without more, persecution. The Board affirmed the
immigration judge without discussing whether or when
denationalization amounts to persecution.
The petitioner turned to this court for relief. Politely
describing the immigration judge’s reasoning as “problem-
atic,” a panel of this court vacated the Board of Immigra-
tion Appeals’ decision and remanded the case to the Board.
Haile v. Gonzales, 421 F.3d 493, 496 (7th Cir. 2005). We
instructed the Board to consider the relation of denational-
ization to persecution, and having done so to determine
whether the petitioner was still an Ethiopian citizen,
which the immigration judge had not bothered to deter-
mine since he thought it irrelevant.
On remand, the Board, again denying the application for
asylum, opined in response to our first instruction that
while denationalization can be “a harbinger of persecu-
No. 08-4187 3
tion,” the immigration judge “must look at the circum-
stances surrounding the loss of nationality or citizenship
and then, on an individual basis, determine whether
these circumstances rise to the level of persecution due to
a protected ground.” The Board did not discuss what
“circumstances” might satisfy its test, beyond saying that
“even if the Ethiopian Government . . . intended to deprive
the [petitioner] of his citizenship due to a protected
ground, the evidence establishes that these actions did not
rise to the level of persecution” (footnote omitted).
The Board based this conclusion on the observation that
not all denationalizations are instances of persecution. And
that is correct. The Board noted instances in which, as a
result of altered boundaries, a person finds himself a
citizen of a different country. For example, when Czecho-
slovakia divided into two countries, the Czech Republic
and Slovakia, each former citizen of Czechoslovakia
was told to choose between becoming a citizen of the
Czech Republic or of Slovakia. When Lithuania, formerly
a part of the Soviet Union, became a separate nation,
its inhabitants became Lithuanian citizens—and shortly
afterward the Soviet Union dissolved, so some 150 million
persons lost their Soviet citizenship and became Russian
citizens. In none of these cases did the affected individuals
become stateless; they simply became citizens of a new
state. The petitioner in this case, however, is stateless;
there is no contention that his Eritrean ethnicity makes
him an Eritrean citizen.
From such observations the Board leapt to the conclusion
that even if a person loses his citizenship because of
4 No. 08-4187
a “protected ground”—which is to say a ground on which
U.S. law permits a person to seek asylum, such as
religion—such a loss of citizenship does not, without more,
amount to persecution. We asked the Board’s lawyer at
argument whether this meant that had the United States
after the 9/11 terrorist attacks stripped all Muslim
citizens of the United States of their U.S. citizenship, but
allowed them to remain in the United States, this would
not have been persecution—they would have to show
additional harm. She said yes. By the same token, the mere
fact of Nazi Germany’s having denationalized its
Jewish citizens in 1941 would not have been persecution,
though their subsequent further mistreatment would
have been.
We find it hard to believe that that is actually the Board’s
position. But in any event the Board’s conclusion that
the petitioner in this case had to prove “denationalization
plus” doesn’t follow from its premise, and unlike a jury
an administrative agency has to provide a reasoned
justification for its rulings. E.g., Guchshenkov v. Ashcroft, 366
F.3d 554, 559-60 (7th Cir. 2004); Mengistu v. Ashcroft,
355 F.3d 1044, 1047 (7th Cir. 2004); Zamora-Garcia v. INS,
737 F.2d 488, 490-91 (5th Cir. 1984); Wong Wing Hang v.
INS, 360 F.2d 715, 719 (2d Cir. 1966) (Friendly, J.). From
the correct premise that a change of citizenship incident
to a change in national boundaries is not persecution per
se, it does not follow that taking away a person’s citizen-
ship because of his religion or ethnicity is not persecution.
If Ethiopia denationalized the petitioner because of
his Eritrean ethnicity, it did so because of hostility to
Eritreans; and the analogy to the Nazi treatment of Jews is
No. 08-4187 5
close enough to suggest that his denationalization was
persecution and created a presumption that he has a well-
founded fear of being persecuted should he be returned
to Ethiopia. 8 C.F.R. § 208.13(b)(1); Begzatowski v. INS,
278 F.3d 665, 671 (7th Cir. 2002); Galina v. INS, 213 F.3d
955, 957-58 (7th Cir. 2000); Cendrawasih v. Holder, 571 F.3d
128, 130 (1st Cir. 2009). Indeed, if to be made stateless
is persecution, as we believe, at least in the absence of
any reason for disbelief offered by the Board of Immigra-
tion Appeals, see Giday v. Gonzales, 434 F.3d 543, 555-56
(7th Cir. 2006); Mengstu v. Holder, 560 F.3d 1055, 1059
(9th Cir. 2009), then to be deported to the country that
made you stateless and continues to consider you
stateless is to be subjected to persecution even if the
country will allow you to remain and will not bother
you as long as you behave yourself.
At this point the case becomes difficult because of the
confused state of the record, and the confusing discussion
in the immigration judge’s and Board’s opinions, concern-
ing the petitioner’s status under Ethiopian law. Under
that law, unlike American law, Ethiopian citizenship is
not automatically conferred on a person born in
Ethiopia, but instead requires that the person either be
naturalized or have at least one parent who is an
Ethiopian citizen. Ethiopian Constitution, art. 6, § 1;
Ethiopian N ationality Law of 1930, § 1,
w w w .u nh cr.org/refw orld /d ocid /3ae6b52ac.htm l
(visited Dec. 14, 2009); U.K. Home Office, Research De-
velopment Statistics, “Country of Origin Information
Report— Ethiopia” ¶ 31.01 (Apr. 11, 2007),
www.homeoffice.gov.uk/rds/pdfs07/ethiopia-300407.doc
6 No. 08-4187
(visited Nov. 17, 2009). It is unclear what happens to
a minor who is an Ethiopian citizen by virtue of his par-
ents’ Ethiopian citizenship when the parents renounce
that citizenship. The Board did not try to resolve the
issue. Instead it assumed for argument’s sake that if
the petitioner had lost his citizenship, it was because of
the hostility of the Ethiopian government to persons of
Eritrean ethnic origin; and it then asked itself whether
the petitioner could reclaim his citizenship. Whether the
Board meant that he could acquire citizenship or could
establish that he is already a citizen is among the many
opacities in this case.
Apparently in regret or embarrassment about its treat-
ment of Ethiopians of Eritrean ethnicity (for there is no
suggestion that the denationalization of such persons
was a justifiable measure for eliminating a potential “fifth
column” during Ethiopia’s war with Eritrea), in 2003
Ethiopia passed a law allowing persons who had lost
their Ethiopian nationality because of their acquisition of
a foreign nationality to regain it by returning to live in
Ethiopia, renouncing their foreign citizenship, and ap-
plying for readmission to Ethiopian citizenship. Pro-
clamation on Ethiopian Nationality, No. 378/2003,
§ 22 (Dec. 23, 2003), www.unhcr.org/refworld/docid/
409100414.html (visited Dec. 14, 2009). The record does not
indicate whether readmission is automatic upon applica-
tion, since persons who never acquired foreign citizenship
cannot renounce it. From other sources we gather
that readmission is not automatic and that returning
Ethiopians of Eritrean ethnicity are often denied full rights
of citizenship. Bronwen Manby, Struggles for Citizenship in
No. 08-4187 7
Africa, p. 104 (2009); Open Society Justice Initiative, Dis-
crimination in Access to Nationality, p. 4 (Apr. 2009),
http://lib.ohchr.org/HRBodies/UPR/Documents/Session6/
ET/OSJI_ETH_UPR_S06_2009.pdf; Refugees International,
Nationality Rights for All, pp. 19, 30 (Mar. 2009),
http://www.reliefweb.int/rw/RWFiles2009.nsf/FilesByR
W D ocU nidFilenam e/M Y A I-7 Q 33 7R -
full_report.pdf/$File/full_report.pdf; Maureen Lynch &
Katherine Southwick, Ethiopia-Eritrea: Stalemate Takes Toll
on Eritreans and Ethiopians of Eritrean Origin (May 30, 2008),
www.refugeesinternational.org/sites/default/files/Ethiop-
ia_stateless0530.pdf. (All these web sites were visited
on Dec. 14, 2009.) We do not vouch for these sources, but
they suggest that the readmission law cannot be taken
at face value—that evidence is needed concerning its
meaning and application.
It’s not as if the law simply reinstated the Ethiopian
citizenship of all persons who had lost it because of their
Eritrean ethnicity; the Board would then have had a
stronger ground for denying asylum to the petitioner. He
would then have had to show either that he faced persecu-
tion even as a returning citizen or that the mistreatment
of citizens of Eritrean ethnicity during the war had been
so outrageous (like the Nazi treatment of the Jews) that a
compelled return to Ethiopia even with citizenship re-
stored and apologies from one’s former persecutors would
be a cruelty warranting what is termed “humanitarian”
asylum. 8 C.F.R. § 208.13(b)(1)(iii); Tadesse v. Gonzales,
492 F.3d 905, 912 (7th Cir. 2007); Brucaj v. Ashcroft, 381 F.3d
602, 608-09 (7th Cir. 2004); Lopez-Galarza v. INS, 99 F.3d 954,
960-61 (9th Cir. 1996).
8 No. 08-4187
Thus far we have assumed, as did the Board and the
government’s lawyer in this court, that the petitioner is
at least eligible to be considered for obtaining Ethiopian
citizenship under the readmission law. But this appears to
be incorrect. The law by its terms is applicable only to “a
person who was an Ethiopian national and has acquired
foreign nationality” (emphasis added). The petitioner has
not acquired foreign nationality. He is stateless. Maybe
despite its language the readmission law is applicable to
him, but we cannot assume that; there is no discussion of
the issue by the Board.
The Board did note that the Ethiopian Embassy is willing
to give the petitioner a document called a laissez-passer
that will permit him to enter Ethiopia. Like a visa but
unlike a passport, it is a one-time entry permit, but there
is evidence that the Ethiopian Embassy in the United
States grants laissez-passer to Ethiopian citizens in lieu
of passports because of a problem with the embassy’s
equipment for printing passports. According to a state-
ment by a deportation officer, “A laissez passer is issued
when enough information has been provided to give rise
to the belief that the person is an Ethiopian citizen. A
laissez passer will include the following information about
the applicant . . . . The government of Ethiopia issued
this document based upon its belief that it has enough
information to presume the applicant is an Ethiopian
citizen.” The word “presume” is troublesome, as for all we
know the presumption may be rebutted by Ethiopian
officials when the petitioner arrives in Ethiopia. It is also
unclear whether a laissez-passer is issued only to a person
believed to be a citizen. The statement of the deportation
No. 08-4187 9
officer does not resolve the ambiguity as to what may
await the petitioner if he is returned to Ethiopia.
The petition for review is granted and the case is re-
turned to the Board for further proceedings consistent with
this opinion.
1-6-10