Mengstu v. Holder ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RUTH AYNOM MENGSTU, 
Petitioner, No. 05-71825
v.
 Agency No.
A096-146-985
ERIC H. HOLDER, JR., Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
February 12, 2009—San Francisco, California
Filed March 27, 2009
Before: Dorothy W. Nelson, William A. Fletcher and
Richard C. Tallman, Circuit Judges.
Opinion by Judge D.W. Nelson
3751
MENGSTU v. HOLDER 3753
COUNSEL
Anthony J. Patek, Cooley Godward LLP, San Francisco, Cali-
fornia; Dennis Muchnicki, Dublin, Ohio, for the petitioner.
Michael Gordon Latour & Andrew Oliveria, Office of Immi-
gration Litigation, Department of Justice, Civil Division,
Washington, D.C., for the Government.
OPINION
D.W. NELSON, Senior Circuit Judge:
Petitioner Ruth Aynom Mengtsu petitions this court for
review of the Board of Immigration Appeals’ denial of her
application for asylum. We have jurisdiction pursuant to 8
U.S.C. § 1252(a)(1). We grant the petition for review,
remanding for proceedings consistent with this opinion.
3754 MENGSTU v. HOLDER
I. STATEMENT OF FACTS
Ruth Aynom Mengtsu is an Ethiopian national of Eritrean
descent. She was born in 1976 in Asmara, Ethiopia.1 When
she was five years old, she moved to Addis Ababa, the Ethio-
pian capital, with her family. Mengtsu completed high school
and studied at a technical school for two years, graduating in
1995. She married, and, in 1999, sought employment because
she felt that she “should leave the house and be productive.”
She was hired as a secretary in a glass work store. The owner,
Robel Berhe, was also Eritrean, as were several of his
employees.
In May 1998, armed conflict erupted between Ethiopia and
Eritrea. During the war, approximately 75,000 Ethiopians of
Eritrean origin were forcibly expelled and bused to Eritrea.
The justification for these expulsions was simply suspect sta-
tus as “Eritreans.” People in urban areas were frequently
arrested in their homes or workplaces. Arrestees were typi-
cally interned, often under very harsh conditions, prior to
deportation.
In February 1999, Mengstu’s husband was deported.
According to Mengtsu’s testimony, the Ethiopian police “just
picked him up and took him away.” He was in the business
district at the time, and the police were deporting Eritreans in
the vicinity.
On March 10, 2000, over a year later, seven or eight mem-
bers of the Ethiopian police came to Mengtsu’s store and
stated that all of the Eritreans in the store had to leave the
country. The police spoke to Berhe, the owner, who relayed
the officers’ statements to the employees. Berhe confirmed
that there were Eritreans working in the store, identifying
1
After Eritrea declared its independence from Ethiopia in 1993, Asmara
became the capital of Eritrea.
MENGSTU v. HOLDER 3755
them on a list. The police further stated that the Eritreans
should get their identity papers from the Immigration Office.
Mengtsu obtained the identity paper from the Immigration
Office on March 15, 2000. She provided the Immigration
Judge (“IJ”) with a copy of the paper, explaining that it was
issued in lieu of a passport and served as “the identity paper
to non-Ethiopians, which they considered non-Ethiopians. It’s
an emergency paper issued to people who had to leave from
Ethiopia to go out of the country.” The document was titled
“Emergency Document of Identity to a non-Ethiopian
National who cannot Obtain, or owing to Emergent Circum-
stances, has no time to Obtain a National Passport or renew
an Expired one.” (emphasis added). It identified Mengstu as
“proceeding to Sudan,” and was not valid for reentry to Ethio-
pia. Her nationality was listed as “Eritrean.”
Mengtsu flew from Addis Ababa with Berhe to Khartoum,
the capital of the Sudan, on March 25, 2000. Mengtsu showed
the Sudanese officials her Ethiopian identity paper and
entered the country. There was no Sudanese stamp on her
visa, and she was not interviewed by immigration officials.
Shortly after she arrived in the Sudan, Mengtsu went to
Abba Kansa, a refugee camp operated by the Red Cross,
located outside of Khartoum. She was not directed to the
camp by Sudanese officials; she simply believed that she
would know people there. She remained there for two years.
When Mengtsu’s husband was deported to Eritrea in 1999,
he was forcibly conscripted into the Eritrean army. She con-
tacted him by sending letters through traders and by asking
people who traveled to Eritrea to send word to him of her
whereabouts. He deserted the army and entered the Sudan,
smuggling himself into the country illegally in September
2001.
The Sudanese government did not offer Mengtsu or her
husband citizenship or permanent residence during their stays.
3756 MENGSTU v. HOLDER
Mengtsu did not open a Sudanese bank account. According to
the Human Rights Watch report, the government of the Sudan
did not give Eritrean deportees a “warm reception.” When
asked why she remained there for two years, she stated that
she could not find an agent to process her paperwork so that
she could leave. Mengtsu eventually procured a false pass-
port, and traveled to the United States, arriving on February
14, 2002.
Mengtsu last contacted her husband, who is still living in
the Sudan, about two months prior to her hearing. When
asked how he was supporting himself, Mengtsu testified that
her husband’s living standard was “very, very bad. He just
gets along with this one and that one.” When asked what
would happen if she returned to the Sudan, she stated that she
“has nothing there.” She stated that she had no job and that
she and her husband depleted their funds sending her to the
United States.
Mengtsu appeared in removal proceedings and conceded
removability. She declined to designate a country of removal
and applied for asylum, withholding of removal, and protec-
tion under the Convention Against Torture. The IJ denied
Mengtsu’s application and designated Ethiopia as the country
of removal. The IJ found that Mengtsu was not subject to past
persecution because she had been a “war refugee” as defined
in the United Nations High Commission for Refugees’ Hand-
book on Procedures and Criteria for Determining Refugee
Status (1979) (the “Handbook”). He also found that she had
firmly resettled in the Sudan. The IJ made no express finding
as to whether she had a well-founded fear of future persecu-
tion.
On March 2, 2005, the BIA summarily affirmed the IJ’s
decision. Mengtsu subsequently petitioned this court for
review of her asylum claim.
MENGSTU v. HOLDER 3757
II. STANDARD OF REVIEW
“Where the BIA adopts the findings and reasoning of the
IJ, this court reviews the decision of the IJ as if it were that
of the BIA.” Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.
2003). The court must uphold factual findings of the IJ if they
are “supported by reasonable, substantial, and probative evi-
dence on the record considered as a whole.” INS v. Elias-
Zacarias, 502 U.S. 478, 481 (1992) (quoting 8 U.S.C.
§ 1105a(a)(4)). “To reverse the BIA finding we must find that
the evidence not only supports that conclusion, but compels
it.” Id. at 481 n.1. “We review questions of law, and the appli-
cation of legal principles to facts, de novo.” Hoque v. Ash-
croft, 367 F.3d 1190, 1195 (9th Cir. 2004).
III. DISCUSSION
The Attorney General may grant asylum to any applicant
who qualifies as a “refugee.” 8 U.S.C. § 1158(b)(1). A refu-
gee is a person who is unable or unwilling to return to his
country of origin “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); INS v. Cardoza-Fonseca, 480
U.S. 421, 428 (1987).
A. ASYLUM ELIGIBILITY
In order to establish eligibility for asylum on the
basis of past persecution, an applicant must show:
(1) an incident, or incidents, that rise to the level of
persecution; (2) that is “on account of” one of the
statutorily-protected grounds; and (3) is committed
by the government or forces the government is either
“unable or unwilling” to control.
Navas v. INS, 217 F.3d 646, 655-56 (9th Cir. 2000) (internal
citations omitted).
3758 MENGSTU v. HOLDER
[1] The IJ concluded that there was no nexus with a statu-
torily protected ground because Mengstu was a “war refu-
gee.” In answering this question, the IJ considered the
Handbook, which states that “[p]ersons compelled to leave
their country of origin as a result of international or national
armed conflicts are not normally considered refugees.” Hand-
book, ¶ 164.
[2] This court, however, has found that “[p]ersons fleeing
or remaining outside a country for reasons pertinent to refu-
gee status qualify as Convention refugees, regardless of
whether those grounds have arisen during conflict.” Ndom v.
Ashcroft, 384 F.3d 743, 753 (9th Cir. 2004), superseded by
statute on other grounds, REAL ID Act of 2005, Pub. L. No.
109-13, 119 Stat. 231, as recognized in Parussimova v.
Mukasey, 533 F.3d 1128, 1133 (9th Cir. 2008). “[E]ven in sit-
uations of widespread civil strife, it is irrelevant whether one
person, twenty persons, or a thousand persons were targeted
or placed at risk, so long as there is a nexus to a protected
ground.” Id. at 754 (internal citation and quotation marks
omitted); see also Sinha v. Holder, ___ F.3d ___, Nos. 04-
73843, 07-72289, slip op. 1563, 1575 (9th Cir. Feb. 10,
2009); Ahmed v. Kiesler, 504 F.3d 1183, 1195 n.9 (9th Cir.
2007) (“[E]ven though generalized violence as a result of civil
strife does not necessarily qualify as persecution, neither does
civil strife eliminate the possibility of persecution. The rele-
vant analysis is still whether the persecutor was motivated by
one of five statutory grounds.”) (internal citation omitted);
Knezevic v. Ashcroft, 367 F.3d 1206, 1211 (9th Cir. 2004)
(finding that Serbian petitioners who fled Drvar during the
civil war were entitled to asylum because they were fleeing
“hostile forces motivated by a desire to kill each and every
member of that group”).
[3] The Ethiopian-Eritrean civil war was ethnically tinged.
Because the Ethiopian government solely targeted “Eritreans”
for deportation and denationalization, the IJ’s finding that no
MENGSTU v. HOLDER 3759
nexus to a protected ground existed was not supported by sub-
stantial evidence.
[4] The IJ did not make an express finding as to whether
or not Mengtsu was the victim of “an incident, or incidents,
that rise to the level of persecution.” See Navas, 217 F.3d at
655-56. Like the Seventh Circuit, we find it “arguable that
such a program of denationalization and deportation is in fact
a particularly acute form of persecution,” and we remand to
the agency to answer this question in the first instance. See
Haile v. Gonzales, 421 F.3d 493, 496-97 (7th Cir. 2005). We
also note that the IJ made no express findings as to well-
founded fear.
B. FIRM RESETTLEMENT
[5] An eligible applicant may not be granted asylum if he
or she “was firmly resettled in another country prior to arriv-
ing in the United States.” 8 U.S.C. §1158(b)(2)(A)(vi). Pursu-
ant to regulation, “[a]n alien is considered to be firmly
resettled if, prior to arrival in the United States, he or she
entered into another country with, or while in that country
received, an offer of permanent resident status, citizenship, or
some other type of permanent resettlement.” 8 C.F.R.
§ 1208.15.
“DHS bears the initial burden of showing that the govern-
ment of the third country issued to the alien a formal offer of
some type of official status permitting the alien to reside in
that country indefinitely.” Maharaj, 450 F.3d at 976; see also
Ali v. Ashcroft, 394 F.3d 780, 789-90 (9th Cir. 2005) (finding
that an alien who resided in Ethiopia for five years but who
never received any aid or legal status was not firmly reset-
tled); Camposeco-Montejo v. Ashcroft, 384 F.3d 814, 820-21
(9th Cir. 2004) (finding that petitioner had not firmly resettled
despite living in Mexico for sixteen years because he was not
offered permanent status and his movements were restricted).
3760 MENGSTU v. HOLDER
“This burden can be met by direct evidence of an offer of
some type of permanent resettlement.” Maharaj, 450 F.3d at
976. Alternatively, “if DHS shows that direct evidence of a
formal offer is unobtainable, then surrogate, non-offer-based
evidence may suffice for the initial showing if it is of suffi-
cient force for the IJ reasonably to infer that the third country
officially sanctions the alien’s indefinite presence.” Id. Indi-
rect evidence may include factors such as “the length of an
alien’s stay in a third country, the alien’s intent to remain in
the country, and the extent of the social and economic ties
developed by the alien.” Id. at 974 (internal quotation marks
omitted). “[T]he burden [then] shifts to the applicant to show
that the nature of his stay and ties was too tenuous . . . for him
to be firmly resettled.” Id. at 976-77.
[6] It was the government’s burden, not Mengtsu’s, to offer
proof of permanent residence, or, in its absence, to make an
offer of proof that such evidence was unobtainable. Mengtsu
specifically testified that she had never received an offer of
citizenship or permanent residence in the Sudan. The govern-
ment did not meet this burden, and thus the rebuttable pre-
sumption never arose in Mengtsu’s case. Even if it had, the
record compels a finding that Mengtsu rebutted the presump-
tion of resettlement by showing that her stay was “tenuous.”
Her entry visa was issued by the Ethiopian government, not
the Sudanese, and it was never stamped. Her two-year stay
was in a refugee camp, and she testified that she “has nothing
there.” She and her husband have no employment, funds, or
other social or economic ties to the Sudan. The IJ himself des-
ignated Ethiopia, rather than the Sudan, as the country of
removal. Accordingly, the IJ’s finding as to firm resettlement
was not supported by substantial evidence.
CONCLUSION
Because substantial evidence does not support the IJ’s find-
ings as to nexus and firm resettlement, we grant Mengtsu’s
petition for review and remand for further proceedings.
MENGSTU v. HOLDER 3761
GRANTED AND REMANDED.