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
COUNSEL

Anthony J. Patek, Cooley Godward LLP, San Francisco, California; Dennis Muchnicki, Dublin, Ohio, for the petitioner. 

Michael Gordon Latour & Andrew Oliveria, Office of Immigration 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. 

MENGSTU v. HOLDER 3753
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 Ethiopian 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 status as “Eritreans.” People in urban areas were frequently

arrested in their homes or workplaces. Arrestees were typically 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 members 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

1After Eritrea declared its independence from Ethiopia in 1993, Asmara

became the capital of Eritrea. 

3754 MENGSTU v. HOLDER
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 Circumstances, 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 Ethiopia. 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 contacted 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.

MENGSTU v. HOLDER 3755
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 passport, 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 protection 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’ Handbook 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 persecution. 

On March 2, 2005, the BIA summarily affirmed the IJ’s

decision. Mengtsu subsequently petitioned this court for

review of her asylum claim. 

3756 MENGSTU v. HOLDER
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 evidence on the record considered as a whole.” INS v. EliasZacarias, 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 application of legal principles to facts, de novo.” Hoque v. Ashcroft, 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 refugee 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). 

MENGSTU v. HOLDER 3757
[1] The IJ concluded that there was no nexus with a statutorily protected ground because Mengstu was a “war refugee.” 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.” Handbook, ¶ 164. 

[2] This court, however, has found that “[p]ersons fleeing

or remaining outside a country for reasons pertinent to refugee 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 situations 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 relevant 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

3758 MENGSTU v. HOLDER
nexus to a protected ground existed was not supported by substantial 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 wellfounded 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 arriving in the United States.” 8 U.S.C. §1158(b)(2)(A)(vi). Pursuant 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 government 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 resettled); 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).

MENGSTU v. HOLDER 3759
“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 sufficient force for the IJ reasonably to infer that the third country

officially sanctions the alien’s indefinite presence.” Id. Indirect 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 government did not meet this burden, and thus the rebuttable presumption never arose in Mengtsu’s case. Even if it had, the

record compels a finding that Mengtsu rebutted the presumption 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 designated 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 findings as to nexus and firm resettlement, we grant Mengtsu’s

petition for review and remand for further proceedings. 

3760 MENGSTU v. HOLDER
GRANTED AND REMANDED. 

MENGSTU v. HOLDER 3761