United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 02-3504

___________

Yohannes W. Habtemicael, *

*

Petitioner, *

* 

 v. * Petition for Review of an Order of

 * the Board of Immigration Appeals.

John D. Ashcroft, Attorney General *

of the United States, *

*

Respondent. *

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Submitted: November 19, 2003

Filed: June 7, 2004

___________

Before MURPHY, LAY, and FAGG, Circuit Judges. 

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MURPHY, Circuit Judge.

Petitioner Yohannes Habtemicael seeks asylum and withholding of deportation,

as well as relief under the Convention Against Torture (Convention). The

immigration judge denied relief, and the Board of Immigration Appeals affirmed

without opinion. Habtemicael appeals. We affirm the denial of asylum and

withholding of deportation, but we remand Habtemicael's claim under the Convention

for further findings. 

Yohannes Habtemicael was born in January 1965 in Asmara, Ethiopia. Asmara

is today the capital city of Eritrea, now a nation of 3.9 million people located in the
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Horn of Africa. The territory making up Eritrea was part of Ethiopia from 1952 until

1993, but in 1962 revolutionary forces led by the Eritrean Liberation Front (ELF)

began a war for independence. In 1970 a Marxist/Leninist faction of the ELF formed

the Eritrean People's Liberation Front (EPLF) which became the leading

revolutionary movement in Eritrea by the mid1980s. Habtemicael was a citizen of

Ethiopia and was opposed to the EPLF on ideological grounds. 

Habtemicael was hired by the Ethiopian Relief and Rehabilitation Commission

(ERRC) in November 1984 to supervise children's feeding centers funded by the

United Nations. In the course of this work he was sent by the ERRC to Barentu,

Ethiopia, a small town about 140 miles from Asmara, on May 23, 1985. About six

weeks later the EPLF attacked Barentu and defeated the Ethiopian forces.

Habtemicael was forced by the EPLF to help with its wounded, to bury the dead, and

to undergo political reeducation. He and other able bodied men were also pressed

into military service as replacements for fallen revolutionary soldiers. From August

1985 to January 1986, Habtemicael underwent further political education and military

training by the EPLF. He was told by other captives that any sign of opposition to the

EPLF would lead to severe torture, that any unarmed attempt to escape would be

punished by underground imprisonment, and that any attempt to escape with a

weapon could lead to summary execution. Habtemicael resolved nevertheless to try

to escape with his rifle. 

On January 2, 1986, Habtemicael was collecting firewood some distance from

the EPLF camp with twenty to thirty other men. He had his rifle and a small amount

of food and water with him, and he and two others decided to escape. When EPLF

guards realized that the three had disappeared, a group of soldiers pursued them. The

soldiers caught up with them after a few hours, and a gunfight ensued. Two EPLF

soldiers were killed, but Habtemicael and his companions were able to escape with

their lives. Traveling under cover of night, they fled into Sudan three days later.
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Habtemicael moved to Saudi Arabia in 1989 because he feared EPLF

sympathizers active in Sudan would find him if he remained there. After six years in

Saudi Arabia, he was told that he would be deported unless he converted from

Christianity to Islam. Because he feared retaliation for his actions against the EPLF

if he were sent back to Eritrea, Ethiopia, or Sudan, Habtemicael obtained a tourist

visa and fled to the United States. He entered this country on June 12, 1995 and

secured a three year student visa soon after his arrival. Since then he has continued

his education at Minneapolis Community College and maintained employment. He

is an active member of his church and has never been arrested.

In 1991 the Ethiopian People's Revolutionary Democratic Front (EPRDF)

overthrew the Ethiopian government. The United Nations sponsored peace

negotiations between the EPRDF and Eritrea's EPLF in the early 1990s, which led

to an internationally monitored referendum on Eritrean independence in 1993.

Eritreans then voted overwhelmingly to secede from Ethiopia, and in 1993 the EPLF

took control of the new Eritrean government and remains in power today, although

it is now called the People's Front for Democracy and Justice. The United States

recognized Eritrea as an independent sovereign nation on April 27, 1993. 

Habtemicael alleges that if he were to be returned to Eritrea, it is probable that

the government would persecute or torture him because of his ideological opposition

to the EPLF, his escape in 1986, and his failure to make the payments required for

expatriates to have an Eritrean identity card. Such a card signifies that its holder is

a citizen in good standing who has fulfilled his military service requirement. If he

were returned to Eritrea without an identity card, Habtemicael could be punished for

failure to make the obligatory payments or conscripted into military service.

Habtemicael filed an affirmative application for asylum in this country on

March 26, 1997, almost ten months before his student visa was to expire. He asserted

that he had previously been the victim of political persecution by the EPLF and feared
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further persecution if he were to return because it now controls the Eritrean

government.

Habtemicael met with an asylum officer on March 10, 1998. The officer found

that his involuntary recruitment by the EPLF had not been based on his political

beliefs, but was simply due to his presence in Barentu when it was taken. Since

Habtemicael had not yet presented evidence that the EPLF had records of his

conscription or escape, the asylum officer assumed that the Eritrean government

would probably be unaware of his past and would therefore be unlikely to persecute

him in the future on account of his political opinion. His asylum application was

denied. 

Habtemicael's student visa expired January 25, 1998, and the Immigration and

Naturalization Service (INS) initiated deportation proceedings on March 18, 1998.

At his appearance before an immigration judge on May 26, 1998, Habtemicael

conceded deportability. He again applied for asylum and withholding of removal

based on past persecution and fear of future persecution on account of political

opinion. At the invitation of the immigration judge, Habtemicael also added a request

for relief under Article III of the Convention Against Torture. 

In an oral decision on June 25, 1999, the immigration judge found Habtemicael

ineligible for asylum because there was no evidence to suggest that the EPLF had

abducted or pursued him on account of his political beliefs. Any future action taken

by the Eritrean government to punish Habtemicael for his escape and for the killing

of EPLF soldiers would be motivated by a desire to punish a military deserter rather

than the desire to persecute an ideological opponent. The immigration judge also

rejected Habtemicael's argument that any punishment for his failure to support the

Eritrean government financially during his time in the United States would be

persecution on the basis of imputed political opinion. His failure to pay what

amounts to a tax on citizens living abroad would not be viewed as a political
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statement, the judge concluded, and most likely Habtemicael would simply be

conscripted into military service for not making the payments. 

The immigration judge also found Habtemicael ineligible for relief under

Article III of the Convention Against Torture. As the judge noted, the Convention

defines torture to exclude pain or suffering arising from, inherent in, or incidental to

lawful sanctions that do not otherwise defeat the purposes of the Convention. The

pain or suffering inherent in a lawfully imposed death penalty is not considered

torture under the Convention, and a government has authority to punish and even

execute individuals who avoid conscription or desert military forces during wartime.

The immigration judge concluded that prosecution and punishment of Habtemicael

for his desertion from EPLF forces in 1986 would be a legitimate exercise of

governmental power not prohibited by the Convention. Although the judge did not

deny that Habtemicael "may have to answer for" his actions in 1986, he concluded

that Habtemicael was not eligible for relief under the Convention. Habtemicael's

alternative request for voluntary departure was denied because he did not possess any

valid travel documents. Without such documentation, an alien cannot establish that

he has the means to depart the United States and is therefore ineligible for voluntary

departure. 

Habtemicael appealed the immigration judge's rulings denying him asylum,

withholding of deportation, and relief under the Convention. The Board of

Immigration Appeals summarily affirmed without opinion. See 8 C.F.R. §

1003.1(a)(7) (2004). Habtemicael now appeals to this court.

We treat the immigration judge's opinion as that of the board when it has

affirmed without a written opinion. Id.; Dominguez v. Ashcroft, 336 F.3d 678, 679

n.1 (8th Cir. 2003). The judge's findings of fact will be disturbed only if unsupported

by substantial evidence. Francois v. INS, 283 F.3d 926, 931 (8th Cir. 2002). This

court must defer to the immigration judge's findings of fact and disposition of the case
1

Because proceedings in this case began prior to April 1, 1997, amendments

to the withholding provisions contained in the Illegal Immigrant Reform and

Immigrant Responsibility Act (IIRIRA), Pub. L. No. 104-208 (Sept. 30, 1996),

codified at 7 U.S.C. § 1231(b)(3), do not apply. Fisher v. INS, 291 F.3d 491, 496

(8th Cir. 2002); Afolayan v. INS, 219 F.3d 784, 787 (8th Cir. 2000).

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unless Habtemicael demonstrates that the record evidence was "so compelling that

no reasonable factfinder could fail to find" him eligible for asylum, withholding of

deportation, or relief under the Convention Against Torture. See INS v. EliasZacarias, 502 U.S. 478, 483-84 (1992); 8 U.S.C. § 1252(b)(4)(B) (2004).

Conclusions of law are reviewed de novo, with substantial deference to

interpretations of statutes and regulations administered by the agency. RegaladoGarcia v. INS, 305 F.3d 784, 787 (8th Cir. 2002).

An alien who is otherwise deportable may be granted asylum if he

demonstrates that he has a well founded fear that he will suffer persecution in the

proposed country of removal on account of race, religion, nationality, membership

in a particular social group, or political opinion. See 8 U.S.C. § 1158(b) (2004)

(Attorney General may grant asylum to refugees); 8 U.S.C. § 1101(a)(42)(A) (2004)

(defining refugee). An alien who establishes that he has previously been the victim

of persecution in the proposed country of removal is entitled to a rebuttable

presumption that he would in the future be similarly persecuted in that country. 8

C.F.R. § 208.16(b)(1) (2004). An alien who can establish by a clear probability that

he will be persecuted because of his political opinion qualifies for mandatory

withholding of deportation. See 8 U.S.C. § 1253(h) (pre-IIRIRA provision);1

 INS v.

Aguirre-Aguirre, 526 U.S. 415, 419 (1999). Because a greater degree of certainty

must be shown by an applicant to qualify for mandatory withholding of deportation

under § 1253(h) than for asylum under § 1158(b), an alien who fails to carry his

burden of proof under §1158(b) will also fail under § 1253(h). See Janusiak v. INS,

947 F.2d 46, 47 (3d Cir. 1991). 
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After studying the record we agree with the immigration judge that

Habtemicael failed to demonstrate past persecution on account of his political beliefs.

Even if the EPLF's program of impressing laborers and soldiers was motivated by its

political ideology, that does not mean that Habtemicael was impressed on account of

his political beliefs as required for relief under the asylum statute. See Elias-Zacarias,

502 U.S. at 482. Professor Harold G. Marcus, a distinguished professor of East

African history at Michigan State University, testified at the immigration hearing on

behalf of Habtemicael. He stated that the EPLF lost a lot of personnel in the

mid1980s and was "desperate for manpower" when Habtemicael was abducted. Its

criterion for forcing individuals into military service was simple: they sought men,

and later women, with "two legs that could move." We conclude that there was

substantial evidence in the record to support the immigration judge's finding that

Habtemicael was abducted and pursued for reasons other than his political beliefs.

Habtemicael is thus ineligible for a presumption of future persecution in Eritrea based

on past political persecution in that area. 

Habtemicael also failed to establish a well founded fear or clear probability that

he would be persecuted for his political beliefs if returned to Eritrea. He testified that

the Eritrean government would interpret his escape, the shooting of two EPLF

soldiers trying to apprehend the escapees, and his lack of financial support as

evidence of antiEritrean political sentiment. The immigration judge found that any

adverse action which might be taken against Habtemicael by the Eritrean government

would be on account of his desertion from the EPLF and the deaths of its soldiers, not

on account of his politics. While Habtemicael might indeed be punished or

conscripted for his failure to contribute money to the Eritrean government, that could

not form the basis of an asylum claim because his failure to make payments did not

by itself express a political opinion. If he were conscripted, it would be because he

had not completed his military service requirement rather than because of his political

beliefs. 
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Our review of the record shows that the immigration judge's finding that

Habtemicael has no well founded fear of future persecution on the basis of his

political beliefs is supported by substantial evidence. We conclude that the

immigration judge did not err in finding Habtemicael ineligible for asylum under 8

U.S.C. § 1158(b) or for withholding of deportation under 8 U.S.C. § 1253(h). 

Habtemicael's remaining claim arises under Article III of the United Nations

Convention Against Torture. Article III of the Convention provides that a signatory

country may not remove a person to another nation if there are "substantial grounds

for believing that he would be in danger of being subjected to torture" in that nation.

Foreign Affairs Reform and Restructuring Act of 1998 § 2242, Pub. L. No. 105-277

(Oct. 21, 1998). The United States has signed, ratified, and codified the Convention

which became binding on it in November of 1994 upon delivery of ratifying

documents to the United Nations. 

The Convention is implemented in this country by 8 C.F.R. § 208.18. As

relevant to this case it defines torture as: 

any act by which severe pain or suffering, whether physical or mental,

is intentionally inflicted on a person for such purposes as . . . punishing

him or her for an act he or she or a third person has committed . . . when

such pain or suffering is inflicted by or at the instigation of or with the

consent or acquiescence of a public official or other person acting in an

official capacity. 

8 C.F.R. § 208.18(a)(1) (2004). Torture does not include "pain or suffering arising

only from, inherent in or incidental to lawful sanctions." 8 C.F.R. § 208.18(a)(3).

Lawful sanctions include "judicially imposed sanctions and other enforcement actions

authorized by law," including the death penalty, so long as those sanctions do not

defeat the object and purpose of the Convention to prohibit torture. Id.
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Habtemicael contends that he would be unlawfully and extrajudicially executed

as punishment for his actions in 1986 if returned to Eritrea, and that he may thus face

a threat of imminent death proscribed by the Convention. The immigration judge

recognized that Habtemicael could face sanctions for desertion or for the death of two

EPLF soldiers if returned to Eritrea, but the judge concluded that prosecution on these

grounds would be within the "recognized authority of a governmental entity" and

would thus not amount to torture within the meaning of the Convention. Unlike the

immigration judge's discussion of Habtemicael's asylum and withholding of removal

claims, his brief analysis of the Convention claim was inadequate.

The immigration judge made no findings as to whether the EPLF had the status

of a recognized government when Habtemicael was forced into its service in Barentu

or whether it had the authority to impress an Ethiopian citizen into military service

against the Ethiopian government. At the time Habtemicael was forced into

involuntary service in 1985 and escaped from it in 1986, the EPLF was a

revolutionary front fighting to become a recognized government independent of

Ethiopia. The United Nations monitored referendum on Eritrean independence was

not conducted until 1993, and the United States did not recognize Eritrea as a

sovereign nation until May 27 of that year — more than seven years after

Habtemicael's escape from the EPLF. Respondent asks this court to consider

evidence that the EPLF had previously established a provisional government in some

parts of Ethiopia, but the extent of its authority in 1985 and 1986 is a question for the

immigration judge in the first instance, as is any legal consequence. The position

taken by the executive branch of the government as to which entity has sovereignty

over a disputed territory is relevant to the determination. See Baker v. Carr, 369 U.S.

186, 212 (1962). If the EPLF did not have sovereign authority in 1986, then

Habtemicael as a citizen of Ethiopia may have acted lawfully in escaping and
2

Habtemicael also argues that any sanction for his actions in 1986 would be an

ex post facto punishment in violation of international law. Cf. Landgraf v. USI Film

Prods., 511 U.S. 244, 265 (1994) (ex post facto clause expresses universal principle

that retroactive criminal sanctions are necessarily invalid); Universal Declaration of

Human Rights, Art. 11(2), adopted Dec. 10, 1948, U.N. G.A. Res. 217 (III) ("No one

shall be held guilty of any penal offense on account of any act . . . which did not

constitute a penal offense . . . when it was committed."); Eritrean Const. Art. 18(2),

ratified May 24, 1997 (expressing identical principle).

3

Under IIRIRA's transitional rules which apply to aliens such as Habtemicael

whose deportation cases were initiated prior to April 1, 1997, we must "decide the

petition only on the administrative record on which the order of removal is based."

8 U.S.C. § 1252(b)(4)(A). Neither party here has suggested that conditions in Eritrea

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defending himself against recapture. The sanction of death might therefore be a

violation of the Convention Against Torture.2

Habtemicael would qualify for relief under the Convention only if he produced

evidence showing that on his return, the Eritrean government or persons acting with

its acquiescence, would more likely than not intentionally subject him to torture. 8

C.F.R. §§ 208.16(c)(2), 208.18 (a)(6)-(8). A petitioner must establish that he will

probably be tortured, not merely that he will be punished in some way that does not

amount to torture. See 8 C.F.R. § 208.18(a)(2). See also Peripanathan v. United

States, 310 F.3d 594, 599 (8th Cir. 2002). An unlawful or extrajudicial threat of

imminent death comes within the definition of torture if it is specifically intended to

bring about prolonged mental pain or suffering. 8 C.F.R. §§ 208.18(a)(3), (a)(4)(iii),

(a)(5). This intent requirement is satisfied if prolonged mental pain or suffering either

is purposefully inflicted or is the foreseeable consequence of a deliberate act. Zubeda

v. Ashcroft, 333 F.3d 463, 473 (3d Cir. 2003). 

Whether Habtemicael produced evidence sufficient to support his claim that

he would be unlawfully subjected to such a threat of imminent death by the Eritrean

government is a question for the immigration judge to resolve.3

 Habtemicael testified
have changed since the administrative proceedings.

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that he was threatened with death if he attempted to escape from the EPLF and that

he believes that this threat would be carried out if he returned to Eritrea. Professor

Marcus testified that Habtemicael would "stick out" because he is young, lacks an

Eritrean identity card and passport, and has no papers saying that he has been in the

military making him automatically eligible for conscription. He stated that Eritrea's

highly organized and centralized government would quickly discover Habtemicael's

past and that he would likely face detention under harsh conditions, physical

mistreatment, and an unfair and perhaps secret trial. Professor Marcus indicated that

Habtemicael could be executed without judicial process, for at the time of his

testimony Eritrean deserters in an ongoing border dispute were "being shot, period."

In his judgment, "they are going to make him pay for what happened . . . in the

eighties." 

The immigration judge found the uncontradicted testimony of Habtemicael and

Professor Marcus credible, and a petitioner's credible testimony alone can be

sufficient to sustain his burden of proof. 8 C.F.R. § 208.16(c)(2); Zubeda, 333 F.3d

at 471; Mansour v. INS, 230 F.3d 902, 907 (7th Cir. 2000). There is also

documentary evidence in the administrative record that appears to support the

testimony. See, e.g., U.S. Dept. of State, Bureau of Democracy, Human Rights, and

Labor, Eritrea: Country Report on Human Rights Practices for 1998 at *2-4 (February

26, 1999) (Eritrean military authorities arbitrarily arrest and detain guerillas from the

war for independence without formal charges or judicial process where they have

been accused of violating the stringent unwritten code of military conduct; Eritrean

security forces physically abused, beat, raped, and mistreated persons with impunity).

The immigration judge stated that there was no dispute that Habtemicael "may

have to answer for his desertion from the EPLF military and . . . the shooting of

EPLF soldiers while deserting," but summarily concluded that any punishment of
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Habtemicael would be lawful and therefore not proscribed by the Convention. The

regulations require that all evidence relevant to the possibility of future torture must

be considered, 8 C.F.R. § 208.16(c)(3), but it does not appear that the judge

considered evidence that the EPLF was not then a legitimate governmental authority,

that any Eritrean sanction for the events in 1986 might therefore be unlawful, or that

today a sanction could be imposed without judicial process. The immigration judge

also did not reach the question of whether any punishment Habtemicael might receive

would more likely than not subject him to a threat of imminent death that would

violate the Convention. When an agency makes a finding of fact without mentioning

or analyzing significant evidence, its decision should be reconsidered. Palavra v.

INS, 287 F.3d 690, 693 (8th Cir. 2002) (citing Universal Camera Corp. v. NLRB, 340

U.S. 474, 488 (1951)). See also Hernandez v. INS, 258 F.3d 806, 814 (8th Cir. 2001)

(remanding where board failed to consider evidence pertinent to asylum claim).

Without further factfinding we are unable to review the disposition of

Habtemicael's Convention claim. See Palavra, 287 F.3d at 694 (case not ripe for

appellate review where board did not consider facts pertinent to asylum claim). The

immigration court is the proper forum to make factual determinations relevant to a

claim under the Convention Against Torture. See INS v. Ventura, 537 U.S. 12, 17

(2002) (court of appeals committed clear error in not remanding to board for initial

consideration of factual questions relevant to immigration case). One of the other

cases in which the immigration judge did not fully consider the record on a claim

under the Convention was remanded by the Third Circuit "to allow clarification of the

record and an opportunity for any additional fact finding or evidence that may be

necessary." Zubeda, 333 F.3d at 479. A remand to the board is also appropriate in

this case so that additional findings can be made with respect to Habtemicael's

Convention claim. See id. at 478; Mansour, 230 F.3d at 909 (remand necessary

where board failed to consider evidence pertinent to Convention claim). 
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Accordingly for the reasons stated, we affirm the board's order denying

Habtemicael's claims for asylum under 8 U.S.C. § 1158(b) and for withholding of

deportation under 8 U.S.C. § 1253(h). We vacate that part of the board's order

denying Habtemicael's claim for relief under Article III of the Convention Against

Torture and remand for further findings as to whether Habtemicael is more likely than

not to suffer torture within the meaning of the Convention if returned to Eritrea. 

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