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, before 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 Ethiopia and not having participated in the Eritrean independence 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 participating 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 persecution of her, we see no error in the IJ’s finding otherwise

based on our holdings rejecting claims of derivative persecution. 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 Ethiopia 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 persecution, 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. Historically, 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 denationalization as a political weapon, particularly in Africa, see

Open Society Justice Initiative, “Statelessness, Discrimination 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 persecution, 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. Gonzales, 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 denationalization could never amount to persecution, so he did

not determine whether the petitioners are still considered citizens by Ethiopia, and we have not found any

definitive statement in the record concerning the nationality 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 resettled” 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 resettlement” 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 government’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