United States Court of Appeals

for the Fifth Circuit

No. 21-60223

Zena Gebrgzabher, 

Petitioner,

versus

Merrick Garland, U.S. Attorney General, 

Respondent.

Petition for Review of an Order of the

Board of Immigration Appeals

Agency No. A212 904 283

Before Graves, Willett, and Engelhardt, Circuit Judges.

Don R. Willett, Circuit Judge:

Federal immigration law contains a provision, the so-called 

“persecutor bar,” that denies refugee status to anyone who “assisted, or 

otherwise participated in the persecution of any person on account of race, 

religion, nationality, membership in a particular social group, or political 

opinion.”1 This case asks what sort of actions along the continuum of 

conduct qualifies as persecutory assistance or participation.

1 8 U.S.C. § 1101(a)(42).

United States Court of Appeals

Fifth Circuit

FILED

December 19, 2022

Lyle W. Cayce

Clerk

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Zena Gebrgzabher, an Eritrean citizen, was forcibly conscripted into 

the Eritrean National Service, an open-ended requirement of compulsory 

service, and made to work as an armed guard at a highway checkpoint through 

which Eritrean security forces brought detainees. Several years later, 

Gebrgzabher escaped and made his way to America, where he applied for 

asylum and withholding of removal. The Board of Immigration Appeals

(BIA) concluded that Gebrgzabher was ineligible because he assisted in the 

persecution of captives by impeding their escape at the checkpoint. As the 

BIA’s determination is supported by substantial evidence—that is, the 

record does not compel a contrary result—we deny Gebrgzabher’s petition.

2

I

Zena Gebrgzabher is a native citizen of Eritrea, an autocratic, highly 

militarized country in the Horn of Africa region. In 2005, when he was 18

years old, he was conscripted into the Eritrean National Service. After six 

months of training, the National Service assigned Gebrgzabher to a unit 

guarding a highway checkpoint. Four soldiers at a time guarded the 

checkpoint, while the others did chores. Gebrgzabher’s guard duties 

included checking vehicle registrations and inspecting vehicles for 

contraband as they passed through the checkpoint.

Once a week to twice a month, security forces passed through the 

checkpoint with prisoners who were considered traitors for attempting to 

leave Eritrea without permission. These prisoners were usually barefoot, 

bloodied, and had their arms tied behind their backs with rope. Gebrgzabher 

saw security forces hitting the prisoners while unloading and loading them 

into the transport vehicle. He would watch the prisoners for 5–10 minutes 

2 Gebrgzabher retains relief under the Convention Against Torture as determined 

by the Immigration Judge and unchallenged by the Government.

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while one of the security force guards took a prisoner list to the checkpoint 

commander. Gebrgzabher testified that the prisoners had their own guards 

so his job was not just to watch the prisoners but also to watch the security 

guards and inspect the security vehicle. Still, if he failed to watch the 

prisoners he would be detained.

In 2007, after a year manning the checkpoint, Gebrgzabher was 

transferred to a government bakery, where he baked bread for several years. 

In 2014, Gebrgzabher was imprisoned for three months for overstaying leave

and forced to do hard labor. After his release, Gebrgzabher returned to the 

bakery for a short period before fleeing Eritrea into Sudan through a smuggler 

in December 2015.

In February 2017, Gebrgzabher applied for admission into the United 

States at the Port of Entry in Hidalgo, Texas without a valid entry document. 

Soon after, the Department of Homeland Security (DHS) served 

Gebrgzabher with a Notice to Appear charging him with removability under 

the Immigration and Nationality Act. At a master calendar hearing that April, 

Gebrgzabher conceded his removability and applied for asylum, withholding 

of removal, and protection under the Convention Against Torture (CAT).

Gebrgzabher testified in support of his application at a merits hearing 

held in May 2017. The Immigration Judge (IJ) questioned him about his role 

supervising others as a guard at the checkpoint. Gebrgzabher testified that he 

was not a supervisor and that his contradictory statement in the credible fear 

report was a translation error. But he admitted to having watched the political 

prisoners who passed through the checkpoint and that, if he had not watched 

them, they would have tried to escape. As to the prisoners’ fates, 

Gebrgzabher stated that he believed they would be killed, tortured, or 

indefinitely detained.

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The IJ initially orally denied Gebrgzabher’s request for asylum and 

withholding and granted his request for CAT relief, but sua sponte vacated 

the decision the next day for further consideration. In July 2017, the IJ issued 

a written decision finding Gebrgzabher to be credible but denying him asylum 

and withholding. The IJ concluded that by guarding, and thus impeding the 

escape of, persecuted prisoners being “transported to their indefinite 

detention or their death,” Gebrgzabher had “ordered, incited[,] assisted, or 

otherwise participated in” persecution under the persecutor bar. The IJ

rejected Gebrgzabher’s argument that he lacked the requisite intent to 

persecute the prisoners and declined to find a duress exception to the bar. 

However, the IJ granted Gebrgzabher CAT relief.

Gebrgzabher appealed the decision to the BIA and moved to remand 

the proceedings for the IJ to consider whether he was entitled to a duress 

exception to the persecutor bar. The BIA dismissed the appeal in February 

2021. Citing the IJ’s findings and conclusions, the BIA concluded that 

Gebrgzabher’s guard duties invoked the persecutor bar and that Gebrgzabher 

had failed to meet his burden of proving by a preponderance of the evidence 

that the bar did not apply. The BIA also denied Gebrgzabher’s motion to 

remand based on a recent Attorney General opinion concluding that the 

persecutor bar did not include a duress exception.

Gebrgzabher timely filed this petition for review.3

II

“We generally have authority to review only the decision of the 

BIA.”4 But we will consider the IJ’s decision when, as here, “the IJ’s ruling 

3 See 8 U.S.C. § 1252(b)(1). 

4 Zhu v. Gonzales, 493 F.3d 588, 593 (5th Cir. 2007).

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affects the BIA’s decision.”5 We review the BIA’s and IJ’s legal 

conclusions de novo, but any factual conclusions, including whether an

applicant is ineligible for asylum, for substantial evidence.

6 To succeed on 

substantial evidence review, a petitioner must demonstrate that “the record 

evidence ‘compels’ a conclusion contrary to the agency’s determination.”7

That is, the evidence must be “so compelling that no reasonable factfinder 

could reach a contrary conclusion.”8

III

“Section 208(a) of the Immigration and Nationality Act authorizes 

the Attorney General, in his discretion, to grant asylum to an alien who is a 

‘refugee’ as defined in the Act.”9 Importantly, the Act excludes from the 

term “refugee” any person “who ordered, incited, assisted, or otherwise 

participated in the persecution of any person on account of race, religion, 

nationality, membership in a particular social group, or political opinion.”10

This is known as the “persecutor bar” and it “applies to those seeking 

asylum or withholding of removal.”11 However, it “does not disqualify an 

alien from receiving a temporary deferral of removal under the [CAT].”12

When the record contains evidence indicating that a ground for mandatory 

5 See id.

6 Id. at 594 (quoting Fonseca-Leite v. INS, 961 F.2d 60, 62 (5th Cir. 1992)); Gjetani 

v. Barr, 968 F.3d 393, 396 (5th Cir. 2020) (quoting Zhao v. Gonzales, 404 F.3d 295, 306 (5th 

Cir. 2005)).

7 Gjetani, 968 F.3d at 396.

8

 Chen v. Gonzales, 470 F.3d 1131, 1135 (5th Cir. 2006)

9 I.N.S. v. Elias–Zacarias, 502 U.S. 478, 481 (1992) (citation omitted).

10 8 U.S.C. § 1101(a)(42).

11 Negusie v. Holder, 555 U.S. 511, 514 (2009) (citation omitted).

12 Id.

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denial of the application for relief—such as the persecutor bar—may apply, 

the alien has the burden of proving by a preponderance of the evidence that 

it does not.13

Gebrgzabher challenges both the method and merit underlying the 

IJ’s finding that the persecutor bar applies to him. As to the method, 

Gebrgzabher argues that the IJ applied the wrong test in determining 

whether he had assisted in the persecution of the political prisoners passing 

through the checkpoint. Citing a 2008 Eleventh Circuit case, he asserts that 

the IJ should have conducted a particularized, fact-intensive inquiry into

whether his “personal conduct was merely indirect, peripheral and 

inconsequential association or was active, direct and integral to the 

underlying persecution.”14 The Government asks us to instead defer to the 

BIA’s determination in Matter of D-R- (Matter of D-R-II)15 that the correct

test for assessing the applicability of the persecutor bar considers (1) the 

nexus between the petitioner’s role, acts, or inaction, and the persecution,

and (2) the petitioner’s scienter.

16

We have not expressly adopted a standard for determining whether an 

alien “assisted, or otherwise participated in persecution,” and we need not 

do so now. The IJ’s determination that the persecutor bar applies here is 

13 See 8 C.F.R. § 1240.8(d).

14 Chen v. U.S. Atty. Gen, 513 F.3d 1255, 1259 (11th Cir. 2008). The Government 

argues that Gebrgzabher distorts the Eleventh Circuit’s test in Chen. We do not address 

whether Gebrgzabher properly describes Chen because we conclude that his petition fails 

even under his iteration of the Chen test.

15 27 I. & N. Dec. 105 (BIA 2017).

16 Id. at 119.

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supported by substantial evidence even under Gebrgzabher’s preferred 

standard. 17

Again, to succeed, Gebrgzabher must show that “the record evidence 

compels a conclusion contrary to the agency’s determination.”18 The record 

established that Gebrgzabher guarded prisoners who were detained for being 

perceived political traitors, knew these prisoners faced long imprisonment or 

death, and still impeded their escape. As the BIA reasoned in adopting the 

IJ’s findings, Gebrgzabher’s actions were “not merely tangential or 

incidental” to the persecution “when the record is viewed as a whole.” 

Instead, Gebrgzabher’s assistance in guarding the prisoners helped further 

their persecution.

Gebrgzabher argues that the IJ did not properly consider evidence 

that (1) he had no role in arresting, harming, or securing the prisoners for any 

long duration as they had their own guards at the checkpoint, (2) he was not 

armed at the checkpoint, and (3) he was engaged in legitimate law 

17 The Government contends that Gebrgzabher waived and failed to exhaust his 

argument that the evidence was insufficient to implicate the persecutor bar. The failure to 

exhaust a remedy before the BIA deprives us of jurisdiction. Martinez-Guevara v. Garland, 

27 F.4th 353, 359 (5th Cir. 2022). Claims that the BIA considered are exhausted.Id. at 360.

So a petitioner exhausts a claim if he can reasonably tie what he said to the BIA to the 

claims before us. Id. at 361.

Here, the BIA’s decision recognized Gebrgzabher’s arguments that the IJ 

“misstated the record or overlooked facts in arriving at the conclusion that the persecutor 

bar applied,” as well as his discrete arguments on nexus and scienter. Likewise, here, 

Gebrgzabher argues that the evidence under the correct test is insufficient to establish that 

the bar applies. Gebrgzabher’s claims here are reasonably tied to his claims before the BIA. 

Thus, Gebrgzabher’s argument that the persecutor bar was not triggered is properly before

us.

18 Gjetani, 968 F.3d at 396 (quotation marks omitted).

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enforcement activities when the prisoners passed through. But none of these 

arguments undermines the BIA’s and IJ’s conclusion.

First, Gebrgzabher “need not engage in the commission of physical 

atrocities to be found to have ‘assisted’ or ‘participated’ in them.”19 And the

existence of other guards does not change that Gebrgzabher guarded the 

prisoners, too. The statute bars not just the primary persecutor, but also 

those who “assist” or “participate[] in” the persecution.20 Moreover, 

Gebrgzabher testified that the prisoners would have tried to escape had he 

not been there. By his own admission, he prevented the political prisoners 

from escaping (furthering their persecution) even though other guards were 

present. 

Second, Gebrgzabher concedes that the record before the BIA was

silent on whether he carried a firearm at the checkpoint. He argues that his 

testimony that the guards were not allowed to use their firearms outside of 

training can only be interpreted as him not carrying a firearm at the 

checkpoint.

21 In his view, this shows that he was not solely responsible for 

guarding the prisoners. But Gebrgzabher’s testimony is susceptible to an 

alternative interpretation: he could carry and even brandish his firearm, thus 

dissuading escape, even if he was not allowed to fire it. Indeed, even assuming 

19 United States v. Vasquez, 1 F.4th 355, 361 (5th Cir. 2021) (per curiam).

20 8 U.S.C. § 1101(a)(42).

21 Gebrgzabher gave the following testimony in his credible-fear interview:

Q: When you were you [sic] in the national service did you ever use a 

weapon outside of training?

A: What do you mean by use?

Q: Use, to fire, to put it for whatever use it was made for.

A: They only train us they don’t allow us to use it.

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Gebrgzabher was unarmed, he nonetheless hindered detainees from fleeing

by standing guard at the checkpoint.22

Finally, Gebrgzabher’s engagement in purportedly legitimate law 

enforcement activity does not immunize him from the persecutor bar.23 To 

be sure, when an applicant does “not exclusively engage in the persecution” 

we must decide whether he “actually assisted or otherwise participated in 

the persecution.”24 Thus courts have held that the persecutor bar does not 

apply when an applicant only engaged in legitimate law enforcement activity

and the Government failed to establish a connection between that legitimate 

activity and the persecution.25 That is not the case here. The record supports 

the BIA’s conclusion that Gebrgzabher assisted in persecution by impeding 

the escape of the persecuted prisoners.

In sum, none of this evidence compels us to conclude that no

reasonable factfinder could agree with the BIA that Gebrgzabher failed to

meet his burden of rebutting the application of the persecutor bar. Our 

decision does not affect the IJ’s unchallenged grant of CAT relief.

IV

The petition for review is DENIED.

22 See Chen, 513 F.3d at 1260 (“Those who perform the detention—whether by the 

use of force, threat of force, or expression of authority meant to dominate and control—are 

assisting in the underlying persecution.”).

23 See Naujalis v. INS, 240 F.3d 642, 647 (7th Cir. 2001); Singh v. Gonzales, 417 

F.3d 736, 739–40 (7th Cir. 2005). Gebrgzabher tries to distinguish these cases by arguing 

that the law enforcement activity in those cases was not entirely legitimate. But the BIA

implicitly concluded the same here as to Gebrgzabher’s guard activities. He fails to show 

that determination was not supported by substantial evidence.

24 Singh, 417 F.3d at 739–40.

25 See, e.g., Diaz-Zanatta v. Holder, 558 F.3d 450, 469 (6th Cir. 2009).

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