Petition for Review of an Order of the Board of Immigration Appeals (Agency File No. A97 447 731).
The opinion of the court was delivered by: McKEE, Circuit Judge.
Before: SLOVITER, McKEEand RENDELL, Circuit Judges.
Melake Zerai Ghebrehiwot, a Pentecostal Christian who is a citizen of Eritrea, petitions for review of an order of the Board of Immigration Appeals affirming without opinion the Immigration Judge's denial of his applications for asylum, withholding of removal and relief under Article 3 of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("CAT"). For the reasons that follow, we will grant the petition and remand for further proceedings consistent with this opinion.
Ghebrehiwot traveled to the United States from Sweden as a visitor for pleasure under the Visa Waiver Program, 8 U.S.C. § 1187, on December 7, 2004. He was denied admission because he presented a false Italian passport that had been manufactured for him. After being referred to an Immigration Judge he sought relief from removal by petitioning for asylum, withholding of removal and relief under the CAT.
Ghebrehiwot was born in Asmara, Eritrea in 1983, and is one of eight children. His parents and all of his siblings still live in Eritrea. Before he left Eritrea, Ghebrehiwot had attended a university where he trained to become a teacher.
After living in Sudan for a number of years, Ghebrehiwot traveled to Sweden and then to the United States with the assistance of a person named, "Abraham." Ghebrehiwot testified that Abraham gave him the false Italian passport he presented upon attempting to enter the United States. Ghebrehiwot used that passport to travel from Sweden to the United States.*fn1 Abraham bought Ghebrehiwot's airline ticket and told him to come to the United States. Abraham instructed Ghebrehiwot to return the passport to him if admitted without any problems, and he instructed Ghebrehiwot to apply for asylum if asked about the fake Italian passport. Ghebrehiwot did just that when he encountered a problem at the airport. During the ensuing airport interview, Ghebrehiwot said that he feared returning to Eritrea because he had fled to Sudan while a soldier in the Eritrean army. He also said that he had been mistreated in Sudan because of his religion. When asked if he feared returning to Eritrea or the country of last residence, Ghebrehiwot answered: "Yes, because they don't know me as a Eritrean. I don't have nothing. If I go home and I show them where I live and they find out that I fled to Sudan they will kill me."
On his application for asylum, Ghebrehiwot listed both political opinion*fn2 and religion as the basis for asylum and withholding of removal. He explained as follows when asked about fearing torture: "as Amnesty International is concerned that if I returned back I will be at serious risk of human right violations by the government like hard detention will follow . . . In Sudan, due to religious practicing as before I will suffer until killed by the Sudan government." In his application, Ghebrehiwot stated that he is a member of the Pentecostal Rhema Church in Asmara.
At the hearing before the Immigration Judge, Ghebrehiwot testified that his schooling was cut short because he was drafted into the Eritrean army in 2001. However, he admitted that he had practiced his Pentecostal religion without any problems while in his home country before being conscripted into the army. He also admitted that his family had not experienced any problems in Eritrea. He had heard from his family after leaving Eritrea, while he was still living in Sudan.
During the hearing, the Immigration Judge asked Ghebrehiwot whether his family told him anything important he wished to tell the court.*fn3 The government claims that Ghebrehiwot told the IJ that he "forgot." However, Ghebrehiwot claims that the government has misstated the record. According to him, "the interpreter said that he had forgotten something and Mr. Ghebrehiwot responded that his family had provided him with documentary information."
Ghebrehiwot claimed that being drafted into the Eritrean army was tantamount to mistreatment because he was young and had not finished school. He had been drafted during a war between Eritrea and Ethiopia. After being drafted, he was stationed on the border between Ethiopia and Sudan. He claimed that approximately a month after being drafted, he and seven other Eritrean soldiers were forced to flee into Sudan when the advancing Ethiopian forces penetrated to the Eritrean border. Ghebrehiwot claimed that once he was in Sudan, they could not return to Eritrea because Ethiopian forces continued to occupy the border.
In Sudan, Ghebrehiwot and the others met a fellow Eritrean who took them to Khartoum, the capital city. There, Ghebrehiwot was taken in by "Pastor Josieth" and became part of a Protestant Christian Community. Ghebrehiwot continued to live in Sudan although he never obtained legal residency there. He testified that he never applied for legal residency because "in order to be able to request that, [one must] have. . . a passport."
Ghebrehiwot explained that, although Christians live in Sudan, it is an Islamic country, and he was Protestant. Ghebrehiwot claimed that, in June 2002, while he was still living in Sudan, members of the Sudanese army took him from the church he was attending, detained him in an underground jail, and drastically limited his access to food and sanitation facilities. While detained, he and four others were beaten with a hard plastic object. He claimed that, as a result of the beating, his leg was injured, and he was taken to a hospital for one hour -- the maximum time allowed for a hospital visit -- to receive stitches. According to his testimony, he was then immediately returned to detention where he was denied access to any additional treatment or medication.
Ghebrehiwot was released from prison with the assistance of people working with the Eritrean Liberation Front ("ELF"), an exiled party working in opposition to the Eritrean government. He claimed that he was released on condition that he and the others would stop practicing Christianity. Upon his release, the ELF loyalists gave him an identification card that was valid for 3 months. However, according to his testimony, that card was never renewed because he did not participate in ELF activities due to his religious beliefs.
Following his release, he continued living with the Sudanese pastor, and worshiping in private. According to Ghebrehiwot, while he was in the care of Pastor Josieth and unable to return to Eritrea, legislation was enacted in Eritrea that limited the right to practice any but four officially recognized religions. In May 2002, the Eritrean government ordered all houses of worship, that were not either Eritrean Orthodox, Roman Catholic, Lutheran or Islamic, to close. According to Ghebrehiwot, after that legislation was enacted, the Eritrean government systematically rounded up and tortured hundreds of members of nonsanctioned religions, including Pentecostals. He said that his Eritrean pastor was arrested, held incommunicado, and was in danger of being tortured solely because he did not observe one of the sanctioned religions.
According to Ghebrehiwot, the Eritrean government also banned adherents of all other religions from governmental positions and it also attempted to purge them from the military.
He also testified about individual acts of oppression including subjecting 60 teenage Protestant soldiers to torture and imprisoning them in metal containers because they were caught carrying bibles; and threatening, beating and incarcerating 74 Pentecostal soldiers who refused to renounce their beliefs and return to the Eritrean Orthodox Church. Ghebrehiwot claimed that the Eritrean government also stepped up its campaign against political dissidents.
Ghebrehiwot testified that some of the former soldiers who retreated with him to Sudan managed to apply for asylum in Malta. However, the Maltese authorities rejected their claims and returned them to Eritrea where they were detained and held incommunicado. Although they were never formally charged, the Eritrean president publicly stated that he considered these detainees traitors and spies. That they were then tortured so badly that some were paralyzed, and others were killed.
Ghebrehiwot also explained that he feared returning to Eritrea because he could have been tortured or killed. He based this fear upon what he claimed happened to others who left the Eritrean army and were subsequently returned by the Maltese government. He explained that the torture they were subjected to included detention "in a style called 'helicopter'*fn4 and some of them were paralyzed and . . . others . . . faced death because they left Eritrea."
Ghebrehiwot maintained his fear was justified even though he conceded that, to the best of his knowledge, his brother who is also Pentecostal, continues to live and worship in Eritrea without experiencing any repression.
Ghebrehiwot submitted news articles and country condition reports during his hearing before the IJ. Some of those reports tell of deserters who sought refugee status in other countries, including Sudan. In one article, Amnesty International quoted a former deserter who was returned from Malta as saying he had been tortured upon return to Eritrea.
II. PR OCEEDINGS BEFORE THE IJ AND THE BIA
The Immigration Judge denied Ghebrehiwot's claim without making a credibility determination. Her decision was based upon her conclusion that the evidence Ghebrehiwot presented did not establish eligibility for any relief. The IJ believed that Ghebrehiwot's fear of returning to Eritrea arose from his "desertion" from the army, and prosecution for desertion does not ordinarily constitute "persecution" for immigration purposes.*fn5 The IJ acknowledged that legally justified prosecution can be so severe that it rises to the level of "persecution" and an alien may therefore establish that he/she is a "refugee" if the unduly harsh treatment is based upon race, religion, nationality, or membership in a social or political group. ...