From: Biniam Tekle (biniamt@dehai.org)
Date: Fri Jan 08 2010 - 11:55:58 EST
"If Ethiopia denationalized the petitioner because of his Eritrean
ethnicity, it did so because of hostility to Eritreans; and the analogy to
the Nazi treatment of Jews is close enough to suggest that his
denationalization was persecution and created a presumption that he has a
well-founded fear of being persecuted should he be returned to Ethiopia"
"From other sources we gather that readmission [of Eritreans to Ethiopia] is
not automatic and that returning Ethiopians of Eritrean ethnicity are often
denied full rights of citizenship"
http://www.leagle.com/unsecure/page.htm?shortname=infco20100106136
HAILE v. HOLDER
TEMESGEN WOLDU HAILE, Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General of the United States, Respondent.
No. 08-4187.
United States Court of Appeals, Seventh Circuit.
Argued November 6, 2009.
Decided January 6, 2010.
Before POSNER, KANNE, and ROVNER, Circuit Judges.
POSNER, Circuit Judge.
The petitioner was born in Addis Ababa, the capital of Ethiopia, in 1976.
His parents were of Eritrean origin, but at the time Eritrea was a part of
Ethiopia and both they and he were Ethiopian citizens. In 1993 Eritrea
separated amicably from Ethiopia. In anticipation of Eritrean independence
the parents had moved there the previous year, and after Eritrea became
independent they acquired Eritrean citizenship and renounced their Ethiopian
citizenship. But the petitioner, though a minor (he was 16 or 17), stayed
behind.
In 1998 Ethiopia and Eritrea went to war, and Ethiopia indiscriminately
rounded up and expelled some 75,000 Ethiopian citizens. See Human Rights
Watch, "The Horn of Africa War," Jan. 29, 2003,
www.hrw.org/en/node/12364/section/1 (visited Dec. 14, 2009). The petitioner
fled the country before he could be expelled, and eventually wound up in the
United States and sought asylum, contending that he'd been stripped of his
Ethiopian citizenship and that this was persecution. The immigration judge
denied asylum on the ground that since a country has a right to determine
who is a citizen, taking away a person's citizenship is not, without more,
persecution. The Board affirmed the immigration judge without discussing
whether or when denationalization amounts to persecution.
The petitioner turned to this court for relief. Politely describing the
immigration judge's reasoning as "problematic," a panel of this court
vacated the Board of Immigration Appeals' decision and remanded the case to
the Board. *Haile v. Gonzales,* 421 F.3d 493, 496 (7th Cir. 2005). We
instructed the Board to consider the relation of denationalization to
persecution, and having done so to determine whether the petitioner was
still an Ethiopian citizen, which the immigration judge had not bothered to
determine since he thought it irrelevant.
On remand, the Board, again denying the application for asylum, opined in
response to our first instruction that while denationalization can be "a
harbinger of persecution," the immigration judge "must look at the
circumstances surrounding the loss of nationality or citizenship and then,
on an individual basis, determine whether these circumstances rise to the
level of persecution due to a protected ground." The Board did not discuss
what "circumstances" might satisfy its test, beyond saying that "even if the
Ethiopian Government . . . intended to deprive the [petitioner] of his
citizenship due to a protected ground, the evidence establishes that these
actions did not rise to the level of persecution" (footnote omitted).
The Board based this conclusion on the observation that not
*all*denationalizations are instances of persecution. And that is
correct. The
Board noted instances in which, as a result of altered boundaries, a person
finds himself a citizen of a different country. For example, when
Czechoslovakia divided into two countries, the Czech Republic and Slovakia,
each former citizen of Czechoslovakia was told to choose between becoming a
citizen of the Czech Republic or of Slovakia. When Lithuania, formerly a
part of the Soviet Union, became a separate nation, its inhabitants became
Lithuanian citizens—and shortly afterward the Soviet Union dissolved, so
some 150 million persons lost their Soviet citizenship and became Russian
citizens. In none of these cases did the affected individuals become
stateless; they simply became citizens of a new state. The petitioner in
this case, however, is stateless; there is no contention that his Eritrean
ethnicity makes him an Eritrean citizen.
>From such observations the Board leapt to the conclusion that even if a
person loses his citizenship because of a "protected ground"—which is to say
a ground on which U.S. law permits a person to seek asylum, such as
religion—such a loss of citizenship does not, without more, amount to
persecution. We asked the Board's lawyer at argument whether this meant that
had the United States after the 9/11 terrorist attacks stripped all Muslim
citizens of the United States of their U.S. citizenship, but allowed them to
remain in the United States, this would not have been persecution—they would
have to show additional harm. She said yes. By the same token, the mere fact
of Nazi Germany's having denationalized its Jewish citizens in 1941 would
not have been persecution, though their subsequent further mistreatment
would have been.
We find it hard to believe that that is actually the Board's position. But
in any event the Board's conclusion that the petitioner in this case had to
prove "denationalization plus" doesn't follow from its premise, and unlike a
jury an administrative agency has to provide a reasoned justification for
its rulings. E.g., *Guchshenkov v. Ashcroft,* 366 F.3d 554, 559-60 (7th Cir.
2004); *Mengistu v. Ashcroft,* 355 F.3d 1044, 1047 (7th Cir. 2004);
*Zamora-Garcia
v. INS,* 737 F.2d 488, 490-91 (5th Cir. 1984); *Wong Wing Hang v. INS,* 360
F.2d 715, 719 (2d Cir. 1966) (Friendly, J.). From the correct premise that a
change of citizenship incident to a change in national boundaries is not
persecution per se, it does not follow that taking away a person's
citizenship because of his religion or ethnicity is not persecution. If
Ethiopia denationalized the petitioner because of his Eritrean ethnicity, it
did so because of hostility to Eritreans; and the analogy to the Nazi
treatment of Jews is close enough to suggest that his denationalization was
persecution and created a presumption that he has a well-founded fear of
being persecuted should he be returned to Ethiopia. 8 C.F.R. § 208.13(b)(1);
*Begzatowski v. INS,* 278 F.3d 665, 671 (7th Cir. 2002); *Galina v.
INS,*213 F.3d 955, 957-58 (7th Cir. 2000);
*Cendrawasih v. Holder,* 571 F.3d 128, 130 (1st Cir. 2009). Indeed, if to be
made stateless is persecution, as we believe, at least in the absence of any
reason for disbelief offered by the Board of Immigration Appeals, see *Giday
v. Gonzales,* 434 F.3d 543, 555-56 (7th Cir. 2006); *Mengstu v. Holder,* 560
F.3d 1055, 1059 (9th Cir. 2009), then to be deported to the country that
made you stateless and continues to consider you stateless is to be
subjected to persecution even if the country will allow you to remain and
will not bother you as long as you behave yourself.
At this point the case becomes difficult because of the confused state of
the record, and the confusing discussion in the immigration judge's and
Board's opinions, concerning the petitioner's status under Ethiopian law.
Under that law, unlike American law, Ethiopian citizenship is not
automatically conferred on a person born in Ethiopia, but instead requires
that the person either be naturalized or have at least one parent who is an
Ethiopian citizen. Ethiopian Constitution, art. 6, § 1; Ethiopian
Nationality Law of 1930, § 1, www. unhcr.org/ref world/docid/3ae6b52ac.html
(visited Dec. 14, 2009); U.K. Home Office, Research Development Statistics,
"Country of Origin Information Report— Ethiopia" ¶ 31.01 (Apr. 11, 2007),
www.homeoffice.gov.uk/rds/pdfs07/ethiopia-300407.doc (visited Nov. 17,
2009). It is unclear what happens to a minor who is an Ethiopian citizen by
virtue of his parents' Ethiopian citizenship when the parents renounce that
citizenship. The Board did not try to resolve the issue. Instead it assumed
for argument's sake that if the petitioner had lost his citizenship, it was
because of the hostility of the Ethiopian government to persons of Eritrean
ethnic origin; and it then asked itself whether the petitioner could reclaim
his citizenship. Whether the Board meant that he could acquire citizenship
or could establish that he is already a citizen is among the many opacities
in this case.
Apparently in regret or embarrassment about its treatment of Ethiopians of
Eritrean ethnicity (for there is no suggestion that the denationalization of
such persons was a justifiable measure for eliminating a potential "fifth
column" during Ethiopia's war with Eritrea), in 2003 Ethiopia passed a law
allowing persons who had lost their Ethiopian nationality because of their
acquisition of a foreign nationality to regain it by returning to live in
Ethiopia, renouncing their foreign citizenship, and applying for readmission
to Ethiopian citizenship. Proclamation on Ethiopian Nationality, No.
378/2003, § 22 (Dec. 23, 2003), www.unhcr.org/refworld/docid/ 409100414.html
(visited Dec. 14, 2009). The record does not indicate whether readmission is
automatic upon application, since persons who never acquired foreign
citizenship cannot renounce it. From other sources we gather that
readmission is not automatic and that returning Ethiopians of Eritrean
ethnicity are often denied full rights of citizenship. Bronwen Manby,
*Struggles
for Citizenship in* *Africa,* p. 104 (2009); Open Society Justice
Initiative, *Discrimination in Access to Nationality,* p. 4 (Apr. 2009),
http://lib.ohchr.org/HRBodies/UPR/Documents/Session6/ET/OSJI_ETH_UPR_S06_2009.pdf;
Refugees International,
*Nationality Rights for All,* pp. 19, 30 (Mar. 2009),
http://www.reliefweb.int/rw/RWFiles2009.nsf/FilesByR W Doc Unid File name/MY
AI-7 Q 337 R — full_report.pdf/$File/full_report.pdf; Maureen Lynch &
Katherine Southwick, *Ethiopia-Eritrea: Stalemate Takes Toll on Eritreans
and Ethiopians of Eritrean Origin* (May 30, 2008),
www.refugeesinternational.org/sites/default/files/Ethiopia_stateless0530.pdf.
(All these web sites were visited on Dec. 14, 2009.) We do not vouch for
these sources, but they suggest that the readmission law cannot be taken at
face value—that evidence is needed concerning its meaning and application.
It's not as if the law simply reinstated the Ethiopian citizenship of all
persons who had lost it because of their Eritrean ethnicity; the Board would
then have had a stronger ground for denying asylum to the petitioner. He
would then have had to show either that he faced persecution even as a
returning citizen or that the mistreatment of citizens of Eritrean ethnicity
during the war had been so outrageous (like the Nazi treatment of the Jews)
that a compelled return to Ethiopia even with citizenship restored and
apologies from one's former persecutors would be a cruelty warranting what
is termed "humanitarian" asylum. 8 C.F.R. § 208.13(b)(1)(iii); *Tadesse v.
Gonzales,* 492 F.3d 905, 912 (7th Cir. 2007); *Brucaj v. Ashcroft,* 381 F.3d
602, 608-09 (7th Cir. 2004); *Lopez-Galarza v. INS,* 99 F.3d 954, 960-61
(9th Cir. 1996).
Thus far we have assumed, as did the Board and the government's lawyer in
this court, that the petitioner is at least eligible to be considered for
obtaining Ethiopian citizenship under the readmission law. But this appears
to be incorrect. The law by its terms is applicable only to "a person who
was an Ethiopian national *and has acquired foreign nationality*" (emphasis
added). The petitioner has not acquired foreign nationality. He is
stateless. Maybe despite its language the readmission law is applicable to
him, but we cannot assume that; there is no discussion of the issue by the
Board.
The Board did note that the Ethiopian Embassy is willing to give the
petitioner a document called a *laissez-passer* that will permit him to
enter Ethiopia. Like a visa but unlike a passport, it is a one-time entry
permit, but there is evidence that the Ethiopian Embassy in the United
States grants *laissez-passer* to Ethiopian citizens in lieu of passports
because of a problem with the embassy's equipment for printing passports.
According to a statement by a deportation officer, "A laissez passer is
issued when enough information has been provided to give rise to the belief
that the person is an Ethiopian citizen. A laissez passer will include the
following information about the applicant . . . . The government of Ethiopia
issued this document based upon its belief that it has enough information to
presume the applicant is an Ethiopian citizen." The word "presume" is
troublesome, as for all we know the presumption may be rebutted by Ethiopian
officials when the petitioner arrives in Ethiopia. It is also unclear
whether a *laissez-passer* is issued only to a person believed to be a
citizen. The statement of the deportation officer does not resolve the
ambiguity as to what may await the petitioner if he is returned to Ethiopia.
The petition for review is granted and the case is returned to the Board for
further proceedings consistent with this opinion.
This copy provided by Leagle, Inc
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