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D-G-, Axxx xx5 108 (BIA Jan. 28, 2014)

D-G-, Axxx xx5 108 (BIA Jan. 28, 2014)

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In this unpublished decision, the Board of Immigration Appeals (BIA) remanded the record for further consideration of the respondent’s asylum application in light of evidence submitted on appeal indicating that military conscripts in Eritrea are subjected to involuntary servitude and that the government disproportionately punishes those who evade military service. The decision was written by Member Garry Malphrus and joined by Member Ellen Liebowitz and by Member Ana Mann.
In this unpublished decision, the Board of Immigration Appeals (BIA) remanded the record for further consideration of the respondent’s asylum application in light of evidence submitted on appeal indicating that military conscripts in Eritrea are subjected to involuntary servitude and that the government disproportionately punishes those who evade military service. The decision was written by Member Garry Malphrus and joined by Member Ellen Liebowitz and by Member Ana Mann.

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Published by: Immigrant & Refugee Appellate Center, LLC on Feb 07, 2014
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02/18/2014

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U.S.

Department of Justice Executive Office for Immigration Review

Board ofImmigration Appeals Qffice of the Clerk
5/07 Leeshurg Pike, Suite 2000 Falls Church. Virginia 20530

Feroli, James, Esq. Immigrant & Refugee App. Center, LLC 3602 Forest Drive Alexandria, VA 22302

OHS/ICE Office of Chief Counsel - DAL 125 E. John Carpenter Fwy, S te 500 Irving, TX 75062-2324
.

Immigrant & Refugee Appellate Center | www.irac.net

Name: G

, D

A

5-108

Date of this notice: 1/28/2014

Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincerely,

[)Cin.ltL {!t1/vV
Donna Carr Chief Clerk

Enclosure Panel Members: Liebowitz, Ellen C Mann, Ana Malphrus, Garry D.

Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: D-G-, Axxx xx5 108 (BIA Jan. 28, 2014)

U.S. Department of Justice
Executive Office for Immigration Review Falls Church, Virginia 20530

Decision of the Board of Immigration Appeals

File:

A

5 108 - Dallas, G

TX

Date :

JAN 2 8 ZOi4

In re: D
IN REMOVAL

PROCEEDINGS

APPEAL

AND MOTION

Immigrant & Refugee Appellate Center | www.irac.net

ON BEHALF OF RESPONDENT:

James Feroli, Esquire

APPLICATION: Asylum; withholding of removal; Convention Against Torture

The respondent, a native of Ethiopia and a citizen of Eritrea, appeals from the decision of the Immigration Judge, dated December 7, 2011, which denied his application for asylum, withholding of removal, and protection under the Convention Against Torture sections 208 and 24l(b)(3) of the Immigration and Nationality Act, 8 123 l(b)(3); 8

("CAT"). See U.S.C. §§ 1158 and

C.F.R. §§ 1208.16(c)-1208.18. The respondent also submits new evidence and

moves to remand the case for further proceedings. The respondent's motion wiJI be granted and the record will be remanded. We review for clear error the findings of fact, including the determination of credibility, made by the Immigration Judge. 8 C.F. R 8
.

§ 1003. l(d)(3)(i). We review de novo all other issues,

including whether the parties have met the relevant burden of proof, and issues of discretion.

C.F.R. § 1003. l (d)(3)(ii). Since the respondent submitted his asylwn application after May 11, 2005, it is governed by the provisions of the REAL ID Act. Matter of S-B-, 24 I&N Dec 42 (BIA 2006).
.

The respondent testified that, in 2010, when he was in the eleventh grade, he and other male students of a particular height and build were forcibly conscripted for national service (I.J. at 3 ). When he declined to participate, he was taken to a military detention camp, where he was put in

3). He was not physically injured, but was forced to do chores such as gathering firewood (l.J. at 3). He fled from this camp after 5 days, traveling to his parents' home, then across the border to Sudan, and eventually to the United States (l.J. at 3-4). He
claims past persecution and fears returning to Eritrea because he will be punished as a deserter. In general, a government has the right to require military service and to enforce that

a cell and poorly fed (I.J. at

requirement with reasonable penalties. Matter ofA-G-, 19 I&N

Dec. 502 (BIA 1987). We agree

with the Immigration Judge that the respondent's detention, as he described it, was not "disproportionate," and therefore does not meet the standard for persecution in this context (1.J. at I 0). See id. (holding that persecution for failure to serve in the military may be established in those rare cases where a disproportionately severe punishment would result on account of one of the five grounds enumerated in section 10 I (a)( 42)(A) of the Act); see also Tesfamichael v. Gonzales, 469 F.3d 109, 116 (5th Cir. 2006) (noting that "extreme conduct" is required to establish persecution). Thus, the respondent is not entitled to a presumption that he has a well­ founded fear of persecution if he returns to Eritrea. See 8 C.F.R. § 1208. l 3(b)(I).

Cite as: D-G-, Axxx xx5 108 (BIA Jan. 28, 2014)

A

5 108

In the absence of such a presumption, an alien establishes a well-founded fear of future persecution if he demonstrates a subjective fear of persecution that is objectively reasonable. Zhao v. Gonzales, 404 F.3d 295, 307 (5th Cir. 2005); 8 C.F.R. § 1208. l 3(b)(2). The respondent argues that, regardless of whether his past detention constitutes persecution, he will be disproportionately and severely punished by the government for evading national service if he is returned to Eritrea. With his appeal, the respondent submits a motion to remand, attaching recent reports that were not available on the date of the hearing, including the 2012 Department of State Trafficking in Persons Report and the 2012 Commission on International Religious Freedom Annual Report. He argues that these reports demonstrate that the national service program is essentially involuntary servitude and that the Eritrean government disproportionately punishes and hanns those who evade or violate the program. The respondent also submits copies of unpublished Board decisions, and argues that the Board has granted protection under the CAT in similar cases where the alien demonstrates that he will be punished by the Eritrean government for leaving without permission. The respondent requests a remand for further consideration of this evidence. The Board's function is to review, not to create, a record. Matter of Fedorenko, 19 I&N Dec. 57, 74 (BIA 1984); see also 8 C.F.R. § 1003. l(d)(3)(i). In light of this additional evidence about current country conditions, we will grant the respondent's motion to remand. In remanding the case, we make no determination as to the ultimate merits of the respondent's application for asylum, withholding of removal, or protection under the CAT. The Immigration Judge will consider the new evidence submitted by the respondent on appeal, as well as the prior evidence of record and any additional testimony and evidence the parties wish to present. Accordingly, the following orders will be entered. ORDER: The respondent's motion to remand is granted. FURTHER ORDER: The record is remanded for further proceedings and the entry of the new decision consistent with the foregoing opinion.

Immigrant & Refugee Appellate Center | www.irac.net

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Cite as: D-G-, Axxx xx5 108 (BIA Jan. 28, 2014)

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