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Pro Bono Success at the U.S. Fifth Circuit: Eritrean Asylum Seeker Is Granted Panel Rehearing

On November 20, 2020, Vinson & Elkins attorneys Tom Leatherbury, Lindsey Pryor and Jeremy Gonzalez, in partnership with American Gateways, succeeded in obtaining an order from the United States Fifth Circuit Court of Appeals granting their petition for panel rehearing on behalf of an asylum seeker from Eritrea in Northeast Africa. The Court’s opinion concluded that the Board of Immigration Appeals (the “BIA”) erred by (1) not considering mixed motives for persecution, and (2) finding that the asylum seeker failed to show he had a well-founded fear of future persecution.

The asylum seeker, an Eritrean citizen, had served in the Eritrean National Service for approximately ten years before arriving in the United States. He was paid roughly twenty-five dollars a month for his service, but payments ceased when he was instructed to enroll in a mechanical engineering program at the Eritrean Institute of Technology. He and dozens of other members of the national service began to boycott classes and demanded that they be paid in full or released from national service. After the government refused to pay the students, he sought to return to his active military unit but was told to return home and await further orders. Shortly after returning home, he was arrested by Eritrean soldiers and imprisoned for six months without being charged with a crime. He was interrogated on multiple occasions about his opposition to the government, beaten and tortured. While being transported to a new prison facility, he fled and sought refuge in a relative’s home before ultimately reaching the United States.

The Fifth Circuit’s order granting his petition for rehearing comes after the Court originally affirmed the BIA’s decision that he was ineligible for asylum or withholding of removal because he had not demonstrated that he was punished on account of his political opinion. The BIA and IJ characterized his protest as a “personal pay dispute” and concluded that any retaliation he suffered as a result of his opposition to the government’s compensation policy was not the result of his political persuasion but simply the government’s interest in enforcing military discipline.

In withdrawing its prior opinion and remanding to the BIA, the Court explained that “[b]y failing to address the arguably political nature of the protest and ensuing punishment . . . the IJ and BIA’s opinions risk implying that punishment for military insubordination can never constitute persecution on account of a protected ground—an obviously erroneous result.” The Court’s decision to withdraw its prior opinion and grant the petition for rehearing marks an important clarification for asylum seekers in the Fifth Circuit—making it clear that immigration judges must consider the existence of multiple motives for a persecutor’s actions and that the nexus requirement—that there is a nexus between an act of persecution and a protected characteristic such as political opinion—is not an either/or proposition. V&E plans to continue working with American Gateways when the case is remanded for further proceedings at the BIA.

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.