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Berhe v. Barr (unpub. remand)
"We grant rehearing and withdraw our prior opinion, Berhe v. Barr, 810 F. App'x 318, 319 (5th Cir. 2020), substituting the following in its place. ... Berhe contends that the BIA, which affirmed the IJ with little analysis, failed to employ a mixed-motive analysis. On further consideration, we agree. ... By failing to address the arguably political nature of the protest and ensuing punishment—which involved six months of imprisonment, multiple interrogations about Berhe’s opposition to the government, and degrading treatment—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. Consequently, remand is appropriate. ... The IJ and BIA’s failure to consider the arguably political dimension of Berhe’s punishment sullies its conclusions with respect to Berhe’s well-founded fear of future persecution as well. Berhe contends that the panel failed to review the BIA and IJ’s conclusion that he would not be persecuted for violating Eritrea’s travel laws by leaving the country without permission. On this issue, the IJ noted without factual analysis that such punishment would not rise to the level of persecution. The BIA affirmed, acknowledging that there was some evidence of travel restrictions and related punishment, but that “the respondent has not persuaded us that the Immigration Judge erred in determining that any punishment would not be persecution on account of a protected ground in the Act.” The error here, however, lies in the fact that neither the IJ nor the BIA considered the fact that Berhe might be punished not merely for illegally leaving the country but in retaliation for his political expression on his return. We REMAND to the BIA for consideration of the deficiencies identified above."
[Hats off to Jonathan Levy, Lindsey Pryor and Thomas Leatherbury!]