Case: 21-60223 Document: 00516581944 Page: 1 Date Filed: 12/19/2022 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED December 19, 2022 No. 21-60223 Lyle W. Cayce Clerk Zena Gebrgzabher, Petitioner, versus Merrick Garland, U.S. Attorney General, Respondent. Petition for Review of an Order of the Board of Immigration Appeals Agency No. A212 904 283 Before Graves, Willett, and Engelhardt, Circuit Judges. Don R. Willett, Circuit Judge: Federal immigration law contains a provision, the so-called “persecutor bar,” that denies refugee status to anyone who “assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion.” 1 This case asks what sort of actions along the continuum of conduct qualifies as persecutory assistance or participation. 1 8 U.S.C. § 1101(a)(42). Case: 21-60223 Document: 00516581944 Page: 2 Date Filed: 12/19/2022 No. 21-60223 Zena Gebrgzabher, an Eritrean citizen, was forcibly conscripted into the Eritrean National Service, an open-ended requirement of compulsory service, and made to work as an armed guard at a highway checkpoint through which Eritrean security forces brought detainees. Several years later, Gebrgzabher escaped and made his way to America, where he applied for asylum and withholding of removal. The Board of Immigration Appeals (BIA) concluded that Gebrgzabher was ineligible because he assisted in the persecution of captives by impeding their escape at the checkpoint. As the BIA’s determination is supported by substantial evidence—that is, the record does not compel a contrary result—we deny Gebrgzabher’s petition. 2 I Zena Gebrgzabher is a native citizen of Eritrea, an autocratic, highly militarized country in the Horn of Africa region. In 2005, when he was 18 years old, he was conscripted into the Eritrean National Service. After six months of training, the National Service assigned Gebrgzabher to a unit guarding a highway checkpoint. Four soldiers at a time guarded the checkpoint, while the others did chores. Gebrgzabher’s guard duties included checking vehicle registrations and inspecting vehicles for contraband as they passed through the checkpoint. Once a week to twice a month, security forces passed through the checkpoint with prisoners who were considered traitors for attempting to leave Eritrea without permission. These prisoners were usually barefoot, bloodied, and had their arms tied behind their backs with rope. Gebrgzabher saw security forces hitting the prisoners while unloading and loading them into the transport vehicle. He would watch the prisoners for 5–10 minutes 2 Gebrgzabher retains relief under the Convention Against Torture as determined by the Immigration Judge and unchallenged by the Government. 2 Case: 21-60223 Document: 00516581944 Page: 3 Date Filed: 12/19/2022 No. 21-60223 while one of the security force guards took a prisoner list to the checkpoint commander. Gebrgzabher testified that the prisoners had their own guards so his job was not just to watch the prisoners but also to watch the security guards and inspect the security vehicle. Still, if he failed to watch the prisoners he would be detained. In 2007, after …
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