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Click here for the full text of this decision FACTS:Border disputes between Ethiopia and Eritrea led to war in May 1998. At the outbreak of war, the legal status of approximately 75,000 voters in the 1993 Eritrean independence election who continued to live in Ethiopia remained uncertain. In June 1998 Ethiopia began forcibly removing to Eritrea people who had voted in the election. The “deportations” occurred without due process. The deportees were often forced to stay in detention camps briefly, and Ethiopia regularly scheduled the deportations piecemeal to break up families. Petitioner Senait Kidane Tesfamichael and her family were among those forcibly removed from Ethiopia. Shortly after the deportations began, Senait and her Ethiopian husband Dawit Tessema-Damte attempted to escape out of Ethiopia, possibly to Kenya. Their escape plans did not succeed. On a bus near the Kenyan border, police asked the passengers for identification. Senait could not produce any, as authorities had stripped her of her Ethiopian ID following her vote in the Eritrean referendum. Dawit intervened on Senait’s behalf, but his intervention led to both his and Senait’s arrest and detention. Dawit spent a month in jail for the purported crime of “smuggling Eritreans.” Until his mother secured his release through a bond, he slept in one room with up to forty men, received little food and saw other detainees with bruises caused, he believed, by beatings. Dawit was able to secure Senait’s release one week after his own by bribing officials. Back in Addis Ababa, Dawit was twice stopped by police. Both times Dawit cooperated and was released. Fearing reprisal for his help to Senait, Dawit fled alone to Kenya, then South Africa, where he lived from 1998 to 2003. Ethiopian authorities found Senait in June 2000 and removed her to Eritrea. In 2002, two years after Senait had been removed to Eritrea, and after the war ended, Dawit sent for her. Without an exit visa, Senait had to be smuggled out of Eritrea. She traveled through Sudan and Swaziland before reuniting with Dawit in South Africa. There, the couple stayed for a year until they were robbed and burglarized, crimes which scared Senait. They decided to leave. After traveling through Cuba, Nicaragua, Guatemala and Mexico, the couple arrived in the United States in March 2004. Senait and Dawit entered the United States without visas, and they conceded removability pursuant to 8 U.S.C. � 1182(a)(6)(A)(I). An immigration judge found them ineligible for asylum, withholding of deportation and relief under the Convention against Torture. A single judge of the BIA affirmed. HOLDING:The court denied the petition for review of the Board of Immigration Appeals’ decision. To qualify for asylum, an alien must be a refugee, the court stated, noting that the Immigration and Naturalization Act defines a refugee as a person unable to return to his or her country “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” The court then upheld the Board of Immigration Appeals’ determination that Senait was: 1. a citizen of Eritrea, not Ethiopia; 2. firmly resettled in Eritrea; and 3. unable to show past persecution or a well-founded fear of persecution if returned to Eritrea. Senait’s fears of persecution in Eritrea, the court stated, fell far short of the required “extreme conduct” needed to establish persecution. Her only complaint of individualized harassment stemming from a few incidents where she was taunted at work. Persecution cannot be based on “mere denigration, harassment, and threats,” the court stated, nor does discrimination equate to persecution. Moving on to Dawit’s case and noting its previous holding that asylum protects victims of persecution on account of belief and not conduct, the court was not persuaded that Dawit was persecuted on account of his beliefs or his marriage to an Eritrean. It follows, the court stated, that because Dawit’s main expressed fear in returning to Ethiopia is his exposure to the outstanding criminal charge, and that charge is not sufficient to show persecution, he has not established a well-founded fear of future persecution. Senait and Dawit asserted that they were entitled to asylum as a married couple for the persecution they will suffer on account of their membership in a protected social group, that of inter-ethnic married couples. But the court found no legal authority that compels asylum for married couples where deportation could separate them, and the Board found that Senait and Dawit had not in any event proven removal would cause them to be separated. OPINION:Jones, C.J.; Jones, C.J., and Wiener and Prado, J.J.

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