United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS February 6, 2004 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 03-60171 Summary Calendar

TESFAY MICHALY YOHANNS,

Petitioner,

versus

JOHN ASHCROFT, U.S. ATTORNEY GENERAL,

Respondent.

-------------------- Petition for Review of an Order of the Board of Immigration Appeals BIA No. A79 105 461 --------------------

Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.

PER CURIAM:*

Tesfay Michaly Yohanns petitions this court for review of an

order of the Board of Immigration Appeals (BIA) affirming the

denial of his applications for asylum, withholding of removal,

and withholding of removal pursuant to the Convention Against

Torture (CAT). We review questions of law de novo; factual

findings will be upheld if they are supported by substantial

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 03-60171 -2-

evidence. See Efe v. Ashcroft,

(5th Cir. 2002).

Yohanns argues that the BIA erred by finding that his

shooting of a superior officer during his desertion from the

Eritrean military was a serious nonpolitical crime that rendered

him ineligible for asylum or withholding of removal. See

(b)(2)(A)(iii);

(b)(3)(B)(iii).

Yohanns has not shown that the evidence compels a contrary

conclusion. See Efe v. Ashcroft,

(5th Cir.

2002). The finding that Yohanns committed a serious non-

political crime prior to his arrival in the United States renders

him ineligible for asylum or withholding of removal.

See

(b) (2) (A) (iii) (asylum);

(b)(3)(B)(iii) (withholding of removal).

Yohanns also asserts that, if he were returned to Eritrea,

he would face death for desertion and for shooting his superior

officer; he asserts that this would constitute torture under the

CAT. However, the implementing regulations expressly provide

that torture “does not include pain or suffering from, inherent

in or incidental to lawful sanctions . . . . including the death

penalty.”

(a)(3). Yohanns has not shown that

the IJ erred by denying him relief under the CAT.

Accordingly, Yohanns’ petition for review is DENIED.