Mansour, Samer v. INS ( 2000 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-3940
Samer Mansour,
Petitioner,
v.
Immigration and Naturalization
Service,
Respondent.
On Petition for Review
from the Board of Immigration Appeals
No. A7 422 108
Argued September 13, 2000--Decided October 16, 2000
Before Flaum, Chief Judge, and Bauer and Kanne,
Circuit Judges.
Flaum, Chief Judge. The Immigration Court denied
Samer Mansour’s claim for asylum as well as
withholding of removal, but granted him voluntary
departure. Mansour then appealed the Immigration
Court’s decision and filed a motion to remand or
reopen the proceedings. The Board of Immigration
Appeals ("BIA") affirmed the Immigration Court’s
decision concerning Mansour’s asylum and
withholding of removal request and dismissed his
appeal. The BIA also denied Mansour’s motion to
remand. For the reasons stated below, we affirm
in part and remand in part.
Background
Mansour is an unmarried 42-year-old native and
citizen of northern Iraq. He entered the United
States on June 12, 1996 as a non-immigrant
fiancee of a United States citizen and was
authorized to remain in the United States until
September 12, 1996. Because Mansour never married
the person that sponsored his visa, he did not
qualify for permanent resident status. Having
remained in the United States beyond the time he
was authorized to do so, on November 12, 1997,
Mansour filed a request with the Immigration and
Naturalization Service ("INS") for asylum. His
application for asylum included a statement and
a number of supporting documents. On December 22,
1997, a Notice to Appear was issued charging
Mansour with removability under sec. 237(a)(1)(B)
of the Immigration and Nationality Act. At a
hearing held on March 4, 1998, Mansour admitted
the allegations contained in the Notice to
Appear, conceded removability, and indicated his
desire to apply for asylum and withholding of
removal.
Mansour and his brother testified at his final
hearing before the Immigration Judge ("IJ") on
April 17, 1998 to support Mansour’s claim that he
feared returning to Iraq. During his testimony,
Mansour chronicled the events that led to his
arrival in the United States. He had served in
the Iraqi army from October 1980 through 1989.
Before joining the army in 1980, Mansour was a
student at the Petroleum Institute. Unlike his
classmates who were allowed to perform their
military service while continuing their studies
at the Petroleum Institute, Mansour claimed he
had to serve in the Iran-Iraq war because his
brother had left Iraq for the United States.
While serving in the war, his left leg was
injured in 1983. After his sick leave period,
Mansour stated that he did not return to the
army, but instead he chose to return to his
village. Three months after injuring his leg
Mansour returned to the army. He related that he
did so because he received news that his father
was "being bothered by the security." Mansour
claimed that he was not well treated when he
returned to the army and he was harassed because
he is an Assyrian Christian and because his
brother left Iraq for the United States.
According to Mansour, he was punished upon his
return to the army in 1983. His leg was broken
and he was punched in the eye, resulting in poor
vision. Mansour attributes the beating to the
army’s perception that "they thought that I had
joined the Kurdish rebels."
After he finished his army service in 1989,
Mansour obtained work at the oil refinery by
paying a bribe to someone. This job only lasted
for two months. He was fired because security
forces sent reports about how he was not a
"decent Iraqi citizen." At this point, Mansour
decided that he wanted to leave Iraq because of
the "pressure and inconvenience that [he] was
getting in Iraq and difficulties in finding a
job." Leaving Iraq during this period proved
difficult because of the impending Gulf War.
While trying to obtain a passport and waiting for
his brother to send him money, he was drafted
into the Iraqi army. His unit was heavily
bombarded by the Allied Forces and at one point
they considered surrendering to the Allied
Forces, but did not. Instead, his unit deserted
and returned to Iraq. He then went into "hiding"
at his uncle’s house in Baghdad. In 1992, Mansour
took his parents and younger brother to Jordan.
While testifying he denied being beaten,
arrested, or imprisoned upon returning to Iraq in
1992, even though the statement attached to his
application for asylum and withholding of removal
recounted such an event. Mansour stated that his
decision to return to Iraq resulted from
commitments he had to other family members in
Iraq. From 1992 until 1995, Mansour worked as a
taxi driver and he was able to cross between Iraq
and Jordan several times by bribing people
working at the borders. Although Mansour
acknowledged that after the Gulf War the Iraqi
government pardoned all soldiers who deserted the
military and all those who failed to serve, he
claimed that he did not trust the government to
honor its policy of pardoning deserters.
Eventually, Mansour bribed friends in order to
obtain a passport and visa for Turkey. While in
Turkey, he met an American woman to whom he
became engaged and he entered the United States
with her.
After the final hearing, the IJ denied
Mansour’s application for asylum and alternative
request for withholding of removal. The IJ
granted Mansour’s request that he be allowed to
voluntarily depart the United States. An
inconsistency in Mansour’s testimony and
statement attached to his application for asylum
and withholding of removal led the IJ to conclude
that Mansour’s request should be denied on the
basis of a lack of credibility. The IJ determined
that Mansour had provided false information in
the statement that he presented to the court. He
claimed in his statement that after taking his
parents to Jordan in 1992 that the Amen (Iraqi
secret police) arrested him, sent him to prison,
and tortured him. During his hearing, however, he
denied that this incident ever occurred. Mansour
managed to leave and return to Iraq numerous
times after the Gulf War without being arrested,
detained, or punished because of his supposed
desertion from the Iraqi army. According to the
IJ, if Mansour truly feared that the government
would harm him, "he would have remained outside
of Iraq at all costs under the circumstances of
his case." Both "because the respondent presented
false information in his request for asylum and
because he repeatedly returned to Iraq despite
his ’alleged fear’ that he could be harmed," the
IJ found his case not to be credible.
On May 15, 1998, Mansour filed a notice of
appeal to the BIA. On June 18, 1999, he also
filed a "Motion to Remand/Reopen Proceedings
based upon Convention Against Torture Provision"
with the BIA. The BIA responded by affirming the
IJ’s decision on October 18, 1999, thereby
dismissing Mansour’s appeal and denying his
motion to remand.
Analysis
A. Asylum/Withholding of Removal Claim
We review the BIA’s decision to deny Mansour
either asylum or withholding of removal under the
"highly deferential version of the substantial
evidence test." Karapetian v. INS, 162 F.3d 933,
936 (7th Cir. 1998). This deferential standard of
review requires us to affirm the BIA’s decision
if it is "supported by reasonable, substantial,
and probative evidence on the record considered
as a whole," INS v. Elias-Zacarias, 502 U.S. 478,
481 (1992), and reverse when the evidence is "so
compelling that no reasonable factfinder could
fail to find the requisite fear of persecution."
Id. at 484.
The IJ found that Mansour’s presentation of
false information caused him to lack credibility
and the BIA agreed that Mansour had not presented
a credible claim. Mansour attempted to attribute
the discrepancy between his written statement
attached to his application for asylum and his
hearing testimony as resulting from a mere
confusion of dates. This explanation did not
satisfy the BIA. His statement described a 1983
incident where the military authorities during
the Iraq-Iran war broke his leg and a 1992
encounter which allegedly occurred when Mansour
returned from Jordan, when supposedly the Amen
sent him to a secret prison in Baghdad where he
was then beaten repeatedly. Before the IJ,
Mansour denied that this latter event ever
happened. Mansour described these incidents,
according to the BIA, "as distinctly separate and
different incidents" and the assertion that there
was a mere mistake in dates did "not make sense."
This inconsistency is significant because Mansour
said that although he traveled frequently between
Jordan and Iraq, he feared being punished for
deserting the Iraqi army. If Mansour actually was
detained and beaten upon returning from Jordan,
this would have bolstered his claim that he
feared retribution for desertion. According to
the BIA, the discrepancy between Mansour’s
testimony and written statement was "significant"
and therefore the IJ’s adverse credibility
finding was appropriate considering that it was
"based on inconsistent statements which were
central to the respondent’s claim."
At oral argument, Mansour’s lawyer argued that
Mansour or someone in his former attorney’s
office had made a mistake concerning the date of
his beating and that he was not trying to
manufacture a claim. Also, he argued, his
attorney at the time was not conversant in
Mansour’s language and Mansour did not speak
English. Mansour contends that he traveled back
and forth from Jordan to Iraq because of family
obligations. In addition, Mansour claims that his
attorney told the IJ that Mansour’s testimony in
the Immigration Court was consistent with his
earlier asylum interview./1
The BIA reached a reasonable conclusion based
upon the facts presented to them. "We are simply
not in a position to second-guess those kinds of
factual findings and credibility determinations."
Karapetian, 162 F.3d at 937. In Ahmad v. INS, 163
F.3d 457, 461 (7th Cir. 1999) we outlined the
great deference that we accord credibility
determinations,
Credibility determinations are accorded
substantial deference, but they must be supported
by "specific, cogent reasons." In addition, these
reasons must "bear a legitimate nexus to the
finding." Credibility determinations in these
sorts of proceedings should only be overturned
under extraordinary circumstances, and a
reviewing court should not supersede an
administrative agency’s findings simply because
an alternative finding could also be supported by
substantial evidence (internal citations
omitted).
This case does not present any extraordinary
circumstances. The BIA’s decision provides
"cogent reasons" for upholding the IJ’s adverse
credibility determination. Ahmad, 163 F.3d at
461. Mansour failed to provide any convincing
reasons for the inconsistency between his written
statement and his testimony before the IJ.
Without a concrete explanation other than the
language difficulty for the discrepancy, we are
given no other choice than to accept the BIA’s
adverse credibility determination and that his
repeated returns to Iraq undermine his alleged
fear of persecution. We cannot characterize the
BIA’s decision, which relies upon the IJ’s
opinion, as failing to meet the highly
deferential substantial evidence test.
We therefore conclude that Mansour has not met
his burden of showing that the BIA’s decision to
affirm the IJ lacked a sufficient evidentiary
foundation.
B. The Convention Against Torture Claim
We review the BIA’s decision not to reopen the
case under the Convention Against Torture for
abuse of discretion./2 INS v. Doherty, 502 U.S
314, 323 (1992); Guan v. INS, 49 F.3d 1259, 1261
(7th Cir. 1995). The BIA’s decision to deny
Mansour’s motion to reopen will be upheld "unless
it was made without a rational explanation,
inexplicably departed from established policies,
or rested on an impermissible basis such as
invidious discrimination against a particular
race or group." Wijeratne v. INS, 961 F.2d 1344,
1348 (7th Cir. 1992) (quoting Achacoso-Sanchez v.
INS, 799 F.2d 1260, 1265 (7th Cir. 1985)
(internal quotation marks omitted)).
The BIA can deny a motion to reopen on any of
the following three independent grounds: (1)
"failure to establish a prima facie case for the
relief sought;" (2) "failure to introduce
previously unavailable, material evidence;" and
(3) "a determination that even if these
requirements were satisfied, the movant would not
be entitled to the discretionary grant of relief
which he sought." Doherty, 502 U.S. at 323.
The BIA refused Mansour’s motion to reopen his
case on the ground that he failed to establish a
prima facie case for protection under the
Convention Against Torture. See United Nations
Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment,
sec. 2242 of the Foreign Affairs Reform and
Restructuring Act of 1998 (Pub.L. 105-277, 112
Stat. 2681, 2681-821). An applicant has the
burden of proof to establish that it is more
likely than not that he or she would be tortured
if removed to the proposed country of removal. 8
C.F.R. sec. 208.16(c)(2) (1999). The Convention
Against Torture provides that if credible, an
applicant’s testimony may be sufficient to
sustain the burden of proof without
corroboration. Id. Because the BIA agreed with
the IJ that Mansour’s testimony was not credible,
the BIA found that he had "not met his burden of
proof to demonstrate that it is more likely than
not he would be tortured if removed to Iraq."
Accordingly, the BIA denied his motion to remand
his case to the IJ.
The government argues that the BIA appropriately
took into consideration the adverse credibility
determination when considering Mansour’s
Convention Against Torture claim. See Matter of
S-V-, Interim Dec. 3430 (BIA 2000) ("[W]e have
reopened proceedings ’where the new facts
alleged, when coupled with the facts already of
record, satisfy us that it would be worthwhile to
develop the issues further at a plenary hearing
on reopening.’") (quoting Matter of Sipus, 14 I.
& N. Dec. 229 (BIA 1972)). Mansour’s claim for
asylum and his claim under the Convention Against
Torture, according to the INS, center around the
same evidence--that is, evidence regarding
Mansour’s status as an Assyrian Christian.
Mansour argues that his asylum claim and motion
to reopen under the Convention Against Torture
are two separate forms of relief. Accordingly,
each claim deserves individualized consideration.
We cannot conclude that the BIA conducted a
complete review of Mansour’s claim as evidenced
by: (1) its use of the phrase "Syrian Christians"
in its opinion and not "Assyrian Christians,"
when Mansour labeled himself as an Assyrian
Christian both in his appeal and motion to
reopen; and (2) its silence with regard to the
U.S. Department of State’s Report (1998) that
suggests that the Iraqi government has engaged in
abuses against the Assyrian Christians, a
minority, who are living in Iraq. The latter
source of information may well be an indication
of gross, flagrant, or mass violations of human
rights in Iraq;/3 however, the BIA never
addressed this evidence.
We are reluctant to dislodge determinations made
by the BIA because generally we respect and defer
to their expertise in the area of immigration
law. Karapetian, 162 F.3d at 934; Sanon v. INS,
52 F.3d 648, 651 (7th Cir. 1995). Immigration
cases can present both complex issues and
factually sensitive situations. Sanon, 52 F.3d at
651. Therefore, we are hesitant to criticize BIA
decisions for minor matters. Furthermore, the BIA
is not required to "write an exegesis on every
contention. What is required is merely that it
consider the issues raised, and announce its
decision in terms sufficient to enable a
reviewing court to perceive that it has heard and
thought and not merely reacted." Becerra-Jimenez
v. INS, 829 F.2d 996, 1000 (10th Cir. 1987).
What is troubling about this case is the BIA’s
reference to Mansour and his family as "Syrian
Christians" in its opinion. While Assyrians are
non-Arab people--that is, they are Christians--
Syrians are largely Muslim people. The BIA’s
mistake is potentially critical. Mansour’s
Convention Against Torture claim centers upon his
ethnic/religious affiliation as an Assyrian
Christian. To label Mansour as a "Syrian
Christian" leads us to question whether the BIA
adequately comprehended and addressed Mansour’s
torture claim. See Chitay-Pirir v. INS, 169 F.3d
1079, 1081 (7th Cir. 1999) ("[I]t is impossible
to be confident that Chitay-Pirir’s claim has
been fully understood or analyzed.").
While we do not reverse the BIA’s determination
concerning Mansour’s application for asylum and
withholding of removal, that does not preclude us
from further assessing the BIA’s analysis of
Mansour’s torture claim. In this particular
situation, the BIA’s adverse credibility
determination in the asylum context seems to
overshadow its analysis of Mansour’s torture
claim. The BIA in a minimalistic and non-detailed
manner addressed Mansour’s torture claim; leaving
us to ponder whether the BIA sufficiently focused
on this claim or merely concluded it was not
viable because of its determination that
Mansour’s prior testimony on the asylum issue was
not credible.
We are not comfortable with allowing a negative
credibility determination in the asylum context
to wash over the torture claim; especially when
the prior adverse credibility determination is
not necessarily significant in this situation.
What is critical is to consider Mansour’s torture
claim based upon his ethnic/religious affiliation
separate and apart from his earlier asylum claim.
Mansour is not a citizen of Syria, as the phrase
"Syrian Christian" may suggest. He is an Iraqi
national, an ethnic Assyrian, and a member of the
Chaldean Catholic Church. The U.S. Department of
State’s Report (1998), which is not discussed by
the BIA, states that "Assyrians are an ethnic
group as well as a Christian community" and that
the Iraqi government "has engaged in various
abuses against the country’s 350,000 Assyrian
Christians." See U.S. Department of State, Country Reports
on Human Rights Practices for 1998--Volume II, at 1682,
1686. The Report also indicates that there is
"continued systemic discrimination" against
Assyrians that involves forced movement from
northern areas and repression of political rights
in those areas of Iraq as well. Id. at 1686. The
Report is specific on the meaning and consequence
of being part of the ethnic/religious group of
Assyrian Christians and had the BIA addressed the
Report it might have viewed Mansour’s torture
claim differently.
Mansour’s contentions regarding the BIA’s review
of his Convention Against Torture claim force us
to conclude that we cannot accept the
determination of the BIA on this issue. See,
e.g., Chitay-Pirir, 169 F.3d at 1081; Stankovic
v. INS, 94 F.3d 1117, 1120 (7th Cir. 1996);
Hengan v. INS, 79 F.3d 60, 63-64 (7th. Cir.
1996); Salameda v. INS, 70 F.3d 447, 449, 451
(7th Cir. 1995); Bastanipour v. INS, 980 F.2d
1129, 1133 (7th Cir. 1992). Mansour’s
ethnic/religious affiliation as an Assyrian
Christian was the primary basis for his
Convention Against Torture claim. In contrast,
Mansour did not center his asylum claim around
his ethnic/religious background. His two claims
differ enough in nature that each warrants
individualized treatment. Therefore, we cannot
defer to the BIA’s decision when we are not
confident that the basis of Mansour’s torture
claim was thoroughly explored. The BIA’s
mislabeling of Mansour’s ethnic/religious
affiliation and its limited discussion of his
torture claim precludes us from determining
whether the BIA reached an appropriate
conclusion.
The error in the BIA opinion cannot be viewed
as inconsequential because the label of Assyrian
Christian carries with it a host of possible
repercussions if Mansour were to return to Iraq.
Nonetheless, we are not convinced that Mansour
has adequately stated a Convention Against
Torture claim that would warrant reversal of the
BIA’s decision on his motion to reopen. See
Sanon, 52 F.3d at 652 ("Where an agency has
failed to comply with its responsibilities, we
should insist on its compliance rather than
attempt to supplement its efforts."). We are
convinced, however, that the BIA did not
adequately consider Mansour’s torture claim based
on his ethnic/religious affiliation as an
Assyrian Christian.
For the foregoing reasons, we Affirm the BIA’s
decision regarding Mansour’s request for asylum
and withholding of removal. We Vacate the BIA’s
decision concerning Mansour’s Convention Against
Torture claim and Remand for further proceedings
consistent with this opinion.
/1 The INS points out that the allegation that
Mansour’s former attorney told the IJ that he
said the same thing at his hearing as he did in
his earlier asylum interview is not supported by
the record. In the record itself, Mansour’s
former attorney does ask about "notes from the
asylum interview," but the inquiry ends there.
Even if we were to presume that Mansour’s hearing
testimony was consistent with his initial asylum
interview, this would still not explain why his
statement attached to his application for asylum
included false information.
/2 Although Mansour titled his appeal as both a
motion to remand/reopen, the BIA determined that
Mansour’s request was "essentially a motion to
reopen proceedings to present additional evidence
and apply for new relief." We therefore will
analyze his request as a motion to reopen and
apply the abuse of discretion standard of review.
/3 8 C.F.R. sec. 208.16(c)(3) (1999) provides:
(3) In assessing whether it is more
likely than not that an applicant
would be tortured in the proposed country of
removal, all evidence relevant to the possibility
of future torture shall be considered, including,
but not limited to:
(i) Evidence of past torture
inflicted upon the applicant;
(ii) Evidence that the applicant could
relocate to a part of the country of
removal where he or she is not likely to be
tortured;
(iii) Evidence of gross, flagrant or
mass violations of human rights within
the country of removal, where applicable; and
(iv) Other relevant information regarding
conditions in the country of removal.