Dawoud, Ehab S. v. Gonzales, Alberto R. ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 04-1275 & 04-2417
EHAB S. DAWOUD and AMANI Y. REFAAT,
Petitioners,
v.
ALBERTO R. GONZALES, Attorney General
of the United States,
Respondent.
____________
On Petitions for Review of a Decision of the
Board of Immigration Appeals.
Nos. A95 389 985 & A95 389 986
____________
ARGUED JUNE 1, 2005—DECIDED SEPTEMBER 19, 2005
____________
Before MANION, WOOD, and SYKES, Circuit Judges.
WOOD, Circuit Judge. Ehab Dawoud was detained and
beaten first by Islamic radicals and then by the state
security services after a video of his Christian wedding
aired on an Egyptian television station. Dawoud and his
wife, Amani Refaat, fled Egypt for the United States and
applied for asylum after overstaying their visitors’ visas,
claiming that they had been persecuted because of their
religion. The Immigration Judge (IJ) denied the application,
and the Board of Immigration Appeals (BIA) affirmed in a
separate opinion. Dawoud and Refaat filed a petition for
review in this court, but they then moved the Board to
2 Nos. 04-1275 & 04-2417
reconsider its decision and twice attempted to have the
proceedings reopened. Those motions were denied. They
now petition for review of these denials. We grant the
petition and remand to the Board for further proceedings.
I
Dawoud and Refaat are members of the Coptic Church,
an orthodox sect of Christianity native to Egypt to which
approximately 10% of the population adhere. Several
months after they were married, a friend with their permis-
sion sent a videotape of their wedding ceremony and
reception to a television program that showcases local
weddings. The record does not provide much detail about
the video, except that it depicted a Coptic ceremony, alcohol
consumption, and dancing by a woman who was not fully
veiled. A week after the video aired in July 2001, three
angry members of the terrorist group al-Gama’a al-
Islamiyya came to Dawoud’s home to confiscate the tape.
They did not identify themselves, but Dawoud recognized
them as Islamic fundamentalists from their traditional
dress, long beards, accusations that he was an “infidel,” and
threats of “blood shedding.” The terrorists blindfolded
Dawoud and took him to a building outside the city, where
he was kept chained and underfed for ten days; his captors
beat him for consorting with “infidels” and threatened that
his “blood would be sacrificed,” which they asserted was
“legal” in Egypt.
Dawoud was released and returned to his home, where,
he said, “I was tired from the beating and psychologically I
was sort of destroyed” for fear that the terrorists might
return. He chose not to bring the incident to the attention
of the authorities, because in Egypt, he claimed, reporting
Islamic militants to the government usually brings retribu-
tion. Dawoud did call a doctor friend who treated the
bruises on his arms and hands; this treatment is allegedly
Nos. 04-1275 & 04-2417 3
confirmed by a handwritten note in the record, but other
than the hospital letterhead, which is in English, the note
is in untranslated Arabic.
Two days after he returned home, Dawoud was confronted
by the “National Police of Egypt,” who went to his house
and said that a report had been filed against him for
“insult[ing] the Muslim religion.” He was taken to a police
building and placed in solitary confinement, where for three
days he was tortured by electrocution until he agreed to
sign a confession. Dawoud testified that the officers “would
have water running underneath me” and then would drop
something—presumably an electrical device—into the
water, shocking him. Eventually, Dawoud said, “I couldn’t
handle it anymore, so I decided to sign that confession so
they would ease off the pain.” He was then released and
told to stay in his hometown of Benimazar until he was
summoned for a hearing before the Emergency Court, a
tribunal frequently criticized by human rights groups,
which operates under Egypt’s Emergency Law and hears
cases that implicate national security. Rather than wait
around, Dawoud and his wife secured passports and visas
for the United States and fled the country.
The IJ denied Dawoud’s and Refaat’s asylum applications.
(Because Dawoud is the lead petitioner, we refer in the
remainder of this opinion to him alone.) The IJ’s opinion is
riddled with inappropriate and extraneous comments, such
as references to the IJ’s personal experiences with alcohol
in Egypt, commentary on the state of the tourism industry
there, and speculation about the attractiveness of the
United States to asylum-seekers in general. The IJ found
Dawoud not credible because of the “swiftness” with which
he obtained his passport and travel visa. The IJ also
pointed out that Dawoud failed to corroborate his narrative
with affidavits from relatives.
In a lengthy opinion, the BIA noted its disapproval of the
IJ’s “inappropriate remarks” and rejected the adverse
4 Nos. 04-1275 & 04-2417
credibility finding, stating that Dawoud’s “testimony was
credible in that it was internally consistent, consistent with
the written declarations, and not inherently improbable.”
The Board agreed with the IJ, however, that Dawoud’s
failure to provide corroborating evidence weighed against
him, noting that he did not submit a translated copy of the
handwritten medical note, “written or oral” evidence of a
summons to the Emergency Court, or affidavits from family
members to verify either the showing of the video or
Dawoud’s subsequent misfortunes. The Board also stated
that Dawoud’s narrative was at odds with the 2001 State
Department Country Report on Egypt, observing that
“[t]here is no references [sic] in the background information
to the national police pursuing the average Coptic Christian
. . . especially in collusion with an Islamic fundamentalist
organization.” The Board also stated that, according to the
report, the government’s treatment of Copts was improving.
Dawoud and his wife filed a joint motion for reconsidera-
tion and reopening. He contended that the decision should
be reconsidered because the BIA had erred in concluding
that the State Department Report “tended to undermine his
story.” He also claimed that because of the United States’s
close relationship to Egypt, the State Department under-
reported the government’s mistreatment of Copts. He
further argued that the case should be reopened because of
“new” evidence that conditions for Christians in Egypt had
deteriorated as a result of the American invasion of Iraq.
The Board denied these motions in an order in which it
concluded that Dawoud did not establish any errors in its
reading of the State Department Report, and that the war
in Iraq did not create a prima facie claim of future persecu-
tion. The Board also denied a subsequent motion to reopen
in which Dawoud sought to argue for the first time that he
had been prejudiced by ineffective assistance of counsel.
Nos. 04-1275 & 04-2417 5
II
Before proceeding to the merits, we must first determine
which of the BIA’s orders is before us in this petition. At
oral argument, the lawyer for the petitioners contended
that Dawoud had preserved his ability to challenge the
BIA’s merits denial of the asylum application by filing a
petition for review of that order. But as the government
observes, Dawoud’s brief on appeal is expressly limited to
challenging the denial of Dawoud’s motion for reconsidera-
tion and two motions to reopen. Dawoud has therefore
waived any arguments regarding the merits decision. See
United States v. Harris, 394 F.3d 543, 559 (7th Cir. 2005).
We accordingly limit our consideration of the petition to the
motions to reconsider and reopen.
A
Dawoud first challenges the denial of his motion for
reconsideration, arguing that the BIA misread the State
Department Report and other materials in the record when
it found that his account of persecution was inconsistent
with country conditions in Egypt. To succeed, a motion to
reconsider “shall state the reasons for the motion by
specifying the errors of fact or law in the prior Board
decision and shall be supported by pertinent authority.”
8 C.F.R. § 1003.2(b)(1). We review the denial of a motion to
reconsider for an abuse of discretion. Id. § 1003.2(a); see Ali
v. Ashcroft, 395 F.3d 722, 731 (7th Cir. 2005).
Although this is a deferential standard, it is not a mean-
ingless one. We find that this is the rare case in which it is
met. First, the BIA’s finding that Dawoud’s narrative is
inconsistent with background information on Egypt is flatly
contradicted by the 2001 Country Report and reports in the
record from Freedom House, a 60-year-old, U.S.-based
human rights group. These materials describe numerous
instances in the past few years in which the Egyptian
6 Nos. 04-1275 & 04-2417
security services have assaulted, imprisoned, and otherwise
discriminated against Copts. For instance, police officers
rounded up and tortured some 1,000 Copts as part of a
murder investigation in 1998, and 21 Christians were killed
in an anti-Copt pogrom in 2000 while the authorities looked
on. In the latter case, 92 of 96 defendants were initially
acquitted of charges, and ultimately no one was punished
seriously except for a Copt, who was imprisoned for violat-
ing Article 98 of the penal code, which prohibits “insulting
a heavenly religion.” This is the same provision that
Dawoud was charged with violating. The Country Report
details many other instances of government agents using
Article 98 to imprison members of religious groups, includ-
ing Christians, “whose practices deviate from mainstream
Islamic beliefs,” and notes that the authorities withhold
building permits to Christians, fail to investigate murders
and assaults of Copts, and harass Christian families
attempting to protect their daughters from forcible conver-
sion to Islam.
In concluding that Dawoud’s tale is inconsistent with this
background information, the BIA focused on a few flowery
bromides in the Country Report about Egypt’s increased
concern over religious freedom. But by ignoring the report’s
lengthy discussion of repeated and flagrant governmental
abuses of Coptic Christians, the Board gives the impression
that it did not bother to read the Country Report in its
entirety. The report and other background information on
the whole is quite consistent with—and provides a plausible
backdrop for—Dawoud’s claim of persecution. The Board
abused its discretion by concluding otherwise. (We disre-
gard for this purpose an affidavit from expert witness Paul
Marshall that Dawoud attempted to introduce with his
motion to reconsider and reopen. The BIA reasonably
concluded that the affidavit was not admissible “new”
evidence, because it dealt exclusively with events that
transpired before the BIA’s January 2004 merits decision
Nos. 04-1275 & 04-2417 7
and thus could have been introduced at the earlier hearing.
See 8 C.F.R. § 1003.2(c)(1); Simtion v. Ashcroft, 393 F.3d
733, 737 (7th Cir. 2004).)
The Board also erred by faulting Dawoud for claiming
that the security services “colluded” with terrorists in
persecuting him. This characterization of Dawoud’s ap-
plication fails accurately to reflect his testimony. The record
shows that the police pursued Dawoud independently of the
terrorists after receiving a tip—quite possibly an anony-
mous one—about a possible Article 98 violation. Dawoud
never alleged that the two groups acted in concert.
B
The government argues that even if the BIA erred on the
background country information, Dawoud’s motion for
reconsideration was still properly denied because there
were “additional, independently sufficient, bases” for
denying the application for asylum—namely, Dawoud’s
failure to corroborate his claims. In other words, it argues
that any error regarding the background country conditions
was harmless. Dawoud has little to say in response, but we
reject this argument too.
This court has often held that a credible asylum applicant
(which, recall, the BIA found that Dawoud was) need not
provide corroborating evidence in order to meet his burden
of proof. In the past, the BIA has taken a more demanding
position. Under its so-called “corroboration rule,” even a
credible applicant must supply reasonably available
corroborating evidence if the IJ demands it. This position
stems from the Board’s interpretation of 8 C.F.R.
§ 208.13(a), which provides: “The testimony of the appli-
cant, if credible, may be sufficient to sustain the burden
of proof without corroboration” (emphasis added). In In re
S-M-J-, 21 I. & N. Dec. 722, 725 (BIA 1997), the BIA read
this regulation to allow IJs to demand corroboration even
8 Nos. 04-1275 & 04-2417
from a credible applicant: “where it is reasonable to ex-
pect corroborating evidence for certain alleged facts pertain-
ing to the specifics of an applicant’s claim, such evidence
should be provided.” See also In re M-D-, 21 I. & N. Dec.
1180, 1183-84 (BIA 1998). The agency’s interpretation of its
regulation is entitled to substantial deference. See Martin
v. Occupational Safety & Health Review Comm’n, 499 U.S.
144, 150-51 (1991); Paragon Health Network, Inc. v. Thomp-
son, 251 F.3d 1141, 1146-47 (7th Cir. 2001).
Nevertheless, this court has often expressed concern
about the way that the BIA applies 8 C.F.R. § 208.13(a),
which on its face allows for the possibility of a credible
applicant’s establishing a right to asylum without any
corroboration. See Gontcharova v. Ashcroft, 384 F.3d 873,
877 (7th Cir. 2004). We have repeatedly rejected IJs’
decisions that a credible asylum applicant’s claim can be
rejected solely because she did not supply corroborating
evidence. See Zheng v. Gonzales, 409 F.3d 804, 810 (7th Cir.
2005); Lin v. Ashcroft, 385 F.3d 748, 756 (7th Cir. 2004);
Diallo v. Ashcroft, 381 F.3d 687, 695 (7th Cir. 2004); Ememe
v. Ashcroft, 358 F.3d 446, 453 (7th Cir. 2004); Uwase v.
Ashcroft, 349 F.3d 1039, 1045 (7th Cir. 2003). The regula-
tion, in our view, cannot bear an interpretation that would
exclude all possibility of an applicant’s relying exclusively
on credible but uncorroborated testimony, so long as that
testimony is specific, detailed, and convincing. See Ahmed
v. Ashcroft, 348 F.3d 611, 618 (7th Cir. 2003); Carvajal-
Munoz v. INS, 743 F.2d 562, 574 (7th Cir. 1984).
The policy behind a rule permitting reliance solely on
credible testimony is simple. Many asylum applicants flee
their home countries under circumstances of great urgency.
Some are literally running for their lives and have to
abandon their families, friends, jobs, and material posses-
sions without a word of explanation. They often
have nothing but the shirts on their backs when they arrive
in this country. To expect these individuals to stop and
Nos. 04-1275 & 04-2417 9
collect dossiers of paperwork before fleeing is both unrealis-
tic and strikingly insensitive to the harrowing conditions
they face. See Balogun v. Ashcroft, 374 F.3d 492, 502 (7th
Cir. 2004). As we stated there:
No matter what form of corroboration is at issue, the
corroboration requirement should be employed reason-
ably. It is always possible to second-guess the petitioner
as to what evidence would be most cogent, and, conse-
quently, there is a distinct danger that, in practice, the
corroboration requirement can slip into “could have-
should have” speculation about what evidence the
applicant could have brought in a text-book environ-
ment. The IJs need to take to heart the BIA’s blunt
admonition that corroboration should be required only
as to “material facts” and only when the corroborative
evidence is reasonably accessible.
Id. at 502-03.
The Ninth Circuit has taken a more categorical approach
against the BIA’s corroboration rule. In Ladha v. INS, 215
F.3d 889, 899 (9th Cir. 2000), it said that it “does not
require corroborative evidence . . . from applicants for
asylum and withholding of deportation who have testified
credibly” (citation and internal quotation marks omitted).
The Second, Third, Sixth, and Eighth Circuits have adopted
a position that accepts a requirement of corroboration even
when the applicant is credible on her own, essentially
finding the BIA’s interpretation of the regulation to be
reasonable and deserving of deference. See Dorosh v.
Ashcroft, 398 F.3d 379, 382-83 (6th Cir. 2004); El-Sheikh v.
Ashcroft, 388 F.3d 643, 647 (8th Cir. 2004); Abdulai v.
Ashcroft, 239 F.3d 542, 551 (3d Cir. 2001); Diallo v. INS,
232 F.3d 279, 285-86 (2d Cir. 2000). But even these courts
recognize that “supporting documentation must be provided
only if it is of the type that would normally be created or
available in the particular country and is accessible to the
10 Nos. 04-1275 & 04-2417
alien, such as through friends, relatives, or co-workers.”
Dorosh, 398 F.3d at 382-83 (internal quotation marks
omitted).
Looking toward the future, the difference in approaches
among the circuits with respect to the Board’s corroboration
rule will become a moot point. On May 11, 2005, the
President signed into law the REAL ID Act of 2005, Pub. L.
No. 109-13, 119 Stat. 231, which provides that an IJ may
require an otherwise credible applicant to provide corrobo-
rating evidence unless the applicant does not have the
evidence and cannot reasonably obtain it. Id. § 101(a)(3)
(amending 8 U.S.C. § 1158(b)(1)). This rule affects only new
asylum applicants (whose applications are filed after May
11, 2005), however, and so does not apply to Dawoud’s case.
Id. § 101(h)(2). Interestingly, even under the new rules
there will still be some applicants whose cases will turn
solely on their own testimony—those who neither have nor
can reasonably obtain corroborating evidence.
When the time comes and we have a fully briefed case
before us, we can decide how much difference, as a practical
matter, the REAL ID Act has made. It is possible that the
change is less than meets the eye, since even now there is
no dispute about the appropriateness of asking
for corroboration in the common situation when the IJ
has some doubt about an applicant’s credibility. Here, as
the BIA acknowledged, Dawoud provided credible, detailed,
and convincing testimony. Furthermore, this was not a case
where corroborating information was wholly lacking; as we
have noted above, the State Department Report taken as a
whole did corroborate Dawoud’s account. We find that the
BIA in these circumstances should not have rested its
decision on his failure to supply even more evidence.
Dawoud and his wife are entitled to have their applications
for asylum assessed on the basis of the record they pre-
sented.
Nos. 04-1275 & 04-2417 11
C
Dawoud makes one other argument on appeal. He con-
tends that his second motion to reopen based on ineffective
assistance of counsel was improperly denied. But Dawoud
does not challenge the BIA’s basis for denying the mo-
tion—that he failed to raise the ineffectiveness argument in
his appeal to the BIA and thus did not exhaust his adminis-
trative remedies, see Mojsilovic v. INS, 156 F.3d 743, 748
(7th Cir. 1998). Instead, he simply rehashes the merits of
the issue. We see no basis for upsetting the BIA’s judgment
on this claim.
III
For the foregoing reasons, we GRANT the petition for
review and REMAND the case for further proceedings con-
sistent with this opinion.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-19-05