Oryakhil, Ezatulla v. Mukasey, Michael B. ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 07-1993 & 07-3178
EZATULLA ORYAKHIL,
Petitioner,
v.
MICHAEL B. MUKASEY, Attorney General
of the United States,
Respondent.
____________
Petitions for Review of Orders of the
Board of Immigration Appeals.
No. A99-027-098
____________
ARGUED FEBRUARY 26, 2008—DECIDED JUNE 17, 2008
____________
Before KANNE, SYKES, and TINDER, Circuit Judges.
KANNE, Circuit Judge. Ezatulla Oryakhil, a native and
citizen of Afghanistan, petitions for review of an order
of removal issued by an Immigration Judge (IJ), which
became final when the Board of Immigration Appeals (BIA)
dismissed his appeal. The IJ credited Oryakhil’s testimony
that he has been, and will be, targeted by Taliban rebels
because of his position in the Afghan military and his
affiliation with the United States. However, the IJ also
determined that Oryakhil could reasonably relocate
within Afghanistan to avoid future harm. As a result, the
2 Nos. 07-1993 & 07-3178
IJ denied Oryakhil’s application for asylum, withholding
of removal, and protection under the Convention Against
Torture (CAT), and ordered Oryakhil removed to Afghani-
stan. Oryakhil also petitions for review of a final order of
the BIA, denying his motion to reopen the IJ’s decision
based on material evidence that was previously unavail-
able. Because substantial evidence does not support the
IJ’s determination that Oryakhil could reasonably relo-
cate to avoid future harm, we grant Oryakhil’s petition
for review of the final order of removal. Oryakhil’s peti-
tion for review of the order denying his motion to reopen
is therefore moot.
I. HISTORY
Oryakhil attempted to enter the United States at Chicago
O’Hare International Airport in September 2006. Oryakhil
presented the immigration officer with a valid Afghan
passport and an A-2 non-immigrant visa, see 8 C.F.R.
§ 214.1(a)(2), which had been revoked. The immigration
officer denied Oryakhil entry to the United States, and
Oryakhil was taken to a correctional facility in Illinois. The
Department of Homeland Security commenced removal
proceedings against Oryakhil one week later. Oryakhil
responded by conceding removability and filing an ap-
plication for asylum and withholding of removal, as well
as for CAT protection, in October 2006.
The IJ elicited testimony at immigration hearings con-
ducted on December 5 and December 6, 2006. Oryakhil’s
asylum application, affidavits, and testimony all revealed
that Oryakhil began training for a career in the Afghan
military in 1986, at the age of thirteen. After attending
the Afghanistan Military College and the Afghanistan
Nos. 07-1993 & 07-3178 3
Military University, Oryakhil began his military service
in 1993 as Lieutenant and Company Commander in the
North Afghanistan Army. Oryakhil served in this role
until 1994; the two-year span was the only time he served
in a combat role. In 1995, Oryakhil transferred to serve as
Chief of Topography for the Kabul Intelligence Unit. When
the Taliban seized power in 1996, Oryakhil was re-
leased from his military duties, but until 1997, Oryakhil
collected a pension that the Taliban provided to all soldiers
it dismissed from duty. After he left official military
service, Oryakhil secretly sent intelligence reports to the
forces in Northern Afghanistan that were resisting the
Taliban.
When the United States and NATO toppled the Taliban
regime in 2001, Oryakhil returned to his post in the Kabul
Intelligence Unit, which was under the control of the
new Karzai government. Upon resuming his military
duties, Oryakhil attended the General Staff College, a
military educational institution supported by NATO
and the United States, which sought to implement new
policies and procedures for the military of the new
Afghan regime. Oryakhil completed the required courses
at the General Staff College in four months and attained
the second-highest grade-point-average at the College.
Because of his outstanding achievement, the Afghan
military asked Oryakhil to remain at the College as a
teacher. Beginning in May 2003, Oryakhil taught English
and computer skills at the General Staff College. Oryakhil
did not live in military barracks while teaching at the
college; he lived at his parents’ home and commuted to
and from work each day.
In 2005, American and NATO officers affiliated with the
General Staff College invited Oryakhil to take advanced
4 Nos. 07-1993 & 07-3178
English courses at the Defense Language Institute (“DLI”),
a United States government training program located
at Lackland Air Force Base in San Antonio, Texas.
Oryakhil accepted the invitation, and in February 2006,
Oryakhil traveled to the United States on an A-2 non-
immigrant visa paid for by the United States. Oryakhil
studied English at DLI for approximately six months,
but he could not pass the tests required to continue his
training at DLI. As a result, Oryakhil’s visa was revoked.
Oryakhil received a certificate of attendance from DLI,
and went back to his family’s home in Kabul on Septem-
ber 4, 2006.
Within days of his arrival in Afghanistan, Oryakhil
attended a large family wedding. A day or two later,
Oryakhil visited a cousin’s house in another neighbor-
hood of Kabul. At this point, news of Oryakhil’s return
had spread. While Oryakhil was at his cousin’s house,
four Taliban insurgents wearing black turbans and armed
with rifles visited his parents’ home in the middle of the
night, and demanded to know Oryakhil’s whereabouts
and why the family had sent Oryakhil to the United States.
Oryakhil’s father immediately called Oryakhil at his
cousin’s house to warn him that he and his family were in
danger. Oryakhil had heard many stories of other “dis-
loyal” individuals that disappeared at the hands of
armed Taliban militiamen who entered their homes at
night. He decided that he was no longer safe in Kabul—
which he believed to be the safest city in Afghanistan—and
decided to return to the United States.
The next day, Oryakhil purchased an airline ticket back
to the United States, but was told by the airline that the
next flight would not leave for almost two weeks. About a
week later, on September 14, 2006, Oryakhil met with his
Nos. 07-1993 & 07-3178 5
commanding general at the General Staff College to check
in for the first time since his return to Afghanistan.
Oryakhil did not tell the officer that he believed that he was
in danger or that he intended to flee Afghanistan. The
officer told Oryakhil to report for duty two days later,
but Oryakhil failed to report as instructed, though
Oryakhil realized that his failure to report could result in
a twelve-year prison sentence for desertion. Instead,
Oryakhil made one final stop at his parents’ home during
daylight hours to collect his belongings, and left Afghani-
stan on September 19, 2006. Oryakhil attempted to
reenter the United States when he was detained at O’Hare.
Oryakhil testified at his immigration hearing that he
neglected to tell his commanding officer about the threats
against his life by the Taliban because the General Staff
College did not have sufficient soldiers to protect the
school, and because military barracks no longer existed
outside of Kabul—in Oryakhil’s view, asking the officer
for protection would have been futile. Oryakhil also
testified that he did not carry a gun in his post as a teacher
at the General Staff College, and that he feared that if he
sought assistance from the military, it would further draw
the Taliban’s attention to Oryakhil’s allegiance with the
United States and would place his family in jeopardy.
Oryakhil stated that if he returns to Afghanistan, he
will likely be prosecuted for desertion because he failed
to report for duty on September 16, 2006.
Oryakhil also presented corroborative testimony from
Ann Carlin, an expert witness, who discussed the country
conditions in Afghanistan. Carlin testified that since
2004, the Taliban insurgency has been bolstered by ex-
ternal financing, and that their attacks have augmented
fourfold to an average of about 600 per month. Carlin
6 Nos. 07-1993 & 07-3178
stated that the Afghan police force is too weak and inef-
fective to successfully quell the attacks; in fact, Carlin
stated that the police could “barely protect President
Karzai” from attack. Carlin elaborated that in addition to
targeting Americans, persons affiliated with America,
and Afghan army personnel, the Taliban has made many
threats against school teachers and health workers because
they see them as “easy targets.” Carlin also explained
that the Taliban often carries out attacks against these
targets while they commute to and from work in the
evening, or at night while the targets sleep. In an affidavit
provided to the immigration court, Carlin noted that if
Oryakhil lived alone outside of his family home, he
might be at risk because he would be viewed suspi-
ciously given that Afghans live with their immediate
and extended families.
Along with the hearing testimony of Oryakhil and
Carlin, the IJ had before her an extensive record that
contained, among other things: affidavits from Oryakhil
and Carlin, Oryakhil’s asylum application, Oryakhil’s
certificate from DLI, State Department travel advisories
and reports on country conditions in Afghanistan, a
United Nations report on Afghanistan, and over two
dozen news reports and articles documenting the resur-
gence of the Taliban in Afghanistan in recent years.
On December 6, 2006, the IJ issued an oral decision, in
which she first concluded that Oryakhil had testified
credibly. The IJ noted that Oryakhil was consistent
throughout his applications and his testimony, and that
Oryakhil’s story comported with the background mate-
rials, country conditions, and expert testimony in the
record. As a result, the IJ stated that it was “not necessary
to require any type of corroborating evidence.” The IJ then
Nos. 07-1993 & 07-3178 7
found that Oryakhil had demonstrated a reasonable fear
of being violently harmed by members of the Taliban
due to his travel to, and perceived affiliation with, the
United States. The IJ stated that Oryakhil’s attendance at
the family wedding upon his return likely drew the
Taliban’s attention, and that “the government of Afghani-
stan is unable to control the Taliban, unable to control
roving bands of individuals who may be associated with
the Taliban, or acting under their auspices.” Consequently,
the IJ determined that the government could not protect
Oryakhil if he remained at his parents’ home. The IJ also
found Oryakhil’s testimony that he would subject his
family to an increased risk of harm if he sought protec-
tion from the Afghan government to be “a credible state-
ment, in light of country conditions.”
Despite these findings, the IJ concluded that Oryakhil
had not met his burden of proof on his claim for asylum
because she believed that Oryakhil could have received
protection from the Afghan military: “However, where
the respondent’s case fails, in this Court’s estimation is
that prior to leaving his country, he never sought to
avail himself of any form of protection from the military
where he served.” The IJ recognized that Oryakhil had
not engaged in any fighting or “combatant type of work,
since 1994.” The IJ acknowledged that this fact might make
it difficult for Oryakhil to secure relocation or a dif-
ferent position in the military, but noted that, in any event,
“he never sought that. He never sought any type of protec-
tion in the form of being allowed to live on any military
barracks within Afghanistan, or within Kabul.” The IJ also
dismissed Oryakhil’s claim that relocation through the
military would no longer be an option to him—because he
will be considered a deserter from the Afghan military
8 Nos. 07-1993 & 07-3178
upon his return—by demanding documentary evidence
from Oryakhil that would corroborate his desertion
argument.
The IJ recognized the volatile political situation and
turbulent conditions in Afghanistan, but curtly stated
that Oryakhil “has not established to this Court’s satis-
faction that conditions, as chaotic and violent as they are
throughout Afghanistan, are such that he could not
have traveled to another part of the country within the
military, and received some sort of relative safety.” In
support of this finding, the IJ noted that the Afghan
military had provided Oryakhil with housing outside of
Kabul when he served as a combatant between 1992 and
1994. She also noted that while Oryakhil might face harm
outside of Kabul, this harm would not be on account of his
affiliation with the United States, and was therefore
irrelevant to his ability to relocate.
As a result, the IJ denied Oryakhil’s applications for
asylum and withholding of removal. The IJ also denied
Oryakhil’s application for CAT protection because he had
not claimed that he would be subject to extreme mental
suffering or physical pain at the direction or acquiescence
of the Afghan government. The IJ ordered Oryakhil
removed to Afghanistan. Oryakhil appealed to the BIA,
which concluded that the IJ had considered all relevant
evidence before her. The BIA issued a short opinion
and dismissed Oryakhil’s appeal in April 2007. Oryakhil
timely filed a petition for review of the final order of
removal with this court in May 2007.
Oryakhil then filed a motion to reopen with the BIA in
July 2007, seeking to submit previously unavailable
evidence: (1) a letter from his father describing the
Taliban’s continued efforts to capture Oryakhil and
Nos. 07-1993 & 07-3178 9
terrorize his family, and (2) a letter he termed an “arrest
warrant” that was sent from his commanding officer in
the Aghan Army to the Afghan police, requesting that
the police investigate Oryakhil’s failure to report for duty.
The BIA denied Oryakhil’s motion to reopen as untimely.
In September 2007, Oryakhil filed a new petition for re-
view with this court—this time taking issue with the
BIA’s denial of his motion to reopen. Thereafter, we
consolidated both petitions for review.
II. ANALYSIS
In his petitions for review, Oryakhil contends that the
IJ’s decision to deny him asylum and remove him to
Afghanistan was not supported by substantial evidence
because the record does not demonstrate that he could
reasonably relocate within Afghanistan. Oryakhil also
argues that, even if the BIA properly affirmed the IJ’s
asylum decision, the BIA improperly denied his motion
to reopen, which was based on newly discovered evid-
ence. Oryakhil does not challenge the IJ’s determination
that he was not entitled to relief under CAT, and he also
failed to raise his CAT claim in his brief before the BIA;
he has therefore waived judicial review on that claim. See
Haxhiu v. Mukasey, 519 F.3d 685, 692 (7th Cir. 2008).
Because the BIA relied on the IJ’s decision when it
dismissed Oryakhil’s appeal of the final order of removal,
we review the IJ’s decision as supplemented by the BIA.
See Khan v. Mukasey, 517 F.3d 513, 517 (7th Cir. 2008); Pavlyk
v. Gonzales, 469 F.3d 1082, 1087 (7th Cir. 2006). We must
uphold the decision to deny relief so long as it is “sup-
ported by reasonable, substantial, and probative evid-
ence on the record considered as a whole.” Chatta v.
10 Nos. 07-1993 & 07-3178
Mukasey, 523 F.3d 748, 751 (7th Cir. 2008); Mema v. Gonzales,
474 F.3d 412, 416 (7th Cir. 2007). We will overturn
the decision to deny relief “only if the record compels a
contrary result.” Mema, 474 F.3d at 416; see also Shmyhelskyy
v. Gonzales, 477 F.3d 474, 478-79 (7th Cir. 2007).
In order to establish his claim for asylum, Oryakhil bore
the burden of proving that he was unable or unwilling to
return to Afghanistan because of past persecution or a
well-founded fear of persecution, on account of his race,
religion, political opinion, nationality, or membership in
a particular social group. See Soumare v. Mukasey, 525
F.3d 547, 552 (7th Cir. 2008); Haxhiu, 519 F.3d at
690; Shmyhelskyy, 477 F.3d at 479; see also 8 U.S.C.
§ 1101(a)(42)(A); 8 C.F.R. § 1208.13(a). The IJ and BIA both
implicitly analyzed Oryakhil’s claim as one based on a
well-founded fear of future persecution rather than one
based on past persecution. Oryakhil has not yet been
attacked by the Taliban, but bases his claim on a fear
that he will be in danger if he returns to Afghanistan. We
therefore agree that the matter is more appropriately
analyzed as a claim based on a fear of future persecution.
Agbor v. Gonzales, 487 F.3d 499, 502 (7th Cir. 2007).
Because Oryakhil’s claim is based upon a well-founded
fear of future persecution, he also bore the burden of
proving that he cannot reasonably relocate to another
part of his home country to avoid persecution. See 8 C.F.R.
§§ 208.13(b)(2)(ii), 208.13(b)(3)(I) (“In cases in which the
applicant has not established past persecution, the ap-
plicant shall bear the burden of establishing that it would
not be reasonable for him or her to relocate, unless the
persecution is by a government or is government-spon-
sored.”); see also Song Wang v. Keisler, 505 F.3d 615, 622
(7th Cir. 2007); Agbor, 487 F.3d at 505; Rashiah v. Ashcroft,
Nos. 07-1993 & 07-3178 11
388 F.3d 1126, 1132 (7th Cir. 2004). The immigration
regulations contemplate two separate inquiries to deter-
mine whether an applicant could reasonably relocate
within his home country: (1) whether safe relocation is
possible, and if so, (2) whether it would be reasonable to
expect the applicant to safely relocate. See 8 C.F.R.
§§ 208.13(b)(2)(ii), 208.13(b)(3)(I); Mohamed v. Ashcroft, 396
F.3d 999, 1006 (8th Cir. 2005) (“Relocation must not only
be possible, it must also be reasonable.”); Gambashidze v.
Ashcroft, 381 F.3d 187, 192 (3d Cir. 2004) (“Thus the regula-
tion envisions a two-part inquiry: whether relocation
would be successful and whether it would be reasonable.”);
Knezevic v. Ashcroft, 367 F.3d 1206, 1214 (9th Cir. 2004)
(“Having determined that it would be safe for the
Knezevics to relocate to the Serb-held parts of
Bosnia-Herzegovina, we must examine the evidence as
to whether it would be reasonable to require them to do
so . . . .”); see also Das v. Gonzales, 219 F. App’x 543, 546
(7th Cir. 2007) (unpublished decision). We therefore ask
whether safe relocation was both (1) possible and
(2) reasonable for Oryakhil.
Neither the IJ, nor the BIA, explained how it would
be possible for Oryakhil to safely relocate within Afghani-
stan. In her oral decision, the IJ stated that Oryakhil never
told his military supervisor that he had been threatened
by the Taliban, or that he planned to flee the country. The
IJ found that Oryakhil “never sought to avail himself of
any form of protection from the military where he served.”
But this statement alone says nothing about whether
relocation through the military is possible for Oryakhil—it
merely states that Oryakhil did not attempt to relocate.
Because he did not attempt to pursue relocation through
the military, the IJ should have asked a counterfactual
12 Nos. 07-1993 & 07-3178
question: if Oryakhil returns to Afghanistan, re-enters
the Afghan military, and asks for a military relocation,
would the military honor his request? The IJ refrained
from asking or answering this question, and instead
penalized Oryakhil for his failure to ask for a military
relocation. Despite this defect in the IJ’s reasoning, the
BIA erroneously allowed the decision to stand.
From the record, we are not at all certain that a military
relocation is possible for Oryakhil. In fact, Oryakhil
presented ample evidence that military relocation would
be impossible. First, the IJ credited Oryakhil’s testimony
that he had not engaged in any fighting or combat activity
since his tenure in North Afghanistan in the early 1990s,
and the IJ acknowledged that this might make it difficult
for Oryakhil to be reassigned within the military. Second,
the IJ received testimony from Oryakhil that military
relocation is no longer an option for Oyakhil because he
deserted his post when he failed to report for duty at the
request of his commanding officer; Oryakhil elaborated
that he will be prosecuted and imprisoned for desertion
if he returns to his military post. The IJ dismissed this
point by improperly demanding corroborating evidence
from Oryakhil; however, Oryakhil’s testimony should
have sufficed because the IJ found that he was a
credible witness, and explicitly stated that corrobo-
rating evidence was “not necessary.” See Diallo v. Ashcroft,
381 F.3d 687, 695 (7th Cir. 2004) (“Diallo’s testimony, if
credible . . . was ‘sufficient to sustain the burden of proof
without corroboration.’ ” (quoting 8 C.F.R. § 208.13(a))).
Once the IJ established that Oryakhil was credible, it
was improper for her to credit certain portions of his
testimony and discount others without further explana-
tion as to why Oryakhil’s testimony was unacceptable and
Nos. 07-1993 & 07-3178 13
why corroborating evidence was required. See Tolosa v.
Ashcroft, 384 F.3d 906, 910 (7th Cir. 2004); cf. Soumare,
525 F.3d at 552 (“Before an IJ may deny a claim for insuf-
ficient corroboration, the IJ must (1) make an explicit
credibility finding; (2) explain why it is reasonable to
expect additional corroboration; and (3) explain why
the alien’s explanation for not producing that corrobora-
tion is inadequate.” (citing Tandia v. Gonzales, 487 F.3d
1048, 1054-55 (7th Cir. 2007); Ikama-Obambi v. Gonzales,
470 F.3d 720, 725 (7th Cir. 2006))).
The only evidence noted by the IJ that potentially sup-
ports the possibility of military relocation is the fact that
the military provided housing for Oryakhil in North
Afghanistan from 1992 to 1994. But this evidence is hardly
“substantial.” Given the tumultuous social and political
landscape of Afghanistan over the last seven years
since the fall of the Taliban regime, the conditions that
existed nearly a decade before the U.N. invasion of Af-
ghanistan are not even probative of the military’s present
capabilities. And the military’s current state is well-docu-
mented in the evidence presented by Oryakhil: the cred-
ible testimony of Oryakhil and Carlin, as well as the
news stories and country reports admitted into the rec-
ord, consistently reveal that the Afghan military has very
few barracks and little control over the region outside of
Kabul and that the Afghan military is not outfitted with
equipment or housed in barracks comparable to their
American and U.N. counterparts.
Moreover, we do not see substantial evidence that
Oryakhil could achieve a safe relocation through the
military. The credible testimony from Oryakhil and
corroborating evidence in the record shows that the Taliban
insurgency is stronger outside of Kabul, and that the
14 Nos. 07-1993 & 07-3178
Afghan military has less control over the surrounding
areas. The IJ admitted that the Afghan government
could not “control the Taliban, [and is] unable to control
roving bands of individuals who may be associated with
the Taliban, or acting under their auspices.” The IJ equivo-
cally stated that through the military, Oryakhil could
receive “some sort of relative safety.” This ambivalence in
the IJ’s tone is emblematic of the fact that the evidence is
simply insubstantial to support the conclusion that safe
relocation through the Afghan military is possible for
Oryakhil.
Finally, substantial evidence does not support the
immigration courts’ conclusion that safe relocation would
have been reasonable for Oryakhil. The immigration
regulations set out several factors in determining whether
a relocation is reasonable, including “any ongoing civil
strife within the country; administrative, economic, or
judicial infrastructure; geographical limitations; and
social and cultural constraints, such as age, gender, health,
and social and familial ties.” 8 C.F.R. § 208.13(b)(3). The
BIA concluded that the IJ had considered these factors.
However, the record does not reflect that conclusion. The
IJ conceded that Oryakhil might face harm outside of
Kabul, but dismissed this fact because she believed that
any harm suffered outside of Kabul would not be
“persecutive in nature.” Not only does this seem strikingly
inconsistent with the IJ’s recognition that the Taliban
insurgency is stronger outside of Kabul, but this finding
ignores the regulation’s direction that an IJ consider
“ongoing civil strife” in determining whether relocation
is reasonable. See id.; Das, 219 F. App’x at 546 (unpublished
decision).
Oryakhil also testified credibly that his family resided
in Kabul. Carlin testified to the same, and added that if
Nos. 07-1993 & 07-3178 15
Oryakhil moved outside of his family home, he would be
viewed with skepticism and further targeted by the
Taliban. But the IJ ignored these “familial ties” because
she found that Oryakhil had lived away from his family
in North Afghanistan from 1992 to 1994, even though the
record makes evident that Oryakhil has not lived away
from his family or participated in combat in nearly fifteen
years—a span that has seen the rise and fall of the
Mujahideen, the rise and fall of the Taliban, the assumption
of control by the Karzai government, and the reinvigora-
tion of Taliban insurgents. The IJ even acknowledged that
Oryakhil’s testimony that he would place his family in
greater peril by seeking protection from the Afghan
government was “a credible statement, in light of country
conditions.” To expect Oryakhil, after several years of
teaching, to revert to a soldier’s lifestyle in a hostile,
conflict-ridden region of Afghanistan—and to place his
family in jeopardy by doing so—does not strike us as
“reasonable.”
Based on the evidence in the administrative record,
we are compelled to disagree with the BIA and the IJ.
Substantial evidence simply does not demonstrate that it
would be either possible or reasonable for Oryakhil to
relocate within Afghanistan. We therefore will remand
the case for further proceedings. On remand, Oryakhil
will have an opportunity to introduce the letters from
his father and his commanding officer that he appended
to his motion to reopen. These submissions may further
bolster Oryakhil’s claims. See BinRashed v. Gonzales, 502
F.3d 666, 673 (7th Cir. 2007); Adekpe v. Gonzales, 480 F.3d
525, 532-33 (7th Cir. 2007). Therefore, we need not con-
sider his petition for review of the motion to reopen
because it is moot.
16 Nos. 07-1993 & 07-3178
III. CONCLUSION
We GRANT the petition for review of the order of re-
moval, VACATE the order of removal, and REMAND for
further proceedings consistent with this opinion. We
DISMISS the petition for review of the motion to reopen as
moot.
USCA-02-C-0072—6-17-08