Joseph, Roome v. Gonzales, Alberto , 240 F. App'x 726 ( 2007 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued June 12, 2007
Decided July 17, 2007
Before
Hon. ILANA DIAMOND ROVNER, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 06-3789
ROOME JOSEPH, Petition for Review of an Order of the
Petitioner, Board of Immigration Appeals
v. No. A79 286 874
ALBERTO R. GONZALES, Attorney
General of the United States,
Respondent.
ORDER
Roome Joseph, a Pakistani citizen who claims that her family will force her
to marry against her will if she returns to Pakistan, challenges the BIA’s denial of
her motion to reopen removal proceedings. She contends that the BIA wrongly
determined that she was not exempt from the 90-day time limitation for bringing
her motion because it ignored her claim that circumstances had changed in
Pakistan. Because the BIA failed to consider Joseph’s contention, we grant her
petition and remand.
In September 1998 Joseph arrived in the United States as a nonimmigrant
visitor with her mother, father, and two younger brothers. Joseph was then 17
years old. In 2000, some months after Joseph’s visa expired, Joseph’s mother
Catherine (to whom we refer by her first name for clarity) applied for asylum,
No. 06-3789 Page 2
withholding of removal, and protection under the Convention Against Torture,
based on her fear that she and her children would be persecuted in Pakistan for
their religious beliefs as Christians. Joseph, then 19 years old, and her brothers
were derivative beneficiaries on Catherine’s application. In May 2002 an
Immigration Judge denied Catherine’s application and permitted the Josephs to
depart voluntarily. After Catherine’s unsuccessful appeal to the BIA, she twice
moved to reopen removal proceedings, each time claiming that conditions in
Pakistan had worsened for Christians, but the BIA denied both motions.
In the meantime, Joseph’s relationship with her family deteriorated,
apparently because her family found her behavior to be inappropriate for a young
woman of Pakistani descent. Her brothers beat her multiple times because they
disapproved of her social relationships and she “suffered a great deal of physical
and emotional abuse” at their hands. In 2004 she married an American, Darrin
Affrunti, but her family’s abuse continued. Joseph’s relationship with her husband
became rocky soon after they married, and they might have divorced, though the
record is unclear.
The rest of the Joseph family left the United States for Pakistan shortly after
Catherine’s second motion to reopen was denied in August 2005, but Joseph
remained. In the late summer or fall of 2005, Joseph spoke to various members of
her family on the telephone, and they told her they would force her to marry a man
of their choosing upon her return. Joseph responded that she would refuse to marry
the man, and an argument ensued.
In November 2005 Joseph was convicted of using another person’s credit card
to withdraw money, and in April 2006, following her conviction, she was detained
by the Department of Homeland Security. On the day that she was to be removed to
Pakistan, Joseph moved for an emergency stay of removal, which the BIA granted,
and for reopening of removal proceedings. Although a motion to reopen must be
filed within 90 days after the final administrative decision ordering removal, 8 CFR
§ 1003.2(c)(2), Joseph argued that she was exempt from this time limit because she
could present material evidence of changed circumstances in Pakistan that was
unavailable at her previous hearing, 8 CFR § 1003.2(c)(3)(ii). Specifically she
asserted that she fears returning to Pakistan because she believes she will be forced
to marry there against her wishes. Alternatively, if she refuses to marry, she fears
that she will be abused and disowned by her family and thus become vulnerable to
rape or murder as a single Christian woman living alone.
To bolster her claim, Joseph submitted an affidavit from Gail Minault, a
Professor of History at the University of Texas and an historian of India and
Pakistan. Minault asserted that, based on the Joseph family’s history of abuse,
Joseph’s relatives “would most certainly punish her for her dishonoring them,
No. 06-3789 Page 3
either by marrying her off against her wishes, or worse: either having her killed or
abandoning her to a fate worse than death: prostitution, which is no better than
slavery.” Minault also asserted that women in Pakistan who are disowned from
their families are particularly vulnerable to abuse, and that abandoned Christian
women suffer more severely. Joseph also introduced country reports and news
articles showing that women in Pakistan are frequently victims of domestic
violence, that honor killings of women by family members are common, and that
forced marriage is prevalent.
The BIA denied Joseph’s motion as untimely. In its analysis, the BIA
misconstrued her motion as raising only a general fear of being harmed because she
married in the United States without family permission. It concluded that her
United States marriage was a changed personal circumstance rather than a
changed condition in Pakistan and determined that she was ineligible for exemption
from the 90-day limit for a motion to reopen.
In her petition for review, Joseph argues that the BIA erroneously ignored
her contention that her family’s presence in Pakistan, coupled with their threat to
force her to marry, constitutes a changed condition in Pakistan. She claims that,
though she raised this argument in her renewed asylum application, her
declaration in support of her motion to reopen, and her briefs before the BIA, the
BIA simply neglected to discuss it.
We agree that the BIA completely failed to address Joseph’s theory that
circumstances have changed in Pakistan warranting reopening of her removal
proceedings. It determined that her only basis for claiming that her circumstances
have changed was that she had married in the United States against her family’s
wishes; it did not even mention the threat of forced marriage in Pakistan in its
decision. Thus its analysis does not show that it understood and gave thoughtful
consideration to Joseph’s argument. See Mansour v. INS, 230 F.3d 902, 908 (7th
Cir. 2000). The government’s brief on appeal similarly glosses over the issue and
focuses instead on bolstering the rationale given by the BIA—that marriage in the
United States is not a changed condition in Pakistan—but this argument misses the
point. Joseph’s contention is that the threat of forced marriage in Pakistan, not her
marriage in the United States, is the changed condition that the Board should have
addressed. The BIA abused its discretion because it ignored this argument. See
Gebreeyesus v. Gonzales, 482 F.3d 952, 955-56 (7th Cir. 2007). Thus remand is
warranted so that the BIA can address it in the first instance. See Kebe v. Gonzales,
473 F.3d 855, 857-58 (7th Cir. 2007).
We therefore GRANT the petition for review and REMAND to the BIA for
further proceedings.