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Samer Mansour,
Petitioner, v. Immigration and Naturalization Service, Respondent. No. 99-3940 UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT 230 F.3d 902; 2000
U.S. App. LEXIS 25688 September 13, 2000,
Argued October 16, 2000,
Decided PRIOR HISTORY: [*1]
On Petition for Review from the Board of Immigration Appeals. No. A7 422
108. COUNSEL:
For SAMER MANSOUR, Petitioner: Robert DeKelaita, Lincolnwood, IL. For IMMIGRATION AND NATURALIZATION SERVICE, Respondent: Samuel
Der-Yeghiayan, IMMIGRATION & NATURALIZATION SERVICE, Chicago, IL USA. David
M. McConnell, Linda S. Wernery, DEPARTMENT OF JUSTICE, Civil Division,
Immigration Litigation, Washington, DC USA. JUDGES: Before
Flaum, Chief Judge, and Bauer and Kanne, Circuit Judges. OPINIONBY:
Flaum OPINION: 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
fianée of a United States citizen and was authorized to remain in
the United States [*2] 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 § 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 [*3] 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 [*4] 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 [*5] 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.
[*6] 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. [*7] ”
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, 117 L.
Ed. 2d 38, 112 S. Ct. 812 (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 [*8] 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 [*9] 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. n1 - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - -
- n1 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. - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - 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)
[*10] 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 [*11] 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. n2 INS v. Doherty, 502 U.S. 314, 323, 116 L.
Ed. 2d 823, 112 S. Ct. 719 (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, 779 F.2d 1260, 1265 (7th Cir. 1985) (internal quotation marks
omitted)). - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - -
- n2 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. - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [*12] 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, § 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. § 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 [*13] 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) (“We 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 [*14] 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; n3 however, the BIA never addressed this
evidence. - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - -
- n3 8 C.F.R. § 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. - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [*15] 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 [*16] 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) (“It 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 [*17] 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
[*18] 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 [*19] 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 |