Abdulrahman v. Ashcroft

• Decision Date: 21 May 2003
• Docket Number: No. 02-2513.,02-2513.
• Citation: 330 F.3d 587
• Parties: Aysar ABDULRAHMAN, Petitioner v. John ASHCROFT, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Third Circuit

330 F.3d 587

Aysar ABDULRAHMAN, Petitioner v. John ASHCROFT, Attorney General of the United States, Respondent.

No. 02-2513.

United States Court of Appeals, Third Circuit.

Argued February 25, 2003.

Opinion filed: May 21, 2003.

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Kai W. De Graaf (Argued), New York, NY, for Petitioner.

Robert D. McCallum, Assistant Attorney General, United States Department of Justice Civil Division, Alison R. Drucker, Senior Litigation Counsel, Office of Immigration Litigation, Alison Marie Igoe (Argued), Office of Immigration Litigation, Washington, DC, for Respondent.

Before: BECKER, Chief Circuit Judge^* and SCIRICA, Circuit Judge^** SHADUR,^*** District Judge.

OPINION OF THE COURT

SHADUR, District Judge.

Aysar Abdulrahman ("Abdulrahman") is a married citizen and native of the Sudan who entered the United States on August 23, 2001 without valid documents and requested political asylum. Although the Immigration and Naturalization Service ("INS") determined that Abdulrahman had a credible fear of persecution, it initiated removal proceedings, charging Abdulrahman under 8 U.S.C. § 1182(a)(7)(A)(i)(1)¹ with being inadmissible to the United States and referring him to an immigration judge ("IJ") for a hearing. Abdulrahman responded by filing an application for political asylum and withholding of removal and requesting relief under the Convention Against Torture.

On December 17, 2002 the IJ denied Abdulrahman's applications, finding that he had failed to establish that he was eligible for relief. Abdulrahman appealed that decision to the Board of Immigration Appeals ("Board" or "BIA"). Dismissing Abdulrahman's appeal, the Board deferred to the IJ's adverse credibility determination and affirmed her decision as supported by the record. This petition for review followed. We deny the petition.

Administrative and Judicial Standards

As Abdulai v. Ashcroft, 239 F.3d 542, 549 (3d Cir.2001) has made clear, a decision by the Board that an applicant is ineligible for asylum constitutes a "final order of removal" that may be subject to judicial review under Section 1252(a)(1). But where as here the Board has deferred to the IJ's decision rather than rendering its own opinion, "a reviewing court must, as a matter of logic, review the IJ's decision to assess whether the BIA's decision to defer was appropriate" (id. at 549 n. 2; Chen Yun Gao v. Ashcroft, 299 F.3d 266, 271 (3d Cir.2002)). That review is extremely narrow in scope. Because Congress has delegated authority over the immigration laws to the Attorney General, who in turn vested that authority in the Board, principles of Chevron deference apply in the immigration context (Chen Yun Gao, 299 F.3d at 271, citing INS v. Aguirre-Aguirre, 526 U.S. 415, 424, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999)). Aguirre-Aguirre, id. at 425, 119 S.Ct. 1439 further noted that implications for foreign policy make judicial deference "especially appropriate in the immigration context."

Pursuant to Sections 1158(a)(1) and 1158(b)(1), the Attorney General may grant asylum² to an otherwise removable alien who demonstrates that he or she meets the definition of "refugee" in Section 1101(a)(42)(A): a person unable or unwilling to return to his or her country of origin "because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." As Chen Yun Gao, 299 F.3d at 272 has outlined, quoting Navas v. INS, 217 F.3d 646, 655 (9th Cir.2000):

In order to establish eligibility for asylum on the basis of past persecution, an applicant must show "(1) an incident, or incidents, that rise to the level of persecution; (2) that is `on account of' one of the statutorily-protected grounds; and (3) is committed by the government or forces the government is either `unable or unwilling' to control."

Such a showing of past persecution raises a presumption of a well-founded fear of future persecution (Reg. § 208.13(b)(1)).³ Where past persecution is not established, "[a]n applicant can demonstrate that she has a well-founded fear of future persecution by showing that she has a genuine fear, and that a reasonable person in her circumstances would fear persecution if returned to her native country" (Chen Yun Gao, 299 F.3d at 272).

Under those provisions, aliens have the burden to establish their eligibility for asylum through credible testimony (Chen Yun Gao, 299 F.3d at 272, citing Abdille v. Ashcroft, 242 F.3d 477, 482 (3d Cir.2001)). While aliens are not required to show that persecution is "more likely than not," they must show "a subjective fear of persecution that is supported by objective evidence that persecution is a reasonable possibility" (Fengchu Chang v. INS, 119 F.3d 1055, 1066 (3d Cir.1997)). Testimony alone may be sufficient to meet that burden — again so long as it is credible (Chen Yun Gao, 299 F.3d at 272).

Background

Most of the evidence at his removal hearing came from the testimony of Abdulrahman himself. Unless otherwise indicated, what follows is drawn from that source, although as explained later the IJ did not credit Abdulrahman's account.

Born in 1970 in the southern portion of the Sudan, Abdulrahman is of Dinghy blood, a subset of the Shilluk tribe. In 1987 he joined the Southern Student Union while in high school because "[a]ll those from the south" joined that organization. As secretary of the Student Union, Abdulrahman arranged meetings, recruited members, distributed fliers and educated new members about the group's objectives. After graduating Abdulrahman continued his membership in the Student Union, helping to train new members by teaching them how to organize and by leading discussions.

On three occasions over a period of three years Abdulrahman was arrested because of his membership in the Student Union. First, he was arrested in March 1999 while preparing fliers at a meeting, when 12 armed security agents took him and five other Student Union members to the "Ghost House." There he was detained in an isolated dark room for two weeks. Although he was given food and a small cup of water twice a day, he was verbally assaulted, beaten daily with sticks and whips and questioned about his Student Union activities. Before the agents released him, they forced him to agree in writing to abandon his political activities. Upon his release, Abdulrahman returned home. During the hearing Abdulrahman amended his initial testimony that he sought treatment at a hospital, stating that he was treated at home with herbal medicines that his family members had obtained from the hospital.

Roughly one year later, on the night of March 10, 2000, eight security agents arrested Abdulrahman for the second time, taking him from his home to a security office in Birahi. There he was interrogated for two days and again subjected to torture before being transferred to Khobra Prison, where he remained for a month. While in prison he was interrogated about his political activities, verbally assaulted and beaten with a whip. Once again, before his release he was forced to sign a statement promising to refrain from political activity.

At about 1:00 a.m. on March 3, 2001 security agents came to Abdulrahman's house and arrested him for the third time, once more taking him to the "Ghost House." He believes he was arrested because his name was on a list of Student Union members that had been taken from a student meeting broken up by security officers earlier that evening. Abdulrahman was interrogated and detained for one month, during which he was beaten, whipped and electrically shocked all over his body. His captors pointed out that this was his third arrest and threatened that if he was arrested again they would "liquidate" him. Before he was released he was again made to agree in writing to desist from political activities.

Ten days after his release Abdulrahman attended a public celebration that was halted by police. Abdulrahman returned home and later that day learned that one of his friends in the Student Union was missing. Fearing that he would be arrested again, he fled to Mayo where he stayed for two months. After discussing his situation with his friends in the Student Union, Abdulrahman decided to flee the Sudan. He obtained a certificate of citizenship from the Sudanese government, procured false travel documents and left the Sudan on August 18, 2001.

Although Abdulrahman had stated in his initial airport interview that he did not have any family in the United States, his uncle Hafiz Suliman ("Suliman") also testified at the removal hearing on his behalf. Suliman, who fled the Sudan in 1996 and had been granted political asylum in the United States, testified that at the United States Embassy in the Sudan an applicant will be denied a visa if he mentions the existence of relatives in the United States. Suliman further testified that although he had heard from Abdulrahman's mother that his nephew was having problems in the Sudan, he did not know the nature of those problems and did not have any personal knowledge of Abdulrahman's activities with the Student Union. Suliman also stated that he did not know that his nephew was coming to the United States or that Abdulrahman had traveled to the United States under his uncle's name.

Abdulrahman did not produce any documentation of his membership in the Student Union, explaining that he was afraid to carry such documents himself and that his contacts in the Sudan could not do so for fear of government surveillance. He did submit documentary reports and articles that described the conditions in the Sudan. Those reports detail the Sudan's poor record on human rights and the long-standing ethnic and religious conflicts between the northern and southern Sudanese people. Although there was a record of Sudanese security forces intimidating and harassing students who opposed the government, the reports made no mention...