Gulla v. Gonzales

• Citation: 498 F.3d 911
• Decision Date: 13 August 2007
• Docket Number: No. 04-70957.,04-70957.
• Parties: Basaam Bibo GULLA; Sorob Sabri Gulla, Petitioners, v. Alberto R. GONZALES, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

498 F.3d 911

Basaam Bibo GULLA; Sorob Sabri Gulla, Petitioners, v. Alberto R. GONZALES, Attorney General, Respondent.

No. 04-70957.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 11, 2007.

Filed August 13, 2007.

Douglas D. Nelson, Alejandro O. Campillo, A.P.L.C., San Diego, CA, for the petitioners.

Kathryn DeAngelis (argued) and Lyle D. Jentzer, (brief) Office of Immigration Litigation, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency Nos. A79-394-822, A79-394-823.

Before: HARRY PREGERSON, FERDINAND F. FERNANDEZ, and EUGENE E. SILER, JR.,^* Circuit Judges.

PREGERSON, Circuit Judge:

Basaam Bibo Gulla petitions for review of the Board of Immigration Appeals' ("BIA") decision summarily affirming the Immigration Judge's ("IJ") decision denying his request for asylum. The IJ found Gulla to be credible and statutorily eligible for asylum. However, the IJ denied Gulla's asylum application based on discretionary factors. The IJ stated that he believed it improper to allow Gulla to obtain relief because (1) he traveled through three other countries before he arrived in the United States, (2) he was in good health and not of tender age, and (3) he used fraudulent travel documents to reach the United States. The IJ granted withholding of removal and, therefore, did not reach the CAT claim. We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1). We hold that the IJ abused his discretion in denying asylum, and we grant Gulla's petition.

FACTUAL BACKGROUND

Bassam Bibo Gulla is a thirty-four-year-old native and citizen of Iraq. He is Catholic and a member of the Chaldean ethnic minority. There are numerous reports and credible testimony by Gulla that the Catholic Chaldeans suffered general discrimination and persecution from the Iraqi government, the Ba'ath political party, and the Muslim population.

Gulla and his family have also been subject to heightened discrimination and abuse. In March 1973, Gulla's father was imprisoned by the Ba'ath party on suspicion for being a traitor and for "dealing" with the Kurdish opposition. Gulla's father told him that as a result of the imprisonment, the entire Gulla family was on a blacklist.

In August 1988, Gulla entered compulsory military service. Gulla was required to remain in the army longer than normal and he was stationed far from his home. He says that this treatment by his superiors was due to his religious affiliation, his refusal to join the Ba'ath party, and his family being blacklisted. During his term of service, Gulla was detained, imprisoned, beaten, and tortured by his superior officers. After the Army continually refused his requests to end his term of service, Gulla deserted in 1992 because he believed he was going to be killed by his superior officers. When the government announced that deserters would receive amnesty, Gulla turned himself in. However, because the government learned that two of Gulla's brothers had fled Iraq, Gulla was severely beaten and tortured upon his return to the military. Some of his beatings were so severe that he lost consciousness, and he continues to suffer from headaches and dizziness. He was not discharged from the military until 1994.

Gulla married Sorob Sabri Goro on September 23, 1996. On November 5, 1998, a local politician came to their house and told Gulla and Sorob they were wanted at the police station. They went to the police station immediately where the government separated Gulla and Sorob and questioned them. Gulla was detained for five days, during which time he was beaten and tortured. Sorob, who was two months pregnant at the time, was held one day. While she was detained, Sorob was beaten and frightened. Although she successfully fought off a sexual assault, she had a miscarriage. Gulla did not learn of his wife's situation until he was released four days later.

On July 2, 2000, Gulla was working in an agricultural field with some other workers. A man approached him and began asking questions about Gulla's farming activities. Gulla did not know the man or understand why he was questioning him. Nevertheless, Gulla answered the man truthfully and politely. The stranger, however, started yelling and swearing at Gulla. The stranger attacked Gulla, who hit him back. Later that day, the police detained Gulla and took him to the station. The stranger was at the station, and he accused Gulla of insulting him, the Ba'ath party, the government, and Saddam Hussein. Gulla denied the allegations and offered to bring witnesses to the station to testify on his behalf. Gulla was not afforded an opportunity to present witnesses or tell his side of the story.

The police kept Gulla in local detention for two weeks. The police then transferred Gulla to a jail in Talkaif. While in the jail, he was interrogated and beaten daily. He felt certain that the guards would eventually kill him. On July 27, 2000, Gulla's brother bribed a police official to secure Gulla's freedom. As part of the negotiation between Gulla's brother and the police official, Gulla had to agree to flee the area upon release.

Gulla's brother smuggled him from the jail to a distant town in Kurdish territory. Sorob met Gulla there, and they determined that it would not be safe for them to remain in that area. At the time, northern (Kurdish) Iraq was troubled by internal conflicts, and there were widespread abuses of human rights. Gulla testified that Christians in particular were subject to abuse and attack.

Gulla and Sorob paid a smuggler to obtain forged Iraqi passports for them and to help them escape Iraq. Gulla and Sorob then took a bus to Turkey. They did not feel safe in Turkey where there is also widespread discrimination against Christians. Turkey does not offer asylum or any type of protection for Iraqi refugees. In fact in 2001, Turkey had a practice of deporting Iraqis. Fearing discovery, Gulla and Sorob stayed hidden in an apartment during the month they were in Turkey. The Gullas then left Turkey and walked across the border into Greece. They did not plan to stay long in Greece because they did not believe Greece to be a safe place. Gulla and Sorob feared deportation and abuse. Therefore, they mostly remained hidden.

Through money from family members, the Gullas paid a smuggler to get them to the United States. The smuggler provided them with fake Danish passports and made travel arrangements to Mexico. The Gullas arrived in Mexico in August 2001. They went to Tijuana where they met one of Gulla's brothers and other countrymen. They went to the Mexico/U.S. border and applied for asylum.

The Gullas sought asylum in the United States because of their family ties here and because of their belief that they would be safe from persecution. Gulla's parents are legal residents of the United States. He has seven siblings. Three of his siblings are U.S. citizens. Two of his sisters remain in Iraq with their husbands, and two of his brothers are missing. Sorob also has family ties in the United States. One of Sorob's brothers is a U.S. citizen. The whereabouts of her other seven siblings and her mother are unknown. Her father is dead. Thus, her only relative who is not missing is in the United States.

PROCEDURAL BACKGROUND

In August 2001, Gulla surrendered himself at the U.S./ Mexico border and stated his intention to seek asylum. The border agents told Gulla to wait in Tijuana for an asylum interview. No interview occurred. On September 11, 2001, terrorists took over American jetliners and crashed them into the World Trade Center in New York and the Pentagon in Washington D.C. After that event, anti-Arab sentiments were high in Mexico and elsewhere.

On November 8, 2001, Gulla again went to the border and presented himself for refugee processing. At that point, INS agents took him into custody. The INS began removal proceedings that day. The INS issued a Notice to Appear, alleging that Gulla did not possess a valid document for admission in violation of 8 U.S.C. § 1182(a)(7)(A)(i)(I). On January 16, 2002, Gulla admitted the allegations in the Notice to Appear and conceded removability. He requested asylum, withholding of removal, and protection under the UN Torture Convention.

On August 2, 2002, Immigration Judge ("IJ") John Williams held a hearing on Gulla's asylum application. At that hearing, the IJ denied asylum, granted withholding of removal and never addressed whether Gulla was eligible for CAT relief. The IJ stated that Gulla was credible, and he held him statutorily eligible for asylum. The IJ found that Gulla had suffered persecution on account of his race and religion. The IJ denied asylum, however, after weighing discretionary factors. On August 12, 2002, Gulla appealed to the BIA. On February 18, 2004, the BIA affirmed without opinion the IJ's denial of Gulla's asylum petition. Gulla timely filed his petition for review before this court.

STANDARD OF REVIEW

The Attorney General's decision to grant or deny asylum to an eligible applicant is reviewed for abuse of discretion. 8 U.S.C. § 1252(b)(4)(D); Velarde v. INS, 140 F.3d 1305, 1310 (9th Cir.1998) (noting that BIA abuses its discretion if its decision is "arbitrary, irrational, or contrary to law"). Factual findings underlying the denial are reviewed for substantial evidence. Ghaly v. INS, 58 F.3d 1425, 1429 (9th Cir.1995). Because the BIA summarily affirmed the IJ's opinion, "the IJ's decision becomes the BIA's decision and we evaluate the IJ's decision as we would that of the Board." Lanza v. Ashcroft, 389 F.3d 917, 925 (9th Cir.2004).

ANALYSIS

"Asylum is a two-step process, requiring the applicant first to establish his eligibility for asylum by demonstrating that he meets the statutory definition of a `refugee,' and second to show that he is entitled to asylum as a matter of discretion." Kalubi v. Ashcroft, 364 F.3d 1134, 1137 (9th Cir.2004) (emphasis omitted). Once an "applicant...