Sarhan v. Holder

• Decision Date: 02 September 2011
• Docket Number: No. 10–2899.,10–2899.
• Parties: Saad SARHAN and Sara Issa Mohamad Disi, Petitioners,v.Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

658 F.3d 649

Saad SARHAN and Sara Issa Mohamad Disi, Petitioners,

v.Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.

No. 10–2899.

United States Court of Appeals, Seventh Circuit.

Argued April 13, 2011.Decided Sept. 2, 2011.

Laureen R. Anderson (argued), Stanley J. Horn, Attorneys, Horn, Khalaf, Abuzir & Mitchell, Chicago, IL, for Petitioners.Christopher C. Fuller (argued), OIL, Attorneys, Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.Before POSNER, WOOD, and TINDER, Circuit Judges.WOOD, Circuit Judge.

This petition presents the question whether a woman who will fall victim to an “honor killing” at the hands of a family member is entitled to relief either under the Convention Against Torture (CAT) or under the procedure known as “withholding of removal.” For the latter, she must prove that she is a member of a “particular social group” within the meaning of the Immigration and Nationality Act (INA), 8 U.S.C. § 1231(b)(3). We hold that she has successfully established that she is. In addition, for purposes of both the CAT and withholding, we find that the decision of the Board of Immigration Appeals (the Board) finding that she has not shown a clear probability that she will be killed on account of her membership in that social group if she is returned to Jordan is not supported by substantial evidence. The Board failed to consider significant evidence that she presented that supports a finding that the Jordanian government is currently unable or unwilling to protect her. The relief requested by her husband, who is the other petitioner, is an issue that the Board of Immigration Appeals must reconsider in the first instance. We grant the petitions for review and remand to the Board for further proceedings consistent with this opinion.

I

Saad and Sara Sarhan, a married couple who are citizens of Jordan, received visitor visas and came to the United States with their two children in the 1990s. (Sara also goes by Sara Issa Mohamad Disi; we refer to her as Disi in the interest of keeping the parties straight.) Shortly after they arrived, Disi gave birth to a third child. The Sarhans' new daughter had kidney problems, and so the family stayed in the United States beyond the expiration of the parents' visas to ensure that the child received the care she needed. They settled in Chicago, and eventually the couple had two more children.

Nuha Sarhan is Sarhan and Disi's sister-in-law (she is married to Sarhan's brother). There is a history of animosity between Nuha and her in-laws. Disi is convinced that it was Nuha who triggered the current proceedings by revealing to the immigration officials that Disi and Sarhan were in the United States illegally. Before Nuha did that, however, she started a rumor that Disi had committed adultery. Nuha told this story to her mother, who took the news to Amman, Jordan, and there informed Disi's family—including Disi's brother, Besem Disi—that Disi had been unfaithful and had dishonored the family. Disi first heard about these false accusations in 2003, when Sarhan's parents visited the United States and told her that these rumors were swirling in Jordan. Neither Sarhan nor the rest of his family believe that anything Nuha has said is true, but Disi's brother Besem is convinced that Disi has committed adultery and has ruined the family's reputation. Sarhan's parents told Disi during their visit that Besem planned to kill her when she returned to Jordan in order to restore the family's honor.

“Honor killings” (an oxymoron if we ever heard one) happen “when a family feels that their female relative has tarnished their reputation by what they loosely term ‘immoral behavior.’ The person chosen by the family to carry out the murder (usually male: a brother, father, cousin, paternal uncle or husband) brutally ends their female relative's life to cleanse the family of the ‘shame’ she brought upon them.” Rana Husseini, Murder in the Name of Honour xi (2009). See generally Islamic ‘Honor’ Killings in Jordan, http:// www. youtube. com/ watch? v= i VRv Qt GTv- s (CNN report available on YouTube). Such killings are commonplace around the world and typically happen in countries where the moral code tightly restricts the behavior of women; government offers little protection for the victims; and killers receive light punishment, if charges are not dropped altogether.

Besem has long been obsessed with family honor, as defined by religious and social norms in Jordan, and he cannot be deterred from murdering his sister in response to the rumors Nuha started. Besem's persistence is perplexing given the evidence that Nuha has manufactured scandals similar to this one in the past. Before sullying Disi's name, Nuha once accused Sarhan's mother (her own mother-in-law) of infidelity; this slur caused Sarhan's father to attempt an honor killing against his wife. Thankfully, Sarhan and his brothers intervened to save their mother's life, and the family later discovered that Nuha had made the whole thing up. Nonetheless, Besem is resolute, because he apparently believes that the rumors alone have harmed his reputation in the community enough to warrant killing Disi—the truth no longer matters. In 2006, Besem visited Disi in Chicago and told her that he planned to murder her when she returned to Jordan. In the proceedings in the Immigration Court, Disi testified that Besem said, “[W]hen you come back to Jordan, I'm going to kill you. Here [in the United States], I can't do, because there is a penalty for this, but in Jordan, nobody can do for another killing.” Sarhan and his father have corroborated the sincerity of Besem's threat.

The Sarhans appeared in Immigration Court on January 17, 2006, and conceded that they were removable because they had overstayed their visas. They filed applications for asylum and withholding of removal and requested relief under the CAT based on Besem's death threat. (More formally, the CAT is the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, New York, December 10, 1984. See http:// untreaty. un. org/ cod/ avl/ ha/ catcidtp/ catcidtp. html. By virtue of Pub.L. No. 105–277, 112 Stat. 2681–821, it is part of U.S. law.) Sarhan and the Sarhans' two children who are not U.S. citizens are listed as beneficiaries on Disi's application. After hearing testimony that included the details we have just recounted, Immigration Judge Zerbe (the IJ) denied all relief (except for voluntary departure, which is not relevant here) and ordered the Sarhans removed to Jordan. The IJ denied the Sarhans' application for asylum as untimely because it had been filed more than a year after they arrived in the United States. In the IJ's view, they had not shown changed circumstances or any other acceptable reason for the delay. See 8 U.S.C. § 1158(a)(2)(B) & (D). With respect to withholding of removal, the IJ denied relief for a number of reasons: while Judge Zerbe found that the petitioners had testified credibly about Besem's plans to kill Disi, he concluded that this was not enough to demonstrate that Besem posed a continuing threat to Disi; he also ruled that Disi was not a member of a particular social group and that, even if she was, she had not shown that Besem intended to kill her on account of her membership in that group. After reviewing evidence about honor killings in Jordan, the IJ drew the conclusion that Jordan would protect Disi even if Besem did pose a threat. Finally, if all other reasons to deny relief failed, the IJ added that he saw no reason that Disi could not relocate to avoid the threat once she arrived in Jordan. The IJ denied relief under the CAT for similar reasons. The Board affirmed in a two-page opinion, and the Sarhans filed these petitions.

II

The Sarhans have focused on the Board's denial of withholding of removal in their petitions for review. As they recognize, we lack jurisdiction to review its conclusion that their application for asylum was untimely and not excused by extraordinary circumstances. Restrepo v. Holder, 610 F.3d 962, 964 (7th Cir.2010). Although they have not made any points particular to the CAT in the brief before this court, the Board ruled on the merits of the CAT claim, and the government has conceded that both the withholding claim and the CAT claim are before this court. Brief for United States at 10 n. 4. Our discussion below applies for the most part to both theories, but they differ in some important respects, as we note.

Before proceeding, it is helpful to clarify what decision we are reviewing and what standards apply. The parties dispute whether we should review the Board's opinion alone or the IJ's decision as supplemented by the Board. The government argues for the latter approach, and we agree with its position. The Board did not supply an opinion independent of the IJ's decision in this case, e.g., Liu v. Ashcroft, 380 F.3d 307, 311 (7th Cir.2004); nor did it expressly adopt the IJ's analysis in its entirety, e.g., Pop v. INS, 270 F.3d 527, 529 (7th Cir.2001). Instead, the Board agreed with the IJ and supplemented his opinion with additional observations of its own. When this happens, we review the IJ's decision wherever the Board has not supplanted it with its own rationale; where the Board has spoken, we review its opinion. Mema v. Gonzales, 474 F.3d 412, 416 (7th Cir.2007). The agency's factual findings related to the petitioners' claims must be supported by substantial evidence. Feto v. Gonzales, 433 F.3d 907, 910–11 (7th Cir.2006). We review its legal conclusions de novo, Ahmed v. Ashcroft, 348 F.3d 611, 615 (7th Cir.2003). Finally, our review is constrained by the agency's reasoning: we may uphold its conclusion only on a basis that was articulated by the agency itself. Moab v. Gonzales, 500 F.3d 656, 659 (7th Cir.2007).

III

A

Withholding of removal is mandatory under the INA if an...