Allabani v. Gonzales
| Decision Date | 28 March 2005 |
| Docket Number | No. 03-3248.,No. 03-3984.,03-3248.,03-3984. |
| Citation | 402 F.3d 668 |
| Parties | Ahmed Abdullah ALLABANI, Petitioner, v. Alberto GONZALES, Respondent. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Maria Baldini-Potermin, Scott D. Pollock & Associates, Inc., Chicago, Illinois, for Petitioner. Michele Y.F. Sarko, U.S. Department of Justice, Office of Litigation, Washington, D.C., for Respondent.
ON BRIEF:
Maria Baldini-Potermin, Scott D. Pollock & Associates, Inc., Chicago, Illinois, for Petitioner. Christopher C. Fuller, Janice K. Redfern, U.S. Department of Justice, Office of Litigation, Washington, D.C., for Respondent.
Before: MARTIN and BATCHELDER, Circuit Judges; O'MEARA, District Judge.*
Ahmed Abdullah Allabani appeals the order of the Board of Immigration Appeals denying his application for asylum and withholding of deportation. He also seeks review of the order of the Board denying his Motion to Reopen Deportation Proceedings. For the reasons discussed below, we affirm the orders of the Board.
Allabani is a native and citizen of northern Yemen. He worked as a secretary for Yemen Airlines in 1979 and later was promoted to head secretary and then head of the employee benefits department. He was a member of an airlines union, which advocated for workers' rights in opposition to the government. Allabani was elected general secretary of the union and served from 1988, the year that he graduated from university, to 1992. After his term expired, he returned to work for the airlines and was put in charge of the insurance and retirement plan.
After the northern and southern regions of Yemen were reunited in 1990, Allabani allegedly served as the secretary of the Yemenite Forgiveness Group, a political organization advocating peace and equal rights for citizens of northern Yemen. In that role, he says that he participated in conferences and street demonstrations. He also asserts that he was a founding member and leader of the Charitable Society of the Sons of Al-Bayda, a group, he claims, that organized political rallies and held meetings about community needs and development. As of October 1997, the United States State Department had "no information" on these organizations.
Allabani allegedly was arrested and tortured three times by the Yemeni government. Allabani's brief on appeal provides:
On October 13, 1991, police officers arrested him and took him to the police station in Al-Bayda where he was held until his release on November 3, 1991. He was interrogated by a special officer about his involvement in organizing the rally and whether the rally was linked to an opposition group or foreign government. He admitted his involvement with organizing the rally, informed the officer about his beliefs of freedom and equality for the Yemeni people, and denied any involvement with opposition groups and foreign governments. In response, the officer punched him in the face and beat him with a rubber whip, another officer punched and hit him, and a soldier hit him repeatedly with the back of his gun. The interrogation, whipping, and beating continued for about seven hours. The officers warned him to stop his activities or they would kill him. He refused to sign the document that they wanted. He was beaten daily until his release.
His second arrest occurred in 1992, two days after he participated in a conference in Nazia. Mr. Allabani was arrested by four officers of the political security department at his home, taken to a police station, and then transferred to the political security section where he was beaten and had cold water poured on his head. He was held for four weeks, forced to stay in the sun for long hours, interrogated, and accused of receiving funds from the president of southern Yemen and Saudi Arabia, opposing the government, and attempting to agitate the people. He refused to sign documents as request by officials. He was not taken before a court. After being released, he went to see a doctor for treatment for extensive facial bruises and redness on his back.
His third arrest occurred in April 1994, after he helped organize and participated in a large demonstration to protest the [anticipated] civil war. Mr. Allabani was held in prison in Sanaa for five weeks. During his detention, he was interrogated, physically abused, and threatened.
In the spring of 1994, southern Yemen declared itself autonomous, initiating a civil war. Allabani and others met with southern Yemen's president to urge peace and to try to "have him pressure the government officials in the north to give him and his people their rights." Allabani states that after this meeting,
After the shooting incident, Allabani says that he asked his friend, the president of Yemen Airlines, to arrange a visa for him. He went into hiding until October 17, 1994, when he entered the United States as a visitor; his visa entitled him to stay until January 16, 1995. Allabani says that his wife and children remain in Yemen. He says that when he first left the country, his family had "problems, but now, it's not as bad, but they are not comfortable." He claims that he will be killed if he returns because he is "democratic" and "effective" with people.
As an airlines employee, Allabani traveled outside Yemen many times to places such as Egypt, Britain, Turkey, and Germany. He did not request asylum in those countries. He testified that he wanted to remain in Yemen, but was forced to leave by the alleged shooting incident.
On November 14, 1994, he applied for asylum with the Immigration and Naturalization Service. At the asylum hearing, the Immigration Judge was presented with Allabani's asylum application, Allabani's testimony, a State Department advisory opinion for Yemen, and the country report. In his application, Allabani stated that he sought asylum on the grounds of his membership in political organizations and his political opinions. He claimed that he would be imprisoned or assassinated if he returned to Yemen.
The Immigration Judge denied his application for asylum and withholding of deportation on December 22, 1997, but granted Allabani a period of voluntary departure. The judge specifically noted that Allabani failed to submit documentation to support his application. The judge found no evidence to support the existence of the government-opposed organizations in which Allabani claimed membership. The judge also found that, even assuming as true Allabani's testimony regarding his membership in those organizations, Allabani failed to provide any evidence to corroborate the alleged purpose of the organizations and their significance in Yemen politics.
With regard to Allabani's claims of past persecution, the judge concluded that, even assuming that Allabani had been detained and beaten on account of his political activities, "it was unlikely that the beating he received was of any severity." The judge also stated that, given the civil war at the time, it was likely not uncommon to be at risk of a stray bullet.
With regard to whether Allabani had a well-founded fear of future persecution, the judge emphasized that the current Yemeni government is different from the one that existed when Allabani claims he was persecuted. The judge stated that the conclusion of the Yemeni civil war and resulting reunification negated any fear of future harm. The judge found that Allabani offered evidence of general human rights violations in Yemen, but that he offered no evidence to show that the abuses he allegedly suffered resulted from his political opinions or unification advocacy. Also, the judge explicitly doubted Allabani's veracity, questioning how one alleging persecution could nevertheless gain employment at the government-owned airlines and obtain authority to travel out of Yemen.
On January 21, 1998, Richard Kulics, Allabani's attorney, appealed the judge's decision to the Board of Immigration Appeals. In the standard appeal form, Kulics argued that the court interpreter's translations prevented Allabani from adequately describing the full extent of his problems in Yemen. Kulics indicated that he would file a separate written brief in support of the appeal.
On July 2, 1998, the Board ordered Kulics to submit a brief in support of Allabani's appeal. On July 10, 1998, the Immigration and Naturalization Service filed a Motion for Summary Dismissal requesting that the Board dismiss Allabani's appeal for lack of an appeal brief. Despite these developments, Kulics never filed a brief in support of Allabani's appeal.
On January 16, 2003, the Board of Immigration Appeals affirmed the Immigration Judge's decision based on the reasons contained in the judge's decision. The Board also stated that Allabani failed to file an appeal brief, failed to demonstrate errors in the translation, and failed to object to the translation during the hearing. On February 14, 2003, Allabani filed a Petition for Review with this Court.
On April 14, 2003, through new counsel, Allabani filed with the Board a Motion to Reopen based on ineffective assistance of counsel and a Motion to Reopen under the United Nations Convention against Torture. With these motions, Allabani submitted documentation that supported the allegations recited above.
On June 23, 2003, the Board denied Allabani's Motion to Reopen, finding that Kulics's representation did not constitute ineffective assistance of counsel because Allabani had not convinced the Board that he was "entitled to an immediate grant of asylum." Allabani now seeks review of the deportation proceedings and decisions below.
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