Baballah v. Ashcroft

• Decision Date: 11 July 2003
• Docket Number: No. 01-71407.,01-71407.
• Parties: Abrahim BABALLAH; Ula Baballah; Ahmad Baballah, Petitioners, v. John ASHCROFT, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1067

367 F.3d 1067

Abrahim BABALLAH; Ula Baballah; Ahmad Baballah, Petitioners, v. John ASHCROFT, Attorney General, Respondent.

No. 01-71407.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 8, 2002.

Filed July 11, 2003.

Amended May 6, 2004.

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Haitham Edward Ballout, Burlingame, CA, for the petitioners.

John C. Cunningham and Jocelyn Lopez Wright, United States Department of Justice, Washington, DC, for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency Nos. A72-095-684, A72-095-685, A72-095-686.

Before TASHIMA, THOMAS and PAEZ, Circuit Judges.

ORDER AMENDING OPINION AND DENYING PETITION FOR REHEARING AND AMENDED OPINION

ORDER

The opinion filed July 11, 2003 is AMENDED as follows:

1. At page 335 F.3d 981, 992 insert a new footnote 11 following the sentence: "Here, the INS has presented no evidence to rebut the presumption of a well-founded fear of persecution." The text of the footnote reads:

11 There is no need to remand to the BIA under INS v. Ventura, 537 U.S. 12, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002), to consider whether changed country conditions rebut Baballah's presumptive fear of future persecution. Not only did the INS fail to present evidence of changed conditions for Arab Israelis, it did not argue before the IJ or the BIA that changed country conditions would eliminate Baballah's fear of future persecution. In its brief before the BIA, the INS represented that: "It appears to the service that all relevant issues of fact and law were fully presented to the immigration court during the course of the hearing." In these circumstances, to provide the INS with another opportunity to present evidence of changed country conditions, when it twice had the chance, but failed to do so, would be exceptionally unfair. We recently expressed concern "that constant remands to the BIA to consider the impact of changed country conditions occurring during the period of litigation of an asylum case would create a `Zeno's Paradox' where final resolution[of the case] would never be reached." Hoxha v. Ashcroft, 319 F.3d 1179, 1185 n. 7 (9th Cir.2003) (quoting Avetova-Elisseva v. INS, 213 F.3d 1192, 1198 n. 9 (9th Cir.2000)). Nonetheless, because the ultimate decision to grant asylum is discretionary, we remand so that the Attorney general may determine whether to grant that relief. See 8 U.S.C. § 1158(b)(1).

2. Change existing footnote 11 to footnote 12.

The petition for panel rehearing is DENIED. The panel also voted to deny the petition for rehearing en banc. The full court has been advised of the petition for rehearing en banc, and no active judge of the court has requested a vote on whether to rehear the case en banc. Fed. R.App. P. 35(b). Therefore the petition for rehearing en banc is DENIED.

OPINION

PAEZ, Circuit Judge.

Abrahim Baballah, a native and citizen of Israel, and his wife and oldest child, petition for review of a decision of the Board of Immigration Appeals ("BIA") affirming the denial of their application for asylum and withholding of removal. Over a ten-year period, Israeli Marines repeatedly threatened and attacked Baballah on account of his ethnicity and religion. The violence that he experienced not only caused him to fear serious bodily harm and death but also resulted in serious economic hardship. Although the immigration judge ("IJ") deemed Baballah credible, she found that his encounters with the Israeli Marines did not rise to the level of persecution required to qualify for asylum. We conclude that the credible evidence presented by Baballah compels a finding of past persecution, and that the Immigration and Naturalization Service ("INS") failed to rebut the presumption of future persecution. Accordingly, we grant the petition and hold that Baballah and his family are eligible for asylum and entitled to withholding of removal.

I.

Abrahim Baballah is an Israeli Arab.¹ Baballah's parents were the only Jew and Muslim to marry in his hometown of Aka, Israel, a town of approximately 11,000 people on the Mediterranean coast.² As a result of their mixed marriage Baballah suffered repeated instances of discrimination when seeking work as a young man. Although Baballah had studied to be an accountant, bank officials refused to hire him when they discovered his background. These officials told him that he would "follow in [his] father's footsteps" and called him a "goy," a word that means "non-Jew" in Hebrew and has derogatory connotations in Arabic, meaning "dirty," "bastard," or "born from nowhere." Unable to find employment as an accountant, he trained to be a lifeguard and diver. However, when Baballah sought such employment, he was called "goy" and turned away.

Despairing of finding other employment, Baballah went to work for his family as a fisherman. During the ten years that he worked as a fisherman, he was the victim of incessant threats and acts of violence by the Israeli Marines, who relentlessly harassed him. Although the Israeli Marines did not confront other fishermen, when they saw Baballah, they sped up to his fishing boat in their larger vessel and circled near him, causing his boat to rock precipitously and fill with water. At times, the Marines shot bullets in the air over Baballah's boat and threw eggs at Baballah and his crew. On other occasions, they turned six-inch water hoses on Baballah's boat, forcing Baballah and his crew to bail out the water from the boat so that it would not sink. During one such incident, when Baballah was fishing with one of his brothers, the Israeli Marines boarded their boat, tied his brother to a pole, and sprayed him with pressurized water in freezing weather. The brother was then accused of assault, arrested, and ultimately imprisoned for over a year. As a result of the imprisonment, Baballah's brother suffered a mental impairment and is now dependent upon the family for support.

These aggressive acts, which occurred on a daily basis, caused Baballah and his crew to fear for their lives. These encounters took place both at sea and in town, where the Marines followed Baballah and called him "goy," intending to intimidate him and to let him know that "[w]e're after you."

Not only were these events frightening and dangerous, they also made it impossible for Baballah to earn a living. The repeated threats and attacks made it very difficult for Baballah to retain a boat crew. Moreover, the Israeli Marines deliberately targeted Baballah through economic means. When the Israeli Marines saw that Baballah was catching large quantities of fish, they would destroy his fishing nets by steering their vessel over them so that the vessel's propellers would damage the nets, forcing Baballah to "spend days and days just fixing the nets for the fish." Like the United States Coast Guard, the Israeli Marines are responsible for rendering aid to fishermen and others at sea, managing the waterways, and enforcing general maritime laws. However, rather than enforcing the laws impartially, the Israeli Marines singled Baballah out for unwarranted citations, which, with the payment of substantial fines, made it difficult for him to earn a living.³

After eight years of struggling to support his family as a fisherman, Baballah mortgaged his home to buy a $30,000 speedboat,⁴ with which he intended to earn a living by offering pleasure trips. Three months after he bought the boat, however, it was destroyed by fire in the middle of the night. Although Baballah was convinced that the Israeli Marines were behind the loss of his boat, there was no evidence regarding who was responsible for the blaze.

Having lost his speedboat, Baballah was forced to return to fishing. To Baballah's misfortune, however, his fishing boat was destroyed by Israeli Marines when, after drifting into shallow waters, he accepted an offer of help from them. Despite Baballah's protests that the boat should be towed from the middle, the Marines tied a tow rope on the front end of the boat. When the Marines began to tow the boat, it split apart. As the boat broke apart, the Marines mocked Baballah and "laugh[ed] sarcastically."

Israeli authorities also harassed members of Baballah's family. They confiscated his father's land and livestock "because my father made my mother Muslim, they want revenge." One of Baballah's brothers was persistently called "goy" and refused employment in their hometown. He eventually moved to Tel Aviv and was forced to pass as Jewish in order to escape persecution. Another brother was denied a chance to compete in the Olympics because he would not convert to Judaism.

In 1990, Baballah and his family made a brief trip to the United States but returned to Israel when they received word that their home was going to be taken away. However, upon their return, Baballah realized that they could not stay in Israel because once again "I couldn't work.... I couldn't do anything." Thus, the Baballahs returned to the United States on July 27, 1992.

II.

At their exclusion hearing, Baballah and his wife and minor son admitted their excludability pursuant to section 212(a)(7)(A)(i)(I) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1182(a)(7)(A)(i)(I).⁵ They requested asylum under section 208 of the INA, 8 U.S.C. § 1158, and withholding of removal under section 243(h) of the INA, 8 U.S.C. § 1253(h).

The IJ found Baballah's testimony to be credible. She concluded, however, that neither alone nor cumulatively did the events described by Baballah rise to the level of persecution, stating that the evidence did not show that Baballah would be unable to support his family if required to return. Although she acknowledged the "severe hostility" and "serious tension" between Jews and Arabs in the Middle East, she questioned whether the violence and other acts directed at Baballah were based upon a protected ground. Additionally, the IJ...