Binrashed v. Gonzales

• Decision Date: 14 September 2007
• Docket Number: No. 06-2939.,06-2939.
• Parties: Rashed Awadh Karama BINRASHED, Petitioner, v. Alberto R. GONZALES, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

502 F.3d 666

Rashed Awadh Karama BINRASHED, Petitioner, v. Alberto R. GONZALES, Respondent.

No. 06-2939.

United States Court of Appeals, Seventh Circuit.

Argued February 9, 2007.

Decided September 14, 2007.

Colby Kingsbury (argued), Kirkland & Ellis, Chicago, IL, for Petitioner.

Karen Lundgren, Department of Homeland Security Office of the Chief Counsel, Anthony W. Norwood, Chicago, IL, Joshua E. Braunstein, Richard Zanfardino (argued),

Department of Justice Civil Division, Immigration Litigation, Peter D. Keisler, Department of Justice Office of the Attorney General, Washington, DC, for Respondent.

Before BAUER, FLAUM, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge.

Rashed Awadh Karama BinRashed ("BinRashed"), a Yemeni national, entered the United States as a nonimmigrant visitor for pleasure in 1999. The following year, he received asylum by fraudulently representing himself to be a citizen of Somalia. In 2005, after his conviction on misdemeanor charges of obstructing an officer, BinRashed was placed in removal proceedings. The immigration judge denied BinRashed's requests for withholding of removal under the Immigration and Nationality Act and the United Nations Convention Against Torture, concluding that BinRashed had not suffered past persecution or established a clear probability of future persecution. In a brief opinion, the Bureau of Immigration Appeals affirmed. Because the agency neglected critical evidence in the record, we grant the petition for review, vacate the agency's decision, and remand for further proceedings.

I. BACKGROUND

In May 2005, BinRashed was pulled over for driving a car with a broken taillight. The detaining officer recognized BinRashed from an earlier traffic stop and noted that BinRashed had used a different name during the prior stop. After searching BinRashed's car, the officer discovered several identification documents and arrested BinRashed for obstructing an officer. Documents seized from BinRashed's car led to the discovery of his grant of asylum under a claim of Somali citizenship.

While BinRashed's obstruction case was pending in state court, the Federal Bureau of Investigation began an investigation of BinRashed's identity, and the Department of Homeland Security took him into custody. Following his state court conviction, BinRashed was placed in removal proceedings under two theories of removability: remaining in the United States beyond the authorized period, see 8 U.S.C. § 1227(a)(1)(B), and failing to comply with the Attorney General's registration requirements, see 8 U.S.C. § 1227(a)(3)(A). Later, DHS added BinRashed's procurement of asylum by fraud as an additional basis for removal, see 8 U.S.C. § 1227(a)(1)(A). Although BinRashed denied having remained in the United States for longer than authorized, he conceded removability on the other two bases and requested withholding of removal under the Immigration and Nationality Act ("INA") and the Convention Against Torture ("CAT").

BinRashed offered the following evidence in support of his withholding requests. BinRashed was born in Yemen on June 25, 1980. During BinRashed's youth, his father, Awadh Karama Rashed ("Rashed"), was an active member of the Yemeni Socialist Party and frequently represented the government abroad. When civil war broke out between North and South Yemen in 1994, Rashed was working with the South Yemeni government in its campaign to secede from North Yemen. The hopes of South Yemen were dashed when the North defeated the South a few months after the outbreak of war.

After the war, BinRashed's life, and that of his family, changed for the worse. On one occasion, BinRashed's family was stopped by government officials at a security checkpoint while driving to North Yemen. BinRashed's family hoped to visit relatives, who, as a result of a disruption in communication channels, would not otherwise know they were safe. During their detention, armed officers took them to see the city's "senior man," searched them, and confiscated their registration documents. Although the officers said the women and children were free to leave, the family refused to be separated and remained in custody until friends could negotiate their release. At the end of the encounter, which lasted a few hours, the officials returned the family's belongings and permitted them to leave.

BinRashed offered examples of other indignities of varying severity. A week after the war's end, officers attempted to confiscate Rashed's car as government property, but he successfully resisted. The government tapped the family's phone, and BinRashed and his father were frequently pulled over when driving Rashed's car. Further, although Rashed was nominally permitted to continue working for the government, he was stripped of his diplomatic responsibilities and much of his pay. The government also questioned Rashed about his connections and his source of income and asked Rashed's friend to report on Rashed.

In 1995, Rashed responded to the government's actions by increasing his involvement in the movement for equal rights for southerners. He assisted in founding civilian organizations that resisted discrimination and participated in a protest following the rape of two girls by northern soldiers. A leader in the movement was severely beaten for his role in the civilian organizations, and BinRashed's family experienced more severe harassment in the years following Rashed's enhanced activism. In 1998, government officials broke into an apartment that the family used a few times a year when visiting relatives in the northern half of the country. When the family returned to that apartment, their neighbors informed them that officers had entered the apartment seeking to arrest Rashed and to confiscate the apartment. The next day, armed officers arrived at the apartment to arrest Rashed; however, only BinRashed, his mother, and his sister were present. The officers then threatened to arrest BinRashed in his father's place, but his mother convinced the officers to await Rashed's return. When Rashed returned, he and an attorney went to police headquarters, where they convinced the police not to arrest Rashed or to confiscate his apartment. The government ultimately confiscated the apartment in 1999, paying Rashed only a small sum of money in compensation. That same year, BinRashed decided to leave for the United States.

Leaving the country, however, was not without difficulty. Although BinRashed offered documentation of his citizenship when applying for a passport, a government official doubted BinRashed's citizenship because of his darker skin and long hair. After a verbal altercation, the official arrested BinRashed and detained him in a locked, poorly ventilated, dusty room without electricity or water. While escorting BinRashed to the room, the officers threatened to cut his hair and verbally abused him. Petitioner remained in custody for three hours, until his father heard of his detention and convinced the officials to release him. BinRashed left Yemen and traveled to Atlanta, Georgia in 1999. Upon relocating to California, Somali friends told BinRashed to apply for asylum as a Somali because the asylum applications of Yemenis were routinely being denied. BinRashed followed their advice and obtained asylum as a Somali citizen. He eventually moved to Wisconsin, where he was arrested in 2005.

After BinRashed left Yemen, his family continued to be harassed and threatened by the Yemeni government. According to Rashed, who testified by phone, in May 2000, officers interrogated him at his home about his political activities. Again, in March 2001, the government detained Rashed and his colleagues for four hours during their trip to investigate claims of abuse by security services against southerners. That September, police forced their way into Rashed's car, refusing to release his daughter who was with him at the time, and subsequently detained him for three hours. After his release, a regional head of political security contacted Rashed and threatened that if he did not discontinue his opposition activities, something he would neither "imagine or expect" would happen to him or his family. Rashed then decided that he and his family should leave the country, and they left Yemen in 2002 for the United Kingdom, where they obtained asylum. After arriving in the U.K., Rashed helped found the Southern Democratic Assembly ("TAJ"), an international organization that seeks independence for South Yemen and secession from the North. Rashed is an officer in the organization, and his name and picture are displayed on the organization's website.

At his hearing, BinRashed also offered expert testimony from Munir Mawari, a native of Yemen and journalist who reports on human rights and democracy in the Middle East. Based on his knowledge of Yemen and his review of BinRashed's case, Mawari testified that BinRashed would more likely than not be harmed or even killed if returned to Yemen. Mawari believed BinRashed would suffer this fate due to his South Yemeni heritage, his father's political activities, his prior claim of Somali citizenship, and dangerous conditions in Yemen.

BinRashed also submitted documentary evidence in support of his requests. A letter from the chairman of Yemeni Human Rights Watch indicated that as of June 2005, BinRashed, his father, mother, and sister were all wanted by the Yemeni government, and that their names and pictures were circulated in all ports of the country. Additionally, BinRashed proffered U.S. State Department Country Reports for Yemen for 2004 and 2005 and various articles regarding abuses against journalists in Yemen.

In his oral decision, the IJ found BinRashed removable on all of the charged grounds and denied his requests for withholding of removal under the INA and CAT. In denying relief, the IJ noted that in 2004 and 2005, the State Department received no reports of politically motivated...