Dawood-Haio v. I.N.S.

Decision Date05 September 1986
Docket NumberP,No. 84-3552,DAWOOD-HAI,84-3552
Citation800 F.2d 90
PartiesMunaim J.etitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.
CourtU.S. Court of Appeals — Sixth Circuit

Arpo Yemen, Southfield, Mich., for petitioner.

Thomas W. Hussey, Robert Kendall, Jr., Office of Immigration Litigation, Crim. Div., Washington, D.C., Nicholas J. Pantel, Christopher Barnes, U.S. Atty., Cincinnati, Ohio, for respondent.

Before KEITH and NELSON, Circuit Judges, and EDWARDS, Senior Circuit Judge.

DAVID A. NELSON, Circuit Judge.

This case is before us on a petition for review of an order of the Board of Immigration Appeals denying a motion to reconsider an earlier refusal to grant petitioner asylum as a "refugee." We shall grant the petition for review, having concluded that the Board erred in determining that petitioner is not a refugee and abused its discretion in declining to reconsider that determination.

I

The papers in the administrative record indicate that petitioner was born in Iraq, of Iraqi parents, in 1962. He and his family are Chaldeans of the Roman Catholic faith. His parents owned a plot of land in Iraq that was farmed by his father. In 1976, some eight years after the Arab Baath Socialist Party had overthrown the government of Iraq in a coup d'etat, petitioner's father was jailed for refusal to join the Baath Party. The father died in jail of a "heart attack" after having been imprisoned four months. He was 46 years old and had no previous history of illness. The revolutionary regime seized the father's half of the family land, but allowed petitioner's mother to keep her half. She continued to cultivate the remaining land.

Petitioner was arrested and jailed for two days late in 1979 in an effort to persuade him to join the Baath party. Petitioner persisted in his refusal to become a party member.

Petitioner had difficulty in obtaining an Iraqi passport, but finally got one after repeated applications. He left Iraq in August of 1980, having been issued a non-immigrant visa for a visit to the United States, and went to Detroit, Michigan.

We take judicial notice of the fact that Iraq launched a full-scale invasion of neighboring Iran in September of 1980, beginning a sanguinary war that was to see Iraq charged with use of chemical and bacteriological weapons.

Petitioner's visa was scheduled to expire on October 15, 1980. Prior to that date petitioner filed with the Immigration and Naturalization Service in Detroit a request for asylum typed on Form I-589. The form was dated October 8, 1980, and it bears a date stamp evidencing receipt by I.N.S. on October 14, 1980.

The procedure under which petitioner sought asylum was established by the Attorney General pursuant to Sec. 208 of the Immigration and Nationality Act of 1952. (Section 208 is a 1980 addition codified at 8 U.S.C. Sec. 1158(a).) That statute, which required the Attorney General to establish a procedure for an alien physically present in the United States to apply for asylum irrespective of his status, empowers the Attorney General to grant asylum, in his discretion, upon determining that the alien is a "refugee" within the meaning of 8 U.S.C. Sec. 1101(a)(42)(A). The latter section defines a refugee in terms that include "any person" outside his home country who is "unwilling to return" because of a "well-founded fear of persecution on account of race, religion, nationality, membership in particular social group, or political opinion."

The asylum procedures adopted by the Attorney General are set forth at 8 C.F.R. Part 208. 8 C.F.R. Sec. 208.3 provides for the filing of asylum applications on Form I-589. 8 C.F.R. Sec. 208.5 places on the applicant for asylum the burden of proving that he comes within the statutory definition of a "refugee," but the section does not, by its terms, require that credible testimony of the applicant be rejected if not corroborated by independent evidence. 8 C.F.R. Sec. 208.6 provides that the applicant shall be examined in person by an immigration officer or judge prior to adjudication of the application for asylum. 8 C.F.R. Sec. 208.7 provides that "[u]pon receipt of Form I-589, the district director shall in all cases request an advisory opinion from the Bureau of Human Rights and Humanitarian Affairs (BHRHA) of the Department of State."

No such advisory opinion was requested "upon receipt" of petitioner's asylum application, but petitioner was examined in person by an immigration officer on January 21, 1981. The examiner seems to have reviewed each section of the asylum request with petitioner and his interpreter. Petitioner signed the form before the examiner swearing that the statements therein were true and correct.

Petitioner's asylum application bears several handwritten notes added by the examiner at the time of the interview. These notes indicate, among other things, that the arrest and imprisonment of petitioner's father in 1976 had occurred "because he wouldn't join the party" and that petitioner's own incarceration had occurred in "1980 or late 1979."

Block 17 on the form asks "If you return to your country, for what specific reasons do you believe you will be persecuted?" Petitioner responded to this question by checking boxes marked "religion," "nationality," and "political opinion;" the examiner wrote the words "Catholic," "Chaldean," and "anti-Baath" below these boxes. The information on the incarceration of petitioner and his father was given in response to the next question, in block 18, which asks "Have you or any member of your family ever been detained, interrogated, arrested, convicted and sentenced, or imprisoned because of the above?" If this question is answered "yes," as it was in petitioner's case, the form instructs the applicant to "cite instances." Petitioner did so, stating

"My own father died of a heart attack while arrested and jailed for 4 months (4/76 to 8/76). He was 46.

"I was detained and jailed for 2 days while being brain washed to join the Baatt [sic] Party."

Question 20 asks "Did you belong to any organization(s) which were considered hostile to the interests of your Home Country?" Petitioner checked "no," but added "However, my ethnic and religious affiliation brands me as a member of a hostile organization."

Question 23 asks "Have you taken any actions that you believe will result in persecution in your Home Country?" Petitioner checked "yes," and explained "I refused to join the Baatt [sic] Party, I refused to serve in the Army, I defected and sought asylum in the U.S.A. while openly criticizing the regime."

Among the questions asked in block 26 was "What do you think would happen to you if you returned?" Petitioner's answer was "Certain arrest, jail, torture, possibly execution."

Under date of April 9, 1981, the immigration examiner prepared a file memorandum summarizing his interview with petitioner. The memorandum says, among other things:

"Subject stated that he is a Chaldean Christian (Roman Catholic) and, as such, is constantly harassed by the Moslem majority in Iraq. Additionally, as a Christian he is opposed to the Baath Party and would like to see a new government in Iraq. Subject claims that he has never been arrested but has been detained for 2 days in late 1979 because he wouldn't join the Baath Party. He also claims that his father died of a heart attack in 1976 while in jail for his refusal to join the Baath Party. The subject belongs to no political parties, societies, or organizations which are hostile to the Iraqi government. He has never spoken out publicly concerning his opposition to the government. He gives the appearance of a well fed, contented person at peace with his station in life. He has not been deprived of any basic necessities of life and has been allowed to practice his religion. He is of military draft age and fears being inducted for up to 7 years. He claims that Christians never get out of the army alive.

* * *

* * *

"It is the opinion of this officer that subject's claim is totally frivolous and lacking in merit. He has not documented any specific instances of persecution against him by the Iraqi government and appears to be using the asylum route to avoid the military service. In light of the recent determination that Iraqi Christians are not, as a class, subject to persecution this officer feels that subject has not sustained the burden of proving he is or will be persecuted in Iraq. Therefore I will refer to BHRHA with a recommendation of denial."

The "recent determination" referred to is a letter that an Assistant Secretary of State sent I.N.S. on May 23, 1980, rescinding a blanket recommendation made in June of 1978 not to repatriate to Iraq any Iraqi Christians applying for asylum in the United States. While stating that "Iraqi Christians, as a group, are not automatically subject to persecution on the basis of religion," the letter says the State Department "will continue to carefully evaluate each request [for asylum]," and "[i]n such cases that we believe the applicant has established a well-founded fear of persecution upon return to Iraq, we will so notify the appropriate INS District office."

On April 10, 1981, I.N.S. requested an advisory opinion from the State Department. The district director sent the asylum requests of petitioner and two other Iraqi nationals to the Asylum Unit of the State Department's Bureau of Human Rights and Humanitarian Affairs, enclosing a letter that was fairly explicit about the nature of the advisory opinion desired:

"The statements made during [the three applicants'] personal interviews can only be considered as self-serving in nature and insufficient to establish that the applicants have established a well founded fear of persecution upon return to Iraq within the meaning of the United Nations Convention and Protocol Relating to the Status of Refugees. In light of the Bureau's May 23, 1980 letter to the Acting Commissioner...

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