Dawoud v. Gonzales
| Decision Date | 19 September 2005 |
| Docket Number | No. 04-2417.,No. 04-1275.,04-1275.,04-2417. |
| Citation | 424 F.3d 608 |
| Parties | Ehab S. DAWOUD and Amani Y. Refaat, Petitioners, v. Alberto R. GONZALES, Attorney General of the United States, Respondent. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Theodore N. Cox (argued), New York, NY, for Petitioners.
George P. Katsivalis, Department of Homeland Security, Office of the District Counsel, Chicago, IL, Michele Y.F. Sarko, Department of Justice, Civil Division, Immigration Litigation, Washington, DC, Andrea Limmer (argued), Department of Justice, Antitrust Division, Appellate Section, Washington, DC, for Respondent.
Before MANION, WOOD, and SYKES, Circuit Judges.
Ehab Dawoud was detained and beaten first by Islamic radicals and then by the state security services after a video of his Christian wedding aired on an Egyptian television station. Dawoud and his wife, Amani Refaat, fled Egypt for the United States and applied for asylum after overstaying their visitors' visas, claiming that they had been persecuted because of their religion. The Immigration Judge (IJ) denied the application, and the Board of Immigration Appeals (BIA) affirmed in a separate opinion. Dawoud and Refaat filed a petition for review in this court, but they then moved the Board to reconsider its decision and twice attempted to have the proceedings reopened. Those motions were denied. They now petition for review of these denials. We grant the petition and remand to the Board for further proceedings.
Dawoud and Refaat are members of the Coptic Church, an orthodox sect of Christianity native to Egypt to which approximately 10% of the population adhere. Several months after they were married, a friend with their permission sent a videotape of their wedding ceremony and reception to a television program that showcases local weddings. The record does not provide much detail about the video, except that it depicted a Coptic ceremony, alcohol consumption, and dancing by a woman who was not fully veiled. A week after the video aired in July 2001, three angry members of the terrorist group al-Gama'a al-Islamiyya came to Dawoud's home to confiscate the tape. They did not identify themselves, but Dawoud recognized them as Islamic fundamentalists from their traditional dress, long beards, accusations that he was an "infidel," and threats of "blood shedding." The terrorists blindfolded Dawoud and took him to a building outside the city, where he was kept chained and underfed for ten days; his captors beat him for consorting with "infidels" and threatened that his "blood would be sacrificed," which they asserted was "legal" in Egypt.
Dawoud was released and returned to his home, where, he said, "I was tired from the beating and psychologically I was sort of destroyed" for fear that the terrorists might return. He chose not to bring the incident to the attention of the authorities, because in Egypt, he claimed, reporting Islamic militants to the government usually brings retribution. Dawoud did call a doctor friend who treated the bruises on his arms and hands; this treatment is allegedly confirmed by a handwritten note in the record, but other than the hospital letterhead, which is in English, the note is in untranslated Arabic.
Two days after he returned home, Dawoud was confronted by the "National Police of Egypt," who went to his house and said that a report had been filed against him for "insult[ing] the Muslim religion." He was taken to a police building and placed in solitary confinement, where for three days he was tortured by electrocution until he agreed to sign a confession. Dawoud testified that the officers "would have water running underneath me" and then would drop something—presumably an electrical device—into the water, shocking him. Eventually, Dawoud said, "I couldn't handle it anymore, so I decided to sign that confession so they would ease off the pain." He was then released and told to stay in his hometown of Benimazar until he was summoned for a hearing before the Emergency Court, a tribunal frequently criticized by human rights groups, which operates under Egypt's Emergency Law and hears cases that implicate national security. Rather than wait around, Dawoud and his wife secured passports and visas for the United States and fled the country.
The IJ denied Dawoud's and Refaat's asylum applications. (Because Dawoud is the lead petitioner, we refer in the remainder of this opinion to him alone.) The IJ's opinion is riddled with inappropriate and extraneous comments, such as references to the IJ's personal experiences with alcohol in Egypt, commentary on the state of the tourism industry there, and speculation about the attractiveness of the United States to asylum-seekers in general. The IJ found Dawoud not credible because of the "swiftness" with which he obtained his passport and travel visa. The IJ also pointed out that Dawoud failed to corroborate his narrative with affidavits from relatives.
In a lengthy opinion, the BIA noted its disapproval of the IJ's "inappropriate remarks" and rejected the adverse credibility finding, stating that Dawoud's "testimony was credible in that it was internally consistent, consistent with the written declarations, and not inherently improbable." The Board agreed with the IJ, however, that Dawoud's failure to provide corroborating evidence weighed against him, noting that he did not submit a translated copy of the handwritten medical note, "written or oral" evidence of a summons to the Emergency Court, or affidavits from family members to verify either the showing of the video or Dawoud's subsequent misfortunes. The Board also stated that Dawoud's narrative was at odds with the 2001 State Department Country Report on Egypt, observing that "[t]here is no references [sic] in the background information to the national police pursuing the average Coptic Christian... especially in collusion with an Islamic fundamentalist organization." The Board also stated that, according to the report, the government's treatment of Copts was improving.
Dawoud and his wife filed a joint motion for reconsideration and reopening. He contended that the decision should be reconsidered because the BIA had erred in concluding that the State Department Report "tended to undermine his story." He also claimed that because of the United States's close relationship to Egypt, the State Department under-reported the government's mistreatment of Copts. He further argued that the case should be reopened because of "new" evidence that conditions for Christians in Egypt had deteriorated as a result of the American invasion of Iraq. The Board denied these motions in an order in which it concluded that Dawoud did not establish any errors in its reading of the State Department Report, and that the war in Iraq did not create a prima facie claim of future persecution. The Board also denied a subsequent motion to reopen in which Dawoud sought to argue for the first time that he had been prejudiced by ineffective assistance of counsel.
Before proceeding to the merits, we must first determine which of the BIA's orders is before us in this petition. At oral argument, the lawyer for the petitioners contended that Dawoud had preserved his ability to challenge the BIA's merits denial of the asylum application by filing a petition for review of that order. But as the government observes, Dawoud's brief on appeal is expressly limited to challenging the denial of Dawoud's motion for reconsideration and two motions to reopen. Dawoud has therefore waived any arguments regarding the merits decision. See United States v. Harris, 394 F.3d 543, 559 (7th Cir.2005). We accordingly limit our consideration of the petition to the motions to reconsider and reopen.
Dawoud first challenges the denial of his motion for reconsideration, arguing that the BIA misread the State Department Report and other materials in the record when it found that his account of persecution was inconsistent with country conditions in Egypt. To succeed, a motion to reconsider "shall state the reasons for the motion by specifying the errors of fact or law in the prior Board decision and shall be supported by pertinent authority." 8 C.F.R. § 1003.2(b)(1). We review the denial of a motion to reconsider for an abuse of discretion. Id. § 1003.2(a); see Ali v. Ashcroft, 395 F.3d 722, 731 (7th Cir.2005).
Although this is a deferential standard, it is not a meaningless one. We find that this is the rare case in which it is met. First, the BIA's finding that Dawoud's narrative is inconsistent with background information on Egypt is flatly contradicted by the 2001 Country Report and reports in the record from Freedom House, a 60-year-old, U.S.-based human rights group. These materials describe numerous instances in the past few years in which the Egyptian security services have assaulted, imprisoned, and otherwise discriminated against Copts. For instance, police officers rounded up and tortured some 1,000 Copts as part of a murder investigation in 1998, and 21 Christians were killed in an anti-Copt pogrom in 2000 while the authorities looked on. In the latter case, 92 of 96 defendants were initially acquitted of charges, and ultimately no one was punished seriously except for a Copt, who was imprisoned for violating Article 98 of the penal code, which prohibits "insulting a heavenly religion." This is the same provision that Dawoud was charged with violating. The Country Report details many other instances of government agents using Article 98 to imprison members of religious groups, including Christians, "whose practices deviate from mainstream Islamic beliefs," and notes that the authorities withhold building permits to Christians, fail to investigate murders and assaults of Copts, and harass Christian families attempting to protect their daughters from forcible conversion to Islam.
In concluding that Dawoud's tale is...
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