Elzour v. Ashcroft, No. 04-9507.

• Decision Date: 17 August 2004
• Docket Number: No. 04-9507.
• Parties: Mahmoud Sheik ELZOUR, Petitioner, v. John ASHCROFT, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

378 F.3d 1143

Mahmoud Sheik ELZOUR, Petitioner, v. John ASHCROFT, Attorney General, Respondent.

No. 04-9507.

United States Court of Appeals, Tenth Circuit.

August 17, 2004.

Petition for review of decision of Board of Immigration Appeals.

COPYRIGHT MATERIAL OMITTED

William Michael Sharma-Crawford, Overland Park, KS, for Petitioner.

John M. McAdams, Jr., United States Department of Justice, Civil Division, Office of Immigration Litigation, Washington, DC, (Peter D. Keisler, Assistant Attorney General, Washington, DC, and Linda S. Wernery, United States Department of Justice, Civil Division, Office of Immigration Litigation, Washington, DC, with him on the brief), for Respondent.

Before EBEL, HENRY and HARTZ, Circuit Judges.

EBEL, Circuit Judge.

Petitioner Mahmoud Sheik Elzour ("Petitioner"), a Syrian national, entered the United States without authorization in April 2000. The government now seeks to remove him from the country. In response, Petitioner claims that he was subjected to a history of persecution at the hands of Syrian authorities and that he is entitled to asylum in the United States and/or restriction on removal to Syria.

The Immigration Judge ("IJ") denied Petitioner's application for asylum on the sole ground that Petitioner had firmly resettled in Canada prior to entering this country. He denied Petitioner's application for restriction on removal because he found Petitioner's tale of persecution implausible. The IJ then ordered Petitioner removed to Canada, or, in the alternative, to Syria. The Board of Immigration Appeals ("BIA") affirmed without opinion.

We hold that the IJ's firm resettlement determination lacks record support, and that the IJ failed to support his adverse credibility finding with specific, cogent reasons as required by our precedent. Accordingly, we VACATE the BIA's order and REMAND for further proceedings.

BACKGROUND

Petitioner's account of his alleged persecution in Syria is in dispute. For background purposes, we first describe the facts asserted by Petitioner in his testimony and affidavit, then provide a brief overview of conditions in Syria, and finally recount this case's procedural history.

Petitioner's Allegations

Petitioner was born and raised in Hamah, Syria. Hamah is closely associated with the Muslim Brotherhood, a religious-based movement opposed to the current Syrian regime. Although Petitioner did not favor the Syrian government, he did not support the Muslim Brotherhood either. However, Petitioner's brother Abdul did speak favorably of the Muslim Brotherhood on occasion, and he once let a Muslim Brotherhood member stay at his house for a few days.

In June 1981, Petitioner began a 30-month term of obligatory military service, working as an air traffic controller. In July 1983, he was arrested and taken to an air force security area. On that same day, his brother Abdul was arrested in a different location in Syria.

After six or seven days, Petitioner was transferred to an underground cell in Damascus. He was beaten daily, suffering a broken nose and broken ribs, and a bright light was kept on at all times. He was interrogated about his knowledge of the Muslim Brotherhood, asked to identify friends in the Muslim Brotherhood, and specifically questioned about his brother Abdul's activities. Petitioner was released in May 1985. The Syrian government treated the time he spent in custody as military service and awarded him retroactive compensation.

From 1985 to 1990, Petitioner worked with his father selling home improvement products. In February 1991 he was arrested for a second time. He was held for several months at a military facility in Hamah, where he was questioned about giving money to his brother's wife. Petitioner testified that he wanted to support her while his brother was in prison, but that his behavior was perceived by Syrian authorities as raising money for families of the Muslim Brotherhood. He was beaten daily, and his injuries included eye injuries, a broken nose, a broken arm, and broken ribs.

In September 1991, Petitioner was transferred to Sidna (or Seydnaya) Prison, where he was held in a single room with more than 100 detainees. Conditions were poor. At some point, he was notified that he had been tried in absentia by a military court and sentenced to life in prison, although he was not informed of the charge against him. In December 1995, Petitioner was released as part of a general amnesty given to about 2,500 political prisoners.

After his release, Petitioner stayed at his father's home for five or six months and had two operations on his injured eye. In June 1996, he used his brother's passport to leave Syria for the Czech Republic. He soon obtained a false Swedish passport and headed to Canada.

Within days of his arrival in Canada in June 1996, Petitioner applied for asylum. Canadian authorities sent him notices to appear regarding his asylum claim in February and April 1998, but Petitioner did not receive them and he therefore failed to attend a mandatory hearing. Consequently, Canada deemed his asylum claim abandoned and apparently ordered Petitioner to be deported to Syria.¹

Petitioner was unaware of these developments at the time, and he thought that his application was simply taking a long time to be processed. Meanwhile, in January 1998, Petitioner married a Canadian woman, and they had a daughter later that year. Petitioner had also obtained authorization to accept employment in Canada, and he took a job as a carpenter.

In June 1999, believing that Canada had still not acted on his asylum request, Petitioner's wife filed a spousal application on his behalf. Canadian officials denied the application on the ground that the marriage had not been entered into in good faith.

In late 1999 or early 2000, Petitioner learned that his asylum application had been deemed abandoned. Fearing deportation, he fled for the United States on April 25, 2000.²

Country Conditions

The administrative record contains the State Department's 1999 Country Report on Human Rights Practices for Syria, which describes a pattern of human rights abuses in Syria. That report generally depicted a regime that tolerated no organized political opposition.

In particular, the report noted that "[a]rbitrary arrest and detention are problems." In cases involving security matters, suspects could be detained incommunicado for prolonged periods without being tried or charged. The government also commonly detained relatives of detainees or fugitives. Further, Syria's security services were known to commit torture and other human rights abuses, particularly in military detention centers. "Serious abuses include[d] reports of extrajudicial killings; the widespread use of torture in detention; poor prison conditions; arbitrary arrest and detention; [and] prolonged detention without trial."

Other human rights reports in the administrative record show that a significant percentage of Syria's political detainees had been arrested for known or suspected affiliation with the Muslim Brotherhood. A 1992 Human Rights Watch report stated that about 75 percent of the political detainees at that time were suspected of having an affiliation with the Muslim Brotherhood. Another Human Rights Watch report, discussing Tadmor Prison,³ noted that "[a]mong those arbitrarily arrested... in the early 1980s were large numbers of young men, including teenagers, who were relatives, friends or acquaintances of suspected or known Muslim Brothers, or individuals whose names were elicited when suspects were tortured during interrogation."⁴

Procedural History

Before the IJ, Petitioner admitted that he entered the United States without inspection, but applied for asylum pursuant to 8 U.S.C. § 1158 and restriction on removal pursuant to 8 U.S.C. § 1231 and the Convention Against Torture. The IJ denied his application for asylum on the ground that Petitioner had firmly resettled in Canada before entering the United States, noting that he had been given the right to work and to apply for asylum there.

Next, the IJ denied his application for restriction on removal because he found that Petitioner was not a credible witness.⁵ The IJ's adverse credibility finding was based solely on his conclusion that Petitioner's story was implausible. More specifically, the IJ found the following aspects of Petitioner's story unworthy of belief: (1) that Syria would arrest a member of the military in the manner Petitioner described; (2) that Syria would be interested in Petitioner more than a year after the 1982 Hamah uprising; (3) that Syria would arrest Petitioner even though neither he nor his brother were supporters of the Muslim Brotherhood; (4) that Petitioner was detained arbitrarily for the length of time he claims; and (5) that Petitioner was compensated by the Syrian military after his first release from prison. The IJ did not rely on Petitioner's demeanor but rather simply referred to the above factors to support his conclusion that parts of Petitioner's story were implausible.

The IJ ordered Petitioner removed to Canada (or, if Canada refused to accept him or advise whether it would accept him within 90 days, then to Syria). The BIA affirmed without opinion. We have jurisdiction to review the final removal order pursuant to 8 U.S.C. § 1252(a).

DISCUSSION

I. Introduction

An alien who fears persecution if removed from the United States has two possible avenues of relief: asylum and restriction on removal. See Tsevegmid v. Ashcroft, 336 F.3d 1231, 1234 (10th Cir.2003). Asylum generally permits the alien to remain in the United States, whereas restriction on removal forbids removal to the country where persecution is likely to occur. See id.; Wiransane v. Ashcroft, 366 F.3d 889, 893 (10th Cir.2004).

A. Asylum

"An alien who has been granted asylum may not be deported or removed unless his or her asylum status is terminated." 8 C.F.R. § 208.22. To be eligible for asylum, an alien...