Al-Ghorbani v. Holder

• Decision Date: 09 November 2009
• Docket Number: No. 08-3376.,08-3376.
• Parties: Abdulmunaem Abdullah AL-GHORBANI and Salah Abdullah Alghurbani, Petitioners, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

585 F.3d 980

Abdulmunaem Abdullah AL-GHORBANI and Salah Abdullah Alghurbani, Petitioners, v. Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 08-3376.

United States Court of Appeals, Sixth Circuit.

Submitted: October 15, 2009.

Decided and Filed: November 9, 2009.

ON BRIEF: Richard A. Kulics, Reza Athari & Associates, Murray, Utah, for Petitioners. David V. Bernal, Lance L. Jolley, United States Department of Justice, Washington, D.C., for Respondent.

Before: GILMAN and GRIFFIN, Circuit Judges; STEEH, District Judge.^*

OPINION

RONALD LEE GILMAN, Circuit Judge.

Abdulmunaem Abdullah Al-Ghorbani (Abdulmunaem) and his brother, Salah Abdullah Motahar Alghurbani (Salah), arrived in the United States in 1999 with non-immigrant visas. They had fled their native country of Yemen after being threatened with death by Abdulmunaem's father-in-law, General Abu Taleb, a high-ranking military officer. The Immigration and Naturalization Service (INS) initiated removal proceedings against the brothers in 2003. At a hearing before an Immigration Judge (IJ), the brothers petitioned for a grant of asylum, the withholding of removal and protection under the Convention Against Torture (CAT). Abdulmunaem and Salah claimed that they risked being killed by the General and his military guards if they are returned to Yemen.

The IJ denied their applications, and the Board of Immigration Appeals (BIA) affirmed the IJ's decision. For the reasons set forth below, we DENY review of the portion of the petition requesting asylum, but GRANT review of the portion of the petition requesting the withholding of removal.

I. BACKGROUND

A. Factual background

Brothers Abdulmunaem and Salah were born and raised in Yemen. In 1994, they enrolled in a university in the capital city of Sana'a. (Abdulmunaem's and Salah's last names are spelled differently—Al-Ghorbani versus Alghurbani—apparently due to a translation discrepancy on the part of the American immigration authorities.) While at the university, Abdulmunaem met Hussein Mohammed Mohammed Abu Taleb (Hussein). The two became close friends. Hussein is a member of the Hashmid clan, one of "the highest kind of families in Yemen." His father is a high-ranking general in the Yemeni army who has served as an advisor to the president of Yemen. In contrast, Abdulmunaem belongs to a clan associated with the meat-cutting industry, which is considered "the lowest class in Yemen."

One fateful day at the end of 1996, Hussein asked Abdulmunaem to pick up Hussein's sister, Najla, from the university, where she had begun attending classes. Abdulmunaem agreed. Upon their first meeting, Abdulmunaem and Najla instantly connected. As Abdulmunaem explained, "we stood there for a while, I mean, me and her. We talk. It was the beginning." He continued: "After I meet her for a while, you know, we start talking, I loved her—for real I loved her and she loved me, too. She was the best I ever meet [sic] in my life." The two began seeing each other at the university in secret.

Abdulmunaem eventually told Hussein about Abdulmunaem's love for Najla, and Hussein "was open-minded about it." Hussein warned Abdulmunaem, however, about Hussein's father, General Abu Taleb. The General took his membership in the Hashmid class very seriously and would not accept the courtship of his daughter by someone from the meat-cutting class. Abdulmunaem was nevertheless hopeful because he attended the same university where the General had sent Hussein and Najla.

Toward the end of 1997, Abdulmunaem decided that he was going to approach General Abu Taleb to seek permission to marry Najla. Some of Abdulmunaem's family members were scared about how the General would react and refused to support Abdulmunaem's decision. Two of Abdulmunaem's brothers, Salah and Mutaher, nevertheless agreed to go with Abdulmunaem to the General's home in Sana'a. Although Abdulmunaem was prepared for rejection, he expected that at worst the General would be diplomatic and say that Najla was not ready to get married at that time.

At first, the General was receptive to the proposal because he was confused about the particular family branch to which the brothers belonged. He thought that they were from "the Al-Ayani" part of the Al-Ghorbanis, which apparently is a higher-class part of the family. The brothers corrected the General and told him that they instead belonged to the "Jezarene" part, which meant the meat-cutters. Immediately upon hearing this, the General became angry, started screaming, and asked how they dared to come into his house and ask permission for Najla to marry Abdulmunaem. He launched into a speech about the superiority of his family and then kicked the brothers out of his house. Before they left, however, the General threatened Abdulmunaem and told him to stay away from Najla. In recounting this visit to the General's house, Salah stated that he had never been so humiliated.

After a few days, Hussein came to Abdulmunaem to apologize for the behavior of his father, the General. Hussein told Abdulmunaem that the General had struck Najla after Abdulmunaem left and that she had been "very sick" ever since. In addition, the General refused to let Najla leave the house, even to go to the university. After Najla had remained sick for some time, Najla's mother was able to persuade the General to allow Najla to leave the house to go to the doctor. Najla's visit to the doctor gave Hussein an idea about how he could get Abdulmunaem and Najla together and arrange for them to get married in secret. He believed that the General would then be forced to accept the marriage when Abdulmunaem and Najla presented him with an executed marriage contract.

To effect this plan, Hussein told the General in April 1998 that Hussein was taking Najla to the doctor. Instead, Hussein took Najla to a friend's house, where Abdulmunaem met them. Hussein then acted as Najla's guardian and gave permission for her to marry Abdulmunaem, which allowed Abdulmunaem and Najla to execute a marriage contract. In this way, Abdulmunaem and Najla were married in secret, without the knowledge of the General.

All was going relatively smoothly for the couple until Najla's father decided in late 1998 to have Najla marry Abdul Rahman, her first cousin and the General's nephew. According to Hussein, there was no longer any chance that the General would accept Najla's marriage to Abdulmunaem because the General had already told his family that Najla was going to marry Abdul Rahman. Hussein then advised Abdulmunaem to "take your wife" and run away from the General. To help them, Hussein took Najla from the General's house to meet Abdulmunaem in December 1998. Abdulmunaem then traveled with Najla to his mother's house, but his mother refused to let them stay with her because of the danger posed by the General. Salah then offered his home to Abdulmunaem and Najla as a place for them to stay. The couple accepted Salah's offer and went there that night.

After leaving Najla with Abdulmunaem, Hussein returned to his father's house and presented the General with a copy of the marriage contract. The General became so enraged that he shot his own son in the chest with a gun. Fortunately, Hussein was rushed to the hospital by a relative and thus did not die as a result of the gunshot wound. The General, meanwhile, took his guards to the home of Abdulmunaem's mother. (Due to his rank in the military, the General has soldiers with him at all times, acting as his personal guards.) When the General arrived at the house of Abdulmunaem's mother and she would not let him inside, the General and his guards tried to break down the door and started shooting at the house with their guns. Abdulmunaem's mother called the police, but when the police arrived and saw the General, they helped him break down the door.

Once inside the house, the General threatened Abdulmunaem's mother and told her that he would kill both Abdulmunaem and Najla. Abdulmunaem's mother still refused to disclose the location of her son. Someone in the neighborhood, however, sought to curry favor with the General and told him that Abdulmunaem and Najla had left with Salah. Another neighbor overheard this conversation and warned Abdulmunaem's mother that the General knew with whom the couple had departed. Abdulmunaem's mother in turn called Salah to warn him.

Upon receiving his mother's warning, Salah suggested that Abdulmunaem and Najla flee to the home of Salah's father-in-law in Aden, which is in southern Yemen about seven hours away from the capital, Sana'a. Salah's father-in-law is from India and not well known in Yemen, so Salah believed that Abdulmunaem and Najla would be safe there. Abdulmunaem and Najla agreed, and they immediately hired a car to take them from Sana'a to Aden. After arriving at the house in Aden, Abdulmunaem and Najla received a call from Salah's wife. She told them that officers of the military and the police had arrived at Salah's house, searched the residence, and had taken Salah with them.

Salah later explained what had happened after Abdulmunaem and Najla left. It was dark outside, and Salah heard multiple cars drive up to his house. He saw that at least one car had a military license plate. Immediately, Salah sent his wife and son out the back door to go stay with the neighbors. According to Salah, "I [didn't] want [them] to see—I [didn't] want ... my son or my wife [to] see me in a bad position, because I expected every—I expected to be killed right away."

The guards of the General forced open the door to Salah's house. At first, only the General entered. He walked up to Salah and struck Salah in the face. Salah's face was covered in blood. The General's guards then started interrogating Salah about Abdulmunaem's whereabouts. Salah told the guards that he did not know where Abdulmunaem was. One of the guards, who was wearing large army boots, responded by kicking Salah in the back. After this kick,...