Gomes v. Gonzales

• Decision Date: 11 January 2007
• Docket Number: No. 03-3020.,No. 04-1018.,03-3020.,04-1018.
• Citation: 473 F.3d 746
• Parties: John GOMES, Jessie Gomes, Jonathan Gomes, and Keira Gomes, Petitioners, v. Alberto R. GONZALES, Attorney General of the United States of America, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

473 F.3d 746

John GOMES, Jessie Gomes, Jonathan Gomes, and Keira Gomes, Petitioners, v. Alberto R. GONZALES, Attorney General of the United States of America, Respondent.

No. 03-3020.

No. 04-1018.

United States Court of Appeals, Seventh Circuit.

Argued January 17, 2006.

Decided January 11, 2007.

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Royal F. Berg (argued), Chicago, IL, for Petitioners.

George P. Katsivalis, Department of Homeland Security Office of the District Counsel, Chicago, IL, James A. Hunolt (argued), Jocelyn Wright, Department of Justice Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before CUDAHY, POSNER, and WOOD, Circuit Judges.

WOOD, Circuit Judge.

Petitioners John Gomes, his wife Jessie, and their two minor children, natives and citizens of Bangladesh, are seeking asylum in this country because of severe mistreatment they received as Catholics in the midst of that prominently Islamic country. First an immigration judge (IJ), and then the Board of Immigration Appeals (BIA), affirming without opinion, rejected their application for asylum, withholding of removal, and protection under the United Nations Convention Against Torture (CAT). The first petition for review before this court seeks relief from those rulings. In addition, the Gomes family unsuccessfully sought reconsideration and reopening of their case before the BIA. The second petition for review before us challenges that ruling. We have consolidated the two petitions for argument and decision. Because we conclude that the IJ did not adequately support his decision denying the Gomeses' application for asylum, we grant their petition for review and remand their case to the BIA for further proceedings consistent with this opinion.

I

On December 10, 1990, Mr. Gomes entered the United States with a visitor visa. He was authorized to remain in the country until June 9, 1991, but he stayed well beyond that date. The rest of his family joined him on March 31, 1992, also entering with visitor visas. While living in the United States, the Gomeses had a third child, Kimberly, on April 1, 1996.

The government's brief indicates that some time in 1992, the Gomeses applied for political asylum with the former Immigration and Naturalization Service (INS), whose functions were largely taken over by the Department of Homeland Security in 2003. (Although this means that Mr. Gomes's application must have been filed more than one year after his arrival, the one-year time limit for such applications was added by Title VI of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208, Title VI, § 604(a), codified at 8 U.S.C. § 1158(a)(2)(B). It therefore did not apply to any of the Gomeses' petitions.) Because the Gomeses had overstayed their visitors' visas, the INS referred their asylum application to the immigration court and placed them in removal proceedings. They received their Notices to Appear before the immigration court on April 22, 2002.

At the removal hearing, the Gomeses admitted that they had stayed in the United States longer than their visas permitted and conceded that they were subject to removal. Mr. Gomes, however, sought relief in the form of asylum, withholding of removal, and protection under the CAT based on his claim that he and his family had been persecuted by Muslim extremists in Bangladesh because of their active involvement with the Roman Catholic church. At the hearing, Mr. Gomes testified that he was born into a staunchly Catholic family and had been both an active member of the Catholic community and a volunteer with a number of Christian organizations since the 1980s.

On April 10, 1990, while riding his motorcycle to a meeting at the Holy Cross Church in Bangladesh, he was struck from behind and rendered unconscious. He was seriously injured in the attack: his jaw was broken, he required twenty stitches in his head, his lips were stitched together, and he spent a little over a week in the hospital. As proof, Mr. Gomes submitted dental records that indicated that he had suffered permanent damage as a result of this attack, and he presented a certificate of discharge confirming when he was in the hospital. Since the attack, he testified, he has suffered from memory loss. When IJ O. John Brahos asked him how he knew that his attackers were Muslim fundamentalists, he replied that his neighbors, who were eyewitnesses to the attack, told him that four or five Muslim extremists pulled up in a car behind him and attacked him with what appeared to be an iron rod and a hockey stick. These witnesses identified Mr. Gomes's attackers as Muslim extremists based upon their dress. Again Mr. Gomes submitted corroborating evidence to the IJ, this time letters from witnesses who supported his account. Mr. Gomes indicated that Muslim fundamentalists in Bangladesh would "always try to stop [him] from preaching [his] religion." Prior to the attack, he had received anonymous telephone calls at his job threatening that if he did not stop "doing what [he was] doing" he would be hurt. These callers also told him to "change [his] religion."

Matters did not improve after he was released from the hospital. On April 19, 1990, shortly after he returned home, Muslim fundamentalists broke down his door and ransacked his house. Again, he was able to identify the perpetrators as Muslim fundamentalists because of their dress. While in his home, the perpetrators set fire to his curtains, pushed him and his wife to the ground, and physically threatened him with a large knife. They took his television and other personal belongings. Before leaving they told him: "[N]ext time we'll come we'll kill you." "This is the last chance. Are you legal Christianity or you death [sic]?" Mr. Gomes reported both of these incidents to the police, but the police did not conduct any meaningful follow-up investigations. Mr. Gomes concluded his testimony by telling the IJ that he feared he would lose his life if he returned to Bangladesh.

Mrs. Gomes also testified at the removal hearing. She told the IJ that Muslim fundamentalists often harassed her. For example, on her way to work, Muslim extremists would stop her and question her about the whereabouts of her husband. Almost every night someone would throw stones at her window to scare her. She also testified that, shortly after Mr. Gomes came to the United States, her family members suffered persecution because they are Roman Catholics. Her brother and sister-in-law were attacked on their way home from a mass during Easter season by a group of Muslim extremists. During the attack, her brother was cut on his elbow and knee, and her sister-in-law was cut on the head. Her family members identified their attackers as Muslim fundamentalists because of their dress. Another brother was robbed by Muslim extremists while at work. Both his arm and his tongue were sliced with a knife, and the robbers put a gun to his head. This incident was reported in a local newspaper, and the article was submitted to the IJ. Additionally, Mrs. Gomes testified that a more distant relative, who was an active Christian, was murdered in her home by Muslim fundamentalists after returning from a prayer meeting. This event also made the local papers, and a copy of the article was submitted to the IJ for the record.

In addition to this testimony, more than twenty documents were admitted into evidence documenting both the physical harm to Mr. Gomes and his family members and the persecution suffered by Christians in Bangladesh in general. These documents included a number of letters from various priests and heads of religious organizations corroborating Mr. Gomes's account of the attack on his person and the invasion of his home by Muslim fundamentalists. The record also included various newspaper reports of recent attacks on Christian institutions in Bangladesh, including an attack by Muslims on a Catholic girls' school in Dhaka, two separate bombing incidents (involving a church and a missionary school), and a terrorist attack against Christians. Finally, the record included the Department of State Annual Reports on International Religious Freedom in Bangladesh for 1999 and 2000 and the 1999 Country Report on Human Rights Practices in Bangladesh.

In a decision dated May 21, 2002, IJ Brahos denied the Gomeses' asylum application, finding that they had not established past persecution or a well-founded fear of future persecution as required under the statute. See INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). Based on his conclusion that the Gomeses did not qualify for asylum, the IJ also denied their request for withholding of removal and protection under the CAT. The judge did, however, grant them the privilege of voluntary departure. The Gomeses appealed to the BIA, which affirmed the IJ's decision without opinion on July 22, 2003.

On August 21, 2003, the Gomeses filed a motion to reconsider. Shortly thereafter, they filed a motion to reopen the proceedings, in which they asserted that they had previously unavailable evidence supporting their claims for relief. In support of the motion, they submitted a June 2003 report from the International Christian Concern organization, which detailed more recent attacks against Christians in Bangladesh. In addition, they furnished more newspaper articles describing acts of violence against Christians, including an article that reported the stabbing death of a Christian evangelist and an article recounting the kidnapping of a "Gospel for Asia" missionary. They also submitted documents that reported on a religiously-motivated attack against other members of the Gomes family and on an attack of a Christian mission on Good Friday, April 18, 2003. In an affidavit accompanying the motion to reopen, Mr. Gomes added that he feared that his two daughters would be subjected to female genital mutilation if forced to return to Bangladesh.

The...