Haider v. Holder

• Decision Date: 10 February 2010
• Docket Number: No. 08-4010.,08-4010.
• Citation: 595 F.3d 276
• Parties: Mohamed HAIDER, Petitioner, v. Eric H. HOLDER, Jr., Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

595 F.3d 276

Mohamed HAIDER, Petitioner, v. Eric H. HOLDER, Jr., Respondent.

No. 08-4010.

United States Court of Appeals, Sixth Circuit.

Argued: October 15, 2009.

Decided and Filed: February 10, 2010.

ARGUED:

Scott Bratton, Margaret Wong & Associates Co., LPA, Cleveland, Ohio, for Petitioner. Nehal H. Kamani, United States Department of Justice, Washington, D.C., for Respondent.

ON BRIEF:

Scott Bratton, Margaret Wong & Associates Co., LPA, Cleveland, Ohio, for Petitioner. Nehal H. Kamani, Aviva L. Poczter, United States Department of Justice, Washington, D.C., for Respondent.

Before: BOGGS, MOORE, and GIBSON, Circuit Judges.^*

Moore, J., delivered the opinion of the court, in which GIBSON, J., joined. BOGGS, J. (pp. 289-91), delivered a separate dissenting opinion.

OPINION

KAREN NELSON MOORE, Circuit Judge.

Mohamed Haider ("Haider") petitions this court for review of the order of the Board of Immigration Appeals ("BIA") denying his application for withholding of removal under the Immigration and Nationality Act ("INA") and the United Nations Convention Against Torture ("CAT"). The Immigration Judge ("IJ") denied relief and the BIA affirmed on the ground that Haider could not prove that his life or freedom would be threatened on account of a protected ground or that he would be tortured in Algeria. Having reviewed the evidence carefully, we hold that it compels a finding that Algerian police abused Haider because of a suspected political affiliation and that the abuse constituted persecution. We therefore GRANT the petition for review and REMAND with respect to Haider's INA claim. At the same time, we DENY the petition with respect to his claim under the CAT.

I. BACKGROUND

A. Factual Background

Haider was born in Algeria in 1977 and lived there until 2000, when he moved to France. On September 8, 2001, he entered the United States with a fake French passport. On December 28, 2002, he married Lisa Upshaw, a U.S. citizen. On January 6, 2003, he filed an application for asylum, withholding of removal under the INA, and withholding of removal under the CAT. His application remained open for five years, during which time he secured a visa through his wife, applied for and was denied adjustment of status, received a notice to appear based on his 2001 illegal entry, and was then detained pending removal. At an April 8, 2008 hearing on his asylum and withholding claims, Haider testified to the following experiences with terrorists and police:

The GIA. Haider dropped out of school in 1995 because terrorist activity in the area made it too dangerous to continue. He began working for his uncle, a clothing seller who often traveled to Morocco, Tunisia, and Libya to buy clothes. That year, an anti-government terrorist group known as the GIA¹ began trying to recruit Haider to spy on local police. The GIA threatened to hurt his family, including a second uncle who was a police officer, if he refused. He put them off with excuses, relenting only once.²

In 1996 or 1997, the GIA shot and killed Haider's cousin, who worked as a mechanic, for refusing to give them a car. In 1997, the GIA murdered Haider's friend, who had worked for the police for six months, in front of him at a shopping plaza. They said to Haider, "[i]t's been a while, we haven't seen you, how's Libya?" to show that they remembered him. Joint Appendix ("J.A.") at 167-68. They then kicked his friend to the ground, shot him in the leg, and shot him twice in the chest or head. The GIA continued trying to recruit Haider through 1998.

The Police. The police often searched Haider and accused him of working with terrorists. In 1996, they stopped him as he returned home, searched him, and said "you work for the terrorists." J.A. at 144. In May 1996, four officers searched him and his luggage, pulled down his pants, and "started doing stuff." J.A. at 145. They put a large gun into his buttocks, asked tauntingly "how do you like that?" and demanded that he admit to aiding the terrorists. J.A. at 145-46. When they released him, they warned "it's going to be the same thing" the next time. J.A. at 146.

That summer, officers in another area stopped Haider and two friends for questioning. The police detained him for five hours, took his clothes off, spat in his face, and repeatedly struck him in his back with a gun, causing bruising. They accused him of being a terrorist spy and promised worse abuse if they ever saw him again.

In February or March 1997, police accosted him on the street and struck him four times in his right ear. The officers put him against a wall, searched him and his luggage, and stole some of his merchandise. One of them also pulled down Haider's pants, put his hands on and in Haider's buttocks, and did the same with a large gun. Again, they threatened him with worse the next time. Two months later, Haider went to see a doctor about the flu, and the doctor informed him he had blood in his right ear.

On July 8, 1997, officers who had abused Haider in the past ran over his brother, killing him. The police, who were responding to a reported car bomb, claimed the incident was an accident. Haider believes that they killed his brother on purpose and tried to cover it up. The police tried to get Haider to sign a statement, but he refused and convinced his family to file suit. The police then retaliated against Haider, threatening him on at least twenty occasions. In October 1997, an officer struck Haider in his back and shoulder three times with a gun and warned him not to "come around us anymore." J.A. at 165-66. The police also detained his father for two weeks, during which time they removed his clothes, beat him severely, and demanded that he drop the suit. Haider's family had to take his father to a mental hospital and put him on medication. In addition, the police tormented Haider's mother, visiting her over fifty times and threatening to take Haider. In 1999, police officers visited Haider's mother and asked, "where is your son, we haven't seen him. Is he working for the GIA, the terrorists? We thought so...." J.A. at 173.

During his final years in Algeria, Haider moved between relatives to avoid the police. He illegally entered France in 2000 and the United States in 2001, arriving just before the attacks of September 11th. In January 2007, Haider's mother visited the United States. She told him that the police had asked about him in 2002 and that the GIA was still active in their area.

B. Administrative Rulings and Petition for Review

The IJ delivered his decision orally. First, he found Haider's asylum claim time-barred. An asylum applicant must show by clear and convincing evidence that he filed within one year of arrival in the United States, a period that can be extended due to extraordinary circumstances. 8 U.S.C. § 1158(a)(2)(B), (D). Haider filed his application almost sixteen months after entering the country. The IJ found that his fear in light of post-September-11th government suspicion of Muslim men explained why he did not file immediately, but not why he waited sixteen months.

Second, the IJ discussed Haider's credibility. He found nothing in Haider's demeanor to indicate deception and described the testimony as "fairly detailed and, for the most part ... plausible." J.A. at 80. However, he found Haider's failure to include the police incidents in his application "troubling." J.A. at 81. The IJ was "not really persuaded" by Haider's explanation that he had been too embarrassed to include this information, as Haider seemed to testify to the events without difficulty. J.A. at 81. The IJ also noted the absence of corroborating statements from family members or a doctor and found it "curious" that Haider reported no contacts with the GIA or police after 1999. J.A. at 82. He concluded that the sum of these concerns "detracts from the respondent's credibility ... meaning that the Court will give less weight to the respondent's testimony." J.A. at 83. The IJ did not say that he believed some parts of the testimony but not others.

Third, the IJ found Haider ineligible for withholding of removal under the INA. He noted that the police suspected Haider of being connected to terrorists, but he did not decide whether Haider had established a protected ground. Instead, the IJ held that the GIA's recruitment efforts did not constitute past persecution and that the police, in light of the single five-hour detention and the fact that Haider never needed medical attention, had only harassed him. The IJ further found no likelihood of future threat to life or freedom, emphasizing that Haider reported no contact with the GIA or police from 1999 to 2000.

Finally, the IJ denied relief under the CAT, finding that the police abuse was not torture and that Haider had not shown that his treatment would be worse in the future.

The BIA adopted and affirmed the IJ's decision on August 6, 2008. It agreed that the asylum application was time-barred. The BIA stated that "the IJ did not make a specific credibility finding" but committed "no clear error" in "finding that the respondent failed to adequately meet his burden of proof" under the INA. J.A. at 2. The BIA affirmed the IJ's reasoning that the police abuse did not amount to persecution and added that Haider was not targeted for his religious beliefs or political opinion, "imputed or otherwise." J.A. at 3. The BIA also affirmed the denial of the CAT claim because the abuse did not meet the definition of torture. Haider timely filed a petition for review. This court stayed his removal on October 27, 2008.

II. ANALYSIS

A. Standard of Review

Because the BIA adopted and added to the IJ's decision, we review the opinion of the IJ and the BIA's supplemental comments. See Bi Feng Liu v. Holder, 560 F.3d 485, 490 (6th Cir.2009). Haider does not challenge the rejection of his asylum claim, as this court cannot review factual findings of timeliness. 8 U.S.C. § 1158(a)(3); Almuhtaseb v. Gonzales, 453...