Hamdan v. Gonzales
| Decision Date | 13 October 2005 |
| Docket Number | No. 03-4039.,No. 04-1484.,03-4039.,04-1484. |
| Citation | 425 F.3d 1051 |
| Court | U.S. Court of Appeals — Seventh Circuit |
| Parties | Husam F. HAMDAN, Petitioner, v. Alberto GONZALES,<SMALL><SUP>1</SUP></SMALL> United States Attorney General, Respondent. |
Harold D. Block (argued), Milwaukee, WI, for Petitioner.
George P. Katsivalis, Karen Lundgren, Department of Homeland Security Office of the District Counsel, Chicago, IL, John S. Hogan (argued), Department of Justice Civil Division, Immigration Litigation, Washington, DC, for Respondent.
Before COFFEY, WILLIAMS, and SYKES, Circuit Judges.
Plaintiff-Appellant Husam Fakhri Hamdan, a native of Kuwait and former resident of Jordan, petitions the court for review of two orders of the Board of Immigration Appeals ("BIA"), one affirming without opinion an immigration judge's decision to deny his application for adjustment of status and the other denying his motion to the BIA to reconsider its summary affirmance of the immigration judge's decision. In both petitions,2 Hamdan requests that we review the BIA's use of its streamlining procedure to affirm the immigration judge's decision denying him relief and ordering his removal to Jordan. Hamdan argues that the immigration judge made a legal error in adjudicating his application and that the BIA erred in streamlining his appeal and affirming the judge's decision without issuing a written opinion explaining why it refused to correct the alleged errors. In a related argument, Hamdan also claims that aggressive questioning by the immigration judge during his adjustment of status hearing violated the Due Process Clause of the Fifth Amendment. For the following reasons, we deny Hamdan's consolidated petition.
Hamdan, a Palestinian born in Kuwait in 1966, initially entered the United States on a student visa in 1984 and then returned to Kuwait in 1985. In 1990, Hamdan, his parents, and his brother fled to Jordan. While in Jordan, Hamdan obtained a Jordanian passport and a United States non-immigrant visa, allowing him to travel from Jordan to the U.S. In December of 1993, Hamdan re-entered the U.S. on a subsequent student visa. He did not leave the U.S. upon the expiration of his visa in 1994. Rather, on September 12, 1997, Hamdan filed an application for asylum with the Immigration and Naturalization Service ("INS"),3 seeking (1) political asylum, (2) withholding of removal, and (3) protection under the Convention Against Torture ("CAT").
In his asylum application, Hamdan claimed to have been mistreated in Kuwait and Jordan because of his race, nationality, membership in a particular social group, and political opinion. In particular, Hamdan alleged that the Jordanian police beat him because he was a Palestinian who was critical of the Jordanian government's mistreatment of Palestinians and also because he was a member of a particular social group that was persecuted, namely, Palestinian refugees from Kuwait living in Jordan.
During his asylum hearing, he stated that he was a member of a political organization (which he did not identify by name) that held rallies to create an awareness of the mistreatment of Palestinians in Jordan. Hamdan alleged that he was detained by Jordanian authorities on five occasions in 1991 due to his membership in the unidentified group. Hamdan testified that during his first detention, Jordanian authorities interrogated him for three hours and "slapp[ed]" and "kick[ed]" him. He also claimed to have been beaten during his second detention.5 He testified that his treatment was "less severe" during the other three detentions; however, he claimed that on those occasions the Jordanian officers threatened him with torture and warned him upon his release from detention that they would continue to "monitor[][his] activities." Hamdan claimed that he left Jordan in 1993 for the U.S. because he feared further persecution from the Jordanian government. Hamdan also testified that he suffered from depression and paranoid schizophrenia. His attorney claimed that the medical records demonstrated that his psychological disorders would cause him "to react to external stimulus in a fashion that is more severe than maybe other individuals would under the same circumstances. . . ." He argued that Hamdan's exaggerated response would be an injury to him "above and beyond the actual physical beatings."
On December 30, 1999, the immigration judge ("IJ") denied Hamdan's request for asylum, withholding of removal, and protection under the CAT. The IJ found that state department reports established that since the end of 1991, Palestinians living in Kuwait were no longer routinely assaulted by vigilante groups. As for Palestinians in Jordan, the judge assumed for the purposes of his analysis that Hamdan's testimony was credible and that Hamdan had in fact been mistreated while detained. Nonetheless, the judge concluded that the experiences Hamdan described did not constitute "past persecution." The judge credited Hamdan's testimony that he felt vulnerable in Jordan due to his depression and his subjective fear of persecution should he be forced to return to Jordan. However, the judge noted that Hamdan must also demonstrate an objective, well-founded fear of persecution in Jordan and, on this issue, he determined that Hamdan had failed. Finally, the judge adopted state department reports which opined, "It would be impossible to argue . . . that Palestinians are a persecuted majority in Jordan," and found that Palestinian refugees from Kuwait living in Jordan were not members of a designated social group eligible for asylum.
Hamdan appealed the decision of the IJ to the BIA; however, before the Board issued a decision, Hamdan's mother was granted citizenship in the United States, making him immediately eligible to apply for adjustment of status to that of a permanent resident. See 8 U.S.C. § 1255(i)(1)(B). Because a successful application for adjustment of status would allow Hamdan to remain in the U.S. indefinitely and obviate any need for him to continue with his asylum application, he filed a motion with the BIA seeking a remand to the IJ which would allow him to apply for adjustment of status. See id. The BIA granted Hamdan's motion and remanded his case to the same IJ who had adjudicated his asylum application.
The IJ held a second hearing, this time on Hamdan's adjustment of status application, on December 21, 2001. At the hearing, Hamdan testified that he entered the U.S. in 1993 on a student visa but did not attend the University of Wisconsin-Milwaukee as promised in his visa application. He explained that he had several family members legally residing in the U.S., that he had maintained sporadic periods of employment since his arrival in 1993, and that he had obtained an associate degree in Applied Science from the Milwaukee Area Technical College in 1999. In addition, Hamdan disclosed that he was under the care of a psychiatrist and had been diagnosed as suffering from paranoid schizophrenia. He testified that on one occasion his family called the police and had him hospitalized for seven weeks due to his mental illness. Although he was taking medication for his disorder, he testified that he was admitted to the hospital because his medication was ineffective, causing him to act out. When pressed on cross examination for more details on why he was hospitalized, Hamdan only reiterated that it was due to the inadequacy of his medication. He further revealed that, while hospitalized, he was arrested after he broke a window and attempted to escape.
On cross examination by the government, Hamdan declared that he had "no political affiliation at all," a statement which directly contravened his previous testimony at the asylum hearing when he claimed membership in an unidentified anti-Jordanian political organization. Hamdan also admitted that, when he entered the country on a student visa in 1993, he had no money and knew that his uncle did not intend to pay for his education.
Following the government's questioning of the petitioner, the IJ asked Hamdan some follow-up questions. He questioned him about the procurement of his second student visa in 1993, and Hamdan admitted that his "first priority" in obtaining the visa was to leave Jordan, not to attend school. The judge then asked if he was hospitalized after his first arrival in the U.S. in 1984. After Hamdan said that he had not been hospitalized, the judge asked if he recalled testifying during his December of 1999 hearing that he had been hospitalized during his initial visit. In response, Hamdan changed his previous answer and acknowledged that he had been hospitalized for seven to ten days in 1984, shortly after his first entry into the U.S., because he had experienced hallucinations.
Next, the IJ asked Hamdan to explain the inconsistency between his position at the asylum hearing that he was detained because he criticized the political situation in Jordan and his testimony during the adjustment of status hearing that he had no political opinion. During his asylum hearing, Hamdan repeatedly claimed he was persecuted on account of his political opinion. Then, on direct examination at his adjustment of status hearing, Hamdan's attorney had asked, "[D]o you have any type of membership in or any connection with any kinds of organizations?" Hamdan replied, "I have no political affiliation at all."7 Following his direct and cross examinations, the judge asked Hamdan to clarify his statement that he had no political affiliation, inquiring, "[S]o are you saying that you never in any way opposed the Jordanian government when you lived in Jordan prior to 1993?" In response, Hamdan stated, "I did not oppose, no. I just was objecting — used to object to the internal conditions in Jordan — [ ]living conditions, unemployment, taxes imposed,...
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