Al-Harbi v. Immigration & Naturalization

Citation242 F.3d 882
Decision Date09 March 2001
Docket NumberNo. 98-70828,AL-HARB,P,98-70828
Parties(9th Cir. 2001) NASEEM SALMANetitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent
CourtU.S. Court of Appeals — Ninth Circuit

Philip Atkins-Pattenson, John D. Pernick, Jonathan P. Hersey, Sheppard, Mullin, Richter & Hampton, San Francisco, California, for the petitioner.

Terri J. Scadron, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. INS No.A76-200-283

Before: Andrew J. Kleinfeld, A. Wallace Tashima and Marsha S. Berzon, Circuit Judges.

BERZON, Circuit Judge:

In 1996 Naseem Salman Al-Harbi ("Petitioner") was brought by American forces to United States territory from northern Iraq, a refuge of Iraqi insurgents hostile to the reign of Saddam Hussein, as part of a massive evacuation effort led by United States government agencies. He wishes to remain here. We are charged with deciding whether he may.

BACKGROUND
A. Al-Harbi's Testimony

Al-Harbi, a twenty-nine-year-old Shia'a Muslim and a citizen of Iraq, testified as follows at his hearing before the Immigration Judge ("IJ"):1

In 1988, Al-Harbi was drafted by the Iraqi army. He deserted in 1990, prior to Iraq's invasion of Kuwait, and went to work for his uncle because his army wages were insufficient to support his family. In 1992, Petitioner rejoined the military after Hussein declared an amnesty for deserters. Upon reporting for duty, he and other deserters were taken to a police station. At the station, the police handcuffed and beat Al-Harbi while interrogating him about his activities during his desertion. After the interrogation Al-Harbi signed a document acknowledging that he would be executed if he opposed Hussein's regime or again deserted the military. He then rejoined his former unit in the army.

On October 15, 1995, Iraq held a presidential election in which Hussein was the only candidate. Al-Harbi and two friends secretly distributed flyers protesting what they deemed to be a sham election. The Iraqi secret service discovered what they were doing, however, and arrested Al-Harbi's two cohorts. After his friends were arrested, Al-Harbi fled to Irbil, located in northern Iraq, to avoid execution for opposing the government. In Irbil, he joined the Iraqi National Congress ("INC"), a political organization that seeks to replace Hussein and his government with a democratic regime. The INC assigned Al-Harbi the alias Zaman Sahib Hassan, and he served in Irbil as an INC guard from October 1995 until Hussein's forces invaded Irbil in August of 1996.

In the midst of the invasion, Al-Harbi and other INC members fled to Masif Salahiddin, a mountainous area in Kurdish northern Iraq, where they hid for fifteen days. From there, they were evacuated under Red Cross protection to Zakho, a town near the border of Iraq and Turkey. Al-Harbi and the other INC members remained in Zakho for forty-five days. Thereafter, U.S. military personnel evacuated them to Anjarlik, Turkey, and then airlifted them to Andersen Air Force Base in Guam.

When he arrived in Guam, Al-Harbi was interviewed by someone he took to be a member of the United States military, Raad Alkhakany. Alkhakany, who was fluent in Arabic, Petitioner's native language, prepared Petitioner's application for asylum and withholding of removal during the interview, using an INS Form I-589. In the application, Al-Harbi indicated that he worked with the Dawa political party, another group opposed to Hussein's regime, from 1988 to 1992, and for the INC from 1993 to 1996. The application also indicated that Al-Harbi had personally participated in the assassination of two Iraqi security officers while associated with the Dawa party.

Following his interviews in Guam with INS Asylum Officers and FBI agents, Al-Harbi was transferred to San Francisco, where the INS's Asylum Office referred his case to an IJ. The INS referral notice states that the INS did not grant his asylum claim because the "evidence indicate[d [Petitioner] participated in the persecution of others."2

Al-Harbi's exclusion hearing, in which he was represented by counsel and testified through an Arabic translator, began on August 5, 1997. At the hearing, Petitioner made claims for asylum and withholding of removal on the basis of political opinion and religion.

Al-Harbi initially testified that he had not been a member of the Dawa party and had not participated in the killings described in his asylum application. To explain the inconsistency between his I-589 form and his testimony, Al-Harbi insisted that he had told the officials who interviewed him in Guam only that during the 1992 interrogation incident the police had accused him of Dawa party membership and of the two shootings. Al-Harbi testified that he and the interpreters had difficulty understanding one another and that no one ever read his asylum application back to him in Arabic. Petitioner denied ever telling any U.S. official that he was in fact in the Dawa party or that he had killed anyone. He did admit, though, that, although he told the INS Asylum Officer that he had been arrested in 1995, he was in fact arrested in 1992. Petitioner repeatedly attributed the apparent misunderstandings surrounding these facts to difficulties he had in communicating with interpreters in Guam. Moreover, he maintained that the reason his I-589 form did not mention his protest of the 1995 presidential election was that Alkhak any had never asked him about such activities when he was filling out the form.

Paul Pierrot, an INS Asylum Officer, and John Peterson, an FBI agent, both of whom had interviewed Petitioner in Guam, each testified that Petitioner did not appear to be having translation problems during the interviews, and that Petitioner had clearly told them that he had been in the Dawa party and that he had participated in the killings. After Pierrot and Peterson testified, the hearing was continued to a third day.

On the third day of the hearing, Al-Harbi submitted another declaration, dated September 22, 1997, in which he recanted certain portions of his earlier testimony. In the declaration Petitioner stated that he had "concocted the story about killing two security guards in 1988," and that he wished to "tell the Judge what really happened in Iraq and explain why[he had] not told the truth . . . ." He confessed that:

[i]n the first days after arriving on Guam, an Iraqi who I trusted who had been in INC in Erbil [sic] with me advised me that he knew about Immigration matters and advised me that I had to convince the United States authorities that I was vehemently opposed to Saddam Hussein, so it would not be enough for me to describe my political work with the INC, but instead I needed to tell them I had killed someone from Saddam Hussein's government. That was why I told that story to the officials on Guam. Then, when I got to Bakersfield, I found out that another Iraqi, Rasheed Al-Alwani, (file A76 201 4770) had made up a similar lie, for similar reasons, and similar advice given, and he and I discussed our predicament. . . . We thought it would really look phoney if we both told the same reasons for why we had lied, so I decided to say I had been misunder stood in Guam by the officials on Guam due to the inaccurate interpreters. . . . When I turned myself in to the military in 1992, I was mistreated and detained --that is true--but I was not accused of any murders. . . . I believe my life and freedom are in danger if I return to Iraq. I have never killed anyone in my life and have never committed a crime.

Petitioner testified consistently with his new declaration on the third day of his hearing, and also retracted one other part of his earlier testimony. Petitioner had previously testified that at the end of the Gulf War, in March of 1991, a group of Iraqis opposed to Hussein's regime led an uprising ("Intifada") in Babyl Alhelia, the town where Petitioner lived after his first desertion from the army. The military shelled Babyl and other neighboring towns to put down the Intifada, and a number of the participants fled to Saudi Arabia. In the first day of his exclusion hearing (and in his July 30, 1997 declaration), Petitioner had claimed that he had participated in the Intifada by distributing and posting flyers critical of Hussein's government and political party (the Ba'ath Party). During the third hearing day, however, Petitioner admitted that he had "made up" his involvement in the Intifada.

B. Other Evidence

The record contains, in addition to Al-Harbi's testimony, a great deal of documentary evidence. Included among this evidence are two identification cards, one bearing Al-Harbi's photograph but a different name and attesting to his involvement in the Iraqi Broadcasting Corporation, and the other a Red Cross card bearing the same likeness and Al-Harbi's name and personal information. There is, in addition, extensive documentary information from newspapers, INC reports, State Department letters and other sources verifying that Hussein's forces invaded Irbil; that 100 INC members were executed; that INC members fled to Masif Salahiddin and then to Zakho; and that INC members and other Iraqi dissidents were evacuated from Zakho to Turkey and thence to Guam, as part of an American operation intended to rescue Iraqi dissidents, including INC members, after the invasion of Irbil. There is also documentary material asserting that the INC has been funded by the American government through the CIA. Finally, there are documentary sources, including an explicit threat in an Iraqi publication, indicating that the evacuees, if returned to Iraq, would be treated as traitors and, quite possibly, executed.3

C. INS Decisions

In a written decision issued on September 26, 1997,...

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