Himri v. Ashcroft, 03-71152.

• Citation: 378 F.3d 932
• Decision Date: 02 August 2004
• Docket Number: No. 03-71152.,03-71152.
• Parties: Haifa Saleh El HIMRI; Musab El Himri, Petitioners, v. John ASHCROFT, Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 932

378 F.3d 932

Haifa Saleh El HIMRI; Musab El Himri, Petitioners, v. John ASHCROFT, Attorney General, Respondent.

No. 03-71152.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 6, 2004.

Filed August 2, 2004.

As Amended August 24, 2004.

Matthew A. Carvalho, Heller, Ehrman, White & McAuliffe, Seattle, WA, for the petitioner.

Alicia D. Johnson and Leslie McKay, Office of Immigration Litigation, U.S. Department of Justice, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals.

Before: HUG, TASHIMA, and PAEZ, Circuit Judges.

HUG, Circuit Judge:

This case requires us to look carefully at the methods the government uses to select a country of removal. The petitioners in this case are stateless Palestinians who fled Kuwait, the country of their nativity, when Iraq invaded Kuwait in 1991. They have been living in the United States since that time and now seek asylum, withholding of removal, and protection under the Convention Against Torture. The government argues that Jordan, rather than Kuwait, should be used as the country of removal because the petitioners hold Jordanian travel documents. The Immigration Judge ("IJ") accepted the government's argument in part and performed the legal analysis as to both Kuwait and Jordan, finding that the petitioners are removable to Jordan. We disagree. We hold that 8 U.S.C. § 1231 does not authorize the designation of Jordan as a country of removal in this case. We further hold that the El Himris have established that they are members of a minority that is subject to economic persecution in Kuwait, entitling them to withholding of removal.

I. Background

A. Immigration from Kuwait

Haifa El Himri was born in Kuwait to Palestinian parents who had fled to Kuwait as a result of the 1948 war between Israel and its Arab neighbors.¹ Until she came to the United States in 1990 she had lived most of her life in Kuwait. Because Kuwait does not grant citizenship to individuals not of Kuwaiti descent, El Himri is stateless. She does, however, have a Jordanian passport which entitles her to travel but does not confer Jordanian residency or nationality rights. In 1985 Haifa married Khaled El Himri, another stateless Palestinian living in Kuwait. Shortly thereafter they legally entered the United States when Khaled began college. While here Haifa had one child and became pregnant with her son Musab, who is also a party to this case.² Before Musab was born, Haifa returned to Kuwait to renew her residency. At the time, Kuwait required its non-citizen residents traveling abroad to renew their residency every two years or risk losing their residency privileges completely. While she was in Kuwait, Musab was born.

Khaled rejoined Haifa in Kuwait that summer but returned to the United States alone in May of 1990 to continue school; Haifa intended to follow later in the year. Her plan was accelerated in August of 1990 when Iraq invaded Kuwait. Haifa and all of her extended family in Kuwait fled. She drove a car through Iraq to Syria, where she boarded a plane to join her husband in the United States. Haifa and her son Musab entered the country on non-immigrant tourist visas. They overstayed their visas and continue to live in the United States.

After Kuwait was liberated from Iraq, the Kuwaiti government began a well-documented effort to reduce its non-citizen population. The Kuwaiti government did this by preventing its non-citizen residents who had fled during the war from returning and expelling those who had stayed. See, e.g., Ouda v. INS, 324 F.3d 445 (6th Cir.2003) (A Palestinian family living in Kuwait was told to leave by a certain date or they would be forcibly taken to the border.). It is undisputed that Kuwait embarked on this policy because it believed these non-citizens had supported Iraq during the war. Kuwait has been successful in reducing its Palestinian population from around 350,000 before the war to about 35,000 now.

In the period immediately after the war, Palestinians living in Kuwait were subject to extreme discrimination and persecution. According to an Amnesty International Report they were subject to extra-judicial executions, "disappearances," extended government detention, and torture. The more extreme persecution seems to have ended when constitutional government returned to Kuwait in 1993, although Palestinians living in Kuwait are still subject to extreme economic discrimination. Haifa El Himri further alleges that Palestinian women in Kuwait were and continue to be at high risk for rape, a claim that is supported by the State Department Country Report.

B. Immigration Proceedings

Khaled El Himri, who is not a party to this case, filed an asylum petition in 1993 in response to removal proceedings begun by the INS.³ Under the mistaken belief that Khaled's asylum claim applied to her and Musab as well, Haifa took no action. On January 20, 2000, the INS initiated removal proceedings against Haifa and Musab. Both conceded removability but petitioned for asylum, withholding of removal, and protection under the Convention Against Torture. Because Haifa had waited ten years to file her petition for asylum, the IJ denied the petition for asylum as time-barred. He considered the merits of Musab's asylum petition, however, because he is a minor. The IJ denied Musab's petition for asylum on the merits and denied both Haifa's and Musab's petition for withholding of removal and protection under the Convention Against Torture.

The El Himris originally declined to state a country of removal and sought relief against removal to Kuwait. The government, however, urged that Jordan be considered the country of removal on the grounds that the petitioners have Jordanian travel documents. Without referencing the statute that governs removal, the IJ named both countries as countries of removal. The El Himris had an opportunity to seek relief against removal to Jordan, but they were unable to convince the IJ. He held that they were removable to Jordan and granted them voluntary departure. On appeal, the Board of Immigration Appeals ("BIA") adopted the IJ's opinion and reasoning, and granted the El Himris an additional thirty days within which to voluntarily depart. Last fall this court granted the El Himris' motion for a stay of voluntary departure and removal pending the resolution of this case. See El Himri v. Ashcroft, 344 F.3d 1261, 1263 (9th Cir.2003).

II. Discussion

A. Standard of Review

Because the BIA adopted the IJ's decision without opinion, the IJ's decision is considered the final agency determination. Falcon Carriche v. Ashcroft, 350 F.3d 845, 849 (9th Cir.2003). The IJ's decision to deny the El Himris' petitions for relief should be affirmed if it is supported by substantial evidence. INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992); Wang v. Ashcroft, 341 F.3d 1015, 1019-20 (9th Cir.2003). The IJ's determination that the El Himris do not qualify for protection under the Convention Against Torture is reviewed for substantial evidence. Zheng v. Ashcroft, 332 F.3d 1186, 1193 (9th Cir.2003).

We review the factual findings made by the IJ regarding the El Himris' ties to various potential countries of removal for substantial evidence. See Monjaraz-Munoz v. INS, 327 F.3d 892, 895 (9th Cir.2003), amended by 339 F.3d 1012(9th Cir.2003). However, we review the IJ's statutory interpretation de novo. Id.; Kuhai v. INS, 199 F.3d 909, 911-12 (7th Cir.1999).

B. Kuwait

1. Asylum

We agree that Haifa El Himri's application for asylum is time-barred due to her failure to bring the claim within one year of arriving in the United States. 8 U.S.C. § 1158(a)(2)(B). As Musab El Himri is a minor, however, his asylum petition is not time-barred. We therefore consider the merits of his asylum claim. Because Musab El Himri's claim is derivative of his mother's we consider the merits of her claim only to the extent they form the basis of his claim.

To succeed on appeal, Musab El Himri must show that the evidence compels the conclusion that there is at least a ten percent chance that he will suffer persecution on account of his race, religion, nationality, social group, or political opinion if he were to return to Kuwait. Elias-Zacarias, 502 U.S. at 481, 112 S.Ct. 812; INS v. Cardoza-Fonseca, 480 U.S. 421, 442, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987).

Musab El Himri cannot establish past persecution because he and his mother did not experience anything rising to the level of persecution before they left Kuwait. He is therefore not entitled to a presumption of a well-founded fear of future persecution, but he may independently establish a well-founded fear of future persecution. Molina-Estrada v. INS, 293 F.3d 1089, 1096 (9th Cir.2002).

Where persecution of a group of people is widespread within a country, an alien may establish an objectively reasonable fear of future persecution in that country by showing that, as a member of that group, he or she stands a heightened risk of persecution. Hoxha v. Ashcroft, 319 F.3d 1179, 1182-83 (9th Cir.2003). The greater the risk of persecution to group members, the lower the alien's burden to show a personal risk of persecution. Id.

Here, the IJ has accepted as credible evidence that Kuwait responded to the Gulf War by embarking on a systematic effort to decrease its population of non-Kuwaiti residents. Palestinians, in particular, were targeted for their imputed sympathy with Iraq during the invasion. Through forced expulsions, extreme persecution and discrimination, Kuwait decreased its Palestinian population from a pre-war total of 350,000 to a current population of about 35,000. Although the most extreme forms of persecution such as extra-judicial executions, "disappearances," extended government detention, and torture, seem to have ended with the return of constitutional government in 1993, Palestinians are still persecuted in...