Issaq v. Holder

• Decision Date: 17 August 2010
• Docket Number: No. 09-2288.,09-2288.
• Parties: Adnan I. ISSAQ, Petitioner,v.Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

617 F.3d 962

Adnan I. ISSAQ, Petitioner,v.Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.

No. 09-2288.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 4, 2009.

Decided Aug. 17, 2010.

Rehearing Denied Nov. 10, 2010.

COPYRIGHT MATERIAL OMITTED

Stanley J. Horn (argued), Horn, Khalaf, Abuzir, Mitchell, & Schmidt, Chicago, IL, for Petitioner.

Richard Zanfardino (argued), Department of Justice, Washington, DC, for Respondent.

Before POSNER, RIPPLE, and WOOD, Circuit Judges.

WOOD, Circuit Judge.

In 1997, Adnan Issaq, a citizen of Iraq, moved with his parents and three siblings from Syria to the United States, where they were admitted as refugees. Issaq and his family are Christians of Assyrian descent. His father, a native of Iraq, and his mother, a Syrian, were married in Syria but settled in Baghdad, Iraq, where Issaq was born in 1978. Fearing religious persecution, Issaq's parents took the family to Syria in 1991. There they remained through late 1997, until their application for refugee status was approved and they came to the United States. Once here, the family settled in DuPage County, Illinois, just west of Chicago. Issaq became a permanent resident of the United States in 2001.

Unfortunately, Issaq developed a drug habit, which led to other crimes and ultimately to the removal proceedings now before us. Issaq was charged with committing a number of residential burglaries near his home in late 2005. He pleaded guilty to one count, and in March 2007 an Illinois court sentenced him to 180 days in prison and two years of probation, including inpatient substance-abuse treatment. In May 2007, after Issaq had served his prison term, the DuPage County Jail released him to a rehabilitation program called the Treatment Alternatives for Safe Communities. Issaq soon blew the chance he had been given. Two months into the program, Treatment Alternatives expelled him for using drugs and for arranging with others to bring drugs into the treatment facility. Issaq's expulsion violated the terms of his probation, and a warrant issued for his arrest. He remained on the loose until December 2007, when a local police officer pulled his car over after a traffic violation. Issaq gave the officer his brother's driver's license and attempted to flee when he was asked to follow the officer to the police station. This led to new charges, to which Issaq pleaded guilty. The court sentenced him to five years' imprisonment as the penalty for violating his probation for the residential burglary, and it imposed an additional year, to run concurrently, for obstruction of justice in connection with the new conviction for the traffic violation.

I

When Issaq's problems with the law came to the attention of the Department of Homeland Security (“DHS”), it initiated proceedings in which it charged that Issaq was removable as an alien convicted of an aggravated felony. 8 U.S.C. § 1227(a)(2)(A)(iii). At an October 2008 hearing before an Immigration Judge (“IJ”), Issaq conceded that residential burglary, a Class 1 felony in Illinois, 720 ILCS 5/19-3(b), is an “aggravated felony” within the meaning of the Immigration and Nationality Act (“INA”), see 8 U.S.C. §§ 1101(a)(43)(G) and 1227(a)(2)(A)(iii). A month later, Issaq applied for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In his application, Issaq asserted that because of his identity as an Assyrian Christian, he faced life-threatening persecution and torture at the hands of Muslim extremists if he were returned to Iraq.

The IJ held a hearing on Issaq's case on December 17, 2008. The judge began by confirming that Issaq was ineligible for asylum because his residential burglary offense was an aggravated felony. Next, the judge found that Issaq's crime was “particularly serious” (another term of art under the INA), and thus he was barred from withholding of removal by 8 U.S.C. § 1231(b)(3)(B)(ii). This left just one question: whether Issaq was entitled to relief in the form of withholding of removal under the CAT.

Issaq testified that he believed that he would be tortured in Iraq on account of his religion. His belief was based solely on his membership in the group of Assyrian Christians; he offered no reason why he in particular would be singled out. Cross-examination revealed that he was unaware of the fact that there are approximately a million Christians currently living in Iraq. Issaq's father, Isho Shamoon, testified that the entire extended family has now left Iraq. Shamoon shared the opinion that his son would be killed if he were returned. Radicals, he stated, had been asking about the family, and a former neighbor warned him that “they” were looking for Shamoon. This was enough to endanger the son as well, Shamoon thought. Issaq's mother, Leila Youkhana, also testified. She mentioned pressure on Christian women in Iraq to adopt Muslim dress, and she too predicted that Issaq would be killed if he were sent back.

The IJ found all of this testimony credible but insufficient to warrant relief under the CAT. Iraq, the judge observed, has undergone “vast changes” since 1991, when Issaq's family left the country. Given the number of Christians, and even Christians of Assyrian ethnicity, the court found no basis for the family's dire predictions of death or torture. Indeed, the court found no evidence apart from these opinions about the likelihood of torture. He acknowledged the fact that there is social friction and violence in Iraq today, but that alone was not enough to show that Issaq would be tortured by a public official, or that the government would condone his torture by others. Notably, however, the IJ had nothing to say about an International Religious Freedom Report that Issaq had tendered in support of his petition on the day of the hearing. See http:// www. state. gov/ g/ drl/ rls/ irf/ 2008/ 108483. htm (last visited August 13, 2010). That Report catalogued several incidents in Iraq of abuse against Assyrian Christians. It also noted, under the heading “Abuses by Rebel or Foreign Forces or Terrorist Organizations” that

[m]any individuals from various religious groups were targeted because of their religious identity or secular leanings. Acts committed against them included not only harassment and intimidation but also kidnapping and murder. The general lawlessness that permitted criminal gangs, terrorists, and insurgents to victimize citizens with impunity affected persons of all ethnicities and religious groups. The magnitude of sectarian attacks, while difficult to track, appeared to decline during the reporting period. While such incidents were progressively fewer, Shi'a in Sunni-dominated neighborhoods, Sunnis in Shi'a-dominated neighborhoods, and religious minorities in both Sunni- and Shi'a-dominated neighborhoods reported receiving death threat letters demanding that they leave their homes, and in many cases individuals either complied or were killed.

The IJ concluded by denying Issaq's request for relief under the CAT and ordering him removed to Iraq.

The Board of Immigration Appeals (“Board”) found that the IJ had “adequately and correctly addressed the issues presented.” In response to Issaq's objection to the finding that he was ineligible for withholding of removal, the Board noted that once a crime is determined to be particularly serious, there is no need for an additional finding that the person is a danger to the community. Even if he were not ineligible for withholding, the Board continued, he could not prevail on the merits because the record did not establish that his life or freedom would be threatened in Iraq on the ground of his race, religion, nationality, membership in a particular social group, or political opinion. See 8 U.S.C. § 1231(b)(3)(A). Nor did Issaq prove that it was more likely than not that he would be tortured for any cognizable reason if removed to Iraq. See 8 C.F.R. § 1208.16(c). Finally, the Board rejected without explanation Issaq's complaint that the IJ erred by failing to consider the International Religious Freedom Report in his analysis. Overall, it thought, he had received a fair hearing and an acceptable explanation. Acting through a single member, the Board thus dismissed his appeal.

II

In his petition for review in this court, Issaq raises two arguments: first, that the Board erred when it characterized his crime as “particularly serious” and for that reason decided that he was ineligible for withholding of removal, and second, that it committed legal error when it determined that he could not qualify for relief under the CAT. Citing 8 U.S.C. § 1252(a)(2)(C), the government responds that this court lacks jurisdiction to adjudicate the petition. It acknowledges that we would be authorized to review the Board's decision if Issaq's petition raised a constitutional or other question of law, see 8 U.S.C. § 1252(a)(2)(D), but it asserts that his petition fails to do so.

A

We consider first Issaq's effort to qualify for withholding of removal. His initial problem arises because of the provision of the INA depriving the courts of jurisdiction to review any part of a removal order based on a finding that the alien is an aggravated felon:

Notwithstanding any other provision of law (statutory or nonstatutory) ... and except as provided in subparagraph (D), no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in section ... 1227(a)(2)(A)(iii) [which includes aggravated felonies] ... of this title....

§ 1252(a)(2)(C). Notwithstanding the superficially absolute nature of this language (apart from the exception for subparagraph (D)), we have decided that it still permits us to decide whether the person before the court is the one who committed the crime, and whether the crime was properly characterized as an aggravated felony. E.g.,

Guerrero-Perez v. INS, 242...