Jamal-Daoud v. Gonzales

• Decision Date: 12 April 2005
• Docket Number: No. 03-2305.,03-2305.
• Citation: 403 F.3d 918
• Parties: Loaae JAMAL-DAOUD, Petitioner, v. Alberto R. GONZALES, United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

403 F.3d 918

Loaae JAMAL-DAOUD, Petitioner, v. Alberto R. GONZALES, United States Attorney General, Respondent.

No. 03-2305.

United States Court of Appeals, Seventh Circuit.

Argued January 12, 2005.

Decided April 12, 2005.

M. Anne Hannigan (argued), Chicago, IL, for Petitioner.

Karen Lundgren, Department of Homeland Security, Office of the District Counsel, Chicago, IL, Daniel E. Goldman (argued), Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before FLAUM, Chief Judge, and EASTERBROOK and WOOD, Circuit Judges.

FLAUM, Chief Judge.

Petitioner Loaae Jamal-Daoud, a native and citizen of Iraq, petitions this Court for review of an order of the Board of Immigration Appeals ("BIA") denying his requests for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"). For the reasons stated herein, we affirm the order of the BIA.

I. Background

Jamal-Daoud arrived at O'Hare International Airport in Chicago, Illinois on February 1, 2000, at the age of seventeen, with a Lebanese passport bearing the name Hanni Moussa. He was interviewed by an immigration officer with the assistance of a translator. Jamal-Daoud had no identification with him other than the passport, which he admitted had been falsified. He told the officer his real name, explained that he was born in Iraq, and that he left Iraq in August 1999 and spent six months in Amman, Jordan. While in Jordan, Jamal-Daoud told the immigration officer, he paid $5,000 to obtain the Lebanese passport.

Although he appeared to understand the questions posed by the officer, Jamal-Daoud gave somewhat inconsistent answers. At first, when asked to describe in detail his purpose in coming to the United States, Jamal-Daoud responded: "Financial situation. Hard life in Iraq," and stated that he wished to stay in the United States "all [his] life." He told the officer that he left Iraq "[b]ecause of the embargo situation, no work, no future." Later, when questioned about the basis of his claim for political asylum, Jamal-Daoud stated: "I am afraid that if I go back, they will arrest me." Jamal-Daoud also admitted, however, that he had never been persecuted by the government of Iraq, and that he did not fear persecution by the Iraqi government based on his race, religion, nationality, political opinion, or membership in a particular social group. The immigration officer concluded that §§ 212(a)(4) and (a)(7) of the Immigration and Nationality Act precluded petitioner's admission to the United States and informed him that he must appear before an immigration judge for an exclusion hearing.

On August 22, 2000, Jamal-Daoud filed a written application for asylum with the assistance of counsel. He attached to his application a statement outlining his asylum claim in which he identified himself as an Assyrian Christian and member of the Chaldean Church. Jamal-Daoud stated that he and his family were persecuted by the Iraqi government. According to petitioner, the problems began when his father began to receive support from relatives in the United States. Authorities in Tell Kaif and Mosul arrested his father repeatedly and eventually arrested his mother as well. Authorities then tried to force Jamal-Daoud to testify against his father. Jamal-Daoud claimed that the authorities told him that his father had connections with Kurds and Assyrians in the North and asked him whether his father gave or received money from these groups. When he responded that he did not know, Jamal-Daoud was "beaten and spat at." Jamal-Daoud claimed that when he was released, relatives helped him leave the country because "they were worried that [he] would be called in and forced to testify to things [he] did not know." He further stated that his parents had escaped to the North and were trying to leave for Turkey "because the situation there is very difficult for Christians." (A.R.158-59.)

On August 29, 2001, petitioner appeared before an immigration judge ("IJ") for removal proceedings. Jamal-Daoud conceded removability but applied for asylum; the IJ considered the asylum request as a request for withholding of removal and deferral of removal under the CAT as well. See 8 U.S.C. § 1231(b)(3); 8 C.F.R. § 1208.3(b). Jamal-Daoud was represented by counsel at the hearing and testified with the assistance of an interpreter. He stated that in February 1999, Iraqi police arrested his father, claiming that he was working against the government and questioned him daily. Jamal-Daoud testified that on June 14, 1999, security agents took him in for questioning about his father's activities. He told the IJ that he had not been beaten, but that he was slapped, spit on, pushed, and insulted. Jamal-Daoud testified that after he was questioned, his uncles helped him leave Iraq for Jordan and that while in Jordan, he obtained a Lebanese passport and airline ticket to Chicago.

Jamal-Daoud admitted that he had provided inconsistent answers during his airport interview but stated: "I was afraid at that time, I was nervous, and I don't know what I was saying then." (A.R.93.) He told the IJ that he was afraid that if he had answered the questions differently, he would have been returned to Iraq. Jamal-Daoud testified at the hearing that he was still afraid to go back to Iraq because he would be questioned about his parents' where-abouts.

The same day as Jamal-Daoud's appearance, August 29, 2001, the IJ issued an oral decision denying his application for asylum and other relief. The IJ concluded that, although Jamal-Daoud's claim of persecution as an Assyrian Christian was "not inconsistent" with the State Department report, petitioner had failed to present persuasive evidence that he had been persecuted. (A.R.42.) The IJ highlighted three factors that persuaded him that petitioner's claim was not credible. First, the IJ discussed the certificate of baptism submitted by petitioner in support of his claim to be an Assyrian Christian. The document was printed in English and petitioner testified that his uncles in Iraq had the certificate prepared and sent to him once he was in the United States. The certificate, however, was dated August 24, 1999, the day before Jamal-Daoud claimed he had departed Iraq. The IJ concluded: "given the fact that [petitioner] has no other documentation and entered the United States with the intent to use a visa placed in a Lebanese passport which [petitioner] paid for raises significant questions about his credibility." (A.R.43.)

Second, the IJ found that petitioner's airport interview "further undercut [ ]" his claim of persecution, noting that Jamal-Daoud provided the wrong date and place of birth. Jamal-Daoud also provided other untruthful answers to the immigration officer, including responses to such crucial questions as why he left Iraq and came to the United States, and whether he had been persecuted by the Iraqi government.

Third, the IJ explained that petitioner's credibility was undermined by the multiple changes of venue in his case. Jamal-Daoud's case was originally brought in Chicago because of his entry to the United States there. On petitioner's request, the case was transferred to Detroit, Michigan because Jamal-Daoud claimed his aunt lived there. Petitioner later requested that the case be sent back to Chicago because "he had neither family nor friends in the Detroit area." Petitioner next requested that his hearing be continued because he needed witnesses who lived in the Detroit area to corroborate his claims. The IJ denied that request. Petitioner then asked that his hearing be expedited but submitted no additional evidence to support his claim for asylum.

On February 4, 2003, the BIA affirmed the IJ's order without issuing a separate opinion. Jamal-Daoud petitions this Court for review.

II. Discussion

Petitioner presents three claims that he asks this Court to review: (i) his request for asylum; (ii) withholding of removal; and (iii) protection under the CAT.

A. Asylum

We begin with petitioner's request for asylum based on religious persecution. To establish eligibility for asylum, an applicant must demonstrate that he is a "refugee" under the Immigration and Nationality Act ("INA"). Liu v. Ashcroft, 380 F.3d 307, 312 (7th Cir.2004). The statute defines "refugee" as one who is unable or unwilling to return to his country "because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1101(a)(42)(A). It is petitioner's burden to prove that he is a refugee and eligible for asylum. 8 C.F.R. § 208.13(a).

Persecution is defined as "punishment or the infliction of harm for political, religious, or other reasons that this country does not recognize as legitimate." Liu, 380 F.3d at 312. If an applicant is found to have suffered past persecution, he is entitled to a rebuttable presumption of a well-founded fear of future persecution. 8 C.F.R. § 208.13(b)(1); Dandan v. Ashcroft, 339 F.3d 567, 573 (7th Cir.2003). In the absence of such a finding, the applicant must prove that he genuinely fears he will be persecuted based on a protected ground if returned to his native country, and that his fears are objectively reasonable. Liu, 380 F.3d at 312. The "subjective fear component turns largely upon the applicant's own testimony and credibility." Balogun v. Ashcroft, 374 F.3d 492, 499 (7th Cir.2004). The objective component requirement can be met "either through the production of specific documentary evidence or by credible and persuasive testimony." Id.

Because the BIA affirmed the IJ's decision without issuing a separate opinion, the IJ's decision becomes that of the BIA for the purposes of judicial review. Georgis v. Ashcroft, 328 F.3d 962, 966-67 (7th Cir.2003). We review this decision under the highly deferential substantial evidence test. Id. at 967. Under this standard, we must...