Margos v. Gonzales

• Decision Date: 05 April 2006
• Docket Number: No. 05-2051.,05-2051.
• Parties: Shukria S. MARGOS, Petitioner, v. Alberto R. GONZALES, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

443 F.3d 593

Shukria S. MARGOS, Petitioner, v. Alberto R. GONZALES, Respondent.

No. 05-2051.

United States Court of Appeals, Seventh Circuit.

Submitted January 11, 2006.^*

Decided April 5, 2006.

COPYRIGHT MATERIAL OMITTED

Mark J. Thomas, Thomas & Associates, Chicago, IL, for Petitioner.

Karen Lundgren, Department of Homeland Security, Office of the Chief Counsel, Chicago, IL, Christopher Fuller, Department of Justice Civil Division, Immigration Litigation, Washington, DC, for Respondent.

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

MANION, Circuit Judge.

Shukria Margos, an Iraqi citizen, petitions for review of the Board of Immigration Appeals' decision denying her asylum and withholding of removal. We deny the petition for review.

I.

Shukria Margos, sixty-one, is an Assyrian Christian from Kirkuk, Iraq. She was married and had four children, three sons and a daughter. From 1974 to 1998, she worked in the x-ray department of a hospital, which, for many years during the later portion of her tenure, was owned by the Iraqi government. On the side, she worked as a cook. She did so first for some doctors that she knew, and they later recommended her culinary skills to members of the then-governing Ba'ath party. Beginning in 1988, high-ranking Ba'ath party officials—some close to Iraq's former leader, Saddam Hussein—intermittently hired her as a cook for their parties and other events. Her catering enterprise with the Ba'ath officials stopped either in 1991, 1993, or 1998; the imprecision is due to Margos's conflicting accounts. Additionally, in 1998, officials offered her a position cooking for two of Hussein's children, but she declined because she was generally scared of the situation and told them she was too old to do the job.

Separately, two of Margos's sons served in the Iraqi army during the Persian Gulf War. In 1991, they returned to Kirkuk, and, according to Margos, the Iraqi authorities accused the two of being deserters. The authorities detained the two for a period but released them when the authorities lost control of Kirkuk during a Kurdish uprising in the northern regions of Iraq. The two sons then fled, and Margos has not heard from them since. She does not know where they went or where they are. When the Iraqi authorities regained control of Kirkuk, the authorities came looking for the two sons. Not finding them, the authorities, according to Margos, arrested her husband on the belief that he knew the two sons' whereabouts. Margos maintains that the authorities held her husband for six months, tortured him, caused him to lose his memory, and then returned him, dumping him on the doorstep of the Margos home. Her husband died of his injuries some two years later in 1995 or 1996; Margos cannot recall the precise year.

Independent from her commercial dealings with high-ranking Ba'athists, Margos had her own encounters with the Iraqi authorities. The timing of the following events is obscure. In one episode, while riding on a bus, Margos physically assaulted a woman and attempted to throw her from the bus. The woman verbally provoked Margos's rage by calling Margos a "Bush supporter" in reference to the first President Bush. The basis for the woman's "accusation" is unstated, but Margos's assault led to a police interrogation at police/security headquarters. Margos suffered one or more broken ribs after being struck by the butt of a gun. Further, according to Margos's testimony, the authorities asked her why being called a Bush supporter made her so angry, and, when she offered an uncooperative response, they threatened to slit her tongue. Importantly, Margos's testimony does not indicate that the authorities acted because they believed she was a Bush supporter. Rather, it appears to have been a routine, albeit oppressive, law enforcement inquiry in which the authorities attempted to determine why she assaulted the other passenger.

Margos was taken into headquarters on one other occasion and was interrogated, without injury, about her two missing sons. The authorities also visited her house on multiple occasions to ask about the same two sons, threatening her with jail if she did not turn them in, but the authorities never acted on their threats. Further, in one visit, the authorities questioned Margos about her attendance at her sister's wedding in Erbil, Iraq (also spelled Irbil or Arbil), a city north of Kirkuk where Margos was born. The city also happened to be in the former no-fly zone and apparently outside the control of the Iraqi authorities, thereby providing the basis for the questioning. Other than the harassing nature of these house visits, Margos did not report any harm during or as a result of these visits.

Eventually, Margos "got tired" of these visits, and this prompted her to obtain an Iraqi passport and leave Iraq in 1998, which is about when she declined the cooking position with the two Hussein children. She moved to Jordan, where her third son lived. Nonetheless, Margos overstayed her visa and was unable to pay the resulting Jordanian fines. Consequently, in 2002, Jordan deported Margos, and she then came to the United States on a visitor's visa. She settled in the Chicago area where some of her relatives lived. As for Margos's daughter, she was last known to be living in Erbil, but Margos has had no contact with the daughter or Margos's other relatives in Erbil since Margos left Iraq for Jordan. Further, the one son in Jordan recently immigrated to Australia.

Margos entered the United States as a nonimmigrant visitor for pleasure and was authorized to remain here for six months. Later, the United States government commenced removal proceedings against Margos because she remained beyond her end date without authorization. Before an immigration judge, Margos conceded removability but sought asylum and withholding of removal. After a hearing, at which Margos testified, the immigration judge denied her application for asylum and withholding of removal. She appealed to the Board of Immigration Appeals ("BIA"). The BIA affirmed, and Margos now petitions this court for review.

II.

To qualify for asylum, Margos must show that (1) she suffered past persecution in Iraq on account of her race, religion, nationality, membership in a particular social group, or political opinion, or (2) she has a well-founded fear of future persecution in Iraq on account of one or more of those same five enumerated grounds. See 8 U.S.C. §§ 1101(a)(42)(A), 1158(b); Jamal-Daoud v. Gonzales, 403 F.3d 918, 922 (7th Cir.2005); Oforji v Ashcroft, 354 F.3d 609, 613 (7th Cir.2003). "Persecution" in this context generally refers to punishment or substantial harm— mere harassment is not enough. See Firmansjah v. Gonzales, 424 F.3d 598, 605 (7th Cir.2005); Prela v. Ashcroft, 394 F.3d 515, 518 (7th Cir.2005); Oforji, 354 F.3d at 613. "Persecution does not encompass all treatment that our society regards as unfair, unjust, or even unlawful or unconstitutional." Firmansjah, 424 F.3d at 605 (quotation omitted).

Our review here is limited to determining whether the denial is supported by substantial evidence, meaning we will uphold the denial so long as it is supported by "reasonable, substantial, and probative evidence on the record considered as a whole." Koval v. Gonzales, 418 F.3d 798, 804 (7th Cir.2005) (quotation omitted). "Only where the evidence in support of the application is so compelling that no reasonable factfinder could fail to find the requisite fear of persecution will we reverse the [BIA's] decision for lack of evidence." Jamal-Daoud, 403 F.3d at 922. In sum, "we are not at liberty to overturn the [BIA's] determination simply because we would have decided the case differently." Id.

Before turning to the merits, we add a brief word on Margos's credibility. After finding that Margos failed to establish persecution, the immigration judge noted discrepancies in her testimony and the record. The immigration judge, however, did not explicitly state that Margos lacked credibility. For its part, the BIA found it unnecessary to address the credibility issue, ruling that, even if credible, Margos failed to show that she was eligible for asylum or withholding of removal. Consequently, we do not have an adverse credibility determination to review. See Zheng v. Gonzales, 409 F.3d 804, 809 (7th Cir.2005); see also Kayembe v. Ashcroft, 334 F.3d 231, 234-35 (3d Cir.2003). We thus accept Margos's version of events as credible.

Reviewing her past persecution claims, Margos testified that the authorities broke one or more of her ribs during one interrogation and threatened her with additional physical harm in the course of that interrogation. This episode, however, followed her own physical assault on a female bus passenger. Margos herself testified that she attempted to throw this woman from the bus. It is true that the other woman called Margos a Bush supporter and that the authorities asked Margos why that allegation enraged her. However, Margos offers no evidence to show that she was treated differently from any other Iraqi who had committed a similar assault without being called a Bush supporter. Margos's testimony, taken as credible, does not demonstrate that the authorities acted because they believed she was a Bush supporter and political opponent of the regime. Rather, their pursuit and interrogation of Margos was triggered by her physical attack. Her injury and their threats were incident to the police interrogation and her uncooperative conduct during that interrogation, not any perceived political opposition to the ruling Ba'athists (a regime which is no longer in power, but more on that point below). Therefore, even when her testimony is viewed to be credible, it is reasonable to find that these events do not establish political persecution.

Margos also testified that the authorities repeatedly questioned her about the whereabouts of her two missing sons and once...