Marouf v. Lynch, 14–4136.

• Decision Date: 06 January 2016
• Docket Number: No. 14–4136.,14–4136.
• Citation: 811 F.3d 174
• Parties: Nancy MAROUF; Saed Marouf; Neheda Marouf, Petitioners, v. Loretta E. LYNCH, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

811 F.3d 174

Nancy MAROUF; Saed Marouf; Neheda Marouf, Petitioners,

v.Loretta E. LYNCH, Attorney General, Respondent.

No. 14–4136.

United States Court of Appeals, Sixth Circuit.

Argued: Oct. 7, 2015.

Decided and Filed: Jan. 6, 2016.

ARGUED:Ann F. Barhoum, Law Offices of Shamieh And Ternieden, San Francisco, California, for Petitioners. Jamie M. Dowd, United States Department of Justice, Washington, D.C., for Respondent. ON BRIEF:Elias Z. Shamieh, Law Offices of Shamieh And Ternieden, San Francisco, California, for Petitioners. Jamie M. Dowd, United States Department of Justice, Washington, D.C., for Respondent.

Before: MERRITT, McKEAGUE, and WHITE, Circuit Judges.

MERRITT, J., delivered the opinion of the court in which McKEAGUE and WHITE, JJ., joined in part. McKEAGUE, J. (pg. 191), delivered a separate opinion concurring in the judgment. WHITE J. (pg. 191), delivered a separate opinion concurring in the judgment.

OPINION

MERRITT, Circuit Judge.

In this immigration case, petitioners Nancy Marouf, Saed Marouf, and Naheda Marouf seek review of the Board of Immigration Appeals' order affirming the decision of an Immigration Judge denying their applications for asylum, withholding of removal, and protection under the Convention Against Torture. The Board of Immigration Appeals ("the Board") affirmed the Immigration Judge's ("IJ") finding that the Maroufs were not credible witnesses, and that they therefore failed to demonstrate a well-founded fear of persecution. The Maroufs contend that the Board's adverse credibility determination was not supported by substantial evidence. We agree, and REVERSE and REMAND to the Board for further proceedings consistent with this opinion.

I. Facts and Procedural History

Nancy and Saed Marouf, and their daughter Naheda, are stateless Christian Palestinians. Administrative Record ("A.R.") 99. The family lived in the small West Bank village of Taybeh, about thirty minutes from Jerusalem. A.R. 720. Saed arrived in the United States from Taybeh in June 2008. A.R. 56. Nancy and Naheda arrived in September 2009. Id. Saed and Nancy now have two additional children who were born in the United States. A.R. 99.

In October 2009, Nancy completed an application for asylum and withholding of removal, naming Saed and Naheda as derivative beneficiaries. A.R. 704–18. Saed and Naheda filed their own applications in the summer of 2011. A.R. 833–42, 875–84. The Maroufs were placed in removal proceedings in March 2010 and charged with being unlawfully present in the United States. A.R. 820–21.

Hearings before IJ Robert Newberry were held in Detroit on several dates in 2011 and 2012. A.R. 101–454. The Maroufs claimed that they had been persecuted in the Occupied Territories as a result of their Christian religion. Id. Nancy and Saed each testified about numerous instances of persecution. Id.

One such incident involved Saed being attacked in 2006 by a group of Muslims after he had escorted a group of young Christian women who were being harassed by Muslim men. E.g. A.R. 271–72. A large group of Muslims came to the house where Saed was staying and beat him and Nancy's cousin. Id. Saed's nose was broken in the incident, and Nancy's cousin also suffered an injury. E.g. A.R. 395.

The family also claimed that Muslim men attempted to rape Nancy in 2009, A.R. 421–22, and that Muslims fire-bombed Nancy's parents' house in March 2009, A.R. 156, 184. There was also testimony about the 2005 burning of the house of a Christian neighbor who had married a young Muslim woman from a nearby village. A.R. 422–23.

The IJ denied relief on April 5, 2013. A.R. 55–100. The IJ found the Maroufs to be stateless and ordered them removed to Israel and the Occupied Territories or, in the alternative, to Jordan. A.R. 99. The IJ concluded that Nancy and Saed's testimony was not credible and failed to demonstrate either a well-founded fear of persecution (the standard for asylum) or that it was more likely than not that they would be harmed (the standard for withholding of removal and protection under the Convention Against Torture) if returned to the Occupied Territories or Jordan. Id. The IJ therefore denied the Maroufs' applications for asylum, withholding of removal, and protection under the Convention Against Torture. A.R. 99–100. In support of his determination, the IJ pointed to various alleged discrepancies in the Maroufs' account.

Chief among these were translated statements by Nancy that referred to Saed's nose as having been broken in February 2007, as opposed to the February 2006 date referred to elsewhere. A.R. 78–79. The IJ was also troubled by a translated letter from Saed's mother that referred to his nose having been broken "in an accident," A.R. 82, and the apparent "variance" in Saed stating both that he was attacked by 40 Muslims and that at the time of the attack there were "more than 100 people" outside his house. A.R. 82–83. Varying statements about the injury Nancy's cousin suffered during the incident when Saed was attacked (whether he hurt his hand, arm, or shoulder) also raised concerns. Id.

On appeal, the Board affirmed the IJ's adverse credibility determination, holding that it was not clearly erroneous. A.R. 3–4. The Board recited the discrepancy in the dates given for the alleged attack on Saed, the discrepancies in the proffered nature of Nancy's cousin's injury, the apparent discrepancy in how many persons attacked Saed, and the letter from Saed's mother stating that his nose had been broken in "an accident." Id.

The Maroufs now appeal the Board's adverse credibility determination and resulting denial of relief. A panel of this court issued an order in February 2015 granting the Maroufs' motion for a stay of removal pending their petition for review. Order of Feb. 10, 2015.

II. Discussion

A. Refugee Relief Framework

American immigration law provides three primary forms of relief for aliens at risk of persecution if returned to their home countries: withholding of removal under the I.N.A., 8 U.S.C. § 1231(b)(3) ; withholding of removal under the United Nations Convention Against Torture ("CAT"), as provided in 8 C.F.R. §§ 208.16 –18 ; and asylum under 8 U.S.C. § 1158.

"To prevail on a petition for withholding of removal under the INA, [§ 1231(b)(3) ], an alien must show that it is more likely than not that he would be subject to persecution ... were he removed from this country." Shkulaku–Purballori v. Mukasey, 514 F.3d 499, 503 (6th Cir.2007) (citations and internal quotation marks omitted). "[T]o be eligible for withholding of removal under the Convention, [an] applicant [must show] it is more likely than not that he ... would be tortured if removed...." Id. (citations and internal quotation marks omitted). These forms of relief are mandatory, provided that the applicant has not rendered himself statutorily ineligible for them. See 8 U.S.C. § 1231(b)(3)(A)¹ ("[subject to enumerated exceptions,] the Attorney General may not remove an alien to a country if the Attorney General decides that the alien's life or freedom would be threatened in that country because of the alien's race, religion, nationality, membership in a particular social group, or political opinion...."); 8 C.F.R. § 208.16(c)(4) ("If the immigration judge determines that the alien is more likely than not to be tortured in the country of removal, the alien is entitled to protection under the Convention Against Torture.").

Asylum under 8 U.S.C. § 1158 is generally available for applicants who meet the definition of refugee under 8 U.S.C. § 1101(a)(42)(A), which requires only a well-founded fear of persecution:

The term "refugee" means ... any person who is outside any country of such person's nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that 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....

Unlike withholding of removal, asylum is discretionary relief. 8 U.S.C. § 1158(b)(1)(A) ("The Secretary of Homeland Security or the Attorney General may grant asylum ... [if] such alien is a refugee within the meaning of section 1101(a)(42)(A)....") (emphasis added).

Although asylum is discretionary, it nonetheless serves a vital role in America's system for protecting refugees from persecution. Indeed, the current asylum regime provided for in 8 U.S.C. § 1158 was originally enacted as part of the Refugee Act of 1980, Pub.L. No. 96–212, § 208(a), 94 Stat. 102, 105 (1980), which the Supreme Court has repeatedly recognized as carrying out the United States' international treaty obligations regarding refugees:

As this Court has twice recognized, one of Congress' primary purposes in passing the Refugee Act was to implement the principles agreed to in the 1967 United Nations Protocol Relating to the Status of Refugees, Jan. 31, 1967, 19 U.S.T. 6224, T.I.A.S. 6577 (1968), as well as the United Nations Convention Relating to the Status of Refugees, 189 U.N.T.S. 150 (July 28, 1951), reprinted in 19 U.S.T. 6259.

Negusie v. Holder, 555 U.S. 511, 520, 129 S.Ct. 1159, 173 L.Ed.2d 20 (2009) (citations and internal quotation marks omitted); see also I.N.S. v. Aguirre–Aguirre, 526 U.S. 415, 427, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999) ; I.N.S. v. Cardoza–Fonseca, 480 U.S. 421, 436–37, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987).

Moreover, discretionary denials of asylum are "unusual" and "exceedingly rare." Huang v. I.N.S., 436 F.3d 89, 90, 92 (2d Cir.2006) ; see also Gulla v. Gonzales, 498 F.3d 911, 916 (9th Cir.2007) ("It is rare to find a case where an [Immigration Judge] finds a petitioner statutorily eligible for asylum and credible, yet exercises his discretion to deny relief."). The grounds upon which asylum can be discretionarily denied to an...