El Moraghy v. Ashcroft, 02-2606.

• Decision Date: 12 June 2003
• Docket Number: No. 02-2606.,02-2606.
• Citation: 331 F.3d 195
• Parties: Adel Nagi EL MORAGHY, Petitioner, v. John ASHCROFT, Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

331 F.3d 195

Adel Nagi EL MORAGHY, Petitioner, v. John ASHCROFT, Attorney General, Respondent.

No. 02-2606.

United States Court of Appeals, First Circuit.

Heard April 10, 2003.

Decided June 12, 2003.

COPYRIGHT MATERIAL OMITTED

Saher Joseph Macarius, for petitioner.

Harvey Kaplan, with whom Kaplan, O'Sullivan & Friedman, Beth Werlin, Mary A. Kenney, Nadine K. Wettstein, and Iris Gomez, were on the brief for American Immigration Law Foundation, Massachusetts Law Reform Institute, and the New England Chapter of the American Immigration Lawyers Association, amici curiae.

William C. Peachey, Attorney, Office of Immigration Litigation, with whom Robert D. McCallum, Jr., Assistant Attorney General, and Linda S. Wernery, Senior Litigation Counsel, were on brief for respondent.

Before SELYA and LYNCH, Circuit Judges, YOUNG,^* District Judge.

LYNCH, Circuit Judge.

This case causes us to review a denial of an application for asylum by a Coptic Christian Egyptian national based on grounds of religious persecution. Although the Board of Immigration Appeals ("BIA") affirmed the denial of asylum using its relatively new summary affirmance procedure, it should not have done so. Basic flaws in the methodology and reasoning used by the Immigration Judge ("IJ") undercut his reasoning and so we remand. We reject the notion that a State Department country condition report must specifically name a petitioner or his family members to be useful in the analysis of an asylum application. We also reject the notion that an IJ, particularly in the absence of any adverse finding as to petitioner's credibility, may simply ignore the need to make a finding as to whether petitioner has demonstrated past persecution on account of one of the specified grounds for asylum. But one swallow does not make a spring, and we reject again the petitioner's wholesale attack on the BIA's summary affirmance procedure.

Adel Nagi El Moraghy, a native and citizen of Egypt, entered the United States in 1999 on a tourist visa, which he subsequently overstayed. In 2000, El Moraghy, a Coptic Christian, applied for asylum, citing incidents of persecution by Islamic fundamentalists while he was a student in the southern Egyptian town of Assiut. His application for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT") was rejected by an IJ on May 16, 2001. El Moraghy appealed this decision to the BIA, which upheld without opinion the decision of the IJ. See 8 C.F.R. § 3.1(e)(4) (2003). El Moraghy, supported by amici curiae, now petitions this court for review of the BIA's decision. We remand for further consideration, finding that the IJ's improper use of State Department country condition reports and failure to make findings as to past persecution or credibility prevent us from resolving the case on those grounds.¹ We take no view as to the petitioner's eligibility vel non for any of the relief that he seeks.

I.

El Moraghy, then twenty-three years old, entered the United States on a tourist visa at Newark Airport on February 18, 1999. He initially resided in Oklahoma City with his maternal uncle, Dr. Wagdy Rizk, and later moved to Milford, Massachusetts. During this time, El Moraghy received financial support from Dr. Rizk and family in Egypt. After the expiration of his six-month tourist visa, El Moraghy submitted an application for asylum on February 10, 2000, including a signed statement, dated January 25, 2000, detailing alleged incidents of persecution in Egypt. On March 23, 2000, El Moraghy was interviewed by an asylum officer who found him not credible. Four days later, on March 27, the Immigration and Naturalization Service issued a Notice to Appear to El Moraghy for overstaying his visa.

El Moraghy conceded deportability, but applied for asylum, withholding of removal, and non-return under Article III of the CAT. He said he sought "to escape the persecution of the Muslim Fundamentalists in Egypt, because I am a Coptic Christian." El Moraghy alleged that his life had been threatened on several occasions because of his religious beliefs, aggravated by his friendship with a Muslim woman. "The Egyptian government," he said, "does little to protect Christians from attacks of the Muslim Fundamentalists." According to El Moraghy, if he were forced to return to Egypt, he would "be tortured or most likely killed by Muslim Fundamentalists."

At his June 22, 2000 hearing, El Moraghy described a handful of purported instances of persecution in Egypt. All of these incidents happened in or near Assiut, Egypt, a town six hours to the south of Cairo by train, where El Moraghy attended college. El Moraghy is an active Orthodox Coptic Christian who grew up in Cairo. Most Egyptians are Sunni Muslims, but approximately ten per cent, or more than six million, belong to the Coptic Orthodox Church. After his graduation from high school in 1993, El Moraghy was assigned by the government to attend college in Assiut. El Moraghy had no choice of where to attend college, and his later requests to transfer out of Assiut were denied. We describe the five incidents as related by El Moraghy, as to which the IJ made no credibility finding.

The first incident occurred shortly after El Moraghy arrived at Assiut University in 1993. El Moraghy approached a group of students to ask them about class schedules. When the students noticed the cross tattooed on El Moraghy's right hand, they verbally abused him and then departed. No physical violence occurred at this time. A second incident took place in February 1994. El Moraghy was prevented from returning to his apartment by individuals who told him that he would defile the ground outside the mosque near his apartment, and that he had to wait until after Friday prayers to return home.

The third incident took place on March 4, 1994. El Moraghy met a girl he knew from church named Enass Abrahin Zaki on campus. As they spoke, four students he described as members of fundamentalist groups surrounded them and told him that he was violating their rules by speaking with a woman. As El Moraghy walked home afterwards, he was stopped by the same four individuals, who pushed him into a secluded area and began beating him. They hit him with belts and kicked him until they heard someone coming and ran away. During the beating they called El Moraghy an "infidel" and an "animal." El Moraghy's shoulder was dislocated, his glasses were broken, and he felt concussed as a result of the beating. He subsequently saw a doctor, who referred him to a hospital in Assiut. El Moraghy submitted a document purporting to be a certificate from St. Mary's Medical Center in Assiut that stated that on March 5, 1994, "Adel Nagi Naser Allah"² was examined and found to have "a dislocated right shoulder, concussion, and scratches around the right eye. This could be [the] result of striking a rough solid object. The scratches around the right eye could possibly happen as a result of shattered glass."³ El Moraghy said he stayed in the hospital for three days, but he did not report the incident to the police because he feared that the fundamentalists would find out and kill him.

A fourth incident occurred in 1995. El Moraghy was visiting a monastery, Daral Maker or Dar El Muhurak, more than an hour away from Assiut. El Moraghy hired a taxi to drive him part of the way back from the monastery. The taxi driver was playing an anti-Christian tape. El Moraghy asked him not to play the tape because he was a Christian; the driver responded by forcing him out of the taxi, hitting El Moraghy hard enough to cause bleeding from one ear, and leaving him on the highway. Again, El Moraghy did not report the incident to the police because he feared retribution.

The final incident grew out of El Moraghy's friendship with a girl, Nadia Ziki, a Muslim who lived in Assiut. El Moraghy met Ziki on the train in 1995 when she was visiting an uncle in Cairo. They became friends, and Ziki asked El Moraghy to take her along to see the monastery. Ziki said that, as an educated person, she wanted to go to see the monastery herself, even though it might be dangerous and she would be considered polluted in the eyes of fundamentalists. El Moraghy eventually agreed to take her, and they went together five or six times.

On their last visit to the monastery, on July 27, 1998, they were stopped and forced out of Ziki's car on the way back to Assiut by members of a group El Moraghy identified as Islamic fundamentalists. El Moraghy and Ziki were driven, blindfolded, to an unknown location. There they met with the group's leader. The group's leader told them that the group knew about the relationship between El Moraghy and Ziki, and that the only solution was for El Moraghy to become Muslim and to marry her. (According to El Moraghy, the relationship was a platonic one.) El Moraghy, the leader demanded, must convert from Christianity to Islam. When El Moraghy said he could not become Muslim, he was struck. A paper was brought to El Moraghy, who was told that signing it would amount to a conversion. Seeing no other way out, El Moraghy signed the paper, which committed him to become a Muslim. El Moraghy and Ziki were then told that they had to wait for the official in charge of conducting marriages to arrive, but it turned out that he was not available. They were then told that they could leave, but would have to return to complete the marriage.

Afterwards, El Moraghy took the train to Cairo, where he met with a priest, named Arsanwos Basyeley Ragheb, from his church. The priest told him he should flee, and recommended that he go to the Marmina monastery in Alexandria. El Moraghy submitted a statement from Arsanwos. In it, Arsanwos recalled advising El Moraghy to go to the St. Mina monastery to escape "the tremendous amount of psychological pressure that he was exposed to." Arsanwos also said that he counseled El Moraghy to stay in the United States "to get away from th[...