Morgan v. Mukasey

• Decision Date: 25 June 2008
• Docket Number: No. 05-70590.,No. 05-73115.,05-70590.,05-73115.
• Parties: Soliman Fahim Farid MORGAN, Petitioner, v. Michael B. MUKASEY, Attorney General, Respondent. Soliman Fahim Farid Morgan; Miriam Rashed Sharoubim Makar; Arsany Morgan; Ingy Morgan; Mina Morgan, Petitioners, v. Michael B. Mukasey, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

529 F.3d 1202

Soliman Fahim Farid MORGAN, Petitioner, v. Michael B. MUKASEY, Attorney General, Respondent.

Soliman Fahim Farid Morgan; Miriam Rashed Sharoubim Makar; Arsany Morgan; Ingy Morgan; Mina Morgan, Petitioners, v. Michael B. Mukasey, Attorney General, Respondent.

No. 05-70590.

No. 05-73115.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 7, 2008.

Filed June 25, 2008.

Natalia A. Nekrasova, Encino, CA, for the petitioners.

Gary Newkirk, Assistant United States Attorney, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency Nos. A95-294-903, A95-294-904, A95-294-905, A95-294-906, A95-294-907.

Before: JOHN T. NOONAN, W. FLETCHER, and RONALD M. GOULD, Circuit Judges.

NOONAN, Circuit Judge:

Soliman Fahim Farid Morgan (Morgan); his wife, Miriam Rashed Sharoubim Makar (Miriam); and their three children, Arsany, Ingy and Mina (collectively, Petitioners) seek review of two decisions of the Board of Immigration Appeals (BIA) denying them asylum and other relief. Holding that the BIA's two decisions are marred by errors of law, we grant the petitions and remand.

FACTS

We recite the facts as presented in Morgan's testimony. Morgan was born November 6, 1962 in Kafr-El-Dawar, Egypt. He and his family are members of the Coptic Orthodox Church, an ancient branch of Christianity. They come from Egypt, long a home of Coptic Christians, who compose roughly nine percent of the population of a largely Muslim nation. See CIA World Fact Book (Egypt) at https:// www.cia.gov/library/publications/theworld factbook/geos/eg.html. Morgan testified to the following incidents in which he had experienced hostility from those he termed "extremists"—Muslim fundamentalists— who, in these instances, were not restrained by the government:

In 1988, Morgan opened a retail store. On the store's opening day, it remained open during Muslim prayers. Islamic fundamentalists attacked it, destroyed its merchandise and furniture, and set it on fire. The fundamentalists threatened to kill Morgan if he continued to do business. Morgan reported the attack to the fire department, which refused to investigate or provide a report of the incident for insurance purposes.

In 1995, a group of Muslim extremists attacked a jewelry store belonging to Morgan's cousin, Refaat, and severely beat Refaat. Morgan took Refaat to the hospital. They were shot at as they drove away. Once Morgan and Refaat had left, the extremists beat Refaat's wife and sprayed acid in her face. They kidnapped, raped, and blinded Refaat's daughter. When Morgan and Refaat later informed the police, the police insulted them and their religious beliefs.

On May 5, 1997, Morgan was arrested and falsely accused of raping Hoda, the daughter of a Muslim client. The police said they would drop the charges if Morgan converted to Islam and married Hoda. Morgan refused, saying "I would rather die like many Christians did before me, than leave my religion and convert." Morgan was then beaten and gang raped by three men as a police officer looked on. Before raping him, the men tore off a gold cross that he wore around his neck, called it "devil jewelry," and stomped on it.

Morgan's family hired a famous Muslim attorney, AbdelHalim Farid, to defend him from the rape charge. With his help Morgan was proved innocent as the lawyer obtained hospital records establishing that Morgan was recovering from hernia surgery at the time Hoda was allegedly raped.

On October 13, 1998, Islamic extremists kidnaped Morgan's wife Miriam and two of his children, Arsany and Ingy. They demanded that Morgan's father deed a parcel of land he owned adjacent to the Coptic parish church for the building of a mosque. The extremists also demanded that Miriam convert to Islam. When she refused, they gang raped her in front of her children. Miriam and the children were released after Morgan's father transferred title to Farid, the Muslim attorney who represented Morgan in the rape case and who now acted as a go-between. A government-authorized mosque and madrassa now stand next to the Coptic church.

In December 1999, the wife of Miriam's cousin was kidnaped, raped, and forced to convert to Islam in a public celebration conducted under police protection. The people who did this also threatened Morgan's family and wife with the same sort of forced conversion.

In October 2000, a government tax assessor told Morgan that he knew about Morgan's refusal to convert to Islam and his alleged rape of Hoda. He assessed him taxes of 77,000 Egyptian pounds (about 14,125 USD). Morgan usually paid between 3,000 to 4,000 Egyptian pounds each year. The assessor said that he would assess normal taxes if Morgan converted. On March 7, 2001, Morgan obtained relief from this assessment in court. As Morgan and his father were leaving the court, Islamic extremists shot at them. His father was shot in his lower right leg.

PROCEEDINGS

On March 16, 2001, Morgan and his family entered the United States on tourist visas. On April 5, 2002, the government charged them with overstaying their visas. On June 20, 2002, they conceded their removability and asked for asylum and other relief.

Between June 20, 2002 and March 17, 2003, six evidentiary hearings were held by the immigration judge. Morgan and Miriam testified. An affidavit from the court of Kafr-El-Dawar testified to Morgan's 1997 acquittal of the rape of Hoda.

The immigration judge denied Arsany and Ingy, Morgan's teenage children, the ability to testify on the grounds that they were not on the witness list submitted in advance of trial and that he did not want to put them in "the untenable position of coming into court to advance their parents' specious claims." Even before Morgan was cross-examined by the government, the immigration judge had stated that Morgan had "severe credibility problems" and suggested that he withdraw his petition if the government would give him voluntary departure. At the conclusion of the hearing, the immigration judge found both Morgan and Miriam not believable and indeed that they had given "false testimony" for the purpose of obtaining an immigration benefit. He gave reasons for this conclusion. He denied them, but not their children, voluntary departure. The immigration judge did not determine whether Morgan's allegations, if assumed to be credible, made him eligible for asylum, withholding of removal, or protection under the Convention Against Torture.

Petitioners appealed to the BIA. They were able to submit additional documents: an evaluation of Miriam by a marriage and family therapist, licensed in California since 1981 and a member of the Program for Torture Victims, founded in Los Angeles in 1980 and funded in part by the United Nations and by the United States Office of Refugee Resettlement. The therapist found Miriam suffering from Post-Trauma Stress Disorder (PTSD) based on her kidnapping and rape. The therapist made a professional assessment of Miriam's credibility and found her fully credible. Psychological reports on Arsany and Ingy by another psychologist found each of them to show many of the symptoms of PTSD related to their memories of their kidnaping and the rape of their mother. All three psychological reports ended with specific reference to the ongoing deportation proceedings.

On August 2, 2004, the BIA issued its decision dismissing the appeal in a written opinion. It began by stating that the petitioners had "not shown that the Immigration Judge's adverse credibility determination is clearly erroneous." For example, the BIA stated, the immigration judge had noted that Morgan testified inconsistently about the shooting while driving his cousin to the hospital; that he inconsistently testified about the treatment of Miriam by a doctor after she was released from the kidnappers; and that he testified inconsistently about being threatened by an Egyptian prosecutor. Miriam, the BIA said, had testified inconsistently about how she was kidnapped. "These discrepancies," the BIA concluded, "are sufficiently major, material, and unexplained to support the Immigration Judge's adverse credibility determination." The testimony of the two children would have been "cumulative" and not "remedied the discrepancies discussed above." In a single sentence the BIA dealt with the psychological reports: they did not "sufficiently explain the inconsistent testimony" to warrant remand.

The petitioners moved to reopen. On January 11, 2005, the motion was denied, the BIA noting that evidence submitted with it "fails to overcome the Immigration Judge's adverse credibility determination."

Morgan, Miriam, and their children petition this court for review.

ANALYSIS

The matter under review. If the BIA issues a written opinion, it is that opinion which is under review. Hosseini v. Gonzales, 471 F.3d 953, 957 (9th Cir. 2006). But there is an ambiguity in this opinion. It appears to adopt the immigration judge's "credibility determination" both in the opinion itself, which proceeds by giving examples from it, and by the denial of the motion to reopen which speaks as though that determination was controlling. The government, briefing this appeal, has argued that the BIA's examples drawn from the immigration judge's determination are merely illustrative and that the immigration judge's determination is what is under review. We accept that argument and so review that determination.

The components of the credibility determination. This court reviews factual determinations, including credibility determinations, for substantial evidence. Chebchoub v. INS, 257 F.3d 1038, 1042 (9th Cir.2001). Under this standard, we reverse a factual determination only if "any reasonable adjudicator would be compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B). An adverse credibility finding must be supported by "specific and cogent reasons." Preet Kaur v. Gonzales, 418 F.3d 1061, 1064...