Mousa v. Immigration & Naturalization Service

• Decision Date: 01 August 2000
• Docket Number: No. 99-1888,99-1888
• Citation: 223 F.3d 425
• Parties: (7th Cir. 2000) Ahmad Mousa, Petitioner-Appellant, v. Immigration and Naturalization Service, Respondent-Appellee
• Court: U.S. Court of Appeals — Seventh Circuit

Page 425

223 F.3d 425 (7th Cir. 2000)

Ahmad Mousa, Petitioner-Appellant, v. Immigration and Naturalization Service, Respondent-Appellee.

No. 99-1888

In the United States Court of Appeals For the Seventh Circuit

Argued December 2, 1999

Decided August 1, 2000

Appeal from the Board of Immigration Appeals No. A71 804 422

[Copyrighted Material Omitted] Before Ripple, Kanne, and Diane P. Wood, Circuit Judges.

Diane P. Wood, Circuit Judge.

Ahmad Mousa, a citizen of Jordan illegally residing in the United States, was convicted of mail fraud in 1991. The Immigration and Naturalization Service (INS) moved quickly to deport him. Mousa applied for asylum based on a fear of political persecution in his home country, but the INS denied the application, and the Board of Immigration Appeals (BIA) rubber-stamped the denial. While we have no praise for the perfunctory manner in which this case was handled, we find no abuse of discretion, and therefore affirm.

Mousa was admitted to the United States for a maximum six-month stay as a non-immigrant visitor in December of 1987. Mousa claims that the problems that led to his appearance in this country began in 1967, when the West Bank, the part of Jordan in which he lived, was annexed by Israel. It was then that Mousa joined Fatah, a wing of the Palestinian Liberation Organization (PLO) devoted to forcing Israel to leave the West Bank by means of armed struggle. Though the Arab- Israeli war was officially over on May 23, 1968, Mousa led a group of five Fatah members in an attempted attack of a non-combatant Israeli military camp situated in the West Bank. The group approached the camp at 4:00 a.m., armed with Katusha rockets, semi-automatic rifles, and bombs. They planned to destroy the base, which housed supplies of ammunition. It also housed sleeping Israeli soldiers. Their efforts were foiled by an alert Israeli helicopter crew, who spotted the group and short circuited the Fatah mission. Everyone present emerged unscathed except for one wounded Fatah member. The five captured Fatah members were tried by an Israeli military tribunal, which convicted Mousa of being a member of Fatah, bearing arms, and commanding the mission. He was sentenced to 25 years of imprisonment, 14 of which he served before being released due to medical problems.

Mousa had been born in 1946 in an area that was then part of the Palestinian British Mandate, and which became part of the new state of Israel in 1948. Like many others, his family fled to the west bank of the Jordan River, which (as noted above) Jordan later annexed. There he grew up and lived, first in Palestinian refugee camps and later in a home. Mousa therefore considers himself a Palestinian, not a Jordanian. Nevertheless, after his 1982 release from prison, Mousa was returned to Jordan. His welcome there was evidently not a warm one. Mousa's testimony, which the Immigration Judge (IJ) found credible, was that the Jordanian police harassed him throughout the next five years. At the Israeli- Jordanian border, he was attacked and interrogated by Jordanian police, who (perhaps ironically) insisted that he was an Israeli spy. They were suspicious of his Fatah membership and lengthy incarceration in Israel. Upon being admitted to Jordan, Mousa was required to report to the police twice a day for six months. After that, the police continued to subject Mousa to regular questioning and surveillance. He had a very difficult time finding a job--a situation that he attributed to the police department's failure to give him a certificate of good behavior, as well as potential employers' biases against him due to his Fatah and Israeli connections.

These continuing difficulties prompted Mousa to try to leave Jordan. It took a year, but he was finally able to procure a passport. In December of 1987, after the police submitted him to one last interrogation and admonished him to stay out of Jordan, Mousa came to the United States. He entered under a six month visitor visa, but he remained in the United States after it expired.

Mousa's illegal status remained undetected until 1991, when he decided to steal mail. On August 26, 1991, he was convicted of mail fraud (18 U.S.C. sec. 1709), and was sentenced to four months' imprisonment and five years of probation. The next month the INS ordered Mousa to show cause why he should not be deported. Mousa conceded deportability, but on March 3, 1992, he filed an application for asylum and withholding of deportation under Sections 208 and 243(h) of the Illegal Immigration Reform and Immigration Responsibility Act of 1996 (IIRIRA), or, alternatively, for voluntary departure. At a January 14, 1993 hearing Mousa argued that as a Palestinian he was "stateless." He testified that he feared persecution by the Jordanian police should he be forced to return there. The IJ denied Mousa's asylum application on February 1, 1993, and the BIA summarily affirmed that judgment on March 17, 1999.

When the BIA summarily adopts an IJ's decision, we review the IJ's analysis as if it were the Board's. Lwin v. INS, 144 F.3d 505, 508-09 (7th Cir. 1998). The decision must be upheld if it is "supported by reasonable, substantial, and probative evidence on the record considered as a whole." 8 U.S.C. sec. 1105a(a)(4); see INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992). We may reverse the decision only if a reasonable fact finder would be compelled to find that Mousa merited asylum. See Elias-Zacarias, 502 U.S. at 481.

To be eligible for asylum, an applicant must show that she is a "refugee" for purposes of the IIRIRA, and that she merits asylum as a matter of judicial discretion. 8 U.S.C. sec. 1158(a); see Sanon v. INS, 52 F.3d 648, 650 (7th Cir. 1995). However, persons who have "ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion" do not qualify to be considered for asylum. 8 U.S.C. sec. 1101(a)(42)(B). Immigration Judge Petrone found that Mousa was statutorily ineligible for refugee status, because in his view Mousa's 1967 attack of the Israeli base amounted to persecution of Israelis and those opposed to the Palestine liberation movement, and thus fit the ban of sec. 1101(a)(42)(B).

Mousa argues strenuously on appeal that this conclusion was wrong as a matter of law. The few cases construing the "persecution of others" provision, he claims, stand for the proposition that military actions should not be characterized as persecution. He points to the BIA's interpretation of sec. 1101(a)(42)(B) in Matter of Rodriguez-Majano,19 I&N Dec. 811 (BIA 1988), a case involving the asylum claim of a man who had participated in guerilla warfare against the government of El Salvador, in which the BIA wrote

The argument was made by respondent's counsel that activities directly related to a civil war are not persecution. We agree. By this statement we mean that harm which may result incidentally from behavior directed at another goal, the overthrow of a government or, alternatively, the defense of that government against an opponent, is not persecution. . . . [E]ngaging in military actions, the attacking of garrisons, the burning of cars, and the destruction of other property [are] actions outside the limits of the term "persecution."

* * *

Were we to hold that practices such as attacking military bases, destroying property, or forcible recruiting constitute persecution, members of armed opposition groups throughout the world would be barred from seeking haven in this country . . . . We do not believe that Congress intended to restrict asylum and withholding to only those who had taken no part in armed conflict.

Id. at 815-16.

Mousa also relies on the BIA's decision in Matter of McMullen, 19 I&N Dec. 90 (BIA 1984), which involved the claim for asylum of Peter Gabriel John McMullen, a member of the Provisional Irish Republican Army (PIRA). In a sense, this reliance is curious, because the BIA ultimately concluded that McMullen was not entitled to asylum because, through his participation in the PIRA, he had engaged in the persecution of others and could not therefore be considered a refugee. See id. at 95. Mousa notes that the BIA at one point in the opinion focused on the fact that the arms shipments that...