Ouda v. I.N.S.
| Decision Date | 31 March 2003 |
| Docket Number | No. 01-3869.,01-3869. |
| Citation | 324 F.3d 445 |
| Parties | Sahar OUDA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Noel J. Saleh (briefed), Saleh & Salley, Detroit, MI, for Petitioner.
Susan K. Houser, Richard M. Evans (briefed), United States Department of Justice, Office of Litigation, Washington, DC, for Respondent.
Before: GILMAN and GIBBONS, Circuit Judges; POLSTER, District Judge.*
Petitioner Sahar Ouda seeks judicial review of a decision by the Board of Immigration Appeals ("BIA") affirming the Immigration Judge's denial of her application for asylum. For the reasons set forth below, the judgment of the BIA is REVERSED and the case is REMANDED to the BIA for further proceedings consistent with this opinion.
Sahar Ouda is a stateless Palestinian born in Kuwait on February 26, 1971.1 In July of 1992, Ouda, her parents and her two younger brothers departed Kuwait for Bulgaria on one-month visitors' visas. They remained in Bulgaria, where they overstayed their visas by two years. On December 7, 1994, Ouda entered the United States by way of a nonimmigrant visitor's visa with an expiration date of June 6, 1995. One month prior to the expiration of her visa, Ouda filed an application for asylum. On July 11, 1995, the Immigration and Naturalization Service ("INS") issued an order to show cause and a notice of hearing, charging Ouda as deportable for overstaying her visa. On the application form, Ouda claimed mistreatment by the Kuwaiti government as the basis of her request for asylum. She asserted that her life and liberty will be in danger if she goes back to Kuwait or to Egypt because "I cannot go anywhere."
At the initial deportation hearing, Ouda, through counsel, conceded deportability on the basis that she overstayed her visa. However, she renewed her request for asylum and, in the alternative, for voluntary departure. When asked, she declined to identify a country to which her deportation should be directed, at which point the INS suggested Egypt on the basis that she entered the United States with an Egyptian travel document.
In November of 1997, the Immigration Judge ("IJ") conducted a hearing on Ouda's application for asylum. There was some confusion regarding the country from which Ouda was claiming asylum. Ouda asserted that she was a refugee from Kuwait, the country in which she was born and raised and from which she and her family were expelled. The INS took the position that Ouda's asylum claim arose from Bulgaria, the country where she last resided before entering the United States. Ouda argued that Bulgaria should not be the focus of her asylum claim because she was never a citizen of Bulgaria and Bulgaria would not take her back in any event. In support of this last assertion, she provided a letter from the Embassy of the Republic of Bulgaria, dated January 21, 1997, wherein the Embassy refused her family's request for a visa. The IJ reserved ruling on this legal issue until after the hearing.
Ouda then testified to the following: During the Gulf War, her father, who had taught in Kuwait's Department of Education for twenty years, was forced to continue teaching by the Iraqi occupiers. When Kuwait was liberated, the Kuwaitis refused to let him return to his teaching position because he was perceived as a Palestinian who supported Iraq. Notices were posted on all businesses stating that only Kuwaiti citizens were permitted to return to work. Because Ouda's father was unable to earn a living, he requested his pension fund from the Department of Education and was told that he could collect it only if he left the country. Not only were the Oudas unable to earn a living, they were also unable to attend school, obtain a driver's license or drive a car. Ouda explained that access to water was not "open" as it is in the United States, and if the Oudas lined up to get water and people found out they were Palestinians, the Kuwaitis would dump their water. Because they could not work, they were forced to sell furniture to buy food — which was problematic in any event because there were signs up saying that only Kuwaitis were allowed to buy food. At the time, many armed Kuwaitis roamed the streets, announcing that if they found any Palestinians on the road, they would kill them. Numerous children who left their homes never returned. Because of this, only Ouda's father was permitted to leave the house. On more than one occasion when he left the home to obtain food, he was threatened at gunpoint. On July 4, 1992, Kuwaiti officials stamped a date (July 31, 1992) on the Oudas' travel documents by which time they would have to leave the country.2 The officials threatened that if the Oudas were not gone by that date, they would be placed on the country's border. Just before the deadline, Ouda's fifteen-year old brother attempted to leave the house to get a haircut. He was abducted by Kuwaitis, demeaned and beaten on his knees and feet because he was a Palestinian. Shortly thereafter, the Oudas bribed a Bulgarian to get them visitors' visas to Bulgaria and left the country prior to the deadline. An older brother and sister of Ouda's stayed behind to sell the family's furniture because the family needed the money. One month later, when they applied for visas to Bulgaria, their applications were denied. As of the time of the hearing, Ouda's siblings, who do not have telephones, were still believed to be in Kuwait. Ouda has spoken to her sister once since entering the United States.
In Bulgaria, Ouda's family tried to extend their one-month visas to no avail, and they were unable to apply for citizenship. Apparently, however, the Oudas learned that they could gain temporary resident status if they owned an ongoing business. Accordingly, Ouda's father opened a store with what remained of his retirement funds. As long as the business was in operation, they were permitted to stay in Bulgaria and run it. Unfortunately, the Oudas ran into another obstacle. The Bulgarian mafia told them they didn't want anyone there but Bulgarians and threatened to harm them if they didn't leave the country. The mafia attempted to extort protection funds from her father in lieu of torture and destruction of his business, but her father refused. The Oudas again found their safety compromised on the streets of Bulgaria;3 consequently, they traveled only by taxi. On the rare occasions when Ouda walked along the streets of Bulgaria in Muslim dress, people would taunt her and try to take off her scarf. Because Ouda's father would not give protection funds to the mafia, the mafia beat up both of his sons, one of whom still retains scars from the experience. When the Oudas reported their problems with the mafia to the authorities, they were told they had no status in Bulgaria and should leave. The Oudas' problems continued until one day, the mafia burned their store down. Immediately thereafter, the Oudas obtained visitors' visas to the United States and, after selling their personal belongings to purchase tickets to America, left Bulgaria.
Ouda testified that she has attempted to get visas to go to other countries but, based on her status as a stateless Palestinian, has been denied entrance to Egypt, Bulgaria, Kuwait, Jordan and Israel. She stated that she feared for her life if deported to Kuwait.
The IJ subsequently issued a written opinion wherein he denied Ouda's application for asylum and withholding of deportation and ordered her deported to Bulgaria or any other country willing to accept her. In so ruling, the IJ determined that Bulgaria was Ouda's country of last habitual residence; therefore, the focus of her asylum claim must be on Bulgaria. With regard to Ouda's credibility, he stated:
In this particular case I have no reason to doubt the veracity of [Ouda]. She appears to be, in the estimate of the Court, to be credible and what she has testified to appears to be accurate, lacking of any outward indicia of fabrication, is consistent with her prior documents, and I do believe that her version as she indicates is, in fact, accurate.
Nonetheless, he concluded that Ouda had not demonstrated either past persecution or a well-founded fear of future persecution in Bulgaria. He noted that Ouda herself had never been harmed in Bulgaria and that the Bulgarian mafia's extortion attempts were directed at her father because he was a store owner, a characteristic that is not protected by the asylum laws.
Ouda appealed the denial of her asylum application to the BIA, arguing that the IJ had erred in finding that Bulgaria was her country of last habitual residence, and contending that she had established eligibility for asylum in relation to Kuwait. The BIA ruled, in relevant part:
An alien may apply for asylum in the United States or withholding of deportation from any countries to which he or she may be deported. 8 C.F.R. § 240.49(c)(2). A stateless alien, who has no nationality, may seek asylum in relation to the country where she last habitually resided if he or she may be deported there. Id.; Section 101(a)(42)(A) of the Act.
For purposes of deciding this appeal, we will assume that the respondent is correct that she may consider Kuwait as the country where she last habitually resided. Thus, if Kuwait is a country to which the respondent may be deported, she may base an asylum claim on past persecution or a well-founded fear of future persecution in Kuwait. However, the respondent herself stated that, at least as of the time of her hearing, Kuwait will not accept her (Tr. at 29, 48). The State Department's Advisory opinion agrees that her chance of receiving the requisite Kuwaiti approval to re-enter was "quite slim" (Exh. 5, Tab 2). Accordingly, to the extent that the Immigration Judge may have erred in ruling that the respondent...
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