Youkhana v. Gonzales, 04-1820.

• Decision Date: 22 August 2006
• Docket Number: No. 04-1820.,04-1820.
• Citation: 460 F.3d 927
• Parties: Steeve Shamoil YOUKHANA, Petitioner, v. Alberto R. GONZALES, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

460 F.3d 927

Steeve Shamoil YOUKHANA, Petitioner, v. Alberto R. GONZALES, Attorney General of the United States, Respondent.

No. 04-1820.

United States Court of Appeals, Seventh Circuit.

Argued November 28, 2005.

Decided August 22, 2006.

M. Anne Hannigan (argued), Chicago, IL, for Petitioner.

Karen Lundgren, Department of Homeland Security Office of the Chief Counsel, Chicago, IL, Daniel E. Goldman, Sarah Maloney (argued), Paul S. Monsky, Department of Justice Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before KANNE, ROVNER, and WOOD, Circuit Judges.

WOOD, Circuit Judge.

Steeve Shamoil Youkhana, an Assyrian Christian, fled Iraq in 2001 and sought asylum in the United States, claiming that he had been persecuted by the ruling Ba'ath Party regime on the basis of his religion, ethnicity, and political opinion. The Immigration Judge (IJ) who considered Youkhana's case found his testimony generally credible, but failed altogether to address Youkhana's religious and ethnic persecution claims. With respect only to his political opinion claim, the IJ concluded that Youkhana had indeed been persecuted for his refusal to join the Ba'ath Party. This past persecution, however, was not enough to establish a basis for a well-founded fear of future persecution, because the Ba'ath Party had been removed from power by the 2003 U.S.-led invasion of Iraq. The IJ thus denied Youkhana's claim. The Board of Immigration Appeals (BIA) summarily affirmed.

Although we see no legally supported reason to disagree with the IJ's resolution of Youkhana's claim of persecution based on political opinion, we conclude that the BIA erred by denying Youkhana's religious and ethnic persecution claims without discussion. We therefore grant Youkhana's petition for review and remand so that the BIA can address these claims.

I

Youkhana is an Assyrian Christian and a member of the Chaldean Catholic Church. According to the State Department's 2005 Country Report on Human Rights in Iraq, followers of the Christian faith make up a small and shrinking minority of the population in Iraq; 97 percent of Iraqis are Muslim, and the number of Christians in Iraq has decreased dramatically in recent years. In addition to being identified as members of a minority religion, Assyrian and Chaldean Christians are considered by other Iraqis to constitute a distinct non-Arab ethnic minority.

In March 2002, Youkhana attempted to enter the United States at a border crossing in San Ysidro, California, having already unsuccessfully attempted to apply for asylum in the United States from Mexico. Immigration officials stopped him at the border; when he admitted that he did not possess a valid visa, they issued him a Notice to Appear. In June 2002, Youkhana moved for and was granted a change of venue for his immigration proceedings from San Diego to Chicago. In July 2002, Youkhana filed for asylum.

The asylum hearing took place on May 28, 2003, two months after the U.S.-led invasion of Iraq, but prior to the capture of former Iraqi President Saddam Hussein. The principal basis of Youkhana's asylum claim consisted of three incidents in which he was arrested and detained by authorities in Iraq, allegedly because of his religion, ethnicity, and political opinion. In addition to his own testimony regarding these incidents, several aspects of Youkhana's claims were corroborated by the testimony of his sister, Eilina Shamoil Youkhana, who is a legal permanent resident of the United States.

Youkhana testified that he was first arrested in 1997 while in his final year of high school. In his written asylum statement, he explained that he and two of his Assyrian friends were approached by government officials and accused of making derogatory comments about the Ba'ath Party and Saddam Hussein. In his oral testimony, Youkhana elaborated that the detention occurred because he refused to join the Ba'ath Party and "because I was Assyrian Christian, and they used to brand us as enemies of the Ba'ath Party because we are Christians, and we go to the church, and [ ] we have relations with parties opposing the regime." During 45 days in custody, Youkhana was interrogated and beaten. Upon his release, he was required to sign a statement that he would not participate in any anti-government activities.

In 1999, while undertaking compulsory service in the Iraqi army, Youkhana was arrested again, this time for allegedly throwing dirt at a picture of Saddam Hussein. While detained, Youkhana was beaten about the head until he lost consciousness, leaving a scar behind his ear. Before being released, Youkhana was required to sign another statement, this one stating that he would be executed if he ever again participated in anti-government activity.

Finally, in 2001, while still in the army, Youkhana was arrested and accused of assisting the escape of an Assyrian prisoner charged with illegally selling fuel in the north of Iraq. Testifying in immigration court, Youkhana denied the charge and explained that he was singled out for punishment only because the authorities "wanted to stick this charge to me because I was Assyrian Christian, and [ ] because I was not a member of the Ba'ath Party." Again he was badly beaten about the head. After two days he managed to escape detention, at which point he decided to leave Iraq.

The IJ questioned Youkhana and his sister at length about the removal of the Ba'ath Party regime from power and the relevance of this fact to Youkhana's claim that he would be persecuted if he returned to Iraq. Youkhana testified that he remained at risk of persecution because members of the Ba'ath Party remained active in Iraq. He also explained that Assyrian Christians faced a new threat of persecution from "Muslim radicals" who, Youkhana testified, "brand us Christians as dirty infidels." This latter point was supported by several newspaper articles attached to Youkhana's asylum application. A typical article stated that "Christians throughout Iraq are feeling intimidated" and "[t]hey say they are being harassed and threatened by members of Shiite Muslim groups who are grabbing power and who appear eager to transform Iraq into an Islamic republic." Michael Slackman & Robin Dixon, Shiite Gains Trouble Christians, THE DETROIT NEWS, May 11, 2003, at 5A.

In addition to his questions regarding country conditions in Iraq, the IJ made a number of unusual statements suggesting that Youkhana had a duty to return to Iraq to assist in the dismantling of the Ba'ath Party regime. The IJ inquired, for example, whether Youkhana thought he "could be of help to the U.S. forces in finding the bad, evil Ba'ath Party people," and stated that "[t]he government of Iraq probably needs people like you." Finally, in denying asylum to Youkhana, the IJ dressed his decision in patriotic garb, stating: "The government of Iraq, particularly the Ba'ath Party, have been removed at great expense in terms of lives of the coalition forces as well as the Iraqi people. To ignore the effort that has gone into removing the Ba'ath Party would be a significant injustice to all of those lives that were lost in freeing Iraq from its persecutors." The IJ also denied Youkhana's applications for withholding of removal and relief under the Convention Against Torture. Regarding the latter claim, the IJ reasoned that "[g]iven the fact that there is no government of Iraq any longer, it cannot be stated that the government of Iraq would persecute or treat the respondent in a cruel or inhumane manner."

Youkhana appealed the denial of his asylum application to the BIA, contending that the IJ had failed to address his religious and ethnic persecution claims at all, had "erred in not considering that conditions in Iraq have changed for the worst [sic] in Iraq for the Christians," and "placed the respondent in a most uncomfortable situation, in effect [ ] requesting that he join the U.S. military in Iraq." The BIA affirmed without opinion pursuant to 8 C.F.R. § 1003.1(e)(4). After filing this petition for review, Youkhana filed a motion to reopen with the BIA, attaching further documentation of deteriorating conditions in Iraq for Assyrian Christians. The BIA denied this motion as well. Youkhana did not file a second petition for review challenging the denial of his motion to reopen.

II

In this petition for review, Youkhana contends that the BIA erred by refusing to consider the religious and ethnic persecution aspects of his asylum claim and denying his request for relief under the Convention Against Torture. He does not contest the BIA's denial of his claims for relief insofar as they rested on persecution based on his political opinion. Youkhana also argues that the BIA abused its discretion by refusing to grant his motion to reopen. We consider each of his claims in turn.

A

A petitioner seeking asylum carries the burden of proving by a preponderance of the evidence that she suffered past persecution or has a well-founded fear of future persecution on account of her race, religion, nationality, membership in a particular social group, or political opinion. Sosnovskaia v. Gonzales, 421 F.3d 589, 593 (7th Cir.2005). "An applicant who has been found to have established [ ] past persecution shall also be presumed to have a well-founded fear of persecution on the basis of the original claim." 8 C.F.R. § 208.13(b)(1). This presumption of future persecution can be rebutted if the IJ finds by a preponderance of the evidence that there has been "a fundamental change in circumstances such that the applicant no longer has a well-founded fear of persecution in the applicant's country of nationality." 8 C.F.R. § 208.13(b)(1)(i)(A). An asylum applicant can also prove a well-founded fear of future persecution by showing "that he genuinely fears he will be persecuted based on a protected ground if returned to his native country, and that his fears are objectively reasonable." Jamal-Daoud v. Gonzales, ...