Zahren v. Gonzales

• Decision Date: 17 May 2007
• Docket Number: No. 06-1301.,06-1301.
• Citation: 487 F.3d 1039
• Parties: Munzer A. ZAHREN, Petitioner, v. Alberto R. GONZALES, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

487 F.3d 1039

Munzer A. ZAHREN, Petitioner, v. Alberto R. GONZALES, Respondent.

No. 06-1301.

United States Court of Appeals, Seventh Circuit.

Argued February 14, 2007.

Decided May 17, 2007.

John L. Sesini (argued), Milwaukee, WI, for Petitioner.

Karen Lundgren, Department of Homeland Security, Office of the Chief Counsel, Chicago, IL, Joshua E. Braunstein (argued), Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before MANION, WOOD, and EVANS, Circuit Judges.

EVANS, Circuit Judge.

Munzer Abuzahreh¹ was born in 1971 in a small West Bank community on the outskirts of Hebron, one of the oldest continually habited cities in the world. In 1994, he entered the United States, but he did not attend Kirkwood Community College in Cedar Rapids, Iowa, the school designated in his student visa. This violated a condition of the visa under 8 U.S.C. § 1101(a)(15)(F)(i). But as Abuzahreh later explained, he did not realize (his primary language is Arabic) that he had to attend the precise school named in the visa. He thought he could go to any school in the United States, and he went, for one year, to Western Technical College in La Crosse, Wisconsin, where a cousin of his was a student. After a year there, sometime in 1996, he relocated to Milwaukee, where he has lived and worked (he had various jobs ranging from driving a taxi to cooking and delivering pizzas for Domino's) with minor exceptions ever since.

Moving ahead, Abuzahreh returned to Hebron briefly in 1996, reentered the U.S. on his student visa, left again in 1998, and was paroled back into the country pending the results of an I-130 petition for alien relative (he was attempting to adjust to permanent resident status based on his 1996 marriage to a U.S. citizen; the petition was denied in 2001 following a divorce). In September 2002, DHS placed Abuzahreh in removal proceedings, charging him with seeking to procure a visa by willful misrepresentation in violation of 8 U.S.C. § 1182(a)(6)(C)(i), failing to remain outside the U.S. for 5 years following violation of the conditions of his student visa, see 8 U.S.C. § 1182(a)(6)(G), and being in the U.S. without a valid entry document, see 8 U.S.C. § 1182(a)(7)(A).

An immigration judge (IJ) found him removable on the second and third charges, and he applied for asylum, withholding of removal, and relief under the United Nations Convention Against Torture (CAT), arguing that it was more likely than not that he would face persecution or torture if returned to Hebron. Why? Well, he was raised in a strict Muslim family but converted to Christianity in the United States, an act treated as a capital offense under Islamic law, Bastanipour v. INS, 980 F.2d 1129, 1133 (7th Cir. 1992). He says that he will face death, perhaps at the hands of his own family, if he is sent back there.

It is a compelling argument, one we believe is supported by convincing evidence that was not accorded appropriate weight by the Board of Immigration Appeals (BIA) (whose decision is the subject of our review) when it denied Abuzahreh's appeal of the IJ's order finding Abuzahreh credible regarding his conversion but nevertheless denying his claims for relief and ordering his removal.² At a minimum there would be fertile ground for reopening a removal order to the West Bank based on changed country conditions, for while this appeal was pending, Hamas—a U.S.-designated Foreign Terrorist Organization, see U.S. Department of State, Fact Sheet: Foreign Terrorist Organizations, Oct. 11, 2005, available at http://www. state.gov/s/ct/rls/fs/37191.htm— gained legislative control of the Palestinian National Authority. Steven Erlanger, Palestinian Landslide: The Elections; Hamas Routs Ruling Faction, Casting Pall on Peace Process, N.Y. Times, Jan. 27, 2006, at A1.

Unfortunately for Abuzahreh, however, the conditions in Hebron are irrelevant because the immigration judge ordered his removal to Jordan, a choice that, based on the record before us, see 8 U.S.C. § 1252(b)(4)(a), we can only conclude is appropriate despite our reservations.

Generally the government is obliged to remove an alien to the country he or she has designated, so long as that country consents to the removal. See id. § 1231(b)(2)(A). But where the alien declines to make a designation, "the Attorney General shall remove the alien to a country of which the alien is a subject, national, or citizen" unless the country fails to agree to the alien's return. Id. § 1231(b)(2)(D). This is not a discretionary duty—only a failure of acceptance permits removal to some other place. See Jama v. Immigration and Customs Enforcement, 543 U.S. 335, 341, 125 S.Ct. 694, 699-700, 160 L.Ed.2d 708 (2005).

Considering that Abuzahreh was born in the West Bank and lived there for the first 20 years of his life, we would expect that he is a stateless Palestinian, not a Jordanian citizen. Under this scenario, removal to Jordan would be improper at this stage, and we would remand to the BIA for further proceedings (while also emphasizing our concerns about the consequences of his removal to the West Bank, should that possibility be reconsidered).

But Abuzahreh entered this country with a Jordanian passport, a fact that in the typical case would tell us all we need to know but that here only blurs the picture: Jordan held the West Bank from the 1948 Arab-Israeli War until the Six Day War in 1967, and a 1954 law extended citizenship to all Palestinians living there. When Israel took control, things changed, and in 1983 Jordan formally modified the law so that Palestinians remaining in the West Bank after June 1 of that year no longer maintained Jordanian citizenship or a right of residence. Of greatest relevance to this case, those who remained could instead hold temporary Jordanian "passports" that did not indicate citizenship but were usable as travel documents (a handy device for passing through Jordan, rather than Israel, for the purpose of traveling elsewhere). See United Nations High Commissioner for Refugees, Palestine and Jordan: Whether the Acquisition of a Palestinian Authority Passport Leads to the Loss of Rights to Jordanian Leadership, Mar. 2006, at http://www.unhcr.org/home/ RSDCOI/45f147d625.html. When Jordan renounced its claim to...