Aoraha v. Gonzales , 209 F. App'x 473 ( 2006 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 06a0908n.06
Filed: December 20, 2006
Nos. 05-4270, 05-4272
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
JAN AORAHA and LAHEEB AORAHA, )
)
Petitioners, )
)
v. ) ON PETITION FOR REVIEW OF A
) DECISION OF THE BOARD OF
ALBERTO R. GONZALES, United States ) IMMIGRATION APPEALS
Attorney General, )
)
Respondent. )
Before: CLAY, ROGERS and SUTTON, Circuit Judges.
SUTTON, Circuit Judge. Jan and Laheeb Aoraha, brothers and members of Iraq’s Chaldean
Christian minority, appeal the Board of Immigration Appeals’ (BIA) decisions denying them asylum,
withholding of removal and relief under the United Nations Convention Against Torture. Because
the BIA’s decisions are supported by substantial evidence, we deny the petitions for review.
I.
The Aorahas left Iraq in August 2001 and entered the United States in January 2002.
Because they lacked valid entry documents, the federal government initiated removal proceedings
against them. In response, the Aorahas separately filed applications for asylum and withholding of
Nos. 05-4270, 05-4272
Aoraha v. Gonzales
removal, claiming that they had been persecuted and tortured on account of their political opinions
and religious beliefs.
On July 19, 2004, an Immigration Judge (IJ) held a hearing on the Aorahas’ claims. In their
applications and their testimony during the hearing, they identified similar experiences of
persecution. They claimed that the Iraqi government had long targeted their family; that the Baath
party had harassed them during their school years; that they were forced to join the army and treated
poorly while in the army; and that they were forcibly removed from their father’s home on June 2,
2001, and taken to a regional Baath party office where they were detained and tortured for ten days.
The Aorahas also introduced a Christian Science Monitor article as evidence of continued
persecution of Christians in post-Saddam Iraq.
The IJ denied the Aorahas’ claims. Noting inconsistencies and omissions in their testimony,
the IJ observed that Jan and Laheeb had “issues of credibility” and had “not completely established
that they [were] credible witnesses.” JA 419. She also observed that the brothers failed to produce
readily available corroborating evidence. The IJ then held that, even had the Aorahas been credible,
“[t]he Government ha[d] met its burden of establish[ing] changed country circumstances in Iraq,”
thereby defeating any presumption that would arise from past persecution. Id. The IJ also concluded
that the newspaper article and the Aorahas’ testimony that they feared being retaliated against as
suspected American spies did not establish a well-founded fear of future persecution. The IJ
reasoned that the Aorahas’ failure to establish eligibility for asylum necessarily defeated their
withholding-of-removal claim, then held that they had “not submitted sufficient evidence to establish
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that . . . the interim government of Iraq has acquiesced . . . in the torture of Christians” as required
for relief under the Convention Against Torture. JA 423.
In appealing to the BIA, the Aorahas challenged the IJ’s “analysis of harm directed toward
the Christian community in Iraq,” pointing to “events subsequent” to the IJ’s decision as recounted
in a United Nations report and several newspaper articles included with their appeals. JA 17, 362.
The Aorahas asked the BIA either to reverse the IJ’s decision or to remand the case for a new factual
determination regarding fear of future persecution in light of the newly included evidence.
The BIA denied the Aorahas’ appeals through separate, though identical, orders. The BIA
“agree[d] that the respondent[s] ha[d] not demonstrated eligibility for asylum” or the other forms of
relief requested. JA 3, 348. Even “[a]ssuming the respondent[s’] credibility, as well as that [they]
demonstrated past persecution on account of [their] political opinion . . . and Christian religion,” the
BIA concluded that “the entirety of the evidence demonstrates that the country conditions in Iraq
have undergone some fundamental changes since the respondent[s’] departure.” Id. Accordingly,
the BIA reasoned, “the regulatory presumption of future persecution has been rebutted,” and it
dismissed the appeals. Id.
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II.
A.
To be eligible for asylum, an alien must prove that he is a “refugee,” a person who is “unable
or unwilling to return to” his country “because of persecution or a well-founded fear of persecution
on account of race, religion, nationality, membership in a particular social group, or political
opinion.” 8 U.S.C. § 1101(a)(42)(A). An alien thus must establish that he was persecuted in the past
or that he has a well-founded fear of being persecuted in the future before being deemed a refugee.
Pilica v. Ashcroft, 388 F.3d 941, 950 (6th Cir. 2004); 8 C.F.R. § 208.13(b). While establishing past
persecution gives rise to a presumption of a well-founded fear of future persecution, the government
may rebut this presumption by demonstrating “that conditions in the country have changed so
fundamentally that the applicant no longer has a well-founded fear of persecution.” Singh v.
Ashcroft, 398 F.3d 396, 401 (6th Cir. 2005). We therefore need not address the BIA’s credibility
determination if we accept the BIA’s finding of fundamentally changed conditions in Iraq.
“[W]e review the . . . factual determination as to whether the alien qualifies as a refugee
under a substantial evidence test,” Yu v. Ashcroft, 364 F.3d 700, 702 (6th Cir. 2004), meaning that
we deem conclusive the administrative factual determinations unless “any reasonable adjudicator
would be compelled to conclude to the contrary,” 8 U.S.C. § 1252(b)(4)(B). Where, as here, the BIA
expressly adopts and affirms the IJ’s decision but adds comments of its own, we “directly review the
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Aoraha v. Gonzales
decision of the IJ while considering the additional comment[s] made by the BIA.” Gilaj v. Gonzales,
408 F.3d 275, 283 (6th Cir. 2005).
The Aorahas first challenge the BIA’s finding that conditions in Iraq have changed so
fundamentally that they no longer have a well-founded fear of persecution on account of the
presumption arising from past persecution. Substantial evidence, however, supports this
determination. The United States submitted several official reports detailing the fall of Saddam
Hussein’s regime and the institution of an interim Iraqi government. Because the past persecution
alleged by the Aorahas occurred under the deposed regime, the toppling of that regime reasonably
rebuts any presumption of a well-founded fear of persecution. See Al-Shabee v. Gonzales, 188 F.
App’x 333, 338 (6th Cir. Oct. 4, 2006) (affirming finding of changed circumstances based on fall
of Hussein regime); Toma v. Gonzales, 179 F. App’x 320, 323–24 (6th Cir. May 4, 2006) (same);
Khora v. Gonzales, 172 F. App’x, 634, 638 (6th Cir. Feb. 10, 2006) (same).
The Aorahas persist that, even if the presumption based on past persecution has been
rebutted, an article from the Christian Science Monitor shows that they still have a well-founded fear
of persecution based on current conditions in Iraq. While the article says that Iraq’s Christians face
a “rising tide of persecution,” the article also notes (as the IJ observed) conflicting evidence
regarding the plight of Christians in post-Saddam Iraq. JA 337; JA 338 (quoting a priest’s statement
that there is a “tie of brotherhood between the Christians and the Muslims”); JA 337–38 (noting that
perceived wealth, suspected pro-American sympathies and selling of liquor may be alternative
explanations for persecution). The judge also noted that the claims of danger presented by the
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Aorahas, however severe, were consistent with general civil strife rather than the targeted
persecution needed to establish refugee status. This equivocal news article, together with the
uncorroborated testimony of the Aorahas, does not “compel” us to reach a contrary conclusion from
the BIA.
The BIA did not address the IJ’s fear-of-future-harm ruling but instead limited its express
reasoning to the view that any presumption based on past persecution had been rebutted by the fall
of Saddam Hussein’s regime. Ordinarily this would not be an issue, as we rely on the IJ’s decision
where the BIA is silent. The Aorahas complain, however, that the BIA ignored the additional
evidence of violence targeted at Christians that they included with their appeal. This evidence,
consisting of a UN report and some news articles, depicts a wave of church bombings beginning in
August of 2004 and increased harassment of Christians by Islamic militants.
While the BIA’s order does not expressly address the new evidence submitted by the
Aorahas, that fact does not require reversal. The agency’s decision is entitled to a presumption of
regularity and thus a presumption that the evidence was considered. See Pilica, 388 F.3d at 949–50;
8 C.F.R. § 1003.1(d)(3)(iv) (permitting the BIA to take administrative notice of current events on
appeal). And the BIA, in deciding cases of this type, is charged with producing a “brief order
affirming, modifying, or remanding the decision under review.” 8 C.F.R. § 1003.1(e)(5). This is
precisely what the BIA produced by issuing a brief order affirming the IJ’s decision while explaining
the consequences of regime change in Iraq. In this context, the BIA’s mere failure explicitly to
address every argument raised does not prove that each argument was not considered. The new
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evidence, at any rate, suffered from the same flaw as the Christian Science Monitor article presented
to the IJ: it did not show government involvement in, acquiescence in or inability to control the
alleged persecution. See Pilica, 388 F.3d at 950 (“[P]ersecution [is] the infliction of harm or
suffering by the government[] or persons a government is unwilling or unable to control.”).
B.
The Aorahas also challenge the BIA’s decision to deny them withholding of removal and
relief under the Convention Against Torture. Because substantial evidence supports the BIA’s
decision that the Aorahas failed to establish asylum eligibility, the BIA’s denial of the withholding-
of-removal claim was appropriate. See Berri v. Gonzales, 468 F.3d 390, 397 (6th Cir. 2006) (“When
an applicant fails to meet the statutory eligibility requirements for asylum, the record necessarily
supports the finding that the applicant does not meet the more stringent standard of a clear
probability of persecution required for withholding of removal.”) (internal brackets and quotation
marks omitted). And because the Aorahas have failed to establish that Iraq’s interim government
instigated, consented to or acquiesced in mistreatment of Christians, the BIA’s denial of the
Convention Against Torture claim was appropriate as well. See 8 C.F.R. § 208.18(a)(1) (defining
torture under the Convention Against Torture to include acts “inflicted by or at the instigation of or
with the consent or acquiescence of a public official or other person acting in an official capacity”).
III.
For these reasons, we deny the petitions for review.
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