Mousa, Ahmad v. INS ( 2000 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-1888
Ahmad Mousa,
Petitioner-Appellant,
v.
Immigration and Naturalization Service,
Respondent-Appellee.
Appeal from the Board of Immigration Appeals
No. A71 804 422
Argued December 2, 1999--Decided August 1, 2000
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 McMullen
coordinated led to the "murder, torture, and
maiming of innocent civilians," id. at 97
(emphasis added), and that elsewhere it also
highlighted for special criticism the "random
bombings of civilian targets." Id. at 98
(emphasis added).
The unfortunate problem we face here is the
BIA’s utter lack of effort to distinguish or to
build upon precedents like Rodriguez-Majano and
McMullen. One can certainly imagine drawing a
line between those who have attacked military
targets and those who have harmed innocent
civilians. It is also possible to construe the
term "persecution" to exclude military
operations, whether or not United States foreign
policy supports the goals of the faction in
question. Mousa makes a reasonable argument that
the BIA has in fact taken this approach, but it
is difficult for us to know definitively,
especially since it offered no analysis or
explanation of its conclusions in the order now
before us. The IJ distinguished Rodriguez-Majano
as a case in which the applicant for asylum was
a "mere member" of the guerilla organization, not
an active participant. This is hard to swallow,
given the fact that the BIA’s opinion reports
that he "drove supplies to San Miguel for a
battle with the government forces which lasted a
day and a half. He also transported the
guerrillas out of the city. . . . He accompanied
guerrillas on propaganda trips and once covered
them with his weapon while they burned cars."
Rodriguez-Majano, 19 I&N at 813. The IJ did not
cite McMullen, and thus had no occasion to
consider the implicit line it drew between
military targets and civilian targets.
Ordinarily, this lack of an explanation would
require us to remand the case to the BIA so that
it could fill in the blanks. In this case,
however, the record offers an alternative ground
for upholding the ultimate decision to deny
Mousa’s application. We therefore do not need to
wrestle to the ground these sensitive issues,
which we reserve for another day and a proper
record.
To show that he is a refugee as defined by the
IIRIRA and qualified for asylum, Mousa had to
prove that he is "unable or unwilling to return"
to Jordan "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.
sec. 101(a)(42)(A). He need not demonstrate a
certainty of persecution upon his return to
Jordan; the statute requires only a showing of a
subjective fear of persecution and the objective
reasonableness of that fear. See Sivaainkaran v.
INS, 972 F.2d 161, 163 (7th Cir. 1992).
The IJ and BIA decided that Mousa did not have
a well-founded fear of persecution. That finding
is also difficult for us to review, both because
the BIA issued only a one paragraph summary
affirmance, and because the IJ’s analysis of the
issue (despite its obvious importance) is
confined to a rather conclusory and brief
paragraph. The agency was required to consider
Mousa’s claims and to give careful,
individualized, rational explanations for its
decision. See Kaczmarczyk v. INS, 933 F.2d 588,
594-95 (7th Cir. 1991); Vergara-Molina v. INS,
956 F.2d 682, 685 (7th Cir. 1992); Guentchev v.
INS, 77 F.3d 1036, 1038 (7th Cir. 1996). Here,
the IJ listed the applicable facts, and found
that Mousa did not suffer persecution because (1)
he was not arrested or imprisoned by the
Jordanian police; (2) he lived "relatively
undisturbed" from 1982 to 1987; (3) he was able
to obtain a passport; and (4) his biggest
complaint was his inability to get a job in
Jordan, an economic harm which does not
constitute persecution. Although cursory, this is
enough (barely) to permit our review. Once again,
we are disappointed by the BIA’s failure to
police the quality of the reasoning offered by
its immigration judges. While the BIA may fulfill
its duty by merely adopting the IJ’s opinion and
reasoning, Guentchev, 77 F.3d at 1038, there must
be some reasoning for it to adopt. That means,
among other things, that the BIA must ensure that
the IJ gave the record a careful, comprehensive
review before it adopts the IJ’s reasoning as its
own. See Lwin, 144 F.3d at 508-09 (explaining
that we may find the BIA’s summary affirmance of
an IJ’s flawed decision to be insufficient); see
also Draganova v. INS, 82 F.3d 716, 720 (7th Cir.
1996).
The IJ’s reasoning, minimal as it was, was
rational and supported by the record. It is
enough to show that a finding of persecution is
not compelled here. The facts could reasonably be
characterized as mere harassment, which is not
the same as persecution. See Balazoski v. INS,
932 F.2d 638, 642 (7th Cir. 1991). True, the
Jordanian police questioned Mousa and his family
frequently from 1982 to 1987. The State
Department, in an advisory opinion, determined
that Mousa is listed in the Jordanian police
database as a potential spy and threat. It found
further that Mousa’s name will probably not be
deleted from this database for the rest of his
life. But searches, interrogation, and even
threatening phone calls do not constitute
persecution unless they rise to extreme levels.
See id.; see also Borca v. INS, 77 F.3d 210, 215
(7th Cir. 1996). It took him a year, but Mousa
got a passport. He had a hard time finding a job
in Jordan, but there is evidence in the record
that the police certificate he accuses the police
of withholding is not required to work in Jordan,
and that Mousa’s real problem was that potential
employers were wary of him due to his past. The
record may reasonably be read to infer that the
harassment was not severe, and that the Jordanian
police department’s intrusion into Mousa’s life
will diminish with time, provided he refrains
from participating in future violent actions like
the Fatah attack.
This evidence could support a conclusion
either to grant or to deny asylum to Mousa. Given
that fact, it cannot be an abuse of discretion to
choose one outcome over another, even if we would
have come to a different conclusion. See, e.g.,
Marquez v. INS, 105 F.3d 374, 378 (7th Cir.
1997). In the final analysis, and in light of the
generous standard of review that applies to our
consideration of BIA asylum decisions, we
therefore Affirm the decision of the Board.