Hamdan, Jalal Abu v. Mukasey, Michael B. ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-2702
JALAL ABU HAMDAN,
Petitioner,
v.
MICHAEL B. MUKASEY, Attorney General
of the United States,
Respondent.
____________
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A95-925-237
____________
ARGUED APRIL 10, 2008—DECIDED JUNE 16, 2008
____________
Before FLAUM, KANNE, and EVANS, Circuit Judges.
KANNE, Circuit Judge. Jalal Abu Hamdan sought with-
holding of removal, 8 U.S.C. § 1231(b)(3)(A), and protec-
tion under the Convention Against Torture (CAT), 8
C.F.R. §§ 1208.16, 1208.18, claiming that he suffered past
persecution when he lived in the Israeli-occupied West
Bank from 1994 until 1997, and that he would likely be
persecuted if he returned there today. The immigration
judge (IJ) denied his requests for relief, a decision that
the Board of Immigration Appeals (BIA) upheld. Hamdan
petitions us to review the immigration courts’ decisions,
2 No. 07-2702
arguing that the IJ failed to address his claims of future
persecution. We agree with Hamdan, and grant his peti-
tion.
I. HISTORY
Hamdan is a “stateless” Palestinian—he was born in
the West Bank when the area was governed by Jordan,
but was not allowed to apply for Jordanian citizenship
because of his Palestinian identity. He entered the United
States in April 1997 on a student visa to attend the Uni-
versity of Illinois at Chicago. But after immigration au-
thorities determined in 2003 that Hamdan had never, in
fact, attended UIC, they initiated removal proceedings
against him. See 8 U.S.C. § 1227(a)(1)(C)(I).
Hamdan appeared before the IJ and conceded
removability. However, he also filed an application for
asylum, withholding of removal, and CAT protection,
in which he claimed that the Israeli government and
Palestinian Authority persecuted him when he lived in
the West Bank. Hamdan also asserted that if he were to
return to the West Bank, it was likely that he would
be harmed by the Israeli government and Palestinian
militant groups because of his Palestinian identity and
imputed political beliefs. See id. § 1231(b)(3)(A) (“[T]he
Attorney General may not remove an alien to a country
if the Attorney General decides that the alien’s life or
freedom would be threatened in that country because
of the alien’s . . . nationality . . . or political opinion.”);
8 C.F.R. § 1208.16(b)(2) (stating that to successfully
obtain CAT protection, petitioner must show that it is
more likely than not that he will be tortured by foreign
government, or by its acquiescence, upon removal). In the
No. 07-2702 3
alternative, Hamdan sought leave to depart the United
States voluntarily. See 8 U.S.C. § 1229c(a)-(b).
At a subsequent hearing regarding his requests for
relief, Hamdan explained to the IJ the claims of persecu-
tion he presented in his application. Hamdan first stated
that he received his Master’s Degree in Archeology in
1994 from the University of Jordan. Shortly thereafter,
he was hired by the Israeli government’s Department of
Archeology as a supervisor of archeological excavations.
Most of the laborers at the excavation sites were Palestin-
ian, and Hamdan’s good rapport and constant interaction
with his Israeli supervisors and coworkers—including
armed Israelis who were charged with providing
security to the excavation sites—along with the fact that
he “made good money,” fueled speculation among the
Palestinians that he was an Israeli spy.
Hamdan continued that, about two years after the Israeli
Department of Archeology hired him, Israel began transfer-
ring may aspects of civil governance in the West Bank to
the Palestinian Authority. As a part of this transfer,
Hamdan’s employer changed to the Palestinian-controlled
Department of Archeology. Nevertheless, Hamdan’s
Palestinian coworkers and superiors became increasingly
suspicious of him because of his past interactions with
Israeli officials. And even though Hamdan remained
“politically neutral” between the Israeli and Palestinian
causes and abstained from political activity, he sensed
that his neutrality angered several Palestinian political
and militant groups, and also bolstered the misconcep-
tion that he was an Israeli collaborator.
Hamdan further explained that he left for the United
States after it became clear to him that his political neutral-
ity prevented his advancement within the Palestinian
4 No. 07-2702
Department of Archeology; political patronage ran ram-
pant throughout the department, but because Hamdan
shunned Palestinian political parties he lacked the requisite
connections to rise through the department’s ranks. Then,
about two years after he left the West Bank, the Second
Intifada—the violent Palestinian uprising against the
occupying Israeli presence—began. Hamdan’s family
in the West Bank informed him that, as a part of the
Israeli reaction to the uprising, their village was com-
pletely walled-off; Hamdan’s family also recounted
that armed Palestinian militant groups roamed the
streets at night, and that neither the Israeli government,
nor the Palestinian Authority, could control them. As a
further attempt to quell the violence, the Israeli govern-
ment imposed severe restrictions on the employment of
Palestinians. As such, “there [are] no jobs for educated
people now,” as Hamdan explained. Even more, what-
ever archeologist jobs may exist would be based in
Ramullah, a city to which Hamdan would not be able
to travel because of the Israeli government’s restrictions.
To support his description of life in the West Bank during
the Second Intifada, Hamdan submitted to the IJ the U.S.
Department of State’s 2004 Country Report on Human
Rights Practices for Israel and the Occupied Territories. The
2004 Report recounted that the Israeli government re-
sponded to the uprising with military force; curfews; travel
restrictions; closures of schools, universities, businesses,
and places of worship; and the construction of a sec-
urity barrier over 6,900 acres of privately owned land.
The 2004 Country Report also stated that Palestinian
militant groups killed, injured, or arbitrarily detained
Palestinians suspected of collaborating with Israel; in fact,
the report called the torture of suspected collaborators
“widespread.”
No. 07-2702 5
In all, Hamdan claimed that if he were forced to return to
the West Bank, he would suffer a substantial economic
hardship amounting to persecution because of the em-
ployment restrictions the Israeli government placed on
Palestinians. He also asserted that he would likely be
abducted, injured, or killed by Palestinian militant groups
because of their belief that he was politically affiliated
with the Israeli government. Hamdan accordingly asked
the IJ to grant him either withholding of removal or
protection under the CAT.
After Hamdan finished testifying, the IJ denied his
requests for relief from removal. The IJ first determined
that Hamdan failed to file his asylum petition within
the requisite one year of his entry into the United States,
and that the application’s untimeliness was not excused
by either extraordinary or changed circumstances. See
id. § 1158(a)(2)(B), (a)(2)(D); Hussain v. Keisler, 505 F.3d
779, 781-82 (7th Cir. 2007). The IJ then declared that,
although Hamdan’s testimony regarding his experiences
while living in the West Bank was entirely credible, he
failed to proffer any evidence showing that either the
Israeli government or Palestinian Authority persecuted
him.
The IJ continued that Hamdan also did not establish
that he would likely be persecuted upon his return to
the West Bank. As to Hamdan’s claim of future persecu-
tion at the hands of the Israeli government, the IJ eschewed
any discussion of Hamdan’s claim of economic persecu-
tion; instead, the IJ made the puzzling statement that,
although “[t]here is indication, in this case, that the
Israeli government would torture” Hamdan, it was
“improbable” that the government “would do so in the
future.” The IJ also stated that Hamdan failed to show that
6 No. 07-2702
Palestinian militant groups would likely harm him upon
his return. In so concluding, the IJ characterized Hamdan’s
claim not as one based on imputed political opinion, but
instead as one based solely on his political neutrality. As
the IJ saw it, Hamdan claimed that militant groups
would persecute him because he tried to remain neutral
between the Palestinian Authority and the Israeli govern-
ment. But, the IJ concluded, Hamdan “never affirmatively
expressed his neutrality” to the militant groups them-
selves, and thus could not prove that the groups would
harm him because of his neutrality. The IJ did, however,
permit Hamdan to depart voluntarily.
Hamdan appealed the IJ’s decision to the BIA, arguing,
among other things, that the IJ erred by concluding that
he failed to establish that he would likely be persecuted
upon his return to the West Bank. In rejecting Hamdan’s
argument, the BIA merely “adopt[ed] and affirm[ed]” the
IJ’s determination “to the extent he found that [Hamdan]
failed to meet his burden of proof to establish eligibility
for relief from removal.” The BIA then dismissed
Hamdan’s appeal and entered a final order of removal.
II. ANALYSIS
In his petition, Hamdan does not challenge the IJ’s
determination that his asylum application was untimely;
he likewise does not claim that the IJ erred by con-
cluding that he was not persecuted when he lived in the
West Bank. See Lin v. Ashcroft, 385 F.3d 748, 750 (7th Cir.
2004) (stating that petitioner abandoned arguments by
not raising them in opening brief). Instead, Hamdan
solely argues that the IJ erred by failing to address his
claims that (1) because of his Palestinian identity, the
No. 07-2702 7
Israeli government will impose on him severe economic
hardship that amounts to persecution; and (2) Palestinian
militant groups will harm him because of their belief
that he is (at least) an Israeli collaborator or (at most) an
Israeli spy.1 He therefore asks us to grant his petition and
remand his case so the IJ can assess his claims in the first
instance. See Salameda v. INS, 70 F.3d 447, 451-52 (7th
Cir. 1995); see also Binrashed v. Gonzales, 502 F.3d 666, 673-
75 (7th Cir. 2007); Tolosa v. Ashcroft, 384 F.3d 906, 910-11
(7th Cir. 2004).
The government contends, however, that we lack juris-
diction to address Hamdan’s arguments; according to the
government, Hamdan failed to exhaust “all administrative
remedies available” to him regarding his claims of future
persecution. 8 U.S.C. § 1252(d)(1). Specifically, the gov-
1
In his petition, Hamdan describes his claim of future persecu-
tion at the hands of Palestinian militant groups as being based
on two separate grounds: (1) his imputed political allegiance
with the Israeli government; and (2) his membership in the
social group of Palestinians who were formerly employed by
Israelis and who may be seen as collaborators. See 8 U.S.C.
§ 1231(b)(3)(A) (“[T]he Attorney General may not remove an
alien to a country if the Attorney General decides that the
alien’s life or freedom would be threatened in that country
because of the alien’s . . . membership in a particular social
group, or political opinion.”). But Hamdan’s description
creates a distinction without difference: both grounds for
relief are premised on the same contention that militant groups
believe that Hamdan is an Israeli collaborator or spy. Thus,
Hamdan’s two grounds for relief are actually one: that he
would face persecution upon his return to the West Bank
because of his imputed political alliance with the Israeli gov-
ernment.
8 No. 07-2702
ernment asserts that Hamdan “failed to articulate any
argument” before the BIA regarding his claims of future
persecution based on his Palestinian identity or imputed
political opinion specifically. As the government sees it,
Hamdan instead argued only that the IJ failed to make “an
explicit credibility determination” regarding his claim
of future persecution. The government thus contends
that, because Hamdan failed to forward any “semblance
of an argument” that the IJ failed to address his specific
claims of future persecution, see Margos v. Gonzales, 443
F.3d 593, 598-599 (7th Cir. 2006), we lack the authority to
hear Hamdan’s case, see 8 U.S.C. § 1252(d)(1); Hamdan v.
Gonzales, 425 F.3d 1051, 1059 n.14 (7th Cir. 2005).
However, the record belies the government’s character-
ization of Hamdan’s submission to the BIA. Hamdan did,
in fact, challenge the IJ’s decision rejecting his claims of
future persecution for reasons other than the IJ’s credi-
bility findings. Specifically, Hamdan argued that the IJ
erred by concluding that he “could not demonstrate that
he is ‘more likely than not’ to be persecuted and tortured.”
Hamdan also asserted that the IJ’s denial of relief was
inexplicable, particularly when the IJ made contradictory
findings; for instance, Hamdan pointed out that “[a]t one
point the IJ seems to agree that [he] would suffer persecu-
tion, yet finds that he would not be faced ‘with any more
risk than that of other inhabitants of the West Bank.’ ” And
although Hamdan’s submission to the BIA was not as
detailed or as thorough as his brief filed with this court,
it sufficiently put the BIA on notice that he sought to
challenge the IJ’s denial of his claims of future persecution.
See Kaganovich v. Gonzales, 470 F.3d 894, 897 (9th Cir. 2006)
(“Petitioner’s notice of appeal to the BIA asserted that the
‘Immigration Judge erred in disregarding that [Petitioner]
No. 07-2702 9
entered the United States as a refugee.’ That statement ‘was
sufficient to put the BIA on notice . . . and the agency had
an opportunity to pass on this issue.’ ” (quoting Zhang v.
Ashcroft, 388 F.3d 713, 721 (9th Cir. 2004))); Yan Lan Wu v.
Ashcroft, 393 F.3d 418, 422 (3d Cir. 2005) (“[S]o long as an
immigration petitioner makes some effort, however
insufficient, to place the Board on notice of a straight-
forward issue being raised on appeal, a petitioner is
deemed to have exhausted her administrative remedies.”).
We thus cannot say that Hamdan’s submission lacked the
“semblance of an argument” that is characteristic of an
unexhausted claim. See Margos, 443 F.3d at 599 (deeming
claim unexhausted when argument was based on ex-
tremely “broad generalities” that lacked explanation
either “through text or citation”).
With that said, we move to Hamdan’s contentions that
the IJ failed to address his claims of future persecution.
Although the BIA’s opinion in this case added very little
to the IJ’s decision, the IJ’s decision, as supplemented by
the BIA’s terse opinion, is our basis for review. See Brucaj v.
Ashcroft, 381 F.3d 602, 606 (7th Cir. 2004). By seeking
withholding of removal and CAT protection, Hamdan
bore the burden of pointing to evidence showing that it
is “more likely than not” that he will be persecuted be-
cause of his Palestinian identity or imputed political
opinion if he returns to the West Bank. See Shmyhelskyy
v. Gonzales, 477 F.3d 474, 482 (7th Cir. 2007); see also Ahmed
v. Ashcroft, 348 F.3d 611, 617 (7th Cir. 2003) (stating that
future persecution based on imputed political opinion is
basis for relief from removal); Borca v. INS, 77 F.3d 210,
216 (7th Cir. 1996) (stating that “substantial economic
disadvantage” that is “ ‘deliberately imposed’ as a form of
punishment” can constitute basis for relief from removal
10 No. 07-2702
(quoting Kovac v. INS, 407 F.2d 102, 107 (9th Cir. 1969))).
The IJ determined that Hamdan failed to shoulder this
burden, a conclusion to which we normally afford a
great amount of deference. See 8 U.S.C. § 1252(b)(4)(B)
(stating that immigration courts’ findings of fact are
“conclusive unless any reasonable adjudicator would be
compelled to conclude to the contrary”); Feto v. Gonzales,
433 F.3d 907, 911 (7th Cir. 2006) (stating that we affirm
immigration courts’ decisions so long as they are sup-
ported by “reasonable, substantial, and probative evi-
dence” (internal quotation marks and citation omitted)).
But our “[d]eference is earned; it is not a birthright.” Kadia
v. Gonzales, 501 F.3d 817, 821 (7th Cir. 2007). And we
will not yield to the IJ’s conclusions if he failed to respond
to the arguments that Hamdan presented, see Salameda,
70 F.3d at 451-52, or based his conclusions on a misunder-
standing of Hamdan’s claims for relief, see Iao v. Gonzales,
400 F.3d 530, 533 (7th Cir. 2005); Tolosa, 384 F.3d at 910-11;
see also Hengan v. INS, 79 F.3d 60, 63 (7th Cir. 1996) (vacat-
ing denial of relief from removal where IJ’s focus on
facts irrelevant to petitioner’s claim suggested that IJ
misunderstood arguments altogether).
Hamdan is correct that the IJ failed to examine his
claims of future persecution. The IJ did not ad-
dress Hamdan’s contention that he would be econom-
ically persecuted by the Israeli government because of his
Palestinian identity. The IJ instead concluded—with little
explanation, at that—that it was “improbable” that the
Israeli government would “torture” Hamdan. But the IJ’s
conclusion is nonsensical; Hamdan never asserted that
the Israeli government would “torture” him, and the
conclusion that the Israelis would not torture Hamdan
contradicted the IJ’s earlier finding that there was, in fact,
No. 07-2702 11
an “indication” that the “Israeli government would
torture” him.
The IJ similarly failed to address Hamdan’s claim that
Palestinian militant groups would likely harm him upon
his return to the West Bank. When denying Hamdan’s
request for relief, the IJ merely concluded that Hamdan
failed to establish that he would be persecuted because
the militant groups were unaware of his self-declared
political neutrality. But in so concluding, the IJ miscon-
strued Hamdan’s claim. Hamdan never contended that
he would likely be persecuted because of his political
neutrality. Instead, he asserted that Palestinian militant
groups would persecute him because they imputed to him
a political affiliation with the Israeli government. Hamdan
even supported this assertion with evidence, such as his
testimony—which the IJ deemed credible—and the 2004
Country Report. As such, it makes little difference that
Hamdan, as the IJ put it, “never affirmatively expressed his
neutrality”; what does matter is how militant groups
perceived Hamdan’s political affiliation—regardless of
what he “affirmatively expressed”—and whether it was
likely that they would harm him because of that percep-
tion. See Nakibuka v. Gonzales, 421 F.3d 473, 478 (7th Cir.
2005); see also De Brenner v. Ashcroft, 388 F.3d 629, 635-36
(8th Cir. 2004) (stating that inquiry must focus on whether
persecutor, rightly or wrongly, attributes a political opin-
ion to victim); Vasquez v. INS, 177 F.3d 62, 65 (1st Cir.
1999) (same); Sangha v. INS, 103 F.3d 1482, 1489 (9th Cir.
1997) (same). In other words, the IJ completely misunder-
stood Hamdan’s claim of future persecution based on
imputed political opinion, a mistake that caused the IJ both
to ignore Hamdan’s actual argument and to favor irrele-
vant facts when denying Hamdan’s request for relief. See
12 No. 07-2702
Tolosa, 384 F.3d at 910-11; see also Lian v. Ashcroft, 379 F.3d
457, 459 (7th Cir. 2004) (vacating and remanding claim for
relief from removal when “most of” IJ’s opinion was “taken
up with irrelevancies”).
All told, the IJ did not address Hamdan’s claims that,
upon his return to the West Bank, he would suffer eco-
nomic persecution because of his Palestinian identity, and
that Palestinian militant groups would harm him because
of the political beliefs they imputed to him. See Hengan,
79 F.3d at 64 (“Agencies must respond to the arguments
made to them . . . .”). We express no opinion as to the
merits of Hamdan’s claims. We remand only to allow the
IJ the first opportunity to pass judgment on the claims
it previously ignored. See Salameda, 70 F.3d at 451-52; see
also Binrashed, 502 F.3d at 673; Durgac v. Gonzales, 430 F.3d
849, 851-52 (7th Cir. 2005) (“[P]etitions for review will
be granted when the court concludes that there is more
that must be done at the agency level . . . .”).
III. CONCLUSION
We GRANT Hamdan’s petition for review, VACATE the
BIA’s final order of removal, and REMAND this case to the
immigration courts for further proceedings.
USCA-02-C-0072—6-16-08