Feras Jabr v. Eric Holder, Jr. , 711 F.3d 835 ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-2593
F ERAS A LI JABR,
Petitioner,
v.
E RIC H. H OLDER, JR., Attorney General
of the United States,
Respondent.
Petition for Review of an Order of
the Board of Immigration Appeals.
No. A094 998 344
A RGUED D ECEMBER 7, 2012—D ECIDED A PRIL 2, 2013
Before P OSNER, W OOD , and W ILLIAMS, Circuit Judges.
W ILLIAMS, Circuit Judge. For over two years, members
of the Palestinian Islamic Jihad (“PIJ”), an organization
that violently opposes the existence of Israel, tried to
recruit Petitioner Feras Ali Jabr to join their group. Jabr
resisted their efforts because he is a member of Fatah,
a political party that, at least according to Jabr, is more
open to cooperation with Israel. Jabr’s resistance left the
PIJ frustrated and so its members harassed him, beat him,
2 No. 12-2593
and labeled him a traitor to their cause. After surviving
a brutal attack at the hands of the PIJ in 2006, Jabr fled
the West Bank and headed for the United States. Within
a year of arriving in the United States, Jabr filed an ap-
plication for asylum, withholding of removal, and relief
under the Convention Against Torture. Jabr claimed
that he feared returning to Palestine because the same
individuals associated with the PIJ that hurt him before
will attack him again. The immigration judge (“IJ”) denied
his application, the Board of Immigration Appeals (“BIA”
or the “Board”) affirmed the denial of relief, and Jabr
petitioned this court for review. Because we find that
the IJ and BIA overlooked material evidence demon-
strating that Jabr suffered past persecution on account
of his political opinion, we grant the petition for review
and remand the case for further proceedings.
I. BACKGROUND
Petitioner Feras Ali Jabr, his wife, and two of his
children are natives of Nablus, a city located in the
West Bank. Before moving to the United States, Jabr
worked in the maintenance department at Najah
National University in Nablus. Unbeknownst to Jabr, the
PIJ was using the university as a breeding ground for
recruitment. The PIJ is an avowed terrorist organization
that rejects any diplomatic efforts with Israel and has
declared a mission to liberate Palestine through violence.1
1
The United States designated the PIJ a terrorist organization
in 1997. See Holly Fletcher, Palestinian Islamic Jihad, Council on
(continued...)
No. 12-2593 3
Jabr is a member of Fatah, a party that supports a
peaceful resolution with Israel and opposes the views
of the PIJ.
Beginning in 2005, members of the PIJ began to target
Jabr for recruitment. As a member of Fatah, Jabr refused
to join their ranks because of their political beliefs. At
first, the PIJ members called him a coward, a traitor, and
an “Israeli agent” for refusing them, but they did not
physically hurt him. Eventually, the PIJ’s violence esca-
lated and over the course of the next two years, Jabr
was harassed and threatened, gunshots were fired at
his car, and at one point, he was beaten so severely that
he was hospitalized for several days. Jabr fled to the
United States soon thereafter, but that did not stop
the PIJ’s harassment. Several of its members have fre-
quently visited the home of Jabr’s mother in search of
him. During one such visit, members of the PIJ slipped
a letter under her door declaring that Jabr “will never
escape the punishment of God and the anger of the peo-
ple.” The letter further called “upon all of our people
in the city of Nablus to reject and persecute this person.”
In January 2007, Jabr filed an application for asylum,
withholding of removal, and protection under the Con-
vention Against Torture (“CAT”). His application was
not granted and the government began removal pro-
ceedings against him. At the hearing before the IJ, both
1
(...continued)
Foreign Relations (Apr. 10, 2008), http://www.cfr.org/israel/
palestinian-islamic-jihad/p15984 (last visited March 20, 2013).
4 No. 12-2593
Jabr and his mother (while on a visit to the United
States) testified, and the IJ found their testimony
credible and consistent. However, the IJ denied Jabr
relief after concluding that he did not establish that he
was persecuted on account of his political opinion,
religion, or membership in a particular social group. In
the IJ’s view, the record showed that the PIJ was only
interested in recruiting as many members as possible.
Jabr appealed the IJ’s decision to the BIA, and the
Board dismissed his appeal. The Board agreed that, even
assuming that Jabr had expressed a political opinion
in support of Fatah, there was no evidence that the
PIJ acted on the basis of that opinion when its mem-
bers attacked him. This petition for review followed.
II. ANALYSIS
When, as here, the decision of the Board relies on
the IJ’s decision, we review the IJ’s decision as supple-
mented by the Board’s own analysis. Juarez v. Holder,
599 F.3d 560, 564 (7th Cir. 2010). We must uphold the
decision to deny Jabr relief if it is “supported by reason-
able, substantial, and probative evidence on the record
considered as a whole,” Chatta v. Mukasey, 523 F.3d 748,
751 (7th Cir. 2008), and will reverse “only if the evi-
dence presented by [Jabr] was such that a reasonable
factfinder would have to conclude that the requisite fear
of persecution existed.” INS v. Elias-Zacarias, 502 U.S.
478, 481 (1992).
To qualify for asylum, an applicant must demonstrate
that he is a “refugee,” meaning one “who is unable or
No. 12-2593 5
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 partic-
ular social group, or political opinion.” 8 U.S.C.
§ 1101(a)(42)(A). To show that he was persecuted by the
PIJ “on account of” his political opinion, membership in
a particular social group, and/or religion as he claims,
Jabr “must put forth direct or circumstantial evidence
that the [PIJ] was motivated by these factors.” Bueso-
Avila v. Holder, 663 F.3d 934, 937 (7th Cir. 2011); see id.
(“But it is not necessary that the persecutor be
motivated primarily on account of one of the grounds in
the Act; an individual may qualify for asylum if his or
her persecutors have more than one motive as long as
one of the motives is specified in the Immigration
and Nationality Act.”) (internal citation and quotation
marks omitted). In certain cases, “the factual circum-
stances alone may constitute sufficient circumstantial
evidence of a persecutor’s . . . motives.” Martinez-
Buendia v. Holder, 616 F.3d 711, 715 (7th Cir. 2010) (citing
Espinosa-Cortez v. Attorney General, 607 F.3d 101 (3d Cir.
2010) (quoting Canales-Vargas v. Gonzales, 441 F.3d 739,
744 (9th Cir. 2006)). This is one of those cases.
The issue here is whether Jabr sufficiently showed
that the persecution he endured was on account of
a statutorily protected ground. The IJ concluded that
members of the PIJ were simply interested in recruiting
Jabr and found nothing in the record to suggest that
they beat him because of his political opinion or
allegiance to the Fatah group. The Board similarly con-
cluded that the men who attacked Jabr did not say any-
6 No. 12-2593
thing that would indicate they beat him on account
of either an express or imputed political opinion.
However, significant evidence in the record contradicts
this conclusion. Jabr testified that he repeatedly made
it clear to the PIJ that he would not join the organization
because he disagreed with its political and religious
beliefs, and the IJ found him credible. Jabr also at-
tached several documents to his application for asylum,
including a personal statement, a statement from the
secretary of the Fatah movement stating that Jabr is a
member, and an ominous “Explanatory Statement”
issued by the Islamic Jihad that was left under his
mother’s door. The statement warns of “Rogue Sources
of Discord” and reads as translated in the record:
We [c]onfirm that one’s behind the confusion in
the region is a small fragmented deteriorating
group, sold itself to an objective and private
agenda, which is not concerned about the
interest of any member of our people. We specify
in this regard (Feras Ali Jabr), who is accused
of being a source of disturbance to the
National Security, especially in Nablus Region.
He distorted the reputation [of] the Mujahideen
(Resistance Fighters). He will never escape the
punishment of God and the anger of the people
in the short or long term. Therefore, he and
his alike individuals involved with spreading
rumors, whom known to us at the Intelligence
and Preventive Units, has to take lessons of
their alike predecessors through history. In-
deed God is not unaware of their injustice and
criminality. Neither [will] the people . . . forgive
No. 12-2593 7
their sins when the time comes to try such
suspects and traitors. We call upon all of our
people in the city of Nablus to reject and perse-
cute this person. Furthermore, we demand that
his family be blockaded to avoid their harm to
the region as a whole.
(And the wrongdoers will indeed know their
future fate.)
Alquids Brigades, the military wing
of the Islamic Jehad Movement
The Board found that Jabr’s claim that the PIJ attacked
him because of his political opinion was mere “specula-
tion” because there was “no direct or circumstantial
evidence supporting this assertion.” But this letter
shows otherwise. By specifically naming Jabr and his
family, this letter creates an unmistakable inference
that the PIJ explicitly targeted Jabr on account of
his contrary political stance. He told its members he
was politically opposed to the PIJ, they beat him, and
then they vowed to seek revenge. The beating and
sending the letter were not methods of recruitment,
they were means of intimidation and punishment. As
we explained in Martinez-Buendia, “[i]f political opposi-
tion is the reason an individual refuses to cooperate
with a guerrilla group, and that individual is persecuted
for his refusal to cooperate, logic dictates that the persecu-
tion is on account of the individual’s political opinion.”
616 F.3d at 718.
This case is factually distinguished from INS v. Elias-
Zacarias, the seminal forced-recruitment case relied on
8 No. 12-2593
by the IJ and the government. In Elias-Zacarias, the peti-
tioner refused to join the Guatemalan guerrilla forces
because he did not want to break the law and was
afraid that the government would retaliate against him
for joining. The Court held that the petitioner failed to
establish that he had “a ‘well-founded fear’ that the
guerrillas will persecute him because of [his] political
opinion, rather than because of his refusal to fight
with them.” 502 U.S. at 483 (emphasis omitted). But
we have explained before that “Elias-Zacarias does not
stand for the proposition that attempted recruitment by
a guerrilla group will never constitute persecution on
account of the asylum seeker’s political beliefs.” Martinez-
Buendia, 616 F.3d at 716. Rather, we must “carefully
consider the factual record of each case when deter-
mining whether the petitioner’s fear of future persecu-
tion due to his refusing recruitment attempts con-
stitutes persecution on account of political beliefs.” Id.
The record in this case shows that the PIJ’s harass-
ment of Jabr was not simply to increase its numbers.
Members of the Islamic Jihad clearly considered Jabr’s
Fatah affiliation to be in direct political opposition to
theirs, warning that he would learn the “lessons of . . . alike
predecessors through history,” as his traitorous “sins”
could not be forgiven. The text of the PIJ’s letter, in con-
junction with the harassment and beating that preceded
it, provides the required link between his political
beliefs and the motives of his attackers, and so we
conclude that the circumstances of this case are closer
to Martinez-Buendia than Elias-Zacarias. The petitioner
in Martinez-Buendia claimed that members of the Rev-
No. 12-2593 9
olutionary Armed Forces of Columbia (“FARC”) perse-
cuted her on account of her anti-FARC political affiliation.
Members of the FARC harassed her for years, kidnapped
her sister, and held a gun to her head. The IJ in that
case found the petitioner completely credible, but like
here, denied relief on the ground that she had not estab-
lished past persecution on account of her political affilia-
tion. We reversed, concluding that “[u]nlike the record
in Elias-Zacarias, the specific facts of this case make it
clear that Martinez-Buendia politically opposed the
FARC and that her political beliefs were the reason for
her refusal to cooperate with the FARC.” 616 F.3d at
716. We noted that “[w]hile it may be unclear whether
the FARC initially targeted her to overcome her
political stance, the later persecution came as a result of
her refusal to cooperate with the FARC to advance
their political agenda.” Id. at 717 (emphasis added). The
same reasoning applies here. We do not know why mem-
bers of the PIJ initially targeted Jabr. But whatever their
initial reason, we know that they eventually came
to consider him a traitor and “source of disturbance
to the National Security” after he resisted their efforts
and revealed himself as a member of Fatah.
Like Martinez-Buendia, Jabr did not refuse to co-
operate with the PIJ because joining them was against
the law, see Hernandez-Baena v. Gonzales, 417 F.3d 720,
723 (7th Cir. 2005), or because he was afraid of retaliation
by the government, see Elias-Zacarias, 502 U.S. at 480.
He refused because he was politically opposed to the
PIJ, and he directly communicated that disagreement to
them. See Martinez-Buendia, 616 F.3d at 718. The fact
10 No. 12-2593
that Jabr did not hold a “notable” political position
of leadership within the Fatah movement—an assertion
put forth by the IJ—is of no moment. We have never
held that a petitioner must occupy a leadership position
within his political or social group in order to receive
asylum protection. All the petitioner needs to show is
that his persecutor’s conduct was on account of an
express or imputed political opinion, which Jabr has
clearly demonstrated here.2
III. CONCLUSION
For the foregoing reasons, we G RANT the petition for
review, V ACATE the order of removal, and R EMAND
for further proceedings consistent with this opinion.
2
Jabr also challenges the Board’s failure to mention why he
did not qualify for asylum on account of his religion. Jabr
describes himself as a “moderate Muslim” and claims that he
told members of the PIJ that he did not agree with their
“extreme Islamic beliefs.” Because we conclude that Jabr
has shown that he was persecuted on account of his political
opinion and has a legitimate fear of future persecution, we
need not reach the question of whether he also qualifies
for asylum on account of his religion.
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