Boutros Habchy v. Michael B. Mukasey ( 2009 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 07-3428
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Boutros Chafic Habchy, *
*
Petitioner, *
* Petition for Review of an
v. * Order of the Board of
* Immigration Appeals.
Mark Filip,1 *
Acting Attorney General *
*
Respondent. *
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Submitted: September 26, 2008
Filed: January 26, 2009
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Before RILEY, BRIGHT, and MELLOY, Circuit Judges.
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MELLOY, Circuit Judge.
Boutros Chafic Habchy, a native and citizen of Lebanon, petitions for review
of the decision of the Board of Immigration Appeals (“BIA”) to deny his petition to
reopen his asylum case on the basis of changed country conditions in Lebanon. He
claims that the BIA abused its discretion in refusing to grant the motion to reopen.
We vacate the BIA’s decision and remand for new findings.
1
Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Acting Attorney
General Mark Filip is automatically substituted for former Attorney General Michael
B. Mukasey as Respondent in this case.
I.
This is not the first time that Habchy has appealed an adverse administrative
decision to this court, and the procedural history of this case is lengthy. Habchy
entered the United States at the Miami International Airport in 2000. Upon arriving
without proper documentation, Habchy immediately requested asylum. Habchy
claimed that he had suffered past persecution at the hands of the political and
paramilitary organization Hizballah, which had detained him, tortured him, and
accused him of being an Israeli collaborator. Habchy also stated that he feared future
persecution on the basis of his religion and his political beliefs, whether real or
imputed.
Habchy’s asylum-merits hearing before an Immigration Judge (“IJ”) was
scheduled for November 21, 2000, but Habchy failed to appear. As a result, the IJ
ordered him removed in absentia. Habchy filed a pro se motion to reopen his asylum
petition on the basis of ineffective assistance of counsel, claiming that his attorney had
failed to notify him of the hearing date. The IJ denied this motion, and Habchy did
not appeal.
Habchy thereafter obtained different counsel and filed a motion with the IJ to
reconsider the IJ’s initial denial of the motion to reopen. The IJ denied the motion to
reconsider. This time, Habchy appealed. On March 7, 2003, the BIA affirmed the IJ’s
decision to deny the motion to reconsider, finding the petition was untimely. Habchy
proceeded to file a new motion to reopen with the BIA, this time based on changed
country conditions in Lebanon between 2000 and 2003. On July 23, 2003, the BIA
denied the motion on the merits.
Habchy filed a petition for habeas corpus on May 11, 2005. The petition was
transferred to this court. In September 2006, Habchy argued before this court that the
BIA erred in affirming the IJ’s denial of the motion to reconsider and further erred in
refusing to reopen his asylum case on the basis of changed country conditions. In
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Habchy v. Gonzales, 471 F.3d 858 (8th Cir. 2006), this court affirmed the BIA’s
denial of both motions. We noted therein, however, that nothing precluded Habchy
from filing another motion to reopen based on further changes in country conditions
due to the ongoing Lebanese–Israeli conflict. Id. at 867–68.
Following this court’s decision, on September 17, 2007, Habchy filed with the
BIA another motion to reopen based on changed country conditions. This new motion
was premised, in part, on the military conflict between Lebanon and Israel in July and
August of 2006. As a Lebanese Christian and perceived supporter of Israel, Habchy
claimed that the escalation of tensions between Hizballah, Israel, and the Lebanese
government over the kidnapping of Israeli soldiers in July 2006 increased the threat
of persecution to a degree that constituted a material change and warranted reopening
his asylum proceedings. On October 4, 2007, the BIA denied the motion on the
merits. An appeal from the BIA’s denial of this latest motion is currently before this
court.
II.
A. Standard of Review
We review the BIA’s denial of a motion to reopen for abuse of discretion.
Habchy, 471 F.3d at 861. The BIA abuses its discretion where “a decision is without
rational explanation, departs from established policies, invidiously discriminates
against a particular race or group, or where the agency fails to consider all factors
presented by the alien or distorts important aspects of the claim.” Id. at 861–62
(citation and quotation omitted). The Code of Federal Regulations dictates when the
agency may grant a motion to reopen. See 8 C.F.R. § 1003.2. To qualify for a motion
to reopen based on changed circumstances, the petitioner must “state . . . new facts .
. . supported by affidavits or other evidentiary material,” and the facts must be
material to the claim for relief and unavailable and undiscoverable at the time of the
former hearing. Id. § 1003.2(c)(1).
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B. Denial of the Motion to Reopen
As set forth in his initial asylum application and the present motion to reopen,
Habchy claims he will be persecuted on two grounds—political opinion, whether real
or imputed, and religious belief. Specifically, Habchy asserts that “[h]e was accused
of being an Israeli collaborator and was severely beaten by the Hizballah and Syrian
occupying forces as a result of his political activity and religious background.” In
addition to past persecution, Habchy claims he will face similar treatment on the same
basis in the future.
The BIA abused its discretion in denying Habchy’s latest motion to reopen
insofar as it failed to consider the entirety of Habchy’s claim for relief when
determining whether there had been a material change in country conditions in
Lebanon. See Habchy, 471 F.3d at 861–62. In denying the motion, the BIA failed to
analyze Habchy’s evidence in light of his claim of persecution based on political
opinion, whether real or imputed, and in light of his particular circumstance. And
unlike in its 2003 opinion, the BIA made no indication here that it even considered his
political affiliation. Instead, the agency erroneously confined its review to whether
the new evidence Habchy presented showed an increased risk of persecution based on
his religion such that reopening was warranted.
In its opinion, the BIA characterized Habchy’s motion to reopen as solely
resting on the deterioration of “conditions faced by Lebanese Christians.” It found
that the harm Habchy feared was too generalized to serve as a material change in
country conditions, stating that while the “continuing state of economic and political
crisis has led to insecurity among Lebanese Christians, the situation has affected all
sectors of Lebanese society.” To support this determination, the BIA cited to portions
of Habchy’s evidence that indicated both Muslim and Christian communities had been
the targets of bombings and attacks. In sum, the BIA concluded that Habchy’s
proffered evidence of persecution did not “show an increased risk of persecution to
Lebanese Christians since the Immigration Judge’s decision.” Importantly, we do not
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believe that, on its face, Habchy’s claim based on his political opinion is wholly
incredible or without merit, and, as such, we may not overlook the BIA’s omission.
To be eligible for asylum, Habchy would have to establish at a hearing before
an IJ that he is unwilling or unable to return to Lebanon because of persecution or a
well-founded fear of persecution based upon his “race, religion, nationality,
membership in a particular social group, or political opinion.” 8 U.S.C. §
1158(b)(1)(B)(i). Persecution on the basis of any one of these grounds thus forms an
independent and sufficient statutory ground for relief. A “general state of unrest,”
however, is “typically insufficient to qualify as persecution.” Al Yatim v. Mukasey,
531 F.3d 584, 588 (8th Cir. 2008) (citing Mohamed v. Ashcroft, 396 F.3d 999, 1003
(8th Cir. 2005) for the proposition that “[h]arm arising from general conditions such
as anarchy, civil war, or mob violence will not ordinarily support a claim of
persecution”). Thus, “the harm suffered must be particularized to the individual rather
than suffered by the entire population.” Mohamed, 396 F.3d at 1003.
The change upon which Habchy bases his motion to reopen is the conflict
between Lebanon and Israel that occurred during July and August 2006. As discussed
in the 2006 U.S. State Department Country Report (“Report”), which Habchy has
presented as evidence of changed country conditions in support of his motion, this
conflict started when Hizballah militants entered Israel from Lebanese territory and
kidnapped and killed three Israeli soldiers. Israeli military forces entered Lebanese
territory in response and instituted a bombing campaign.
Habchy asserted in his motion that the Report “gives extensive corroboration
to the increased danger to Israeli supporters and Christians of Lebanon.” Because of
the increased hostility toward non-Muslims in the region after the bombing and
invasion, Habchy maintains that he is at a greater risk of harm based on his religious
views. He also maintains that the increased hatred and distrust of Israel stemming
from the conflict further jeopardizes his life. Because of his prior political affiliation
with the Lebanese Forces, a Christian political party that opposes Hizballah, as well
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as his perceived allegiance to Israel because of his association with the Lebanese
Forces, Habchy believes that if returned to Lebanon he would be targeted and harmed.
Habchy’s evidence of changed country conditions is unlike that which he
presented in support of his previous motion to reopen, where we noted that “[t]he
country reports do not indicate any significant upsurge in violence” or “growth in the
power and influence of Hizballah.” Habchy, 471 F.3d at 867. Here, the Report clearly
indicates hostilities between Lebanon, Hizballah, and Israel had increased since the
time Habchy first filed for asylum and since his last motion to reopen. The Report
further highlights an increase in “strong rhetoric against Israel” and abuse of Israeli
citizens after and during the conflict within Lebanon. Habchy also submitted as
evidence numerous newspaper articles detailing the increase in sectarian violence
following the conflict.
Habchy is not merely seeking to reopen his asylum claim because of a
generalized fear of persecution that any and all Christians or even former Lebanese
Forces members could claim. Rather, as Habchy stated in an affidavit in support of
his asylum application and in his motion to reopen, during his time in the Lebanese
Forces he served in its secret-service branch and was responsible for passing
intelligence about Hizballah and Syria to the party leaders, and, having discovered his
roll, Hizballah detained him, tortured him, and accused him of being an Israeli
collaborator. He thus alleges that he is likely to suffer persecution because of his
particular circumstance—i.e., his former political affiliation and his perceived
allegiance to Israel—not only because of the general increase in violence.
Because of his particular allegations, this claim is different from that in Al
Yatim. There, we found that the BIA did not abuse its discretion in refusing to grant
a motion to reopen where the petitioners, who sought relief based on their identity as
Christians living in the Palestinian territory, failed to establish a material change in
country conditions. Al Yatim, 531 F.3d at 591. Our conclusion rested, in part, on the
fact that the petitioners did “not explain[] how the [election of Hamas] would impact
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them specifically, as opposed to creating a generalized increase in regional hostilities.”
Id.; see also Harchenko v. INS, 379 F.3d 405, 410 (6th Cir. 2004) (holding the BIA
did not abuse its discretion in denying a motion to reopen when the petitioner
presented “a long list of newspaper articles and references to the . . . State Department
Country Reports” but failed “to explain how these developments would affect [the
petitioner]” and “demonstrate the ‘individualized’ fear of persecution required for
asylum”).
Given Habchy’s particular background, an increase in hostility against Israel
in Lebanon could affect Habchy beyond the generalized increase in harm faced by the
population as a whole. Regardless of whether this is actually the case, the BIA had
an obligation to consider the evidence Habchy presented in light of all of his claims.
See Barragan-Verduzco v. INS, 777 F.2d 424, 426 (8th Cir. 1985) (“[The agency has]
no duty to write an exegesis on every contention,” but it is required to “consider the
issues raised, and announce its decision in terms sufficient to enable a reviewing court
to perceive that it has heard and thought and not merely reacted.” (internal quotation
omitted)). While it is well established that the BIA has broad discretion to grant or
deny a motion to reopen, if it does not articulate a reasoned basis for rejecting the
motion or fails to consider all the aspects of the petitioner’s claim, it has abused its
discretion. Habchy, 471 F.3d at 861–62. The BIA should have addressed whether,
in light of Habchy’s particular situation, the new evidence established a materially
greater risk of persecution based on his political opinion.
The BIA thus abused its discretion in failing even to acknowledge the
substantive issue of an increased risk of persecution based on political opinion,
whether real or imputed. See Mejia v. Ashcroft, 298 F.3d 873, 880 (9th Cir. 2002)
(holding that the BIA abused its discretion in denying a motion to reopen when it
failed to consider the argument before it); Zheng v. BIA, 154 F. App’x 265, 266–67
(2d Cir. 2005) (unpublished) (finding an abuse of discretion where the BIA did not
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directly address a claim of persecution on the ground before it but, instead, focused
on the original application for asylum premised on a different ground).
Notably, we do not express an opinion as to whether the Lebanese–Israeli
conflict presents an increased risk of persecution such that reopening is definitively
warranted. See generally INS v. Ventura, 537 U.S. 12, 16–17 (2002) (per curiam)
(stating that a court of appeals does not generally have the power to review de novo
an agency’s decision and that “the proper course, except in rare circumstances, is to
remand to the agency for additional investigation or explanation”). The BIA,
however, had an obligation to consider the evidence of changed country conditions
that Habchy presented in light of each aspect of his claim of persecution and must do
so on remand.
III.
For the foregoing reasons, we remand to the BIA to consider Habchy’s
evidence of changed country conditions as it relates to his claim of future persecution
based on his political opinion, whether real or imputed, and, whether, in light of his
particular circumstance, his evidence establishes a material change in country
conditions such that reopening in warranted.
The decision of the BIA is vacated, and the case is remanded to the BIA for
further proceedings consistent with this opinion.
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