Morgan v. Mukasey ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SOLIMAN FAHIM FARID MORGAN, 
Petitioner,
No. 05-70590
v.
 Agency No.
MICHAEL B. MUKASEY, Attorney A95-294-903
General,
Respondent.

SOLIMAN FAHIM FARID MORGAN;  No. 05-73115
MIRIAM RASHED SHAROUBIM
MAKAR; ARSANY MORGAN; INGY Agency Nos.
MORGAN; MINA MORGAN, A95-294-903
Petitioners,
 A95-294-904
A95-294-905
v.
A95-294-906
MICHAEL B. MUKASEY, Attorney A95-294-907
General,
OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
May 7, 2008—Pasadena, California
Filed June 25, 2008
Before: John T. Noonan, William A. Fletcher, and
Ronald M. Gould, Circuit Judges.
Opinion by Judge Noonan
7425
MORGAN v. MUKASEY 7427
COUNSEL
Natalia A. Nekrasova, Encino, California, for the petitioners.
Gary Newkirk, Assistant United States Attorney, Washington,
D.C., for the respondent.
7428 MORGAN v. MUKASEY
OPINION
NOONAN, Circuit Judge:
Soliman Fahim Farid Morgan (Morgan); his wife, Miriam
Rashed Sharoubim Makar (Miriam); and their three children,
Arsany, Ingy and Mina (collectively, Petitioners) seek review
of two decisions of the Board of Immigration Appeals (BIA)
denying them asylum and other relief. Holding that the BIA’s
two decisions are marred by errors of law, we grant the peti-
tions and remand.
FACTS
We recite the facts as presented in Morgan’s testimony.
Morgan was born November 6, 1962 in Kafr-El-Dawar,
Egypt. He and his family are members of the Coptic Orthodox
Church, an ancient branch of Christianity. They come from
Egypt, long a home of Coptic Christians, who compose
roughly nine percent of the population of a largely Muslim
nation. See CIA World Fact Book (Egypt) at
https://www.cia.gov/library/publications/the-world factbook/
geos/eg.html. Morgan testified to the following incidents in
which he had experienced the hostility from those he termed
“extremists”—Muslim fundamentalists —who, in these
instances, were not restrained by the government:
In 1988, Morgan opened a retail store. On the store’s open-
ing day, it remained open during Muslim prayers. Islamic fun-
damentalists attacked it, destroyed its merchandise and
furniture, and set it on fire. The fundamentalists threatened to
kill Morgan if he continued to do business. Morgan reported
the attack to the fire department, which refused to investigate
or provide a report of the incident for insurance purposes.
In 1995, a group of Muslim extremists attacked a jewelry
store belonging to Morgan’s cousin, Refaat, and severely beat
Refaat. Morgan took Refaat to the hospital. They were shot at
MORGAN v. MUKASEY 7429
as they drove away. Once Morgan and Refaat had left, the
extremists beat Refaat’s wife and sprayed acid in her face.
They kidnaped, raped, and blinded Refaat’s daughter. When
Morgan and Refaat later informed the police, the police
insulted them and their religious beliefs.
On May 5, 1997, Morgan was arrested and falsely accused
of raping Hoda, the daughter of a Muslim client. The police
said they would drop the charges if Morgan converted to
Islam and married Hoda. Morgan refused, saying “I would
rather die like many Christians did before me, than leave my
religion and convert.” Morgan was then beaten and gang
raped by three men as a police officer looked on. Before rap-
ing him, the men tore off a gold cross that he wore around his
neck, called it “devil jewelry,” and stomped on it.
Morgan’s family hired a famous Muslim attorney, Abdel-
Halim Farid, to defend him from the rape charge. With his
help Morgan was proved innocent as the lawyer obtained hos-
pital records establishing that Morgan was recovering from
hernia surgery at the time Hoda was allegedly raped.
On October 13, 1998, Islamic extremists kidnaped Mor-
gan’s wife Miriam and two of his children, Arsany and Ingy.
They demanded that Morgan’s father deed a parcel of land he
owned adjacent to the Coptic parish church for the building
of a mosque. The extremists also demanded that Miriam con-
vert to Islam. When she refused, they gang raped her in front
of her children. Miriam and the children were released after
Morgan’s father transferred title to Farid, the Muslim attorney
who represented Morgan in the rape case and who now acted
as a go-between. A government-authorized mosque and
madrassa now stand next to the Coptic church.
In December 1999, the wife of Miriam’s cousin was kid-
naped, raped, and forced to convert to Islam in a public cele-
bration conducted under police protection. The people who
7430 MORGAN v. MUKASEY
did this also threatened Morgan’s family and wife with the
same sort of forced conversion.
In October 2000, a government tax assessor told Morgan
that he knew about Morgan’s refusal to convert to Islam and
his alleged rape of Hoda. He assessed him taxes of 77,000
Egyptian pounds (about 14,125 USD). Morgan usually paid
between 3,000 to 4,000 Egyptian pounds each year. The
assessor said that he would assess normal taxes if Morgan
converted. On March 7, 2001, Morgan obtained relief from
this assessment in court. As Morgan and his father were leav-
ing the court, Islamic extremists shot at them. His father was
shot in his lower right leg.
PROCEEDINGS
On March 16, 2001, Morgan and his family entered the
United States on tourist visas. On April 5, 2002, the govern-
ment charged them with overstaying their visas. On June 20,
2002, they conceded their removability and asked for asylum
and other relief.
Between June 20, 2002 and March 17, 2003, six evidenti-
ary hearings were held by the immigration judge. Morgan and
Miriam testified. An affidavit from the court of Kafr-El-
Dawar testified to Morgan’s 1997 acquittal of the rape of
Hoda.
The immigration judge denied Arsany and Ingy, Morgan’s
teenage children, the ability to testify on the grounds that they
were not on the witness list submitted in advance of trial and
that he did not want to put them in “the untenable position of
coming into court to advance their parents’ specious claims.”
Even before Morgan was cross-examined by the government,
the immigration judge had stated that Morgan had “severe
credibility problems” and suggested that he withdraw his peti-
tion if the government would give him voluntary departure.
At the conclusion of the hearing, the immigration judge found
MORGAN v. MUKASEY 7431
both Morgan and Miriam not believable and indeed that they
had given “false testimony” for the purpose of obtaining an
immigration benefit. He gave reasons for this conclusion. He
denied them, but not their children, voluntary departure. The
immigration judge did not determine whether Morgan’s alle-
gations, if assumed to be credible, made him eligible for asy-
lum, withholding of removal, or protection under the
Convention Against Torture.
Petitioners appealed to the BIA. They were able to submit
additional documents: an evaluation of Miriam by a marriage
and family therapist, licensed in California since 1981 and a
member of the Program for Torture Victims, founded in Los
Angeles in 1980 and funded in part by the United Nations and
by the United States Office of Refugee Resettlement. The
therapist found Miriam suffering from Post-Trauma Stress
Disorder (PTSD) based on her kidnaping and rape. The thera-
pist made a professional assessment of Miriam’s credibility
and found her fully credible. Psychological reports on Arsany
and Ingy by another psychologist found each of them to show
many of the symptoms of PTSD related to their memories of
their kidnaping and the rape of their mother. All three psycho-
logical reports ended with specific reference to the ongoing
deportation proceedings.
On August 2, 2004, the BIA issued its decision dismissing
the appeal in a written opinion. It began by stating that the
petitioners had “not shown that the Immigration Judge’s
adverse credibility determination is clearly erroneous.” For
example, the BIA stated, the immigration judge had noted that
Morgan testified inconsistently about the shooting while driv-
ing his cousin to the hospital; that he inconsistently testified
about the treatment of Miriam by a doctor after she was
released from the kidnapers; and that he testified inconsis-
tently about being threatened by an Egyptian prosecutor. Mir-
iam, the BIA said, had testified inconsistently about how she
was kidnaped. “These discrepancies,” the BIA concluded,
“are sufficiently major, material, and unexplained to support
7432 MORGAN v. MUKASEY
the Immigration Judge’s adverse credibility determination.”
The testimony of the two children would have been “cumula-
tive” and not “remedied the discrepancies discussed above.”
In a single sentence the BIA dealt with the psychological
reports: they did not “sufficiently explain the inconsistent tes-
timony” to warrant remand.
The petitioners moved to reopen. On January 11, 2005, the
motion was denied, the BIA noting that evidence submitted
with it “fails to overcome the Immigration Judge’s adverse
credibility determination.”
Morgan, Miriam, and their children petition this court for
review.
ANALYSIS
The matter under review. If the BIA issues a written opin-
ion, it is that opinion which is under review. Hosseini v. Gon-
zales, 471 F.3d 953, 957 (9th Cir. 2006). But there is an
ambiguity in this opinion. It appears to adopt the immigration
judge’s “credibility determination” both in the opinion itself,
which proceeds by giving examples from it, and by the denial
of the motion to reopen which speaks as though that determi-
nation was controlling. The government, briefing this appeal,
has argued that the BIA’s examples drawn from the immigra-
tion judge’s determination are merely illustrative and that the
immigration judge’s determination is what is under review.
We accept that argument and so review that determination.
The components of the credibility determination. This court
reviews factual determinations, including credibility determi-
nations, for substantial evidence. Chebchoub v. INS, 257 F.3d
1038, 1042 (9th Cir. 2001). Under this standard, we reverse
a factual determination only if “any reasonable adjudicator
would be compelled to conclude to the contrary.” 8 U.S.C.
§ 1252(b)(4)(B). An adverse credibility finding must be sup-
ported by “specific and cogent reasons.” Preet Kaur v. Gon-
MORGAN v. MUKASEY 7433
zales, 418 F.3d 1061, 1064 (9th Cir. 2005). Those reasons
“must be substantial and bear a legitimate nexus to the find-
ing” of incredibility. Marcos v. Gonzales, 410 F.3d 1112,
1117 (9th Cir. 2005). Inconsistencies that are “minor” or that
“do not go to the heart of an applicant’s claim[s]” are insuffi-
cient by themselves to support an adverse credibility finding.
Preet Kaur, 418 F.3d at 1064.
[1] Substantial evidence does not support the incredibility
determination in this case because the components of that
determination are neither substantial nor go to the heart of
Morgan’s claims of past persecution. Morgan also adequately
explained the minor discrepancies between his written decla-
ration and his testimony. We proceed to discuss each of the
eight grounds supporting the immigration judge’s incredibility
finding.
The drive to the hospital. From the transcript apropos of
Morgan driving his cousin to the hospital, Q is the immigra-
tion judge, A is Morgan:
Q. And what was the, what was the drive like to
the hospital?
A. During that time the roads are usually empty
because it was during the month of Ramadan and
during the time when people are no longer fasting.
They can eat.
Q. So, did, was there any difficulty in driving to
the hospital?
A. No.
Q. You’re sure about that?
A. Yes.
7434 MORGAN v. MUKASEY
Q. All right. Sir, your statement says and I’m
quoting, “I was nearly killed along with him by bul-
lets flying around us while driving him to the hospi-
tal.”
A. That was in the area as we were leaving the
place. Nothing came in our bodies. They came in the
car.
Q. Okay. I just asked you if there was any diffi-
culty in driving to the hospital. You indicated there
was not.
A. The difficulty was in the, in our area.
Q. And what was the difficulty, sir?
A. The people that shot, they tried to shoot at us,
shoot, stop our car so that they would not allow us
to get out of our area.
Q. And is it correct, sir, that you were nearly
killed by flying bullets?
A. I mean, the bullets were flying but, I wasn’t
shot on that day.
Q. Well, I’m reading from your statement, sir. It
says you were nearly killed. That’s your statement,
not mine.
A. Yeah, because within a second I could have
been shot. The fear that we had, I mean, one just
wants to get out of the city.
Q. Okay. And a moment ago when I asked you if
there was any problem in driving to the hospital, you
MORGAN v. MUKASEY 7435
said there was not. The reason you didn’t mention
the shooting is why, sir?
A. After we left our area, there were no problems,
but the problems were maybe within those five, 10
minutes within our area.
[2] It is difficult to determine any inconsistency. Morgan
explains his testimony as the immigration judge questions
him: as he drove from the area where his cousin had been
attacked, life-threatening bullets flew about him fired by the
mob; there were no difficulties on the rest of the drive to the
hospital. All of the facts cannot be tumbled out in one breath.
Testifying takes time. Development by details is the ordinary
way.
The gang rape of Morgan. The immigration judge stated:
“The male respondent claimed to have been raped repeatedly
and mercilessly by male guards, but would also have the
Court believe that this mistreatment required less medical
attention than a hernia operation.” This conclusion was based
on the following interrogation by the immigration judge.
JUDGE FOR THE RECORD
So, I don’t understand your answer as to why after
you were a victim of sexual assault, you would not
seek medical attention.
JUDGE TO MR. MORGAN
Q. What is the reason that you did not seek such
treatment?
A. We, we Christians like to go to private doctors
outside, in particular to a hospital named Victoria
(phonetic sp.). All the Christians in Kafr El Dawar
go there because this hospital is prepared by our
7436 MORGAN v. MUKASEY
churches and with our love and nobody there is
going to hurt us.
If you have a small wound or something, you will
go to anything close to you. Nobody goes to public
hospital at all.
Q. Do you mean you did not seek medical atten-
tion after you were sexually assaulted in prison?
A. I was treated at a doctor.
Q. Where?
A. In Kafr El Dawar, a Christian in town.
Q. So, then, you did receive medical treatment
after you were sexually assaulted from a doctor. Is
that what you’re saying?
A. Yeah, he gave me tranquilizers and, I mean,
my situation was really bad. Emotionally I was very
bad and, and there was blood in the anus. I mean, I
don’t want to get into details. It’s really bad.
Q. How long was it after you were released that
you saw this doctor?
A. Approximately the same day, my father took
me the same day.
[3] The immigration judge, showing singular insensitivity
to Morgan’s suffering, has speculated as to what Morgan’s
condition required and ignored his consistent statements as to
the medical attention he received from a family doctor.
The prosecutor’s threat. The immigration judge cites Mor-
gan’s written declaration that after his acquittal of rape, “the
MORGAN v. MUKASEY 7437
prosecutor told me to my face” that he wouldn’t escape again.
Testifying in court, Morgan stated this threat was delivered to
his attorney. The immigration judge finds an inconsistency.
The immigration judge has misstated Morgan’s declaration,
which reads, “the prosecutor told me to my face that you are
set free this time, we will see . . . followed by murmured
words I did not understand in a low level voice, but in a
threatening way.” Testifying, Morgan (A) had this exchange
with the immigration judge (Q):
Q. What do you — do you mean that you learned
of the prosecutor’s threat through your attorney?
A. Yes.
Q. Did you speak with the prosecutor after the
case was over?
A. No.
Q. You’re sure about that, sir?
A. Yes.
Q. All right. Sir, your statement says, “At the time
of my release, the prosecutor told me to my face that,
‘You’re set free this time, but we will see.’ ” Now
sir, it sounds to me from that statement that you were
indicating that you did speak with the prosecutor
directly.
A. I could hear something, but the attorney came
and attested to what I heard.
Q. So, it’s not as your statement provides, sir, that
you were told these things to your face by the prose-
cutor?
7438 MORGAN v. MUKASEY
A. I was behind bars and he said it in front of all
the people. He said five, six words and I heard one
of them and my attorney assured me that this is what
he said because he was close to him.
[4] The difference between the declaration and Morgan’s
testimony is impalpable.
The kidnaping of Miriam. Morgan’s declaration stated that
“three men jumped from the vehicle” and that they kidnaped
Miriam and the children. Miriam testified, “We were walking
like this and suddenly three came out. They carried us and put
us in the car.”
On cross-examination:
Government lawyer: How many actually grabbed
you? You said two earlier.
Miriam: They were three. All of them were stand-
ing outside and, when we approached, the driver got
behind the wheel to get himself ready, and the two
grabbed us and put us in the van.
Government lawyer: But your application says
that three men jumped from the vehicle.
Miriam: I don’t know. This is what I recall.
[5] There is a difference between men jumping out of the
car and men waiting. Recollecting an event that took place
seven years earlier, Miriam admitted an inability to be exact
about what was a trivial element of her traumatic experience.
[6] Telephone conversations with the kidnapers. The immi-
gration judge observed that Morgan’s written declaration
describes three phone calls with his wife when she was in the
hands of the kidnapers. Miriam testified that she spoke on the
MORGAN v. MUKASEY 7439
phone only twice. The difference, significant in the eyes of
the immigration judge, is immaterial.
Miriam’s medical treatment. Morgan’s written declaration
stated that after his wife’s release from the kidnapers, “we
stopped at home briefly and then I took them to a doctor.” At
the hearing the immigration judge questioned Morgan as fol-
lows:
Q. And Dr. Sultan was at your home when your
wife got back. Is that right?
A. At the last session you did not believe me
because the treatment took place at the clinic, but
I’m explaining to you like this because I want to get
you to the truth because I realize last time you were
not believing me.
The doctor was at home but, then he continued my
wife’s treatment in the clinic. The last time you
asked me, where she was treated I told you the clinic
but, in the case I did not write the details exactly.
Q. I noticed that, sir.
JUDGE FOR THE RECORD
Now, again, this is my question.
JUDGE TO MR. MORGAN
Q. Was Dr. Sultan at your house when your wife
came back?
A. Yes.
Q. And one of the many things that I don’t under-
stand about your statement, sir is that it says, “We
7440 MORGAN v. MUKASEY
stopped at home briefly and then, I took them to a
doctor who is a friend of mine.”
Do you see how that’s different from your state-
ment that Dr. Sultan was at your home when your
wife got back?
A. This doctor delivered my wife’s three kids and
we’ve been dealing with him for 15 years now.
When you deal with a doctor for 15 years, he’s
bound to be a friend. That’s something normal. It’s
a must.
[7] Morgan testified consistently. He returned home with
his wife. The family doctor was waiting for them. The doctor
took Miriam to the clinic.
[8] Morgan’s father’s threat. Morgan testified that his own
father had threatened to kill him if he converted to Islam. The
immigration judge noted as an inconsistency that Morgan had
not mentioned this fact in his declaration. Morgan said he’d
forgotten it. It’s very hard to see what bearing his father’s
emotions about conversion to Islam had on Morgan’s asylum
claims. He was not seeking asylum from his father.
[9] Visiting the United States. The immigration judge was
skeptical that Morgan would have visited the United States
before bringing his family if the entire family had indeed suf-
fered as he said. The immigration judge made no allowance
for the caution with which an immigrant might approach a
new land nor did the immigration judge note that Morgan
himself was the principal target of the fundamentalists.
It is understandable that a judge confronted with the raw
facts of the ordeal of the Morgan family might not want to
believe that any human beings could behave like their kidnap-
ers and rapists. The ugliness —the horror —of their story is
not, however, a reason for rejecting it. For ethnic, political, or
MORGAN v. MUKASEY 7441
religious reasons people have behaved brutally to others help-
less to fight back. The story of fundamentalist Islam and the
Copts is an old story. Morgan’s particular experience of it
could not be evaluated except by a mind open to all the evi-
dence.
In some legal systems, such as that of France, the
magistrate-judge has duties of investigation and presentation
of evidence. These duties verge on what we would consider
prosecutorial. In our legal system the judge is not an investi-
gator, still less is he a prosecutor. An American administrative
law officer who bears the noble name “judge” is expected to
conform to the American ideal of a judge — dispassionate,
unbiased, ready to hear each side equally.
Our deference to the findings of fact of a trial judge are not
due only to his vantage point in observing the actors in the
trial. See Mendoza v. Manimbao v. Ashcroft, 329 F.3d 655,
661 (9th Cir. 2003). Our deference also assumes that the
judge is acting as our system prescribes, that he is not acting
as a French magistrate-judge, still less as a prosecutor. If he
were, the basis for deference is destroyed. We would be com-
pelled to scrutinize his findings with the same independence
with which we examine any prosecutorial assertion. Such a
judge, like any prosecutor, we would assume to be acting in
good faith to promote the purposes of the law. But such a
judge would not be an impartial fact-finder whose findings
control our judgment. We do not need to reach that degree of
scrutiny here.
[10] Viewing all the evidence in its context, the immigra-
tion judge’s negative credibility determination is fatally
marred by the errors we have noted. The judgment of the
BIA, dependent on this determination, suffers the same
defects. We reverse the adverse credibility finding and
remand for a determination as to whether Morgan is eligible
for asylum, withholding of removal, or protection under the
Convention Against Torture. See INS v. Ventura, 537 U.S. 12,
7442 MORGAN v. MUKASEY
16 (2002) (holding that “a court of appeals should remand a
case to an agency for decision of a matter that statutes place
primarily in agency hands”).
Other errors of law infect the decision of the BIA in addi-
tion to its adoption of the credibility determination of the
immigration judge. We address them in turn.
[11] The denial of due process in the exclusion of two wit-
nesses. The immigration judge committed an error of law in
prejudging what testimony Arsany and Ingy would give.
Manjit Kaur v. Ashcroft, 388 F.3d 734, 737 (9th Cir. 2004).
That the children were not on the pretrial witness list was not
a reason for their exclusion once their mother’s credibility
was put in doubt and they were in a position to corroborate
her. Their exclusion was injurious to her case, to Morgan’s
case, and to their own derivative case. The reasons advanced
by the BIA for approving the exclusion are entirely inade-
quate. The testimony of percipient witnesses when an issue is
in doubt can remove the doubt; such testimony is far from
cumulative. The immigration judge and the BIA denied Mor-
gan, Miriam, Arsany, and Ingy the right to the fair hearing
that the constitution guarantees every person within the juris-
diction of the United States.
[12] The brush-off of the psychological reports. The single
sentence of the BIA devoted to the psychological reports
reflects no comprehension of their content or their bearing on
a central issue, the kidnaping and rape of Miriam. Failure to
consider the evidence before it is not such a flagrant violation
of due process as the exclusion of percipient witnesses, but it
is another error of law invalidating the decision of the BIA.
Other matters. Morgan also asserts that the BIA erred by
conflating the burden of proof for asylum with that required
for protection under the Convention Against Torture and that
the BIA abused its discretion in denying Morgan’s motion to
reopen proceedings based on new evidence of changed coun-
MORGAN v. MUKASEY 7443
try conditions. Because we are reversing the credibility find-
ing and remanding for a reconsideration of Morgan’s
eligibility for relief, we do not reach these issues.
The government’s loss of the record. The government dis-
closed at oral argument that it had lost the record and had not
asked the clerk of this court to supply an additional copy of
the record, which we possessed. The loss was unexplained.
The record was not seen by the attorney assigned only two
weeks earlier to argue the case before us. The loss was dis-
closed to us only as we asked about references to the record.
We do not aim to criticize the government counsel who deliv-
ered its message, but rather to critique the government’s sys-
tem of organization and prosecution. The government could
not persuasively present its case without recourse to the
record that was not in its hands at or shortly before argument.
[13] The government is disabled from proceeding further
with this case until it finds the record or secures a copy from
us after making some effort at explaining how the government
could and did lose the record.
CONCLUSION
For the reasons stated, the petitions are GRANTED and the
case REMANDED for proceedings consistent with this opin-
ion. Given the involvement of the immigration judge in the
case, it would be appropriate to assign it to a different immi-
gration judge.