Ali Hassan Jasem v. U.S. Attorney General

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
November 30, 2005
No. 05-11889
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency No. A79-417-097
ALI HASSAN JASEM,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(November 30, 2005)
Before TJOFLAT, CARNES and FAY, Circuit Judges.
PER CURIAM:
Ali Hassan Jasem, through counsel, petitions this Court for review of the
Board of Immigration Appeals’ (“BIA’s”) final order affirming the immigration
judge’s (“IJ’s”) decision, denying Jasem’s claims for asylum and withholding of
removal under the Immigration and Nationality Act (“INA”), and for withholding
of removal under the United Nations Convention on Torture and Other Cruel,
Inhuman, or Degrading Treatment or Punishment (“CAT”). In his appeal brief,
Jasem moves this Court to remand his case to the BIA for consideration, or to take
judicial notice, of evidence allegedly proving changes in country conditions in Iraq
since the BIA issued its removal order. Jasem also argues that substantial evidence
did not support (1) the IJ’s adverse credibility determination; (2) the IJ’s and the
BIA’s determination that humanitarian asylum was not warranted, pursuant to 8
C.F.R. § 1208.13(b)(1)(iii); and (3) the IJ’s and the BIA’s conclusions that Jasem
was not statutorily eligible for withholding of removal under the CAT. For the
reasons set forth more fully below, we deny Jasem’s motion to remand or to take
judicial notice of new evidence, and we deny his petition for review.
On September 7, 2001, Jasem, a native and citizen of Iraq, illegally entered
the United States and was detained. The Immigration and Naturalization Service
(“INS”)1 subsequently served Jasem with a notice to appear (“NTA”), charging
1
On November 25, 2002, President Bush signed into law the Homeland Security Act of
2002, Pub. L. No. 107-296, 116 Stat. 2135. This legislation created a new Department of
Homeland Security, abolished the INS, and transferred its functions to the new department.
2
him with removability, pursuant to INA § 212(a)(7)(A)(i)(I), 8 U.S.C.
§ 1182(a)(7)(A)(i)(I), for entering the United States without proper documentation.
In November 2001, during a preliminary hearing before an IJ, Jasem admitted the
facts contained in his NTA and conceded removability.
In December 2001, Jasem filed a counseled application for asylum and for
withholding of removal under the INA and the CAT. Jasem asserted in his
application that, if he returned to Iraq, he would be persecuted by the government
on account of his religious affiliations and political opinions imputed to him as a
Shiite Muslim, and as the “first next person old enough for questioning” about his
brother’s disappearance.
On September 24, 2003, at a hearing on Jasem’s application for relief from
removal, Jasem, who was the sole witness, offered the following testimony. Jasem
was 41 years’ old, was born in Baghdad, Iraq, and was a Shiite Muslin. Jasem had
a sister who lived in the United States, and a wife, son, mother, four sisters, and an
older brother, Kazim, who lived in Baghdad. Jasem’s oldest brother, Falah, had
disappeared in November 1981, during Iraq’s war with Iran.2
Because this case was initiated while the INS still was in existence, this memorandum refers to
the agency as the INS.
2
As the IJ noted in his decision denying relief, although Jasem testified that he was born
in 1962, his brother Kazim was born in 1955, and his brother Falah was born in 1953, Jasem also
testified that “[m]y older brother’s name is Falah Hassan Jasem. And my youngest brother’s
name is Kazim Hassan Jasem.” Additionally, as discussed above, Jasem included in his
application, in explaining why officials questioned him about Falah’s disappearance, that Jasem
3
Jasem further testified that, in July 1991, officials with General Intelligence,
a government agency, had come to his home and questioned him for approximately
an hour and a half about his brother Falah, whom the officials believed had
defected from the Iraq army in 1981, and had joined a group that was loyal to the
Iranians. After Jasem denied having had any contact with Falah since his
disappearance, the officials left, but stated that they would return. In September
1991, the “same people” returned to Jasem’s home, made similar inquiries about
Falah, and explained that they had stopped paying Falah’s salary to Falah’s wife
because the officials believed that Falah was a traitor to Iraq.
Between September 1991 and December 2000, when Jasem left Iraq,
government officials visited him approximately 15 times, each time attempting to
get him to reveal information about Falah or Falah’s whereabouts. In July 1995,
during one of these visits, government officials came to Jasem’s home and escorted
him blindfolded in a vehicle to an eight-by-five-foot “red room,” which had a
cupboard and a bathroom. The officials left Jasem in the “red room” overnight,
after which time they took him to another room and interrogated him. During this
interrogation, which lasted approximately an hour, an officer (1) again asked Jasem
“was the first next person old enough for questioning (my brother’s son is not old enough).”
When the IJ questioned Jasem about this apparent inconsistency, Jasem stated that the
government officials had questioned him, rather than his older brother Kazim, because Kazim
was partially deaf and illiterate.
4
about Falah, and (2) stated that Jasem was a Shiite who “belong[ed] to Iran.”
Moreover, in February 1996, government officials drove Jasem blindfolded to
another location to be interrogated. After Jasem again stated that he had no
information, he was detained overnight and then told that he needed to bring
information in the future.3
In addition to stating generally that these officials visited him twice in 1997
and three times in 1998, Jasem testified that, in January 2000, the officials took
him to an office, at which Jasem was interrogated by an official whom Jasem
believed was high ranking in the Iraqi government. After Jasem informed this
official that he had no information, the official told Jasem that the government had
a new method that it intended to use on him to get him to cooperate. This official
then instructed another person to take Jasem to “the place with the snakes.” Jasem
was taken to a glass-walled room that had a snake lying in one corner.
During the two to three hours that Jasem was left in the room with the snake,
he called the guard to take him to use the restroom. When the guard eventually
responded, the snake was in front of Jasem and the guard told Jasem he had to
3
In addition to this information, Jasem stated during cross-examination that, during the
1996 detention, government officials hit him in the eye and in the back, cut his lip, pushed him,
and kicked him. Jasem, however, also clarified that government officials did not beat him
during any other visit.
5
wait. The guard later took Jasem to the “red room,” where Jasem spent the night
before being taken to the official for another interrogation.4
In November 2000, the last time the government officials visited Jasem, they
took him to a new office and, this time, advised him in a threatening manner that, if
he did not cooperate, the officials were going to turn his case over to a “special
court.” The officials then took Jasem to the “red room,” where he stayed for seven
days before the officials took him back to an office for additional interrogation.
When Jasem arrived at the office, the official injected Jasem with an unknown
substance to “relax” him. When Jasem stated that he knew nothing about Falah,
the official yelled at him, called him names, and again told him that, if he did not
give them information within the next month, they would take him to a “special
court.” Jasem stated that he believed that this “special court” meant a court where
he would have no rights, and the government either would order him killed or
jailed. Thus, in December 2000, after Jasem was released, he left Iraq.
Jasem further stated that, after he left Iraq, his family sent him letters
warning him that government officials had continued looking for him and had
brought to Jasem’s home a police order, directing him to appear at the Intelligence
Agency Center. One of Jasem’s sisters also informed him in a letter that the
4
As the IJ noted in his decision denying relief from removal, Jasem did not mention this
incident either during his initial interview with an immigration officer, as part of his credible fear
interview, or in his application for relief.
6
officials had confiscated a medical center that he had operated for 12 years and had
burned his vehicle.5 Moreover, when Jasem’s family attempted to report this
burning, the police informed them that only the owner of the vehicle could make a
report. Jasem also testified that, despite the change in regime in Iraq between his
departure and the evidentiary hearing, and despite the fact that the government
officials who had persecuted him no longer were part of the government, he
believed that he would be subject to reprisals by these persons because he
previously had refused to cooperate with them.6
The record also contained the U.S. State Department’s 2002 Country
Reports on Human Rights Practices for Iraq (“2002 Country Reports”). This
document included that, in 2002, although Iraq claimed to be a democratic
republic, political power rested exclusively in “a harshly repressive one-party
5
In support of Jasem’s application, he also filed copies of (1) the summons, directing
him to appear at the Intelligence Center; and (2) transcribed letters from his sisters.
6
In addition to Jasem’s testimony, on the day of the hearing, he introduced into evidence
(1) a letter from a special agent with the U.S. Department of Homeland Security, confirming that
Jasem cooperated in providing assistance to the government in an international alien smuggling
case; (2) a September 2003 news article relating that, based on decisions adopted by the United
States High Commissioner for Refugees (“UNHCR”), following the explosion of the United
Nations’ office in Baghdad, repatriation of Iraqi nationals living in Iran would not be pursued;
(3) a September 2003 article from the Miami Herald, involving interviews with leaders of
guerillas cells in Iraq who were devoted to fighting the presence of the United States in Iraq; and
(4) the UNHCR’s (i) June 2003 appeal for aid from the United States to meet humanitarian needs
in Iraq, (ii) July 2003 warning for countries not to return refugees to Iraq, and (iii) August 2003
recommendation that countries maintain a ban on forced returns of persons to Iraq, including
rejected asylum seekers, because potential persecution might emanate from non-state agents.
Moreover, In May 2003, prior to the hearing, Jasem filed 24 articles and reports, documenting
abuses that occurred during the reign of Saddam Hussein’s regime.
7
apparatus dominated by Saddam Hussein al-Tikriti and members of his extended
family,” and Iraq’s human rights record remained extremely poor. Under Saddam
Hussein’s regime, the government summarily executed alleged political opponents
and leaders of the Shiite religious community, along with persons who merely
were associated with opposition groups. The government also was responsible for
disappearances and torturing persons suspected of, or related to persons suspected
of, among other things, opposition politics, economic crimes, and military
desertion. Although Iraq’s Constitution and legal code explicitly prohibited
arbitrary arrests and detentions, the authorities routinely engaged in these
activities, along with denying detainees access to lawyers and fair public trials.
The government, however, introduced three articles from the Miami Herald,
dated September 22 and 23, 2003, which included the following headlines: “Iraq’s
governing council takes U.N. seat,” “Bush rejects call for quick Iraq handover,”
and “Iraq will be democratic, two leaders say.” These articles discussed the
changed political climate in Iraq following the fall of Saddam Hussein’s regime in
March 2003. Moreover, the IJ stated that he “would be taking administrative
notice of changes that ha[d] occurred in the country of Iraq, because they were of
such a notable degree.”
At the conclusion of this hearing, the IJ issued an oral decision, denying
Jasem’s application for asylum and withholding of removal under the INA and
8
CAT, and ordering him removed to Iraq. After summarizing the evidence in the
record, the IJ determined that, although Jasem’s testimony, if true, established past
persecution, his testimony lacked credibility. In reaching this adverse credibility
determination, the IJ cited to (1) inconsistencies between Jasem’s testimony and
his application on the ages of his brothers and the reason why Jasem was contacted
about Falah’s disappearance; (2) Jasem’s failure to state earlier all the facts to
which he testified during his removal hearing, including that he was placed in a
cell with a snake; and (3) inconsistencies in the record relating to Jasem’s
testimony that he was detained and beaten in 1995.
Alternatively, the IJ determined that, even if the IJ were to consider Jasem’s
testimony as credible, asylum was not warranted because a fundamental change in
the country conditions had occurred, and Jasem had no well-founded fear of future
persecution upon his return to Iraq. The IJ specifically noted that, in light of the
end of Saddam Hussein’s regime—the regime under which Jasem had resided
before he entered the United States—a fundamental change in the country’s
conditions had occurred. The IJ also noted that, although “chaos” and “armed
strife” remained in Iraq, the evidence in the record showed that, through military
force, monies, and other assistance, Iraq was becoming a democratic country, free
from the abuses described in the 2002 Country Reports. The IJ discussed that, due
to these changed country conditions, Jasem also was not eligible for withholding of
9
removal under the INA and the CAT. In addition, the IJ clarified that, although it
understood that it could grant humanitarian asylum based on past persecution
alone, the record did not reflect that Jasem would face problems on his return to
Iraq, other than those associated with earning a livelihood.
Jasem appealed the IJ’s decision to the BIA. In a supporting brief, Jasem
argued that the IJ’s decision denying him asylum and withholding of removal
under the INA and the CAT should be reversed because the IJ erred in (1) making
an adverse credibility finding based on alleged inconsistencies and omissions in the
record that either did not exist or were not central to Jasem’s claims; (2) finding
changed circumstances sufficient to rebut a presumption of a well-founded fear;
and (3) failing to consider that, even if changed country conditions existed, a grant
of asylum was warranted for humanitarian reasons.
In March 2005, the BIA affirmed and adopted without opinion the IJ’s
decision as to the IJ’s adverse credibility determination. The BIA, however, also
added that, even if Jasem had been credible, there had been a fundamental change
in circumstances in Iraq, such that Jasem did not have a well-founded fear of
persecution based on his original claims for asylum and withholding of removal.
The BIA explained that it was taking administrative notice of the fact that Saddam
Hussein’s regime in Iraq had been replaced, the Ba’ath Party no longer was in
power, and Iraq, which subsequently was being governed by a Governing Council,
10
was made up of different religions and political parties, with different agendas,
and, therefore, represented all sections of Iraqi society. The BIA also stated that,
although it recognized that the situation in Iraq was unstable, and that Ba’ath Party
loyalists were still physically present in Iraq, the basis of Jasem’s claims for relief
was from the Ba’ath Party itself, and he could avoid these loyalists by relocating to
another part of Iraq. Jasem then filed this timely petition for review.
As a preliminary matter, as part of his brief on appeal, Jasem moves us to
take judicial notice of political developments in Iraq that have occurred since the
BIA issued its order affirming the IJ’s decision in March 2005. Jasem also
attaches for our review four newspaper articles, which he contends show ongoing
“gross, flagrant and mass violations of human rights in Iraq.”
Before the enactment of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (“IIRIRA”), Pub.L. No. 104-208, 110 Stat. 3009-546,
we utilized 28 U.S.C. § 2347(c) to invoke our discretionary authority to remand
immigration cases, such that new non-record evidence could be admitted on
appeal, or cases could be remanded for the BIA or the IJ to consider this evidence
in the first instance. See Al Najjar v. Ashcroft, 257 F.3d 1262, 1278 (11th Cir.
2001). The IIRIRA, however, expressly prohibits a court reviewing a BIA removal
order from remanding a case for the consideration of additional evidence. See INA
242(a)(1), 8 U.S.C. § 1252(a)(1). Moreover, the IIRIRA provides that “the court
11
of appeals shall decide the petition only on the administrative record on which the
order of removal is based.” INA § 242(b)(4)(A), 8 U.S.C. § 1252(b)(4)(A). Thus,
we have concluded that we “cannot find, or consider, facts not raised in the
administrative forum.” Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1286 (11th Cir.
2005); see also Al Najjar, 257 F.3d at 1278 (holding in a transitional rules case that
we “cannot engage in fact-finding on appeal, nor may we weigh evidence that was
not previously considered below”). Accordingly, to the extent Jasem is moving us
to remand his case to the IJ or the BIA, or to consider new evidence of changed
country conditions, we are foreclosed from granting this relief.
Issue 1: The IJ’s adverse credibility determination
Jasem argues that the IJ’s adverse credibility determination must be
overturned because none of the IJ’s factual determinations is supported by
substantial evidence, and, even if substantial evidence existed, the alleged
inconsistencies on which the IJ relied either were explained or were insignificant in
light of the overwhelming weight of other evidence Jasem submitted. When the
BIA issues a decision, we review only that decision, except to the extent that the
BIA expressly adopts the IJ’s decision. Chacon-Botero v. U.S. Atty Gen., No. 04-
16422, manuscript op. at 5 (11th Cir. Oct. 6, 2005). “Insofar as the BIA adopts the
IJ’s reasoning, we will review the IJ’s decision as well.” Id. (internal quotation
and marks omitted). Because the BIA expressly adopted, without opinion, the IJ’s
12
reasoning as to Jasem’s credibility, we review only the IJ’s adverse credibility
determination. See id. However, because the BIA articulated its reasons for
adopting the IJ’s other determinations, we review the decisions of both the IJ and
the BIA in deciding Jasem’s remaining arguments. See id. (reviewing the
decisions of both the IJ and the BIA when the BIA expressly adopted the IJ’s
reasoning and briefly articulated its reasons for do so).
Furthermore, to the extent that the IJ’s and the BIA’s decisions were based
on legal determinations, our review is de novo. D-Muhumed v. U.S. Att’y Gen.,
388 F.3d 814, 817 (11th Cir. 2004). On the other hand, the IJ’s and the BIA’s
factual determinations are reviewed under the substantial evidence test, and we
“must affirm the [] decision if it is supported by reasonable, substantial, and
probative evidence on the record considered as a whole.” Al Najjar, 257 F.3d at
1283-84 (quotation and marks omitted). “Under the substantial evidence test, we
review the record evidence in the light most favorable to the agency’s decision and
draw all reasonable inferences in favor of that decision.” Adefemi v. Ashcroft, 386
F.3d 1022, 1027 (11th Cir. 2004) (en banc), cert. denied, 125 S.Ct. 2245 (2005).
Thus, a finding of fact will be reversed “only when the record compels a reversal;
the mere fact that the record may support a contrary conclusion is not enough to
justify a reversal of the administrative findings.” Id.13
A credibility determination also is reviewed under the substantial evidence
test; thus, we “may not substitute its judgment for that of the [IJ] with respect to
credibility findings.” D-Muhumed, 388 F.3d at 818. If credible, an alien’s
testimony may be sufficient to sustain the burden of proof without corroboration.
Yang v. U.S. Att’y Gen., 418 F.3d 1198, 1201 (11th Cir. 2005). “The weaker an
applicant’s testimony, however, the greater the need for corroborative evidence.”
Id. Indications of reliable testimony include consistency on direct examination,
consistency with the written application, and the absence of embellishments. See
In re B-, 21 I & N Dec. 66, 70 (BIA 1995); see also Dailide v. U.S. Att’y Gen., 387
F.3d 1335, 1343 (11th Cir. 2004) (affirming the BIA’s adverse credibility
determination, which was based upon its finding that the alien’s testimony
conflicted with his answers to interrogatories and other documentary evidence).
“Conversely, an adverse credibility determination alone may be sufficient to
support the denial of an asylum application.” Forgue, 401 F.3d at 1287. However,
“an adverse credibility determination does not alleviate the IJ’s duty to consider
other evidence produced by an asylum applicant.” Id. If an applicant produces
evidence beyond his own testimony, “it is not sufficient for the IJ to rely solely on
an adverse credibility determination in those instances.” Id. Furthermore, “the IJ
must offer specific, cogent reasons for an adverse credibility finding.” Id.(quotation omitted). “Once an adverse credibility finding is made, the burden is on
14
the applicant alien to show that the IJ’s credibility decision was not supported by
‘specific, cogent reasons[,]’ or was not based on substantial evidence.” Id.(quotation omitted).7
Here, the IJ offered “specific, cogent reasons” for his adverse credibility
finding. These reasons also were supported by substantial evidence in the record.
To the extent the IJ cited to inconsistencies relating to the ages of Jasem’s brothers,
Jasem testified during his removal hearing that he was the youngest. Jasem,
however, also testified during this hearing that “[m]y older brother’s name is Falah
Hassan Jasem. And my youngest brother’s name is Kazim Hassan Jasem.”
Additionally, Jasem included in his asylum application, in explaining why officials
questioned him about Falah’s disappearance, that Jasem “was the first next person
old enough for questioning (my brother’s son is not old enough).” Although Jasem
subsequently attempted to explain this inconsistency and why the officials had not,
instead, questioned his older brother Kazim, by stating that Kazim was partially
7
Congress recently passed the REAL ID Act of 2005, Pub.L. No. 109-13, 119 Stat. 231(May 11, 2005), which, among other changes, provides that reviewing courts now must give
greater deference to an IJ’s credibility determinations, and that inconsistences, inaccuracies, or
falsehoods identified by an IJ giving rise to an adverse credibility determination may be made
without regard to whether they were central to the applicant’s claim. See INA § 208(b)(1)(B), 8
U.S.C. § 1158(b)(1)(B) (2005). The REAL ID Act, however, states that these provisions “shall
apply to applications for asylum, withholding, or other relief from removal made on or after” the
date the Act was enacted. See Pub.L.No. 109-13, 119 Stat. at 305. We have not issued a
published opinion on either the applicability of these changes to credibility determinations, or
when they take effect. Nevertheless, because the application of the Act to this case would not
change the outcome, we need not decide these issues here.
15
deaf and illiterate, the IJ properly considered the consistency of Jasem’s testimony
with his written application. See Dailide, 387 F.3d at 1343. Moreover, this
inconsistency related to Jasem’s reason why he believed he was persecuted in the
past and would be persecuted in the future.
Similarly, to the extent the IJ relied on Jasem’s failure to include in his
application for relief his testimony on being detained in a room with a snake in
January 2000, a review of the record reflects that Jasem failed to mention this
incident either during his initial interview with an immigration officer, as part of
his credible-fear interview, or in his application for relief. Despite Jasem’s cross-
examination testimony during his removal hearing that he was beaten while he was
detained in 1996, he neither stated that he was beaten during direct examination,
nor in his application. Moreover, although Jasem submitted a voluminous amount
of supporting documents on the country conditions in Iraq during Saddam
Hussein’s regime, along with evidence relating to his claim that he would face
prosecution in a “special court” if he was returned to Iraq, he did not submit
documentary evidence supporting his individual claims of past persecution. See
Yang, 418 F.3d at 1201.
Thus, Jasem has failed to show that the IJ’s adverse credibility determination
“was not supported by ‘specific, cogent reasons[,]’ or was not based on substantial
evidence.” See Forgue, 401 F.3d at 1287. Regardless, as the government asserts
16
and as discussed below, even if the IJ erred in reaching its adverse credibility
determination, and even if Jasem established past persecution, he failed to establish
eligibility for asylum or withholding of removal because of changed country
conditions in Iraq.
Issue 2: The IJ’s and the BIA’s determinations that humanitarian asylum
was not warranted, pursuant to 8 C.F.R. § 1208.13(b)(1)(iii)
Jasem also argues that the IJ erred in failing to consider that, even if a well-
founded fear of future persecution did not exist, a grant of humanitarian asylum
was warranted based on the severity and length of Jasem’s past persecution.
Without citing to the record, Jasem contends that this exercise of authority was
warranted because he suffered ten years of interrogation, arbitrary detentions,
beatings, inadequate food and water, and severe psychological abuse and
intimidation. Jasem also asserts that, because his past persecutors remain in Iraq
and are being incorporated into the new government, he and his family still have
legitimate fears.
As discussed above, because the BIA commented on why it was adopting
the IJ’s decision denying relief from removal, we review both the IJ’s and the
BIA’s decisions. See Chacon-Botero, No. 04-16422, manuscript op. at 5. An alien
who arrives in, or is present in, the United States may apply for asylum. INA
§ 208(a)(1), 8 U.S.C. § 1158(a)(1). The Secretary of Homeland Security and the
17
Attorney General have discretion to grant asylum if the alien meets the INA’s
definition of a “refugee.” INA § 208(b)(1), 8 U.S.C. § 1158(b)(1).8 A “refugee” is
defined as follows:
any person who is outside any country of such person’s nationality or,
in the case of a person having no nationality, is outside any country in
which such person last habitually resided, and who is unable or
unwilling to return to, and is unable or unwilling to avail himself or
herself of the protection of, that country 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 . . ..
INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). “The asylum applicant carries
the burden of proving statutory ‘refugee’ status.” D-Muhumed, 388 F.3d at 818.
To establish asylum eligibility, the petitioner must, with specific and
credible evidence, demonstrate (1) past persecution on account of a statutorily
listed factor, or (2) a “well-founded fear” that the statutorily listed factor will cause
future persecution. 8 C.F.R. § 208.13(a), (b); Al Najjar, 257 F.3d at 1287. If the
petitioner demonstrates past persecution, there is a rebuttable presumption that he
has a well-founded fear of future persecution. 8 C.F.R § 208.13(b)(1). If he
cannot show past persecution, then the petitioner must demonstrate a well-founded
fear of future persecution that is both subjectively genuine and objectively
8
Pursuant to the REAL ID Act, INA § 208(b)(1), 8 U.S.C. § 1158(b)(1), was amended
to add “The Secretary of Homeland Security or the Attorney General,” as if enacted on March 1,
2003. See INA § 208(b)(1), 8 U.S.C. § 1158(b)(1) (2005).
18
reasonable. Al Najjar, 257 F.3d at 1289. The subjective component can be proved
“by the applicant’s credible testimony that he or she genuinely fears persecution,”
while the objective component “can be fulfilled either by establishing past
persecution or that he or she has a good reason to fear future persecution.” Id.
(quotation omitted).
Jasem is not challenging on appeal the IJ’s and the BIA’s conclusions that,
even if he established past persecution, the government rebutted the presumption
of a well-founded fear of future persecution by establishing changed country
conditions. Thus, we deem any arguments relating these determinations
abandoned. See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir.
2005) (holding that the petitioner abandoned the issue of the denial of relief under
the CAT by not raising any challenges to it in her brief). Instead, Jasem is arguing
that, despite these changed country conditions, the IJ and BIA abused their
discretion in not granting him humanitarian asylum.
In Matter of Chen, 20 I & N Dec. 16 (BIA 1989), the BIA determined that,
even if the presumption of future persecution arising from past persecution has
been rebutted, an alien may have suffered such severe or atrocious forms of
persecution at the hands of the former regime such that it would be inhumane to
require the alien to return to his home country. Id. at 19. The BIA further
explained:
19
[T]here may be cases where the favorable exercise of discretion is
warranted for humanitarian reasons even if there is little likelihood of
future persecution . . .. It is frequently recognized that a person
who—or whose family—has suffered under atrocious forms of
persecution should not be expected to repatriate. Even though there
may have been a change of regime in the country, this may not always
produce a complete change in the attitude of the population, nor, in
view of his past experiences, in the mind of the refugee.
Id. Applying this analysis, the BIA in Chen granted humanitarian asylum to an
applicant who had been disabled by torture and the denial of medical care during
China’s “Cultural Revolution,” and who was suffering from depression and
suicidal thoughts. Id. at 19-21.
This category of asylum is now codified at 8 C.F.R. § 1208.13(b)(1)(iii),
which provides that an IJ may grant an applicant humanitarian asylum on a
discretionary basis if the applicant has demonstrated “compelling reasons for being
unwilling or unable to return to the country arising out of the severity of the past
persecution,” or “a reasonable possibility that he or she may suffer other serious
harm upon removal to that country.” 8 C.F.R.§ 1208.13(b)(1)(iii)(A), (B). As
discussed above, “[t]he burden of proof is on the applicant for asylum to establish
that he is a refugee . . .. The testimony of the applicant, if credible, may be
sufficient to sustain the burden of proof without corroboration.” 8 U.S.C.
§ 1208.13(a).
We have not in a previous opinion applied this regulation. The BIA,
however, has interpreted this form of relief to require an applicant first to show
20
“severe harm” and “long-lasting effects.” See In re N-M-A, 22 I & N Dec. 312,
326 (BIA 1998); see also Mazariegos v. Office of U.S. Att’y Gen., 241 F.3d 1320,
1327 n.4 (11th Cir. 2001) (explaining that an agency’s interpretation of its own
regulations is entitled to “great deference,” and that “[t]he degree of deference is
especially great in the field of immigration”).9
In the instant case, contrary to Jasem’s argument on appeal, the IJ explicitly
stated that he had considered the applicability of humanitarian asylum.
Nevertheless, the IJ concluded that the record did not reflect that Jasem would face
problems on his return to Iraq, other than those associated with earning a living.
Indeed, at the time of the hearing, Jasem’s wife, son, mother, four sisters, and a
brother still were living in the Baghdad area. Moreover, although Jasem testified
that, for a period of approximately ten years, he suffered repeated detentions and
interrogations, including being beaten on one occasion and being placed in a room
with a snake, he did not testify that this treatment resulted in “severe harm” or
9
As persuasive authority, other circuits that have reviewed applications for humanitarian
asylum have concluded that this relief is reserved for the most extraordinary cases. See
Gonahasa v. U.S. INS, 181 F.3d 538, 544 (4th Cir. 1999) (holding that “[e]ligibility for asylum
based on severity of persecution alone is reserved for the most atrocious abuse”); Bucar v. INS,
109 F.3d 399, 405 (7th Cir. 1997) (characterizing humanitarian asylum as being reserved for
situations such as the German Jews, the victims of the Chinese “Cultural Revolution,” and
survivors of the Cambodian genocide); Krastev v. INS, 292 F.3d 1268, 1280 (10th Cir. 2002)
(explaining that past persecution must have been so severe that it would “so sear a person with
distressing associations with his native country that it would be inhumane to force him to return
there, even though he is in no danger of future persecution”) (internal quotation omitted).
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“long-lasting effects.” See In re N-M-A, 22 I & N Dec. at 326. Thus, we conclude
that Jasem failed to show either extreme past persecution or compelling reasons
why humanitarian asylum was warranted in his case. See 8 C.F.R. § 1208.13(a),
(b)(1)(iii)(A), (B).
Issue 3: The IJ’s and the BIA’s conclusions that Jasem was not statutorily
eligible for withholding of removal under the CAT
Jasem last argues that the IJ and BIA erred in failing to consider
independently Jasem’s claim for withholding of removal under the CAT. Jasem
asserts that the IJ wrongly denied Jasem’s claim for CAT relief based on the IJ’s
finding that Jasem lacked credibility, and, thus, ignored documentary evidence in
the record reflecting that members of Saddam Hussein’s regime still were torturing
and killing Iraqi citizens. Jasem concludes that, because he established past torture
and that opponents of the regime change in Iraq still are torturing civilians, his case
should be remanded to the IJ for independent consideration of his CAT claim.
As discussed above, we review both the IJ’s and the BIA’s decisions
denying CAT relief, see Chacon-Botero, No. 04-16422, manuscript op. at 5, and
their factual determinations are reviewed under the substantial evidence test, see Al
Najjar, 257 F.3d at 1283-84. To be entitled to mandatory withholding of removal
under the CAT, an applicant must establish that it is “more likely than not that he
or she would be tortured if removed to the proposed country of removal.” 8 C.F.R.
§ 208.16(c)(2). “Torture” is defined as:
22
any act by which severe pain or suffering, whether physical or mental,
is intentionally inflicted on a person for such purposes as obtaining
from him or her or a third person information or a confession,
punishing him or her for an act he or she or a third person has
committed or is suspected or having committed, or intimidating or
coercing him or her or a third person, or for any reason based on
discrimination of any kind, when such pain or suffering is inflicted by
or at the instigation of or with the consent or acquiescence of a public
official or other person acting in an official capacity.
8 C.F.R. § 208.18(a)(1).
“Torture is an extreme form of cruel and inhuman treatment and does not
include lesser forms of cruel, inhuman or degrading treatment or punishment that
do not amount to torture.” 8 U.S.C. § 208.18(a)(2). We have concluded that the
burden of proof for an applicant seeking withholding of removal under the CAT,
like that for an applicant seeking withholding of removal under the INA, is higher
than the burden imposed on an asylum applicant. Al Najjar, 257 F.3d at 1303-04.
Thus, if a petitioner fails to demonstrate a “well-founded fear of persecution”
sufficient to support an asylum claim, he or she likewise cannot demonstrate
“torture” sufficient to warrant relief under the CAT. Id.
Here, because Jasem is not challenging the IJ’s and the BIA’s determinations
that he failed to demonstrate a “well-founded fear of persecution,” he cannot meet
the higher burden of demonstrating “torture” sufficient to warrant CAT relief. See
id. Regardless, even if Jasem established that, upon his return to Iraq, he will
suffer “an extreme form of cruel and inhuman treatment” at the hands of his past
23
persecutors who have remained in Iraq, see 8 U.S.C. § 208.18(a)(2), his argument
fails. Although Jasem is arguing that the IJ and the BIA erroneously relied solely
on the IJ’s adverse credibility determination in denying him withholding of
removal under the CAT, the record reflects that the IJ and the BIA, at least
implicitly, also examined Iraq’s changed country conditions. Moreover, Jasem has
not challenged the IJ’s determination that, following the demise of Saddam
Hussein’s regime, Iraq’s official government has changed, and these persecutors no
longer are in control. Thus, applying § 208.18(a)(1)’s definition of “torture,”
Jasem failed to show that, on return to Iraq, he will be tortured by a “public official
or other person acting in an official capacity.” See 8 C.F.R. § 208.18(a)(1). The
IJ’s and the BIA’s determinations that Jasem was not eligible for withholding of
removal under the CAT, therefore, were supported by substantial evidence in the
record and should be affirmed. See Al Najjar, 257 F.3d at 1283-84
Accordingly, we conclude that we are foreclosed under the IIRIRA from
either remanding Jasem’s case to the IJ or the BIA, or considering new evidence of
changed country conditions. We also conclude that Jasem has failed to show that
the IJ’s adverse credibility determination was not supported by “specific, cogent
reasons,” or was not based on substantial evidence in the record. Jasem has failed
to show that, assuming the availability of humanitarian asylum, this extraordinary
relief was warranted in this case. Furthermore, because Jasem failed to show that
24
he will be “tortured” by a “public official” on his return to Iraq, the IJ’s and the
BIA’s determinations that Jasem was not statutorily eligible for withholding of
removal under the CAT was supported by substantial evidence. We, therefore,
deny Jasem’s petition for review.
PETITION DENIED.
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