Margos, Shukria S. v. Gonzales, Alberto R.

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-2051
SHUKRIA S. MARGOS,
Petitioner,
v.
ALBERTO R. GONZALES,
Respondent.
____________
Petition for Review of an Order
of the Board of Immigration Appeals
No. A 95 592 186
____________
SUBMITTED JANUARY 11, 2006Œ—DECIDED APRIL 5, 2006
____________
Before FLAUM, Chief Judge, and EASTERBROOK and MANION,
Circuit Judges.
MANION, Circuit Judge. Shukria Margos, an Iraqi citizen,
petitions for review of the Board of Immigration Appeals’
decision denying her asylum and withholding of removal.
We deny the petition for review.
Œ
Pursuant to our order of January 5, 2006, this appeal is submit-
ted on the briefs and the record. See Fed. R. App. P. 34(a)(2).
2 No. 05-2051
I.
Shukria Margos, sixty-one, is an Assyrian Christian from
Kirkuk, Iraq. She was married and had four children,
three sons and a daughter. From 1974 to 1998, she worked in
the x-ray department of a hospital, which, for many years
during the later portion of her tenure, was owned by the
Iraqi government. On the side, she worked as a cook. She
did so first for some doctors that she knew, and they later
recommended her culinary skills to members of the then-
governing Ba’ath party. Beginning in 1988, high-ranking
Ba’ath party officials—some close to Iraq’s former leader,
Saddam Hussein—intermittently hired her as a cook for
their parties and other events. Her catering enterprise with
the Ba’ath officials stopped either in 1991, 1993, or 1998; the
imprecision is due to Margos’s conflicting accounts. Addi-
tionally, in 1998, officials offered her a position cooking for
two of Hussein’s children, but she declined because she was
generally scared of the situation and told them she was too
old to do the job.
Separately, two of Margos’s sons served in the Iraqi
army during the Persian Gulf War. In 1991, they returned to
Kirkuk, and, according to Margos, the Iraqi authorities
accused the two of being deserters. The authorities detained
the two for a period but released them when the authorities
lost control of Kirkuk during a Kurdish uprising in the
northern regions of Iraq. The two sons then fled, and
Margos has not heard from them since. She does not know
where they went or where they are. When the Iraqi authori-
ties regained control of Kirkuk, the authorities came looking
for the two sons. Not finding them, the authorities, accord-
ing to Margos, arrested her husband on the belief that he
knew the two sons’ whereabouts. Margos maintains that the
authorities held her husband for six months, tortured him,
No. 05-2051 3
caused him to lose his memory, and then returned him,
dumping him on the doorstep of the Margos home. Her
husband died of his injuries some two years later in 1995 or
1996; Margos cannot recall the precise year.
Independent from her commercial dealings with high-
ranking Ba’athists, Margos had her own encounters with the
Iraqi authorities. The timing of the following events is
obscure. In one episode, while riding on a bus, Margos
physically assaulted a woman and attempted to throw her
from the bus. The woman verbally provoked Margos’s rage
by calling Margos a “Bush supporter” in reference to the
first President Bush. The basis for the woman’s “accusation”
is unstated, but Margos’s assault led to a police interroga-
tion at police/security headquarters. Margos suffered one
or more broken ribs after being struck by the butt of a gun.
Further, according to Margos’s testimony, the authorities
asked her why being called a Bush supporter made her so
angry, and, when she offered an uncooperative response,
they threatened to slit her tongue. Importantly, Margos’s
testimony does not indicate that the authorities acted
because they believed she was a Bush supporter. Rather, it
appears to have been a routine, albeit oppressive, law
enforcement inquiry in which the authorities attempted to
determine why she assaulted the other passenger.
Margos was taken into headquarters on one other occa-
sion and was interrogated, without injury, about her two
missing sons. The authorities also visited her house on
multiple occasions to ask about the same two sons, threaten-
ing her with jail if she did not turn them in, but
the authorities never acted on their threats. Further, in
one visit, the authorities questioned Margos about her
attendance at her sister’s wedding in Erbil, Iraq (also spelled
Irbil or Arbil), a city north of Kirkuk where Margos was
4 No. 05-2051
born. The city also happened to be in the former no-fly zone
and apparently outside the control of the Iraqi authorities,
thereby providing the basis for the questioning. Other than
the harassing nature of these house visits, Margos did not
report any harm during or as a result of these visits.
Eventually, Margos “got tired” of these visits, and this
prompted her to obtain an Iraqi passport and leave Iraq
in 1998, which is about when she declined the cooking
position with the two Hussein children. She moved to
Jordan, where her third son lived. Nonetheless, Margos
overstayed her visa and was unable to pay the result-
ing Jordanian fines. Consequently, in 2002, Jordan deported
Margos, and she then came to the United States on a
visitor’s visa. She settled in the Chicago area where some of
her relatives lived. As for Margos’s daughter, she was last
known to be living in Erbil, but Margos has had no contact
with the daughter or Margos’s other relatives in Erbil since
Margos left Iraq for Jordan. Further, the one son in Jordan
recently immigrated to Australia.
Margos entered the United States as a nonimmigrant
visitor for pleasure and was authorized to remain here
for six months. Later, the United States government com-
menced removal proceedings against Margos because
she remained beyond her end date without authoriza-
tion. Before an immigration judge, Margos conceded
removability but sought asylum and withholding of re-
moval. After a hearing, at which Margos testified, the
immigration judge denied her application for asylum and
withholding of removal. She appealed to the Board of
Immigration Appeals (“BIA”). The BIA affirmed, and
Margos now petitions this court for review.
No. 05-2051 5
II.
To qualify for asylum, Margos must show that (1) she
suffered past persecution in Iraq on account of her race,
religion, nationality, membership in a particular social
group, or political opinion, or (2) she has a well-founded
fear of future persecution in Iraq on account of one or more
of those same five enumerated grounds. See 8 U.S.C.
§§ 1101(a)(42)(A), 1158(b); Jamal-Daoud v. Gonzales, 403
F.3d 918, 922 (7th Cir. 2005); Oforji v. Ashcroft, 354 F.3d
609, 613 (7th Cir. 2003). “Persecution” in this context
generally refers to punishment or substantial harm—mere
harassment is not enough. See Firmansjah v. Gonzales, 424
F.3d 598, 605 (7th Cir. 2005); Prela v. Ashcroft, 394 F.3d 515,
518 (7th Cir. 2005); Oforji, 354 F.3d at 613. “Persecution does
not encompass all treatment that our society regards as
unfair, unjust, or even unlawful or unconstitutional.”
Firmansjah, 424 F.3d at 605 (quotation omitted).
Our review here is limited to determining whether the
denial is supported by substantial evidence, meaning
we will uphold the denial so long as it is supported by
“reasonable, substantial, and probative evidence on the
record considered as a whole.” Koval v. Gonzales, 418 F.3d
798, 804 (7th Cir. 2005) (quotation omitted). “Only where the
evidence in support of the application is so compelling that
no reasonable factfinder could fail to find the requisite fear
of persecution will we reverse the [BIA’s] decision for lack
of evidence.” Jamal-Daoud, 403 F.3d at 922. In sum, “we are
not at liberty to overturn the [BIA’s] determination simply
because we would have decided the case differently.” Id.Before turning to the merits, we add a brief word on
Margos’s credibility. After finding that Margos failed to
establish persecution, the immigration judge noted discrep-
ancies in her testimony and the record. The immigration
6 No. 05-2051
judge, however, did not explicitly state that Margos lacked
credibility. For its part, the BIA found it unnecessary
to address the credibility issue, ruling that, even if cred-
ible, Margos failed to show that she was eligible for
asylum or withholding of removal. Consequently, we do not
have an adverse credibility determination to review. See
Zheng v. Gonzales, 409 F.3d 804, 809 (7th Cir. 2005); see also
Kayembe v. Ashcroft, 334 F.3d 231, 234-35 (3d Cir. 2003). We
thus accept Margos’s version of events as credible.
Reviewing her past persecution claims, Margos testified
that the authorities broke one or more of her ribs during one
interrogation and threatened her with additional physical
harm in the course of that interrogation. This episode,
however, followed her own physical assault on a female bus
passenger. Margos herself testified that she attempted to
throw this woman from the bus. It is true that the other
woman called Margos a Bush supporter and that the
authorities asked Margos why that allegation enraged her.
However, Margos offers no evidence to show that she was
treated differently from any other Iraqi who had committed
a similar assault without being called a Bush supporter.
Margos’s testimony, taken as credible, does not demonstrate
that the authorities acted because they believed she was a
Bush supporter and political opponent of the regime.
Rather, their pursuit and interrogation of Margos was
triggered by her physical attack. Her injury and their threats
were incident to the police interrogation and her uncoopera-
tive conduct during that interrogation, not any perceived
political opposition to the ruling Ba’athists (a regime which
is no longer in power, but more on that point below).
Therefore, even when her testimony is viewed to be credi-
ble, it is reasonable to find that these events do not establish
political persecution.
No. 05-2051 7
Margos also testified that the authorities repeatedly
questioned her about the whereabouts of her two missing
sons and once questioned her about her travel to the no-fly
zone. Harassing interrogations, such as these, rarely rise
to the level of persecution. See Prela, 394 F.3d at 518. Fur-
thermore, according to Margos’s testimony, the basis of this
questioning was her sons’ desertion, their corresponding
disappearances, and her travel into a restricted area. As
such, the action by the authorities here were not on account
of race, religion, nationality, membership in a particular
social group, or political opinion. See Djouma v. Gonzales, 429
F.3d 685, 686, 688 (7th Cir. 2005) (asylum unwarranted
when the Chadian government’s only interest in petitioner
was his possible knowledge of his dissident uncle’s where-
abouts); Vujisic v. INS, 224 F.3d 578, 581 (7th Cir. 2000)
(“refusal to perform military service in one’s native country
is not ordinarily a valid basis for establishing asylum
eligibility” (quotation omitted)); Abedini v. INS, 971 F.2d 188,
191 (9th Cir. 1992) (”. . . the long-standing rule that it is not
persecution for a country to restrict travel abroad or require
military service of its citizens.”). Moreover, even if her
husband or sons suffered because of one or more of the
enumerated grounds (and not simply due to the desertions
as she testified), Margos “cannot rely solely on the persecu-
tion of her family members to qualify for asylum.” Ciorba v.
Ashcroft, 323 F.3d 539, 545 (7th Cir. 2003) (citing Tamas-
Mercea v. Reno, 222 F.3d 417, 424 (7th Cir. 2000)).
Meanwhile, Margos had steady employment at a hospital
owned by the Iraqi government. This continued government
employment is an indication that she was not suffering
persecution at the hands of this same government. Cf. Capric
v. Ashcroft, 355 F.3d 1075, 1084 (7th Cir. 2004) (severe
economic deprivation can constitute persecution). She also
had favorable commercial relations with Ba’ath party
8 No. 05-2051
officials for whom she occasionally cooked (though it is
unclear if this association was operating after her sons
deserted and the questioning began). For these reasons, the
immigration judge’s determination, adopted by the BIA,
that Margos did not establish past persecution on account
of race, religion, nationality, membership in a particular
social group, or political opinion, was supported by
substantial evidence.
Turning to future persecution, Margos argues that, due to
her and her family’s adverse encounters with the Hussein-
controlled government, including her sons’ desertion and
her decision not to become a cook for the Hussein children,
she is a perceived political opponent of that regime. There-
fore, she reasons that, since the Hussein/Ba’athist regime
“was one of if not the most brutal regimes in the world,” she
has a well-founded fear of future persecution upon her
return to Iraq. This argument, however, has been surpassed
by events. The immigration judge took administrative notice
of the fact that the Hussein regime and its control of Iraq
ceased as of April 2003. With Margos’s claimed potential
tormentors now dead or at least out of power, her fear of the
former regime does not justify asylum. See Vaduva v. INS,
131 F.3d 689, 692 (7th Cir. 1997) (asylum “unnecessary” due
to dramatic change in post-communist Romania); 8 C.F.R.
§ 1208.13(b)(1)(i)(A). Although the terror groups that
continue to threaten parts of Iraq no doubt include dis-
placed Ba’athists, Margos’s exposure would be no great-
er than that of other Iraqi citizens given the regime change.
Margos also argues that, as an Assyrian Christian, she
would face a pattern and practice of ethnic and religious
persecution in Muslim-dominated Iraq, contending that
conditions have worsened since the fall of the Hussein
regime. See 8 C.F.R. § 1208.13(b)(2)(iii). Ironically, under
No. 05-2051 9
the Hussein’s iron fist, Assyrian Christians and similar
minorities were arguably better off as their dictator did
not tolerate factional strife and civil unrest within “his”
country (unless it furthered his own ends). The government
here, however, maintains that Margos did not present this
argument to the BIA and that this failure to exhaust admin-
istrative remedies precludes our review. See 8 U.S.C.
§ 1252(d)(1); Hamdan v. Gonzales, 425 F.3d 1051, 1059 n.14
(7th Cir. 2005). Tellingly, Margos did not file a reply brief to
refute the government’s exhaustion argument and argue
that she had properly preserved this issue. See Medhin v.
Ashcroft, 350 F.3d 685, 689 (7th Cir. 2003). What is more, the
record supports the government. In her appellate statement
and notice of appeal to the BIA, Margos identified herself as
an Assyrian Christian and, in general terms, indicated that
Iraq is an unsafe place for Assyrian Christians. Beyond
those generalities, however, Margos did not articulate a
pattern and practice argument. Specifically, through text or
citation, she did not claim that state actors were perpetrat-
ing or tolerating a systematic, pervasive, or organized effort
to kill, imprison, or severely injure Assyrian Christians. See
Mitreva v. Gonzales, 417 F.3d 761, 765 (7th Cir. 2005). With-
out a semblance of an argument before it, it is not surprising
that the BIA did not discuss the matter.1 Of more immediate
importance, Margos’s failure to exhaust administrative
remedies here means that we lack jurisdiction to consider
her pattern and practice argument. See Hamdan, 425 F.3d at1059 n.14.
Even if we had jurisdiction to consider this argument,
it would fail for several reasons. To start, Margos
1
Notably, according to the record and the briefs before us,
Margos has not filed a motion to reopen her proceedings based
upon changed country conditions. See 8 C.F.R. § 1003.23(b)(4)(i).
10 No. 05-2051
heavily relies on publications outside of the administra-
tive record which we cannot consider. See 8 U.S.C.
§ 1252(b)(4)(A); Yadegar-Sargis v. INS, 297 F.3d 596, 599 n.1
(7th Cir. 2002). Nevertheless, it is no secret that the tur-
moil in present-day Iraq makes it (or at least its metropoli-
tan areas such as Baghdad and Kirkuk) an unsafe and
undesirable place to live. Nonetheless, “unpleasant and
even dangerous conditions do not necessarily rise to the
level of persecution.” Prela, 394 F.3d at 518 (quotation
omitted). It is unsafe, moreover, for the general population,
not just Assyrian Christians. Recent State Department
country reports, which we could judicially notice, see
Pelinkovic v. Ashcroft, 366 F.3d 532, 540 (7th Cir. 2004),
recount numerous terrorist bombings of churches as well as
numerous terrorist bombings of mosques. Iraqis of all faiths
h a v e e x p er i enc ed h ea v y d o s es o f v i o l e n c e
and discrimination. This random violence against the
general population, furthermore, is being perpetrated by
domestic and foreign terrorists, not the Iraqi government.
The Iraqi government, according to the 2005 country re-
port issued on March 8, 2006, is committed “to equal
treatment for all religions and ethnicities” and has taken
significant steps to thwart the terrorists for the benefit of
all its citizens, including Assyrian Christians. This is not
a case in which the government at issue is unwilling
and completely unable to afford protection. Cf. Hor v.
Gonzales, 421 F.3d 497, 502 (7th Cir. 2005) (petitioner
established persecution by showing that the Algerian
government was incapable of protecting him, effectively
telling him that he would have to protect himself). Conse-
quently, Margos cannot establish persecution in this regard.
See Mitreva, 417 F.3d at 764-66 (collecting cases); Hor v.
Gonzales, 400 F.3d 482, 485-86 (7th Cir. 2005) (“Persecution
is something a government does, either directly or by
No. 05-2051 11
abetting (and thus becoming responsible for) private
discrimination by throwing in its lot with the deeds or
by providing protection so ineffectual that it becomes a
sensible inference that the government sponsors the
misconduct.”) (collecting cases).
Next, Margos maintains that, due to humanitarian
concerns, she is entitled to “asylum as a matter of discre-
tion.” See 8 C.F.R. § 1208.13(b)(1)(iii); Brucaj v. Ashcroft,
381 F.3d 602, 609 (7th Cir. 2004). To the extent Margos is
asking this court to exercise its discretion and grant her
asylum, her argument is misguided. The discretion to which
Margos refers rests with the executive branch, not the
judiciary. See 8 U.S.C. § 1158(b)(1)(A); Brucaj, 381 F.3d at
609; Rhoa-Zamora v. INS, 971 F.2d 26, 29 (7th Cir. 1992). To
the extent Margos is attempting to claim that the BIA and
immigration judge did not adequately consider this matter,
see, e.g., Brucaj, 381 F.3d at 609, she again failed to exhaust
administrative remedies. The record reveals that Margos did
not raise this § 1208.13(b)(1)(iii) argument to the immigra-
tion judge, and, for certain, Margos did not present this
claim to the BIA. Therefore, we lack jurisdiction to consider
this argument as well. See Hamdan, 425 F.3d at 1058 n.14.
For all of these reasons, we affirm the denial of asylum.
Further, because Margos has failed to meet the more lenient
burden of proof for asylum, she cannot establish a “clear
probability” of persecution, the standard for withholding of
removal under 8 U.S.C. § 1231(b)(3). See Hussain v. Gonzales,
424 F.3d 622, 630 (7th Cir. 2005); Prela, 394 F.3d at 519.
Finally, before this court, Margos seeks relief under the
Convention Against Torture (“CAT”). See 8 C.F.R.
§§ 1208.16-18. Although it does not appear that Margos
raised this claim before the immigration judge, the im-
migration judge’s decision included a single sentence
12 No. 05-2051
stating that Margos was not entitled to CAT relief. Nonethe-
less, on appeal, Margos did not present any CAT arguments
to the BIA. Therefore, due to this failure to exhaust adminis-
trative remedies, we do not have jurisdiction to consider this
CAT claim. See Hamdan, 425 F.3d at 1058 n.14; Olujoke v.
Gonzales, 411 F.3d 16, 22-23 (1st Cir. 2005) (CAT claim at
issue). Separately, we add that “torture,” as defined in 8
C.F.R. § 1208.18(a) for CAT purposes, constitutes an extreme
form of oppression not indicated here; as Margos fell short
of establishing persecution, she cannot, on this record, meet
the more difficult standard of establishing a likelihood of
torture in order to obtain CAT protection. See Hussain, 424
F.3d at 630; Prela, 394 F.3d at 519.
III.
There is no doubt that Iraq is a much less desirable
place to live than the United States. However, the record
before us does not show that Margos is entitled to the re-
lief she now seeks. Accordingly, for all the reasons dis-
cussed above, the petition for review is DENIED and,
where noted, is DISMISSED for lack of jurisdiction.
No. 05-2051 13
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-5-06