Mekhael, Hanna Y. v. Mukasey, Michael B.

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-4285
HANNA YOUSSEF MEKHAEL,
Petitioner,
v.
MICHAEL B. MUKASEY, Attorney General
of the United States,
Respondent.
____________
Petition to Review an Order of the
Board of Immigration Appeals.
No. A 76 398 904
____________
SUBMITTED SEPTEMBER 25, 2007—DECIDED NOVEMBER 16, 2007
____________
Before POSNER, KANNE, and ROVNER, Circuit Judges.
POSNER, Circuit Judge. The petitioner, a Lebanese citi-
zen, sought asylum and other relief on the ground that
he has a well-founded fear of persecution should he be
returned to Lebanon, because he is a Christian and a
former member of the Southern Lebanese Army, a group
trained and supported by Israel to fight Hezbollah. Follow-
ing a hearing in July 2005, the immigration judge denied
relief, and the Board of Immigration Appeals affirmed
the denial in August 2006. The following month, the
petitioner moved the Board to reopen the proceeding on
2 No. 06-4285
the ground that conditions in Lebanon had changed
materially since his July 2005 hearing, as a result of the
war between Israel and Hezbollah that began on July 12,
2006, while his appeal to the Board was awaiting deci-
sion. He also presented evidence that in the aftermath of
the publication in Denmark of cartoons caricaturing
the Prophet Muhammad, violence against Christians in
Lebanon had intensified. The Board denied the motion to
reopen on the ground that the evidence that the peti-
tioner had introduced in support of it merely “details
ongoing problems in Lebanon, and therefore, was
discoverable and available” to the petitioner before
his hearing in July 2005, and that “to the extent that
any specific incidents alleged by the [petitioner] occurred
after that time, they are merely cumulative, and as such,
not persuasive.” This is the Board’s entire discussion of
its grounds for denying the motion. It was not of course
relying on the opinion of the immigration judge; that
opinion had been issued before the change of conditions
in Lebanon upon which the motion to reopen (filed
with the Board) was based.
The Board’s reasoning was remarkable, since the peti-
tioner’s evidence concerned dramatic, portentous events
that had occurred after the administrative record was
closed, and so could not have been discovered before the
July 2005 hearing. The government points out that the
petitioner had described at the hearing tensions between
Muslims and Christians and between Israel and Hezbollah.
But evidence that after the hearing these tensions boiled
over into full-scale warfare and deadly street riots was
no more “cumulative” of the evidence presented at the
hearing than our Civil War was merely “cumulative”
evidence of tensions between North and South that
dated back to the constitutional convention of 1787.
No. 06-4285 3
We have repeatedly reversed the Board when it has
failed to give reasoned consideration to post-hearing
evidence, Gebreeyesus v. Gonzales, 482 F.3d 952, 955 (7th Cir.
2007); Kebe v. Gonzales, 473 F.3d 855 (7th Cir. 2007);
Sosnovskaia v. Gonzales, 421 F.3d 589, 593 (7th Cir. 2005);
Fessehaye v. Gonzales, 414 F.3d 746, 750, 754-55 (7th Cir.
2005); Brucaj v. Ashcroft, 381 F.3d 602, 609-11 (7th Cir.
2004), as have other circuits. Shardar v. Attorney General,
2007 WL 2713029 (3d Cir. Sept. 19, 2007); Chen v. Gonzales,
490 F.3d 180, 184 (2d Cir. 2007) (per curiam); Li v. U.S.
Attorney General., 488 F.3d 1371, 1375 (11th Cir. 2007) (per
curiam); Malty v. Ashcroft, 381 F.3d 942, 945 (9th Cir. 2004).
These decisions require that we vacate the Board’s order
and remand the case for further proceedings consistent
with this opinion. We take no position on the merits of the
motion to reopen. The only ground of our decision is the
Board’s failure to articulate a reasoned response to the
motion. We understand the Board’s staggering work-
load. But the Department of Justice cannot be permitted
to defeat judicial review by refusing to staff the Immigra-
tion Court and the Board of Immigration Appeals with
enough judicial officers to provide reasoned decisions. The
petition for review is granted and the Board’s order
vacated.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-16-07