Bacha, Hanafi v. Gonzales, Alberto R.

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued June 1, 2005
Decided June 29, 2005
Before
Hon. DANIEL A. MANION, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 04-2660
MOHAMED SALEEM HANAFI Petition for Review of an Order of the
BACHA, Board of Immigration Appeals
Petitioner,
No. A78 642 231
v.
ALBERTO R. GONZALES, Attorney
General of the United States of
America,
Respondent.
ORDER
Sri-Lankan native Mohamed Saleem Hanafi Bacha, a Muslim Moor who speaks
Tamil, applied for asylum, withholding of deportation, and relief under the Convention
Against Torture. The immigration judge denied his application, and the Board of
Immigration Appeals affirmed, adopting the IJ’s adverse credibility determination.
Hanafi Bacha did not petition this court for review of the BIA’s decision, but instead
filed a motion for reconsideration, which the BIA denied. Hanafi Bacha now petitions
for review of the BIA’s denial of his motion for reconsideration, and our review is limited
to the merits of that motion. We deny the petition because none of Hanafi Bacha’s
arguments relate to the motion for reconsideration.
No. 04-2660 Page 2
I
Three main ethnic groups populate Sri Lanka. The Sinhalese, who are mostly
Buddhists, comprise 74 percent of the population and control the government and
security forces. Department of State, BACKGROUND NOTE: SRI LANKA (Feb. 2005),
available at http://www.state.gov/r/pa/ei/bgn/5249.htm. The remainder of the population
consists of mostly Hindu-practicing Tamils, who account for 18 percent of the
population, and Muslim Moors at 7 percent. Id. From 1983 to 2001 the Liberation
Tigers of Tamil Eelam (LTTE), a Tamil guerilla group seeking a separate state in the
northern and eastern regions of Sri Lanka, engaged in armed resistence against the
Sinhalese-majority government. Department of State, 2003 COUNTRY REPORTS ON
H U M A N R IGHTS P RACTICES : S RI L ANKA (Feb. 25, 2004), available at
http://www.state.gov/g/drl/rls/hrrpt/2003/27951.htm. Presently, both sides are respecting
a cease-fire, but peace negotiations have broken down. Id. Since the start of the unrest,
Tamil-speaking Muslims have actively sought to differentiate themselves from the
LTTE and Tamils. See Nirupama Subramanian, LTTE and Muslims, HINDU (I NDIA ),
Oct. 21, 2003, available at 2003 WLNR 9312513 (explaining that “Muslims—who are
linguistically Tamil—decided to strengthen a separate religion-based identity rather
than continue to affiliate themselves with Hindu and Christian Tamils on the basis of
language” after forced evacuation of 100,000 Muslims by LTTE in 1990); Sri Lanka’s
Muslims Worried over New Minority Status, SOUTH CHINA MORNING POS T, Nov. 4,
2002, available at 2002 WLNR 4466323 (Tamil-speaking Muslims have sought separate
ethnic and cultural identity since LTTE began armed struggle but have not aligned
with government).
Fleeing from alleged persecution in Sri Lanka stemming from these ethnic
divisions, Hanafi Bacha entered the United States on July 8, 1999, on a one-month
business visa, which was extended for an additional six months. Several months after
his visa expired in July 2000, Hanafi Bacha’s lawyer (who still represents him) assisted
him in filing an asylum application alleging persecution based on ethnicity, social
group, and political opinion. Hanafi Bacha identified his ethnicity as Tamil and his
religion as Muslim. His wife, also allegedly an ethnic Tamil, stayed in Sri Lanka.
According to Hanafi Bacha, the Sinhalese-majority government of Sri Lanka “detains,
tortures and persecutes” all ethnic Tamils because the government suspects them
all—regardless of their “innocence”—of being members of the LTTE. In his application
Hanafi Bacha said he was “harassed interrogated and detained many times” because
he is Tamil. He finally was “forced to flee” for his life or face the “very real prospect of
‘disappearing,’” he said, when security forces at the Colombo airport “attempted to take”
him into custody “without any charges.” This “flight” at the airport, Hanafi Bacha wrote,
No. 04-2660 Page 3
made him “a larger target” than he was already because of his ethnicity, and thus he
fears being “targeted for arrest” upon return to Sri Lanka.
Hanafi Bacha also described in his application the arrest of two Tamil employees
at his textile shop in November 1998. According to his account, a government security
force searched the quarters at the shop where the two lived with a Muslim employee and
found documents linked to the LTTE. The security force arrested the two and proceeded
to Hanafi Bacha’s house to question him. Alerted that the security force was on its way,
Hanafi Bacha left the house, fearing that they were coming to arrest him. After that,
he continued, the security forces returned to his house on “many occasions,” and so he
went into hiding and fled on July 8, 1999, to the United States. Because he could not
manage his store from the United States, Hanafi Bacha had to close the business. His
wife advised him in a telephone conversation that “every other day” the security forces
“come and terrorize her,” and so he should not return.
Attached to Hanafi Bacha’s application are several documents that allegedly
corroborate his claim of persecution. There is an arrest warrant (and partial English
translation) dated July 12, 1999—four days after he left the country—seeking Hanafi
Bacha for his “involv[ement] in terrorist activities.” Also included is a copy of a letter
Hanafi Bacha sent from the United States in March 2000 canceling the lease for his
store and transferring his business to another. But the letter also reveals that he
renewed his lease in April 1999, several months after his two employees were allegedly
arrested and he went into hiding. His attached birth certificate, moreover, identifies
both of his parents’ ethnicity as Moor, not Tamil.
Hanafi Bacha sent these documents with a packet of information to Dr. Paul
Joseph White, a researcher at the University of Sydney (Australia) who studies
“situations of conflict,” primarily in the Middle East and South Asia. White testified by
phone as an expert at Hanafi Bacha’s asylum hearing in January 2003. White first
provided background about the war in Sri Lanka between the Sinhalese majority
government and the LTTE. According to White, security forces battling the LTTE have
systematically targeted civilian Tamils for arbitrary arrest, rape, and forced relocations.
Despite a current cease fire, White attested, the government and Sinhalese majority
still persecute civilian Tamils. If a Tamil is suspected of sympathizing with LTTE
militants, “it is the same as if he was being a guerilla—a terrorist guerilla”—and he will
likely be “beaten and probably tortured.”
Turning to Hanafi Bacha’s specific situation, Dr. White appeared to assume that
Hanafi Bacha is ethnically Tamil, explaining that Sri Lankan Muslims are “a mixture
of different races,” including Tamil, though almost all Tamils are Hindus. If “he is as he
No. 04-2660 Page 4
appears to be given the documents,” White declared, Hanafi Bacha would be “in serious
danger” if returned to Sri Lanka because he is sought by the government for
sympathizing or assisting the LTTE. White suggested that Hanafi Bacha’s Muslim
identity makes the situation “a little bit more dangerous” because “they’re sort of not
loved by nobody,” but added that “the primary problem he faces is that he’s a Tamil who
has been accused apparently of supporting” the LTTE.
Hanafi Bacha, however, is a Moor, not a Tamil, notwithstanding his
representations in his asylum application and initial testimony. When confronted with
his birth certificate identifying both parents as Moors, Hanafi Bacha conceded that he
considers himself ethnically a Muslim Moor even though he is a Tamil speaker (and
perhaps for that reason sometimes considered to be a Tamil). Hanafi Bacha’s ethnicity,
however, was not the most significant inconsistency between his asylum application and
his testimony. At the hearing Hanafi Bacha also admitted that he never was harassed,
interrogated, or detained by security forces despite statements in his asylum application
to the contrary. And Hanafi Bacha’s testimony revealed that the account in his asylum
application of security forces’ trying to detain him at the Colombo airport was fiction.
Hanafi Bacha admitted at the hearing to these inaccuracies but gave no explanation
for their occurrence.
Hanafi Bacha testified to only one event consistent with statements in his asylum
application: the weekend arrest of his two Tamil employees at his store in November
1998 after a government security force found documents relating to the LTTE
movement among their possessions. Hanafi Bacha recounted that the security force next
went to find him that night but he “didn’t have the opportunity to meet them.” He
learned about the arrests the next day from the Muslim employee, who was not arrested.
That Monday a security force returned to the shop looking for Hanafi Bacha, but he was
in another town purchasing textiles. According to Hanafi Bacha, when he heard that the
security force wanted to speak with him and, he assumed, arrest him, he fled to a village
in the jungle and hid for eight months. Hanafi Bacha used his time in the jungle to plan
an escape from Sri Lanka, procuring necessary travel papers and making arrangements
to leave with the assistance of an agent. In a confusing line of testimony, Hanafi Bacha
could not explain how or why he renewed the lease for his store six months after going
into hiding, all while planning to leave the country. He maintained that he intended to
return to Sri Lanka in January 2000, but changed his plans after his wife and mother
told him that the security forces had an arrest warrant for him.
The administrative record also includes the 1999 State Department country
report and articles documenting the abuses committed by the Sinhalese majority
against suspected LTTE members and sympathizers. But the record is equally replete
No. 04-2660 Page 5
with examples of atrocities committed by the LTTE against civilians. The only targeting
of Muslims discussed in the documents was done by the LTTE, not the government.
As relevant here, the IJ denied asylum primarily because he concluded that
Hanafi Bacha’s story was not “plausible, credible or true.” In support of his adverse
credibility determination, the IJ noted that Hanafi Bacha in his asylum application
misrepresented his ethnicity and admittedly fabricated his past encounters with Sri
Lankan security forces, in particular the events at the Colombo airport that supposedly
led him to flee. The IJ also discredited Hanafi Bacha’s assertion that he was in hiding
and planning to leave Sri Lanka, given that he renewed his lease during that time
period. And the IJ questioned whether the security forces intended to arrest Hanafi
Bacha, given that the only evidence of this was based on the alleged detention of two of
his employees, which the IJ considered vague, and the questionable arrest warrant.
Finding that Hanafi Bacha did not meet the requirements for asylum, the IJ concluded
that he necessarily failed to satisfy the higher burden for withholding of deportation and
relief under the Convention Against Torture.
Appealing the IJ’s decision, Hanafi Bacha asserted that the adverse credibility
determination was based on immaterial inaccuracies that were, in any event, “fully
explained” during his testimony. But confusion over one of these allegedly
“nonmaterial” inconsistencies—his true ethnicity—continued to plague him in the
appeal. Still equating speaking the Tamil language with being Tamil, Hanafi Bacha
first argued that, because “he is Tamil,” the security forces imputed to him political
support for the LTTE and thus the IJ erred in concluding that his resulting need to hide
from the security forces did not amount to past persecution. At a later point in his brief,
however, Hanafi Bacha conceded that calling himself ethnically Tamil was inaccurate,
but glossed over the misrepresentation as immaterial even though his claim for asylum
relied on his purported membership in the Tamil minority.
The BIA upheld the denial of asylum in April 2004 based on the IJ’s adverse
credibility determination. The BIA cited Hanafi Bacha’s failure to explain “numerous
inconsistencies,” including his initial representation that he was ethnically Tamil and
later admission that he spoke Tamil but was not ethnically Tamil, and his retraction at
the hearing of the statements in his application about being harassed, interrogated, and
detained by security forces. Instead of petitioning this court for review of the BIA’s
decision, Hanafi Bacha filed a motion to reconsider with the BIA that rehashed his
previous challenge to the credibility finding. The BIA denied Hanafi Bacha’s motion in
June 2004, pointing out that he raised no new arguments and had not shown its
previous decision to be “defective.” Only then did Hanafi Bacha petition for review in
this court.
No. 04-2660 Page 6
II
Hanafi Bacha’s petition for review of the denial of his motion for reconsideration
is all that is before us, and so we have jurisdiction to review only those issues raised in
that motion and not the underlying asylum ruling. Ahmed v. Ashcroft, 388 F.3d 247,
249 (7th Cir. 2004) (improper to raise argument challenging underlying deportation
order where petitioner sought judicial review only of denial of motion for
reconsideration); Laboski v. Ashcroft, 387 F.3d 628, 632 (7th Cir. 2004) (refusing to
determine merits of IJ’s decision because jurisdiction limited to review of denial of
motion for reconsideration). Despite this jurisdictional limit, Hanafi Bacha devotes two
of his three arguments to the underlying decision. In those two arguments, Hanafi
Bacha contends that (1) the IJ erred in refusing permission to tender unspecified
documents in support of his asylum application; and (2) the IJ’s credibility
determination is not adequately supported by the record. Both contentions are
foreclosed at this point, because they are directed at the IJ’s decision as affirmed by the
BIA in its April 2004 order, which we have no jurisdiction to review. (The first
contention suffers from the additional shortcoming that Hanafi Bacha never presented
it to the IJ or the BIA.)
In any event, even if Hanafi Bacha had tried to frame the credibility argument
as a challenge to the denial of his motion for reconsideration, he would get nowhere. We
review the BIA’s denial of a motion for reconsideration for abuse of discretion. 8 U.S.C.
§ 1003.2(a); Laboski, 387 F.3d at 631. In moving for reconsideration, a petitioner asks
the BIA to “reexamine its decision in light of additional legal arguments, a change of
law, or perhaps an argument or aspect of the case which was overlooked.” Matter of
Cerca, 20 I. & N. Dec. 339, 402 n.2 (BIA 1991) (internal quotation marks and citation
omitted). A motion to reconsider that simply rehashes previous arguments gives the
BIA “no reason to change its mind” and will not prevail. Ahmed, 388 F.3d at 249; see
Strata v. Ashcroft, 388 F.3d 651, 655 (8th Cir. 2004).
In this case Hanafi Bacca’s motion for reconsideration is virtually a replica of the
credibility argument in his initial appeal to the BIA. Having been presented with no
new reason to reexamine its original deportation order, the BIA was not required to
grant reconsideration. See Ahmed, 388 F.3d at 249. Furthermore, this regurgitated
discussion still ignores the implication of Hanafi Bacca’s admission that he is not
ethnically Tamil as he represented in applying for asylum. Hanafi Bacha characterizes
this misrepresentation as immaterial, confusing language with ethnicity, but his
asylum application turns entirely on his claim that he was persecuted based on his
Tamil ethnicity. Critically, there is no evidence in the record that the Sinhalese-
majority government would confuse a Tamil-speaking Muslim for an ethnic Tamil. In
No. 04-2660 Page 7
fact, Hanafi Bacca’s own expert testified that the Sri Lankans can distinguish the
various ethnicities and that Hanafi Bacha’s name would identify him as Muslim.
Moreover, the second reason the BIA gave for upholding the IJ’s adverse credibility
finding remains unchallenged: Hanafi Bacha lied in his application about being
harassed, detained, or interrogated.
All that is left is Hanafi Bacha’s argument that the BIA overlooked his claim for
relief under the Convention Against Torture. Though Hanafi Bacha at least directs this
contention to the denial of his motion for reconsideration—albeit only in the
heading—he faces a different jurisdictional bar. Having raised the point for the first
time in this petition for review, Hanafi Bacha did not exhaust his administrative
remedies, and so we lack jurisdiction to consider the argument. See, e.g., Capric v.
Ashcroft, 355 F.3d 1075, 1087 (7th Cir. 2004) (no jurisdiction where petitioner fails to
exhaust administrative remedies as to that claim). In any event, the argument is
meritless. The IJ and the BIA both considered and rejected Hanafi Bacha’s claim for
CAT protection because the CAT claim relied on the same evidence found not to be
credible in the asylum context. See Jamal-Daoud v. Gonzales, 403 F.3d 918, 925 (7th
Cir. 2005) (rejecting claim for protection under CAT that relied on same noncredible
evidence from asylum claim).
Accordingly, we DENY the petition.