Imsaiah v. GonzalesImsaiah v. Gonzales
Case Information
*1 BEFORE: KENNEDY, BATCHELDER, and CLAY Circuit Judges.
KENNEDY, Circuit Judge. Bаydaa Gorgis Imsaiah appeals a final order of deportation issued by the Board of Immigration Appeals. She contends on appeal that the decision by the Board was not based on substantial evidence and that the Board improperly denied her motion to reopen in light of changed country conditions. We AFFIRM
BACKGROUND
Baydaa Gorgis Imsaiah (“Imsaiah”) is a single Catholic Chaldean woman who was born in Iraq in 1982 and is, to this day, an Iraqi citizen. On May 25, 2002, she came to the United States, via an eleven month stay in Jordan, as a non-immigrant fiancé of a US citizen with authorizаtion to remain in the US until August 23, 2002. She remained past that date. On March 20, 2003, Imsaiah filed an application for asylum with the Department of Homeland Security (“DHS”). The application was referrеd to an Immigration Judge (“IJ”) and Imsaiah was served with a Notice to Appear. She conceded removability under the Immigration and Nationality Act (“INA”) § 237(a)(1)(B), 8 U.S.C. *2 § 1227(a)(1)(B) (admitted non-immigrant remaining in the United States longer than permitted). JA at 332, 538.
At a hearing held in Detroit, Michigan on May 10, 2004, Imsaiah presented her own testimony, the testimony of her brother Saraa, her sister Laymaa, and various documents and papers. Imsaiah testified that she had been harassed by Muslim students when she was a young child because of her Christian beliefs. When she would attend church, Muslim “radicals” stoned her and her siblings and made improper advances.
In addition, Imsaiah testified that she, along with her father, two brothers, and sister, were involved in the activities of the Kurdish Democratic Party (“KDP”). When she was young, she would collect donations for the KDP from sympathizers in her town; other members of her family were more involved. She testified that her family suffered as a result of their activities in the party. Her father, brothers, and sisters were, at various times, arrested, threatened, tortured, and imprisoned because of their involvement with the KDP. In 1997, for example, Iraqi security police arrested her father and twо of her brothers in front of the rest of the family. During the arrest, her mother was questioned and struck with the butt of a gun. Her father and brothers were detained for one month, during which they were tortured, and were then released. Later in that year, one of her brothers was again arrested and detained. After that second incident, the two brothers fled to Turkey, and from there one traveled tо the United States. JA at 10-11. Several of her family members have been granted asylum in the United States.
Imsaiah also testified to one incident where she herself was maltreated because of her political activities. On June 16, 2000, she accompanied her father to a nearby village to deliver papers to a KDP official. Her father became ill and asked her tо take the papers herself while he *3 rested. On her way, she saw several Iraqi soldiers and hid in a nearby store. She testified that she did not realize that the owners of the store were Muslim but that when they saw her hiding, they contacted the Iraqi soldiers. The guards interrogated her and began to touch her inappropriately. In doing so, one of the guards noticed the papers undеr her shirt and ripped the shirt open. Upon finding the papers, they demanded to know how she had come by them and where she was taking them. After several minutes of this interrogation, Imsaiah statеd that she had been given the papers by a person on the street who asked that she deliver them to a specific address. After the soldiers left, she hurried back to her father, and thе two traveled to the KDP leader’s house to tell him about the incident. On the way back to their home, her father told her not to say anything about the incident to her other family members. Her sister, however, testified that she had known of Imsaiah’s incident before Imsaiah even returned home; Imsaiah testified that she did not tell her sister until the following November.
After the incident, on November 5, 2000, her sister and father were again arrested for their activities with the KDP. Her sister was interrogated, tortured, and raped while she was detained. She was released approximately a week later. Her father was released after approximately a month. He had been beaten and tortured while in prison and was in very poor condition.
In June of 2001, Imsaiah’s family, through bribes рaid by one of their connections in the KDP, were smuggled out of Iraq into Jordan. While in Jordan, Imsaiah became engaged to an American citizen who had seen her on a video. She received her K-1 visa and left Jordan on May 25, 2002 and traveled to Detroit, Michigan, arriving the same day. After several weeks in the United States, her fiance’s father broke off the engagement. As nоted above, she then overstayed her K-1 authorization and the DHS initiated removal proceedings against her.
On May 10, 2004, the IJ found that Imsaiah was removable, denied her application for asylum and withholding of removal, and ordered her deported because, inter alia , she was not credible and, regardless, country conditions in Iraq had changed after the United States led invasion deposed the former government. JA at 72. On September 8, 2005, the Board of Immigration Appeals (“BIA”) affirmed the IJ’s adverse credibility and change of country conditions determinations. JA at 22. On Octоber 7, 2005, Imsaiah appealed that decision to our court. No. 05- 4247 (6th Cir.).
On October 4, 2005, Imsaiah filed a motion with the BIA to reconsider its decision under 8 C.F.R. 1003.2(b). The BIA, apparently sua sponte , converted this motion to a motion to reopen under 8 C.F.R. 1003.2(c) because Imsaiah attached new reports and additional decisions from the BIA supporting her claim that country conditions had changed. On November 14, 2005, the BIA denied this motion. JA at 17. That decision was not appealed. However, on November 29, 2005, Imsaiah filed a motion to reopen under 8 C.F.R. 1003.2(c). Because the evidence submitted did not differ materially from that submitted with the previous motion to reconsider, the BIA denied the motion as number barred on February 16, 2006. JA at 13. Imsaiah appealed this second decision on the same day. No. 06-3385 (6th Cir.).
These appeals have been consolidated and are now both before us.
ANALYSIS
I. Standard and Scope of Review
We review factual determinations, including determinations of credibility and changed
country conditions, for lack of substantial evidence.
Sylla v. INS
,
When a single member of the BIA affirms the IJ in a brief order under § 1003.1(e)(5), we
review both the BIA decision and the IJ dеcision as the final determination to the extent that they are
not inconsistent.
Abebe v. Gonzale
s,
II. Statutory Framework
Imsaiah is eligible for asylum if she is a refugee, i.e. if she cannot return to Iraq “because of
persecutiоn or a well-founded fear of persecution on account of race, religion, nationality,
membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A);
see also
8 C.F.R. 208.13(b). Pеrsecution is not defined by the relevant immigration statutes, but this court
has previously found that it must be something “more than a few isolated incidents of verbal
harassment or intimidation, unaccompаnied by any physical punishment, infliction of harm, or
significant deprivation of liberty.”
Mikhailevitch v. INS
,
If an applicant for asylum provides proof of past persecution, a rebuttable presumption of
refugeе status attaches.
Ouda,
If the applicant provides proof of past persecution, the government can rebut the presumption
with evidence that conditiоns in the applicant’s country have changed such that the fear of
persecution could no longer reasonably exist for the applicant herself
, Ouda
,
III. Discussion
The IJ found that “the government has certainly established a change in conditions since the
time [Imsaiah] departed” and that these changes any well-founded fear of persecution that Imsaiah
might have had. Reviewing the country reports and other evidence in thе record, this finding is
supported by substantial evidence. This court has consistently found that the fall of the Hussein
government rebuts any well-founded fear based on persecution that occurred undеr that regime.
See,
e.g., Aoraha v. Gonzales
, Nos. 05-4270 & 05-4272, 2006 App. LEXIS 31732, at *7 (6th Cir. 2006)
(unpublished);
Al-Shabee v. Gonzales
,
Because the government has overcome any presumption that might have attached by showing changed conditions, we decline to address the alleged instances of past persecution.
CONCLUSION
For the above reasons, the final order of the BIA is AFFIRMED