Khora v. GonzalesKhora v. Gonzales
Petitioners, four members of an Iraqi Chaldean Christian family, appeal the decision of the Board of Immigration Appeals (“BIA“) to deny them asylum, withholding of removal, and protection under the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment (“CAT“). The BIA denied petitioners’ applications based on a finding that, following the collapse of the government of Saddam Hussein, conditions in Iraq had fundamentally changed such that petitioners no longer had a well-founded fear of persecution. For the following reasons, we deny the petition for review.
I.
Samir Yonan Khora (“Khora“) is an Iraqi citizen of Chaldean ethnicity who practices the Roman Catholic religion.1 Because Khora is a Chaldean Christian, he experienced considerable problems living in Iraq under the Hussein government.
Following his release from the military in 1991, Khora worked at a Baghdad hotel. On March 20, 1994, a security patrol came to the hotel looking for Kurds. Upon arrival, however, the security patrol found a Christian group conducting a meeting. The Christian group, of which Khora was a member, acted as a liaison, funneling aid and support between Christians in other countries and Iraqi Christians. The security forces detained the meeting‘s participants. The security forces took Khora to their headquarters and accused him of working with an anti-government group. They beat, interrogated, and tortured Khora for almost one month. On April 15, 1994, after the security forces found no credible evidence against Khora, he was released. Khora remembers that he was required to sign an affidavit before the security forces would release him.
After his release, Khora returned to work at the same Baghdad hotel. On August 9, 1994, Khora received information that the security forces were again looking for him and that they wanted to arrest him. Khora remembered that the affidavit he signed stated that he would not be released if he was arrested a second time. Khora fled immediately to Mosul. He left Iraq on August 18, 1994, traveling first to Turkey, where he stayed for two weeks, and then to Greece.
Khora came to the United States in 2000, after spending six years working in Greece. Khora had planned to come to the United States since he left Iraq because he has family in the United States. He did not apply for asylum in Greece. Khora arrived in the United States and sought admission on September 23, 2000, but he was not in possession of valid entry documents. On September 26, 2000, the Immigration and Naturalization Service (“INS“)2 issued Khora a notice to appear, charging him with removability as an alien who at the time of application for admission to the United States was not in possession of valid entry documents pursuant to
On June 26, 2003, an immigration judge denied Khora‘s application for asylum,
Khora appealed the immigration judge‘s decision to the BIA. On September 8, 2004, the BIA affirmed the decision of the immigration judge and dismissed the appeal. While the BIA disagreed with the immigration judge‘s finding that Khora had not suffered past persecution, it found that the evidence in the record of changed circumstances in Iraq sufficiently rebutted the presumption that Khora had a well-founded fear of persecution. Additionally, the BIA rejected Khora‘s argument that he feared future persecution by “bands of fundamentalist Muslims who seek to establish a new Islamic government.” Khora timely filed a petition for review.
II.
We will uphold the BIA‘s decision if it was supported by substantial evidence. Mullai v. Ashcroft, 385 F.3d 635, 638 (6th Cir.2004); Mikhailevitch v. INS, 146 F.3d 384, 388 (6th Cir.1998). Under the substantial evidence standard, we uphold the immigration judge‘s decision if it is “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Koliada v. INS, 259 F.3d 482, 486 (6th Cir.2001) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)). The “administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.”
In this case, the BIA expressly adopted and affirmed the immigration judge‘s decision. The immigration judge‘s decision therefore serves as the relevant focus of our review except where the BIA added to that decision. See Denko v. INS, 351 F.3d 717, 723 (6th Cir.2003).
A.
The Attorney General may grant asylum to an applicant who is a “refugee” within the meaning of the Immigration and Nationality Act (“INA“).
If an applicant establishes past persecution on account of one of the qualifying grounds, the applicant is presumed to have a well-founded fear of persecution on that same ground.
To establish a well-founded fear of persecution without relying on past persecution, an applicant must establish that: (1) he has a fear of persecution on one of the qualifying grounds; (2) there is a reasonable possibility of suffering persecution upon return; and (3) he is unable or unwilling to return to, or avail himself or herself of the protection of, that country because of such fear.
We turn first to the question of whether Khora was eligible for asylum based on evidence of past persecution. The BIA determined, contrary to the findings of the immigration judge, that Khora demonstrated that he had suffered past persecution in Iraq. Khora was therefore entitled to the regulatory presumption that he has a well-founded fear of persecution. The BIA decided, this time in agreement with the immigration judge, that the regulatory presumption that Khora has a well-founded fear of persecution was rebutted by a fundamental change in circumstances in Iraq such that Khora no longer has a well-founded fear of persecution.
Substantial evidence in the record supports the BIA‘s decision that a fundamental change in circumstances rebutted the presumption that Khora has a well-founded fear based on past persecution. The government provided newspaper articles and State Department press releases and reports from April and May of 2003. The evidence submitted by the government outlines, in general terms, the goals of representative government, religious tolerance, and the return of the rule of law in the future Iraq. The evidence submitted by DHS establishes the complete overhaul of the Iraqi government. Indeed, Khora stated during his removal proceedings that the Iraqi government with which he had trouble no longer exists. Given that Khora‘s past persecution was at the hands of the security forces of the Hussein government, the immigration judge‘s conclusion that the change of power negated Khora‘s presumed fear based on past persecution was not unreasonable.
An alien who proves past persecution, but who cannot establish a well-founded fear of persecution because of changed country conditions, may still qualify for a discretionary, “humanitarian” grant of asylum.
Although Khora was not eligible for asylum based on past persecution, he also had the opportunity to show that he had a well-founded fear of future persecution. In order to do so, Khora was required to show either that there is a reasonable possibility that he would be singled out individually for persecution upon return to Iraq, or that he was a member of a group that is subject to a pattern or practice of persecution in Iraq.
Khora attacks each of these rulings by claiming that the conditions in Iraq for Chaldean Christians have only worsened since the fall of the Hussein government. Specifically, Khora argues that he will be persecuted or seriously harmed in Iraq by insurgents, terrorists, fundamentalists, or Ba‘ath Party loyalists as a result of either his Christianity or his perceived cooperation with the American presence in Iraq. Khora‘s petition to this court attempts to augment the evidence in the record by reference to more recent newspaper articles that detail the civil strife in present-day Iraq and the plight of Iraqi Christians as manifested in recent church bombings.
We are thus faced with the question of how Khora should seek relief based on his belief that conditions in Iraq have worsened since the fall of Hussein regime. We briefly note that our opinions have not been entirely consistent with regard to whether we can take judicial notice of changed country conditions in Iraq following a BIA decision. Compare Namo v. Gonzales, 401 F.3d 453, 458 (6th Cir.2005) (“This court may take judicial notice of changed circumstances.“) (citing Ivezaj v. INS, 84 F.3d 215, 219 (6th Cir.1996)), with Jebraail v. Ashcroft, 119 Fed.Appx. 759, 764 (6th Cir.2005) (“This court, in a well-reasoned but unpublished opinion, has found further that it cannot take judicial notice of changed country conditions.“) (citing Visha v. INS, 51 Fed.Appx. 547, 551 (6th Cir.2002)) and
We therefore conclude that the evidence in the administrative record does not compel the conclusion that Khora established his eligibility for asylum. Further augmentation of that record is left to the BIA, pursuant to a motion by petitioner, in the first instance.
Khora also seeks withholding of removal. Under
Khora also claims that he is entitled to protection under the Convention Against Torture. To be granted CAT protection, 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.”
III.
For the foregoing reasons, Khora‘s petition for review is denied.