Olga Jad KAMAR, Petitioner, v. Jefferson B. SESSIONS, III, Attorney General, Respondent.
No. 16-3750
United States Court of Appeals, Sixth Circuit.
Decided and Filed: November 17, 2017
875 F.3d 811
Before: MERRITT, MOORE, and ROGERS, Circuit Judges
OPINION
MERRITT, Circuit Judge.
Petitioner Olga Jad Kamar filed an application for withholding of removal under the Immigration and Nationality Act and protection under the Convention Against Torture. The Immigration Judge denied the application and ordered her removed from the United States to Jordan, or in the alternative, to Lebanon. The Board of Immigration Appeals dismissed her appeal and denied her motion to remand based on changed country conditions. This petition for review followed.
The issue is whether a woman who will either be subject to an “honor killing,” or alternatively, “protective custody” in Jordan is entitled to relief. For the reasons set forth below, we GRANT the petition for review and REMAND the case to the Board for further proceedings consistent with this opinion.
I. BACKGROUND
A. Factual Background
Kamar is a native of Lebanon and a citizen of Jordan. She was born in Lebanon in 1964, but moved to Jordan as a
Kamar was admitted to the United States as a B-2 visitor in June 1999. She changed her status to an F-1 student in January 2001 to pursue a master‘s degree. Kamar‘s F-1 status was terminated when she became pregnant and left school. Kamar has three sons with her husband from her first marriage, which ended in divorce in 2006. Their three sons live in Canada with their father. In 2007, Kamar became pregnant again. She married her second husband two months before her child was born. The child is a United States citizen and is now ten years old. Kamar has no relationship with her second husband and has an order of protection against him.
B. Procedural Background
On October 12, 2007, the Department of Homeland Security charged Kamar as removable pursuant to
There was a merits hearing on Kamar‘s application on June 8, 2009. At the hearing, Kamar testified that her family did not approve of her divorcing her first husband and conceiving her fourth son while unmarried. She explained that the fact that she married her second husband before giving birth was irrelevant because she got pregnant before marriage. Her brothers have not spoken to her since this occurred.
Kamar testified that she fears returning to Jordan because her cousins intend to perform an honor killing on her and her child in accordance with Jordanian custom. She explained that even though her family is Catholic, they live in Jordan where the majority of people are Muslim and the law is according to Islamic law. Her family follows the local traditions. In Jordanian society, if a woman shames her family, the solution is to cleanse the family and restore its honor by killing her.
While Kamar has not had physical contact with her cousins, she testified that she received letters claiming that her cousins want to kill her and that she was told this by numerous relatives and friends. In support, she submitted a letter from her mother dated September 5, 2009, saying that Kamar‘s first cousin, Alias, is the cousin that is the angriest with her. It stated, “[Alias] told your sisters that he wished God took his life if he did not finish this work. Even if this was the last thing that he would do on this earth, he will kill you for your sisters.” The other letter Kamar presented was from Alias. It said, “You understand what the punishment is for a girl like you, who brings shame upon our family. Your day of punishment is coming and with God‘s blessing it will be very soon.”
Mona, Kamar‘s sister who is also divorced, testified that their family did not like the fact that she was divorced either, but had come to accept it. However, she said that because Kamar became pregnant outside of marriage, their cousins would kill her to restore their family‘s honor. She explained that it did not matter that Kamar subsequently married her second husband because Alias believes that Kamar cheated on her first husband with her second husband. This is due to a rumor spread by Kamar‘s first husband‘s family that reached Jordan. Mona asserted that if Kamar returned to Jordan, their cousins would find out and be waiting for her at the airport.
1. The First Decision and Appeal
On September 30, 2009, the Immigration Judge (“IJ“) determined that Kamar was not credible and denied her application. Kamar appealed to the Board of Immigration Appeals (“Board“). The Board overturned the IJ‘s decision on August 3, 2012, finding that the overall adverse credibility finding was clearly erroneous. It remanded the case to allow the IJ to reconsider Kamar‘s applications and ordered further fact-finding since the IJ‘s previous analysis did not treat Kamar‘s testimony as credible.2
2. The Second Decision and Appeal
On June 28, 2013, the IJ again denied Kamar‘s application. He ordered her removal to Jordan, or in the alternative, to Lebanon. The IJ found that Kamar failed to establish a viable social group for relief under her withholding of removal application. Even if Kamar had shown this, the IJ reasoned that there was no evidence that a Catholic had been subject to an honor killing based on an illegitimate birth. He stated that the only instance of Christian honor killings in Jordan in the record was in a United Nations report discussing honor crimes and how they are based on Islamic teachings. Referring to the report, the IJ rationalized, “But it does note that there are instances where Christian families also commit honor crimes. Note it did not say honor killings.” Thus, the IJ concluded that Kamar was unable to show that it was more likely than not that she would be persecuted based on her membership in a group.
Additionally, the IJ found the letter from Alias was not credible because it was undated and not the original. Even if it was credible, the IJ concluded that it did not facially indicate that Alias intended to kill Kamar. The IJ determined that this intent was only ambiguously stated in the letter from Kamar‘s mother and reasoned that nothing indicated that Alias still harbored this animosity. However, even if Kamar did have a legitimate fear of being killed, the IJ found that Kamar failed to show that her family or the Jordanian
As for the application for protection under the Convention Against Torture, the IJ denied Kamar‘s request after finding that Kamar could not show that it was more likely than not that she would be tortured by anyone, let alone somebody covered by the Convention.
Kamar again appealed the IJ‘s decision to the Board. On January 15, 2015, the Board affirmed the IJ‘s decision and dismissed the appeal.
On April 15, 2015, Kamar filed a motion to reopen with the Board requesting that it reopen proceedings (due to changed country conditions and new law) and remand the case. On June 19, 2015, the Board vacated its January 15, 2015, decision and reinstated Kamar‘s original appeal. It denied Kamar‘s motion to reopen as moot and ordered further briefing. Kamar‘s brief in support of her reinstated appeal included a motion to remand based on changed country conditions.
3. The Board‘s Third Decision
On June 2, 2016, the Board affirmed the IJ‘s decision and dismissed the reinstated appeal and motion to remand. It concurred with the IJ‘s denial of withholding of removal, finding that Kamar did not meet her burden of establishing that future persecution in Jordan was objectively reasonable. It also reasoned that the 2013 and 2014 country reports for Jordan submitted by Kamar with her motion to reopen and reinstated appeal showed only continuing country conditions rather than changed conditions.
The Board stated that the IJ correctly determined that Kamar did not demonstrate a pattern or practice of persecuting persons similarly situated to her, and that aside from a notarized letter referring to Christian honor killings in Jordan, there were no documents in the record showing a pattern or practice of this occurrence. In light of this finding, the Board determined that it did not need to discuss the IJ‘s finding related to Kamar‘s failure to establish a particular social group.
Further, the Board found that the IJ did not commit clear error in finding that the Jordanian government was not unable or unwilling to protect Kamar. The Board reasoned that the IJ considered the 2011 country report noting that the authorities in Jordan had placed eighty-two women in protective custody that year to prevent them from becoming victims of honor killings. The Board found that subsequent country reports further supported the IJ‘s finding that the Jordanian government is working to protect victims and actively prosecute the perpetrators of honor crimes. The Board did not address Kamar‘s ability to relocate.
The Board additionally upheld the IJ‘s denial of Kamar‘s request for protection under the Convention. It determined that Kamar did not demonstrate that she faced a clear probability of torture in Jordan by or at the instigation of or with the consent or acquiescence or willful blindness of the government.3
In this petition for review, Kamar requests that we reverse the denial of the motion to remand so that she may apply for asylum based on changed country conditions; or, in the alternative, reverse the denial of removal under the Immigration
II. ANALYSIS
A. Jurisdiction
We have jurisdiction under
B. Standard of Review
We apply the same standard of review for withholding of removal claims made under the Immigration and Nationality Act and for requests for protection under the Convention Against Torture. When, as here, the Board reviews the IJ‘s decision and issues a separate opinion, rather than summarily affirming the IJ‘s decision, this Court reviews the Board‘s decision as the final agency determination. Khalili v. Holder, 557 F.3d 429, 435 (6th Cir. 2009). But, to the extent the Board adopted the IJ‘s reasoning, we also review the IJ‘s reasoning. Id.
We review the factual findings under the substantial evidence standard and consider whether they are “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Yu v. Ashcroft, 364 F.3d 700, 702 (6th Cir. 2004) (citation omitted). These findings are conclusive “unless any reasonable adjudicator would be compelled to conclude to the contrary.” Singh v. Gonzales, 451 F.3d 400, 403 (6th Cir. 2006) (quoting
On appeal, Kamar makes two main arguments. First, she argues that the Board‘s decision that the Jordanian government would be able and willing to protect her was not supported by substantial evidence and thus the Board erred in finding her ineligible for withholding of removal under the Immigration and Nationality Act. Second, Kamar asserts that the Board‘s decision erred as a matter of law in finding that the Jordanian government‘s policy of involuntary incarceration does not violate the Convention Against Torture.
C. Withholding of Removal Under the Immigration and Nationality Act
Withholding of removal under
The issue before us is whether substantial evidence supports the Board‘s conclusion that Kamar was ineligible for withholding of removal. Like the Board, we assume for purposes of this petition for review that Kamar was in fact a member of a particular social group for purposes of the statute. See Castellano-Chacon v. INS, 341 F.3d 533, 545 (6th Cir. 2003), modified on other grounds by Almuhtaseb v. Gonzales, 453 F.3d 743, 748 (6th Cir. 2006). We must consider then whether substantial evidence supports the determination that Kamar has not “presented sufficient evidence
1. Particular Social Group
The Board did not address whether Kamar was a member of a “particular social group,” and the parties do not address the issue in their appellate briefs. Under the Supreme Court‘s holding in Gonzales v. Thomas, 547 U.S. 183, 185-86, 126 S.Ct. 1613, 164 L.Ed.2d 358 (2006), the Board must have an initial crack at that issue. Therefore, like the Board, we assume without deciding that Kamar has established membership in Kamar‘s professed particular social group. See A.R. 919. Kamar‘s professed particular social group is “women who, in accordance with social and religious norms in Jordan, are accused of being immoral criminals and, as a consequence, face the prospect of being killed or persecuted without any protection from the Jordanian government.” A.R. 553, citing Sarhan v. Holder, 658 F.3d 649, 654 (7th Cir. 2011). Cf. Bi Xia Qu v. Holder, 618 F.3d 602, 607-08 (6th Cir. 2010) (concluding that women who are sold or forced into marriage and involuntary servitude are a social group); Al-Ghorbani v. Holder, 585 F.3d 980, 996 (6th Cir. 2009) (approving proposed group of women who opposed the repressive and discriminatory Yemeni cultural and religious customs that prohibit mixed-class marriages and require paternal consent for marriage); Yadegar-Sargis v. INS, 297 F.3d 596, 603 (7th Cir. 2002) (identifying “Christian women in Iran who do not wish to adhere to the Islamic female dress code” as a particular social group).
2. Persecution Because of Social Group Membership
We next consider whether substantial evidence supports the Board‘s decision that it was not “more likely than not” that Kamar would be subject to persecution4 in Jordan because of her membership in the particular social group.
Additionally, withholding of removal is “not available to an alien who fears retribution solely over personal matters.” Al-Ghorbani, 585 F.3d at 997 (quoting Zoarab). However, Kamar asserts that her life would be threatened because of Jordanian social norms that impose behavioral standards on women and permit family members to sentence those who violate these standards to death. While a family member may have a personal motivation to restore honor to his family, he carries out the honor killing because it is socially permissible. Thus, there is broader societal significance intertwined with the personal retribution.
The probability of harm occurring in these cases is an inference based on facts in the record. Considering the evidence, it is hard to reconcile these findings with the Board‘s conclusion that even if Kamar had a subjective fear of persecution, this fear was not objectively reasonable. There is nothing to cast doubt on Kamar‘s testimony. Even if the letter from Alias is not considered, the letter from Kamar‘s mother states that Alias wishes to kill Kamar even if it is his last act on earth, and credible testimony confirms this. Nothing indicates that Alias does not still intend to carry out the honor killing. Both Kamar and her sister testified that it did not matter that Kamar married her second husband because Alias knows that she had sexual relations outside of marriage and believes that she committed adultery. The record overwhelmingly supports the finding that she will be persecuted if she returns.
Finally, we consider whether the Jordanian government would be “unwilling or unable” to protect Kamar from harm. In the country reports in the record, it has been established that governors in Jordan routinely abuse the law and use imprisonment to protect potential victims of honor crimes. These victims are not released from imprisonment unless the local governor consents, the victim‘s family guarantees the victim‘s safety, and the victim consents. One non-governmental organization has provided a temporary, unofficial shelter as an alternative.
On the other hand, successful perpetrators of honor killings typically get their sentences greatly reduced. Additionally, if the victim‘s family, who is usually the family of the alleged perpetrator as well, does not bring the charges, the government dismisses the case. See also Sarhan, 658 F.3d at 657 (“After reviewing the evidence of the Jordanian government‘s treatment of honor crimes, we conclude that ... the government is ineffective when it comes to providing protection to women whose behavior places them in the group who are threatened with honor killings.“).
The Board‘s decision outlined the Jordanian government‘s efforts to combat honor crimes, including placing potential victims in “protective custody.” As the Ninth Circuit concluded in an analogous case, “This observation omits the fact that such protective custody is involuntary, and often involves extended incarceration in jail.” Suradi v. Sessions, No. 14-71463, 701 Fed. Appx. 633, 635, 2017 WL 2992234, at *2 (9th Cir. July 14, 2017). While victim protection is necessary, incarceration is an insufficient solution. This practice is akin to persecuting the victim as she “must choose between death and an indefinite prison term.” Sarhan, 658 F.3d at 659.
We do not address whether Kamar can safely relocate to escape persecution, which is also relevant to withholding of removal and protection under the Convention. The Board did not mention relocation, and the parties’ briefs do not address the issue. Like the particular social group inquiry, the issue of safe relocation must be addressed in the first instance by the Board. Gonzales v. Thomas, supra.
Substantial evidence does not support the Board‘s refusal to find that Kamar will probably be persecuted if she is returned to Jordan, due to her membership in the particular social group we discussed, or that the Jordanian government can or will do nothing to help her. The Board‘s decision with regard to those issues is reversed.
D. Protection Under the Convention Against Torture
To qualify for protection under the Convention, a petitioner must show that “it is more likely than not that he or she would be tortured if removed to the proposed country of removal.”
(i) evidence of past torture inflicted on the applicant; (ii) evidence that the applicant could relocate to a part of the country where he is likely not to be tortured; (iii) evidence of gross, flagrant or mass violations of human rights within the country to which the applicant will be removed; and, (iv) other relevant information about the country to which the applicant will be removed.
Namo v. Gonzales, 401 F.3d 453, 457 (6th Cir. 2005). The definition of torture includes:
any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or her or a third person information or a confession, punishing him or her for an act he or she or a third person has committed or is suspected of having committed, or intimidating or coercing him or her or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent of acquiescence of a public official or other person acting in an official capacity.
Singh v. Ashcroft, 398 F.3d 396, 404-05 (6th Cir. 2005) (quoting
Kamar alleges that she is eligible for relief because the Board erred as a matter of law in finding that the Jordanian government‘s policy of placing victims of honor crimes in “protective custody” does not violate the Convention. She argues that the government‘s policy of involuntary imprisoning targets of honor killings amounts to torture.
The Seventh Circuit has found that the Jordanian government‘s “solution” to protect honor killing victims is actually a form of punishing the victims of these crimes amounting to mental “pain or suffering,”
Given the likelihood that Kamar would be subject to involuntary imprisonment at the hands of the Jordanian authorities, resulting in mental pain and suffering, the Board erred in concluding that Kamar failed to establish that it was more likely than not that she would be tortured upon removal to Jordan. We grant the petition with respect to the Board‘s reasoning under the Convention.
E. Motion to Remand
We need not discuss the Board‘s denial of Kamar‘s motion to remand in light of the previous holdings.
III. CONCLUSION
For the reasons explained above, we GRANT the petition for review and REMAND to the Board for further proceedings consistent with this opinion.