Ouda v. INSOuda v. INS
I. Background
Sahar Ouda is a stateless Palestinian born in Kuwait on February 26, 1971.1 In July of 1992, Ouda, her parents and her two younger brothers departed Kuwait for Bulgaria on one-month visitors’ visas. They remained in Bulgaria, where they overstayed their visas by two years. On December 7, 1994, Ouda entered the United States by way of a nonimmigrant visitor’s visa with an expiration date of June 6, 1995. One month prior to the expiration of her visa, Ouda filed an application for asylum. On July 11, 1995, the Immigration and Naturalization Service (“INS”) issued an order to show cause and a notice of hearing, charging Ouda as deportable for overstaying her visa. On the application form, Ouda claimed mistreatment by the Kuwaiti government as the basis of her request for asylum. She asserted that her life and liberty will be in danger if she goes back to Kuwait or to Egypt because “I cannot go anywhere.”
In November of 1997, the Immigration Judge (“IJ”) conducted a hearing on Ouda’s application for asylum. There was some confusion regarding the country from which Ouda was claiming asylum. Ouda asserted that she was a refugee from Kuwait, the country in which she was born and raised and from which she and her family were expelled. The INS took the position that Ouda’s asylum claim arose from Bulgaria, the country where she last resided before entering the United States. Ouda argued that Bulgaria should not be the focus of her asylum claim because she was never a citizen of Bulgaria and Bulgaria would not take her back in any event. In support of this last assertion, she provided a letter from the Embassy of the Republic of Bulgaria, dated January 21, 1997, wherein the Embassy refused her family’s request for a visa. The IJ reserved ruling on this legal issue until after the hearing.
Ouda then testified to the following: During the Gulf War, her father, who had taught in Kuwait’s Department of Education for twenty years, was forced to continue teaching by the Iraqi occupiers. When Kuwait was liberated, the Kuwaitis refused to let him return to his teaching position because he was perceived as a Palestinian who supported Iraq. Notices were posted on all businesses stating that only Kuwaiti citizens were permitted to return to work. Because Ouda’s father was unable to earn a living, he requested his pension fund from the Department of Education and was told that he could collect it only if he left the country. Not only were the Oudas unable to earn a living, they were also unable to attend school, obtain a driver’s license or drive a car. Ouda explained that access to water was not “open” as it is in the
In Bulgaria, Ouda’s family tried to extend their one-month visas to no avail, and they were unable to apply for citizenship. Apparently, however, the Oudas learned that they could gain temporary resident status if they owned an ongoing business. Accordingly, Ouda’s father opened a store with what remained of his retirement funds. As long as the
Ouda testified that she has attempted to get visas to go to other countries but, based on her status as a stateless Palestinian, has been denied entrance to Egypt, Bulgaria, Kuwait, Jordan and Israel. She stated that she feared for her life if deported to Kuwait.
The IJ subsequently issued a written opinion wherein he denied Ouda’s application for asylum and withholding of deportation and ordered her deported to Bulgaria or any other country willing to accept her. In so ruling, the IJ determined that Bulgaria was Ouda’s country of last habitual residence;
In this particular case I have no reason to doubt the veracity of [Ouda]. She appears to be, in the estimate of the Court, to be credible and what she has testified to appears to be accurate, lacking of any outward indicia of fabrication, is consistent with her prior documents, and I do believe that her version as she indicates is, in fact, accurate.
Nonetheless, he concluded that Ouda had not demonstrated either past persecution or a well-founded fear of future persecution in Bulgaria. He noted that Ouda herself had never been harmed in Bulgaria and that the Bulgarian mafia’s extortion attempts were directed at her father because he was a store owner, a characteristic that is not protected by the asylum laws.
Ouda appealed the denial of her asylum application to the BIA, arguing that the IJ had erred in finding that Bulgaria was her country of last habitual residence, and contending that she had established eligibility for asylum in relation to Kuwait. The BIA ruled, in relevant part:
An alien may apply for asylum in the United States or withholding of deportation from any countries to which he or she may be deported.
8 C.F.R. § 240.49(c)(2) . A stateless alien, who has no nationality, may seek asylum in relation to the country where she last habitually resided if he or she may be deported there. Id.; Section 101(a)(42)(A) of the Act.For purposes of deciding this appeal, we will assume that the respondent is correct that she may consider Kuwait as the country where she last habitually resided. Thus, if Kuwait is a country to which the respondent may be deported, she may base an asylum claim on past persecution or a well-founded fear of future persecution in Kuwait. However, the respondent herself stated that, at least as of the time of her hearing, Kuwait will not
accept her (Tr. at 29, 48). The State Department’s Advisory opinion agrees that her chance of receiving the requisite Kuwaiti approval to re-enter was “quite slim” (Exh. 5, Tab 2). Accordingly, to the extent that the Immigration Judge may have erred in ruling that the respondent could only seek asylum with respect to Bulgaria, such error is seemingly harmless, as it is unlikely that Kuwait is a country to which the respondent may be deported. Moreover, assuming arguendo that the respondent and the State Department are wrong, and the Service is able to procure travel documents for the respondent from Kuwait, we find that she has not established an asylum claim in relation to that country. We note that the respondent did focus her asylum claim on Kuwait in her written application and her testimony. She does not contend on appeal that there is more evidence that she wished to present concerning persecution in Kuwait. The only harm alleged in her written application related to the authorities’ picking up of her brother in 1991 following Kuwait’s liberation at the conclusion of the Gulf War. The respondent testified orally that she is not a member of any groups, political or otherwise (Tr. at 31). She further stated that she herself has never been arrested, detained, interrogated, imprisoned or beaten anywhere by any authorities (Tr. at 32-33). The only negative thing that happened to her in Kuwait is that she was unable to continue her higher education. However, discrimination does not ordinarily amount to persecution within the meaning of the Act. Tamas-Mercea v. Reno, 222 F.3d 417 (7th Cir. 2000); Korablina v. INS, 158 F.3d 1038 (9th Cir. 1998); Ghaly v. INS, 58 F.3d 1425 (9th Cir. 1995). Thus, having reviewed the entire record de novo, we find that she has not established past persecution in Kuwait.
Because she has not established past persecution in Kuwait, she enjoys no presumption to a well-founded fear of future persecution on account of her status as a
Palestinian in that country. 8 C.F.R. § 208.13(b)(1) . Rather, she has the burden of showing a “reasonable possibility” of suffering persecution if returned to Kuwait.8 C.F.R. § 208.13(b)(2)(i)(B) . To make such a showing, the alien must establish that a reasonable person in his or her circumstances would fear persecution. Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996); Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987). See also INS v. Cardoza-Fonseca, 480 U.S. 421 (1987). The lack of any evidence in this regard is not surprising in light of her position that Kuwait will not allow her return.The State Department’s advisory opinion notes that, for the most part Palestinians in Kuwait who are there legally are settling into a relatively stable existence free from egregious human rights abuses (Exh. 5 at tab 2). To the extent that the State Department’s opinion may paint an overly optimistic picture, it is essentially all we have in this record regarding the current fate of Palestinians in Kuwait. The respondent has provided no objective evidence to meet her burden in this regard. We additionally note that 2 of her siblings have remained in Kuwait without any asserted harm. Matter of A-E-M-, 21 I&N Dec. 1157 (BIA 1998) (the reasonableness of an alien’s fear of persecution is reduced when his family remains in his native country unharmed for a long period of time after his departure). Thus, in the unlikely event that the respondent could be deported to Kuwait, we also find that she has not demonstrated a well-founded fear of persecution in that country. Accordingly, as the respondent did not meet her burden of establishing an asylum claim in relation to Kuwait, her appeal is dismissed.
It is from the BIA’s decision that Ouda appeals.
II. Standard of Review
The BIA’s decision “must be upheld if ‘supported by reasonable, substantial, and probative evidence on the record
The Attorney General has discretion to grant asylum to a person who qualifies as a “refugee” within the meaning of Section 101(a)(42)(A) of the Immigration and Nationality Act. The Act defines a refugee as:
any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion, . . . .
The asylum applicant bears the burden of establishing that he or she qualifies as a refugee “either because he or she has suffered past persecution or because he or she has a well-founded fear of future persecution.”
III. Analysis
A.
The BIA found, as a preliminary matter, that Ouda could not seek asylum from Kuwait because she testified that
The petitioner argues that she should be granted asylum from Kuwait, but the parties agree that the petitioner does not currently have travel documents or permission from the Kuwait government to enter that country. The petitioner herself argued below that Kuwait will not allow her to return.
However, the INS cites no authority for this purported linkage and the BIA cites only
The regulation cited by the BIA in support of its ruling,
If the alien expresses fear of persecution or harm upon return to any of the countries to which the alien might be deported . . ., and the alien has not previously filed an application for asylum or withholding of deportation that has been referred to the immigration judge by an asylum officer in accordance with § 208.14 of this chapter, the immigration judge shall: . . . .
Nor does case law support the BIA’s determination that Ouda cannot seek asylum from Kuwait because she cannot be deported there. Asylum applicants have argued that a country’s refusal to accept them is further evidence of persecution. See, e.g., Al Najjar v. Ashcroft, 257 F.3d 1262 (11th Cir. 2001); Faddoul v. INS, 37 F.3d 185 (5th Cir. 1994). In Al Najjar, for example, petitioners (a married couple) argued that as stateless Palestinians they would be denied entry into their respective countries of last habitual residence, the United Arab Emirates and Saudi Arabia, and that such denials constituted a well-founded fear of persecution on account of nationality. 257 F.3d at 1292. The court rejected their arguments on the ground that petitioners had failed to show that entry would be denied to them based on their nationality as opposed to the law of those countries favoring citizenship based on ancestry or marriage. Id. at 1291-92. Importantly, neither the INS nor the court raised the possibility that these petitioners’ asylum applications were barred as a matter of law on the basis that they could not be deported to these countries.
In short, the relevant question is whether Ouda qualified as a refugee at the time of her asylum hearing and, if so, whether the INS carried its burden of showing that conditions in Kuwait at that time had improved to such an extent that Ouda, given the circumstances of her past persecution, could no longer claim a well-founded fear of future persecution if returned there. The issue of her deportability is another
B.
We next review the BIA’s finding that Ouda failed to establish past persecution in Kuwait. After reviewing the record and particularly Ouda’s testimony, which the Immigration Judge found credible, we conclude that the evidence in the record compels the conclusion that Ouda has established past persecution in Kuwait.
The undisputed facts paint a grim picture of human rights violations in post-war Kuwait, for which the Oudas personally suffered. After Kuwait was liberated, Ouda’s father was not allowed to return to work because he was a Palestinian who was perceived as supporting Iraq when he continued teaching during the war. Indeed, the Kuwaitis engaged in a general campaign to prohibit Palestinians from working, attending school, buying food, obtaining water or obtaining drivers’ licenses. Many armed Kuwaitis roamed the streets, terrorizing, physically abusing and killing Palestinians. They held Ouda’s father at gunpoint and threatened to kill him on more than one occasion when he tried to obtain food, and tortured her 15-year old brother when he tried to get a haircut. Because of the widespread violence against Palestinians, Ouda was not permitted to leave her home. When Ouda’s father requested his retirement fund so that his family could survive, Kuwaiti officials told him they would only give it to him if he left the country. On July 4, 1992, Kuwaiti officials ordered the Oudas to leave the country by July 31, 1992 and stamped their travel documents accordingly. In short, the Oudas were not only harassed because they were Palestinians who were perceived enemies of Kuwait, they were unable to earn a livelihood or travel safely in public, forced to sell their belongings to buy food, and expelled from Kuwait with only a percentage of Mr. Ouda’s pension.
There is no case law that requires Ouda to show that she was personally detained, interrogated, beaten up or tortured in
Even the State Department’s letter corroborated Ouda’s claims of persecution. According to James Halmo, Director of the Office of Asylum Affairs:
It is well-established that the Palestinian population which remained in Kuwait until the Iraqi forces were expelled on February 28, 1991 suffered gross abuses in the immediate aftermath of the liberation of Kuwait from Iraqi occupation. Roving bands of Kuwaiti vigilantes, elements from the police and army routinely apprehended and physically abused Palestinians. Many Palestinians were killed outright, probably in excess of 40-50. The
reason for this widespread abuse lay in the Kuwaiti perception, rightly or wrongly, that the Palestinians collaborated with the Iraqi invaders. While it is true that many Palestinians were deported or otherwise forced out of Kuwait when their residence permits came up for renewal post-February 1991, the majority of Palestinians holding Jordanian passports who fled into Jordan left before the liberation of the country on February 28, 1991. In any case, we believe that the worst of the abuses, certainly the gross physical abuses and unwarranted detentions, ended by the end of 1991.
With the exception of the last sentence, the State Department letter supports Ouda’s claims of persecution.4 More importantly, Ouda’s testimony, which has been credited with veracity, illustrates that the acknowledged abuse of
As previously noted, an asylum applicant who satisfies the burden of establishing past persecution is presumed to have a well-founded fear of future persecution. Mikhailevitch, 146 F.3d at 389. Because the BIA incorrectly found that Ouda did not establish past persecution, it also erred in failing to give her the benefit of the presumption of well-founded fear of future persecution to which she was entitled. Instead, the BIA determined that it was Ouda who “had the burden of showing a ‘reasonable possibility’ of suffering persecution if returned to Kuwait,” and concluded that she failed to do so. In so holding, the BIA relied on the State Department’s opinion that “for the most part Palestinians in Kuwait who are there legally are settling into a relatively stable existence free from egregious human rights abuses.” This analysis is inadequate to determine whether the State Department letter provides sufficiently detailed information to rebut the presumption of well-founded fear arising from Ouda’s experiences in Kuwait.6 Begzatowski v. INS, 278 F.3d 665, 671-72 (7th Cir. 2002).
The aforementioned errors require remand to the BIA in order to properly shift the burden to the INS of establishing by
Accordingly, the judgment of the BIA is REVERSED and the case is REMANDED for further proceedings consistent with this opinion.
Notes
As to the situation of Palestinians in Kuwait at this moment, we believe that there is a lingering resentment on the part of some Kuwaitis over the perceived role of the Palestinians during the war. But we have received no reports since about the end of 1991 that Palestinians are being routinely assaulted on the streets by vigilantes, publicly humiliated or being beaten in jail because they are Palestinians. Any foreigner, including any Palestinian, is subject to deportation if his or her residence permit is not renewed on an annual basis. There have been credible reports of Kuwaitis harassing Palestinians by detaining them for a few hours and then releasing them. It is our view that, in the main, the Palestinians who remain in Kuwait legally are settling into a reasonably stable existence free from the more egregious forms of human rights abuses.