Tuesday, November 6, 2007
Saddam’s Fall Does Not Negate Iraqi’s Fear of Persecution—Court
By STEVEN M. ELLIS, Staff Writer
The fall of Saddam Hussein’s Ba’athist government in Iraq does not sufficiently demonstrate a change in circumstances in the country to rebut the fear of an Iraqi Christian who was persecuted by the former regime that he will suffer future persecution if removed to the country, the Ninth U.S. Circuit Court of Appeals has ruled.
A unanimous panel of the court yesterday reversed and remanded a decision of the Board of Immigration Appeals, holding that when the board assumed that Thamir Aziz Hanna had suffered past persecution at the hands of the Iraqi government on account of his religion, a presumption arose that he feared future persecution, and the Ba’ath party’s fall from power alone was insufficient to demonstrate changed circumstances in the country rebutting the presumption.
In an opinion by Judge Harry Pregerson, the court directed the board to consider whether Hanna had indeed suffered past persecution, whether he had a well-founded fear of future persecution, whether circumstances had in fact changed in the country that would allay Hanna’s fears of future persecution, and whether Hanna had shown that a reasonable possibility existed that he would suffer serious harm if he were returned to Iraq.
Hanna, a Chaldean Catholic, is a native and citizen of Iraq born in Baghdad. He claimed that he became afraid for his life and fled Baghdad for Northern Iraq on Sept. 27, 1997 after government officials ransacked his family’s home and attacked his family over his refusal on religious grounds to join the Fedayeen Saddam, a paramilitary organization loyal to Saddam.
Hanna claimed that Ba’ath party members forced their way into the family home looking for him, hitting his brother in the eye with a gun and firing a bullet into the floor that ricocheted, breaking his father’s leg and leaving his father hospitalized for a month. Hanna said that one of the officials also spat in his mother’s face, and that the officials left only after threatening that harsher consequences would follow if Hanna was not produced.
Detained and Tortured
He further claimed that, in January 1992, Ba’ath party officials tortured him while he was detained for over one month on accusations of being an anti-government member of the Assyrian Democratic Party and handing out anti-government fliers, and that he had been beaten and blindfolded while in custody for 15 days in March of 1994 on false accusations of selling “expired” goods, laundering money, and using counterfeit money.
After the 1997 raid on the family home, Hanna said, he took his father’s advice and fled the country in fear of his life, traveling through Turkey, Europe and Mexico before arriving at the U.S./Mexico border at San Ysidro on Nov. 8, 2001.
Hanna conceded removability, but requested asylum under the Immigration and Nationality Act and on humanitarian grounds, as well as withholding of removal.
However, after multiple hearings Immigration Judge Kenneth Bagley denied all forms of relief on April 28, 2003, approximately one month after the beginning of the United States’ war in Iraq.
Finding that inconsistencies in Hanna’s testimony undercut his credibility as a witness, Bagley ruled that Hanna had not presented adequate evidence of fear of religious persecution to support withholding of removal. Bagley also held that Hanna was unable to show a well-founded fear of future persecution given the Ba’ath party’s fall from power.
The Board of Immigration Appeals affirmed Bagley’s decision, but the Ninth Circuit said he was entitled to reconsideration.
Pregerson said that Hanna could be eligible for asylum if he showed past persecution on account of a protected ground, which would create a presumption of a fear of future persecution and shift the burden to the government to show that a fundamental change in circumstances had taken place to negate such a fear. He could similarly be eligible if he showed a well-founded fear of such persecution in the future.
Noting that the board had assumed, for the sake of argument, that Hanna had suffered past persecution on account of his religion which raised the presumption of a fear of future persecution, Pregerson said that the fall of the Ba’ath party alone did not support the government’s argument that such fear was allayed.
Writing that the court had difficulty assessing on the record whether Hanna’s fear was objectively reasonable because so much in Iraq had changed since Saddam’s fall, he said:
“The government showed only that Hanna would not be persecuted on account of his religion by a government led by Saddam Hussein. The government did not make any showing regarding whether Hanna would likely fear religious persecution from others in post-Saddam Hussein Iraq.”
“If anything, the changed circumstances in Iraq would seem to make it more likely, not less likely, that Hanna would suffer persecution in Iraq on account of his religion.”
Turning to Hanna’s claims for asylum on humanitarian grounds, Pregerson agreed that the severity of Hanna’s past persecution was insufficient to show a compelling reason for an unwillingness or inability to return to Iraq given the fall of the regime. However, he criticized the BIA for failing to consider whether a reasonable possibility existed that Hanna would suffer other serious harm upon removal to Iraq.
He added that, in order to qualify for withholding of removal, Hanna could generate a presumption that his life or freedom would be threatened in Iraq on account of a protected ground by showing past persecution which the government could only rebut by showing a fundamental change in circumstances.
On remand, Pregerson said, the board must consider Hanna’s credibility, the sufficiency of his showing of past persecution, and whether he had a well-founded fear of future persecution.
Pregerson was joined in his opinion by Senior Judge Ferdinand F. Fernandez, and Sixth U.S. Circuit Court of Appeals Judge Eugene E. Siler Jr., sitting by designation.
The case is Hanna v. Keisler, 04-73960.
Copyright 2007, Metropolitan News Company