Thursday, June 26, 2008
Ninth Circuit Orders Reconsideration of Copts’ Asylum Bid
Los Angeles-Based Immigration Judge Prejudged Case and Denied Fair Hearing, Noonan Says
By KENNETH OFGANG, Staff Writer
An immigration judge had no reason to disbelieve claims by a family of Coptic Christians that they were persecuted by Islamic extremists in Egypt, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
The court ordered that a new immigration judge be assigned to reconsider the case of Soliman F. F. Morgan and his family. The Morgans, like about nine percent of Egypt’s population, are members of the Coptic Orthodox Church and claim that the government in their native country will not restrain violent fundamentalists who seek to convert all Christians to Islam.
The Morgans came to the United States. as tourists in 2001. In removal proceedings that began more than a year later, they admitted overstaying their visas but claimed to be entitled to asylum and/or other relief.
Series of Incidents
Soliman Morgan, now 45, testified to a series of incidents that began in 1988 and continued until just before he and his family came to this country. He told the IJ that fundamentalists attacked and destroyed his retail business because it remained open during Muslim prayers; beat his brother and members of his brother’s family; falsely accused him of raping the daughter of a Muslim client, a charge that was dropped after his lawyer, a prominent Muslim, proved that he was recovering from hernia surgery when the crime allegedly occurred; and forcibly converted a relative of his wife to convert to Islam and threatened to do the same to his immediate family.
He also testified that a tax assessor increased his assessment to more than 20 times what he had previously paid, then told him that the taxes would be reduced to their normal level if he converted. He successfully challenged the assessment in court, he explained, but he and his father were shot at when they left the courthouse.
Morgan’s wife, Miriam Makar, testified that she and two of the couple’s children were kidnapped, and that the kidnappers demanded that Morgan’s father deed a parcel of land next to the local Coptic church for the building of a mosque, and that Makar convert. Makar said she was raped after she refused, and that she was not released until her father-in-law transferred title to the family lawyer, who acted as a go-between.
The Morgans’ immigration lawyer, Natalia Nekrasova of the Law Office of Roni Deutsch in Encino, offered to call the couple’s teenage children as witnesses as well, but Immigration Judge Jeffrey Romig said he did not want to put them in “the untenable position of coming into court to advance their parents’ specious claims.”
In finding the family ineligible for asylum, Romig found, that Morgan’s testimony was inconsistent in several respects, and that Makar was inconsistent with respect to the details of her alleged kidnapping. He recommended that the parents be deported and that the children be allowed to depart voluntarily.
The Board of Immigration Appeals upheld Romig, finding that the adverse credibility determinations were not clearly erroneous, and that the discrepancies in the testimony were “sufficiently major, material, and unexplained to support” the IJ’s ruling.
But Senior Judge John T. Noonan, writing for the Ninth Circuit, said the discrepancies, read in context, were minor. The parties’ essential accounts, he said, did not vary from their declarations, adding that the inconsistencies that did exist, such as whether Makar was grabbed by two men while a third waited in the car, or whether she was grabbed by three men, were “trivial” given the passage of time and the traumatic nature of events.
“It is understandable that a judge confronted with the raw facts of the ordeal of the Morgan family might not want to believe that any human beings could behave like their kidnapers and rapists,” the appellate jurist wrote. “The ugliness —the horror —of their story is not, however, a reason for rejecting it. For ethnic, political, or religious reasons people have behaved brutally to others helpless to fight back. The story of fundamentalist Islam and the Copts is an old story. Morgan’s particular experience of it could not be evaluated except by a mind open to all the evidence.”
Noonan, with Judges William A. Fletcher and Ronald M. Gould concurring, suggested that Romig’s mind was closed, noting that he had suggested the parties agree to voluntary departure before the applicants had been cross-examined.
“An American administrative law officer who bears the noble name ‘judge’ is expected to conform to the American ideal of a judge — dispassionate, unbiased, ready to hear each side equally,” Noonan wrote.
Romig, he suggested, was not “acting as our system prescribes,” but more like a prosecutor or a French magistrate, who investigates and presents evidence, marring the credibility determinations.
The IJ also erred, Noonan said, in excluding the children from testifying based on his prejudgment of the testimony, denying the parties “the fair hearing that the constitution guarantees every person within the jurisdiction of the United States.”
The judge went on to criticize “the government’s system of organization and prosecution.” He noted that the Washington, D.C. lawyer who argued the case was not assigned to it until two weeks earlier, had not seen the record—which was lost by the government—, had not asked the court clerk for a copy, and could not answer questions by reference to it.
If the government intends to proceed further with the case, he said, it must either find the record or “secure[ ] a copy from us after making some effort at explaining how the government could and did lose the record.”
Noonan also took the unusual step of declaring that “it would be appropriate to assign [the case] to a different immigration judge,” which would likely occur in any event since Romig no longer sits in Los Angeles. He was temporarily assigned to the BIA in 2006 and is now based in York, Pa.
An academic study of immigration judges around the country reported that between 2001 and 2006, Romig denied more than 80 percent of asylum claims, the 40th highest rate out of 240 judges nationally, and the second highest out of 30 in Los Angeles.
Nekrasova said the court had rendered a “great decision” and that she expects to prevail on remand now that the appellate panel has essentially found her clients to be credible. She said she doubted there would be further appellate proceedings because in light of Noonan’s comments, “it would be an embarrassment [to the government] to take it any further.”
Government lawyers could not be reached for comment.
The case is Morgan v. Mukasey, 05-70590.
Copyright 2008, Metropolitan News Company