Publication Date:: Monday, June 30, 2008
Court: Saddam’s Fall Does Not Negate Persecution Fears
By STEVEN M. ELLIS, Staff Writer
The Ninth U.S. Circuit Court of Appeals on Friday again rejected the U.S. government’s argument that Saddam Hussein’s 2003 fall from power negates Iraqi Christians’ fear of persecution if they return to their country.
Reversing an immigration judge’s decision denying asylum to an Iraqi Chaldean woman who said she was imprisoned and raped after she resisted joining the former dictator’s Ba’ath party, Judge Harry Pregerson wrote for the second time in almost eight months that the fall of Hussein’s regime by itself was not sufficient to show a change in circumstances allaying Chaldean Catholics’ fears of future persecution.
Maha Mousa, a citizen of Iraq, fled to the United States in 2001, and applied for asylum claiming that she and her family members suffered multiple incidents of abuse at the hands of Ba’ath party officials. She testified at an April 8, 2003 hearing before an immigration judge that she and her brother were both harassed and pressured to join the party for years, and then imprisoned for 47 days in a party compound—where she was raped—because they resisted.
However, the immigration judge found that Mousa lacked credibility because she did not disclose the rape in the initial stages of the proceedings, and because he could not reconcile her ability to resist so long with the party’s reputation for ruthless recruitment tactics. Denying Mousa’s request, he further held that, even if she were credible, the party’s removal from power changed circumstances in Iraq to such an extent that she would no longer have a well-founded fear of persecution there.
The Board of Immigration Appeals affirmed the judge’s decision, but Pregerson rejected both findings, saying they were not supported by the purported discrepancies.
Writing that Mousa’s “cultural reluctance” provided a compelling explanation for her failure to mention the rape earlier, Pregerson pointed out that the asylum applications by Mousa and her brother indirectly referenced both the rape, as well as Mousa’s fear of future rapes. He also discounted the immigration judge’s skepticism of Mousa’s ability to withstand Ba’ath party recruitment efforts, writing that the judge’s “speculation” was not a proper basis to disbelieve her testimony.
Pregerson then turned to the government’s contention that it had shown that changed conditions in Iraq negated Mousa’s fear of future persecution
Once a petitioner establishes past persecution, the government must establish that changed country conditions have removed what is a presumptively-valid fear of future persecution.
But Pregerson, assuming for the sake of argument that Mousa had shown past persecution, concluded that the government had not met its burden.
Noting that the government had introduced as evidence only a single Washington Times article from the same date as the hearing which described attacks on Iraqi intelligence headquarters in Iraq, he wrote, “[t]he article in no way suggested that Chaldean Christians would be safe from religious persecution in Iraq as a result of the coalition’s efforts to remove Saddam Hussein from power.”
Judges Michael Daly Hawkins and Raymond C. Fisher joined Pregerson in his opinion, and the court remanded the case to the BIA to determine whether Mousa’s testimony sufficiently established past persecution.
The case is Mousa v. Mukasey, 04-75998.
Pregerson’s opinion was similar to, and in fact referenced, an opinion he previously authored in November of 2007 in Hanna v. Keisler (2007) 506 F.3d 933.
There, an Iraqi Chaldean Christian man claimed a fear of future persecution based on alleged past attacks on his family over his refusal on religious grounds to join the Fedayeen Saddam, a paramilitary organization loyal to Hussein.
Rejecting the government’s argument that the Ba’ath party’s removal from power negated the man’s fears of future religious persecution, Pregerson noted that while the government had shown that the man would not be persecuted by a government led by Hussein, it had failed to make any showing regarding whether the man would face persecution from others in a post-Hussein Iraq.
“If anything, the changed circumstances in Iraq would seem to make it more likely, not less likely, that [the man] would suffer persecution in Iraq on account of his religion,” Pregerson wrote.
Copyright 2008, Metropolitan News Company