Monday, July 14, 2003
Israeli Marines Persecuted Arab Now Seeking Asylum, Court Says
By DAVID WATSON, Staff Writer
An Israeli citizen whose father was Arab and whose mother was Jewish presented credible evidence of persecution by Israeli marines and was wrongly denied asylum, the Ninth U.S. Circuit Court of Appeals has ruled.
The case is the first in the Ninth Circuit, and perhaps nationwide, to support an asylum claim by an Israeli citizen from within the 1948 borders of that nation, the man’s lawyer told the MetNews Friday.
Burlingame sole practitioner Haitham Ballout said the court’s decision was also remarkable for strongly reiterating that economic harm can rise to the level of persecution, even if it does not amount to total deprivation of the ability to earn a living.
Judge Richard A. Paez, writing for the three-judge panel, said an immigration judge and the Board of Immigration Appeals erred in rejecting Abrahim Baballah’s petition for asylum and withholding of removal after he testified he was subjected to threats and discrimination in Israel. Baballah, his wife, and his son sought the right to remain in the U.S. after arriving here in 1992.
Baballah, whose mother converted to Islam, testified he was the only child of a mixed marriage in his hometown of Aka, Israel, a community of approximately 11,000 people on the Mediterranean coast. After training to become first an accountant and later a lifeguard and diver, he claimed, he was repeatedly rejected by prospective employers who cited his “goy” background-a Hebrew term for non-Jews which he said has derogatory connotations in Arabic, meaning “dirty,” “bastard,” or “born from nowhere.”
When he resorted to working for his family as a fisherman, Baballah told the immigration judge, Israeli marines threatened and harassed him continuously for a decade, destroying his fishing nets and eventually sinking his boat. The harassment made it impossible for him to retain a crew, Baballah said.
At one point, he testified, the marines boarded his vessel and tied his brother to a pole, spraying him with pressurized water in freezing weather. His brother, Baballah claimed, was then accused of assault, arrested, and imprisoned, suffering mental impairment as a result.
Paez, whose opinion was joined by Judges A. Wallace Tashima and Sidney R. Thomas, noted that the immigration judge found Baballah’s testimony to be credible, but ruled the events he described did not amount to persecution. The appellate judge pointed out that in affirming the immigration judge’s ruling the Board of Immigration Appeals “made no contrary finding” with respect to credibility.
That testimony, Paez declared, not only established that Baballah was justified in fearing the marines might harm or kill him, but also that they “made it virtually impossible for Baballah to earn a living.” The immigration judge, Paez explained, “erred as a matter of law by requiring that Baballah show an absolute inability to support his family.”
Nor, Paez wrote, should the immigration judge have implied that Baballah’s testimony only reflected the a high general level of tension between ethnic groups in Israel.
“Baballah did not rely on the general threat of danger to individuals with a mixed ethnic background; his testimony was replete with specific instances in which he was individually singled out for abuse by Israeli Marines,” he observed. “The IJ’s suggestion that the threats and attacks experienced by Baballah and his family cannot be considered persecution because of generally dangerous conditions is at odds with our case law.”
Paez distinguished Khourassany v. INS (2000) 208 F.3d 1096, a case in which the Ninth Circuit held an Arab Israeli who was forced to close his restaurant had not suffered persecution. The petitioner in that case, Paez noted, had neither been physically attacked nor threatened with harm, and had continued to operate several other businesses.
Ballout said the discussion of economic harm in the court’s decision was noteworthy. “That’s what this case is going to be cited for in the future,” he declared.
The lawyer said he was contacted by Baballah and his family only days after they arrived in the U.S. in 1992. The immigration judge’s ruling was issued in 1994, but the Board of Immigration Appeals did not rule until 2001, Ballout said.
He called it “one of the longest” cases he has had in his immigration practice. Baballah’s son, he noted, a small child when the family arrived, is now a teenager.
The lawyer cautioned against any attempt to view the case in terms of current controversies involving claims of discrimination against Arab Americans or events in the Middle East.
“I don’t want people to turn this into a political case,” he said. “It’s simply about applying the law of our land to protect people who turn to our shores regardless of who they are and where they’re from.”
A lawyer who represented the government on appeal did not return a call on Friday.
The case is Baballah v. Ashcroft, 01-71407.
Copyright 2003, Metropolitan News Company