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Hamdan v. Mukasey

June 16, 2008


Petition for Review of an Order of the Board of Immigration Appeals. No. A95-925-237.

The opinion of the court was delivered by: Kanne, Circuit Judge.


Before FLAUM, KANNE, and EVANS, Circuit Judges.

Jalal Abu Hamdan sought withholding of removal, 8 U.S.C. § 1231(b)(3)(A), and protection under the Convention Against Torture (CAT), 8 C.F.R. §§ 1208.16, 1208.18, claiming that he suffered past persecution when he lived in the Israeli-occupied West Bank from 1994 until 1997, and that he would likely be persecuted if he returned there today. The immigration judge (IJ) denied his requests for relief, a decision that the Board of Immigration Appeals (BIA) upheld. Hamdan petitions us to review the immigration courts' decisions, arguing that the IJ failed to address his claims of future persecution. We agree with Hamdan, and grant his petition.


Hamdan is a "stateless" Palestinian-he was born in the West Bank when the area was governed by Jordan, but was not allowed to apply for Jordanian citizenship because of his Palestinian identity. He entered the United States in April 1997 on a student visa to attend the University of Illinois at Chicago. But after immigration authorities determined in 2003 that Hamdan had never, in fact, attended UIC, they initiated removal proceedings against him. See 8 U.S.C. § 1227(a)(1)(C)(I).

Hamdan appeared before the IJ and conceded removability. However, he also filed an application for asylum, withholding of removal, and CAT protection, in which he claimed that the Israeli government and Palestinian Authority persecuted him when he lived in the West Bank. Hamdan also asserted that if he were to return to the West Bank, it was likely that he would be harmed by the Israeli government and Palestinian militant groups because of his Palestinian identity and imputed political beliefs. See id. § 1231(b)(3)(A) ("[T]he Attorney General may not remove an alien to a country if the Attorney General decides that the alien's life or freedom would be threatened in that country because of the alien's . . . nationality . . . or political opinion."); 8 C.F.R. § 1208.16(b)(2) (stating that to successfully obtain CAT protection, petitioner must show that it is more likely than not that he will be tortured by foreign government, or by its acquiescence, upon removal). In the alternative, Hamdan sought leave to depart the United States voluntarily. See 8 U.S.C. § 1229c(a)-(b).

At a subsequent hearing regarding his requests for relief, Hamdan explained to the IJ the claims of persecution he presented in his application. Hamdan first stated that he received his Master's Degree in Archeology in 1994 from the University of Jordan. Shortly thereafter, he was hired by the Israeli government's Department of Archeology as a supervisor of archeological excavations. Most of the laborers at the excavation sites were Palestinian, and Hamdan's good rapport and constant interaction with his Israeli supervisors and co-workers-including armed Israelis who were charged with providing security to the excavation sites-along with the fact that he "made good money," fueled speculation among the Palestinians that he was an Israeli spy.

Hamdan continued that, about two years after the Israeli Department of Archeology hired him, Israel began transferring may aspects of civil governance in the West Bank to the Palestinian Authority. As a part of this transfer, Hamdan's employer changed to the Palestinian-controlled Department of Archeology. Nevertheless, Hamdan's Palestinian co-workers and superiors became increasingly suspicious of him because of his past interactions with Israeli officials. And even though Hamdan remained "politically neutral" between the Israeli and Palestinian causes and abstained from political activity, he sensed that his neutrality angered several Palestinian political and militant groups, and also bolstered the misconception that he was an Israeli collaborator.

Hamdan further explained that he left for the United States after it became clear to him that his political neutrality prevented his advancement within the Palestinian Department of Archeology; political patronage ran rampant throughout the department, but because Hamdan shunned Palestinian political parties he lacked the requisite connections to rise through the department's ranks. Then, about two years after he left the West Bank, the Second Intifada-the violent Palestinian uprising against the occupying Israeli presence-began. Hamdan's family in the West Bank informed him that, as a part of the Israeli reaction to the uprising, their village was completely walled-off; Hamdan's family also recounted that armed Palestinian militant groups roamed the streets at night, and that neither the Israeli government, nor the Palestinian Authority, could control them. As a further attempt to quell the violence, the Israeli government imposed severe restrictions on the employment of Palestinians. As such, "there [are] no jobs for educated people now," as Hamdan explained. Even more, whatever archeologist jobs may exist would be based in Ramullah, a city to which Hamdan would not be able to travel because of the Israeli government's restrictions.

To support his description of life in the West Bank during the Second Intifada, Hamdan submitted to the IJ the U.S. Department of State's 2004 Country Report on Human Rights Practices for Israel and the Occupied Territories. The 2004 Report recounted that the Israeli government responded to the uprising with military force; curfews; travel restrictions; closures of schools, universities, businesses, and places of worship; and the construction of a security barrier over 6,900 acres of privately owned land. The 2004 Country Report also stated that Palestinian militant groups killed, injured, or arbitrarily detained Palestinians suspected of collaborating with Israel; in fact, the report called the torture of suspected collaborators "widespread."

In all, Hamdan claimed that if he were forced to return to the West Bank, he would suffer a substantial economic hardship amounting to persecution because of the employment restrictions the Israeli government placed on Palestinians. He also asserted that he would likely be abducted, injured, or killed by Palestinian militant groups because of their belief that he was politically affiliated with the Israeli government. Hamdan accordingly asked the IJ to grant him either withholding of removal or protection under the CAT.

After Hamdan finished testifying, the IJ denied his requests for relief from removal. The IJ first determined that Hamdan failed to file his asylum petition within the requisite one year of his entry into the United States, and that the application's untimeliness was not excused by either extraordinary or changed circumstances. See id. § 1158(a)(2)(B), (a)(2)(D); Hussain v. Keisler, 505 F.3d 779, 781-82 (7th Cir. 2007). The IJ then declared that, although Hamdan's testimony regarding his experiences while living in the West Bank was entirely credible, he failed to proffer any evidence showing that either the Israeli government or Palestinian Authority persecuted him.

The IJ continued that Hamdan also did not establish that he would likely be persecuted upon his return to the West Bank. As to Hamdan's claim of future persecution at the hands of the Israeli government, the IJ eschewed any discussion of Hamdan's claim of economic persecution; instead, the IJ made the puzzling statement that, although "[t]here is indication, in this case, that the Israeli government would torture" Hamdan, it was "improbable" that the government "would do so in the future." The IJ also stated that Hamdan failed to show that Palestinian militant groups would likely harm him upon his return. In so concluding, the IJ characterized Hamdan's claim not as one based on imputed political opinion, but instead as one based solely on his political neutrality. As the IJ saw it, Hamdan claimed that militant groups would persecute him because he tried to remain neutral between the Palestinian Authority and the Israeli government. But, the IJ ...

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