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Oryakhil v. Mukasey

June 17, 2008


Petitions for Review of Orders of the Board of Immigration Appeals. No. A99-027-098.

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


Before KANNE, SYKES, and TINDER, Circuit Judges.

Ezatulla Oryakhil, a native and citizen of Afghanistan, petitions for review of an order of removal issued by an Immigration Judge (IJ), which became final when the Board of Immigration Appeals (BIA) dismissed his appeal. The IJ credited Oryakhil's testimony that he has been, and will be, targeted by Taliban rebels because of his position in the Afghan military and his affiliation with the United States. However, the IJ also determined that Oryakhil could reasonably relocate within Afghanistan to avoid future harm. As a result, the IJ denied Oryakhil's application for asylum, withholding of removal, and protection under the Convention Against Torture (CAT), and ordered Oryakhil removed to Afghanistan. Oryakhil also petitions for review of a final order of the BIA, denying his motion to reopen the IJ's decision based on material evidence that was previously unavailable. Because substantial evidence does not support the IJ's determination that Oryakhil could reasonably relocate to avoid future harm, we grant Oryakhil's petition for review of the final order of removal. Oryakhil's petition for review of the order denying his motion to reopen is therefore moot.


Oryakhil attempted to enter the United States at Chicago O'Hare International Airport in September 2006. Oryakhil presented the immigration officer with a valid Afghan passport and an A-2 non-immigrant visa, see 8 C.F.R. § 214.1(a)(2), which had been revoked. The immigration officer denied Oryakhil entry to the United States, and Oryakhil was taken to a correctional facility in Illinois. The Department of Homeland Security commenced removal proceedings against Oryakhil one week later. Oryakhil responded by conceding removability and filing an application for asylum and withholding of removal, as well as for CAT protection, in October 2006.

The IJ elicited testimony at immigration hearings conducted on December 5 and December 6, 2006. Oryakhil's asylum application, affidavits, and testimony all revealed that Oryakhil began training for a career in the Afghan military in 1986, at the age of thirteen. After attending the Afghanistan Military College and the Afghanistan Military University, Oryakhil began his military service in 1993 as Lieutenant and Company Commander in the North Afghanistan Army. Oryakhil served in this role until 1994; the two-year span was the only time he served in a combat role. In 1995, Oryakhil transferred to serve as Chief of Topography for the Kabul Intelligence Unit. When the Taliban seized power in 1996, Oryakhil was released from his military duties, but until 1997, Oryakhil collected a pension that the Taliban provided to all soldiers it dismissed from duty. After he left official military service, Oryakhil secretly sent intelligence reports to the forces in Northern Afghanistan that were resisting the Taliban.

When the United States and NATO toppled the Taliban regime in 2001, Oryakhil returned to his post in the Kabul Intelligence Unit, which was under the control of the new Karzai government. Upon resuming his military duties, Oryakhil attended the General Staff College, a military educational institution supported by NATO and the United States, which sought to implement new policies and procedures for the military of the new Afghan regime. Oryakhil completed the required courses at the General Staff College in four months and attained the second-highest grade-point-average at the College. Because of his outstanding achievement, the Afghan military asked Oryakhil to remain at the College as a teacher. Beginning in May 2003, Oryakhil taught English and computer skills at the General Staff College. Oryakhil did not live in military barracks while teaching at the college; he lived at his parents' home and commuted to and from work each day.

In 2005, American and NATO officers affiliated with the General Staff College invited Oryakhil to take advanced English courses at the Defense Language Institute ("DLI"), a United States government training program located at Lackland Air Force Base in San Antonio, Texas. Oryakhil accepted the invitation, and in February 2006, Oryakhil traveled to the United States on an A-2 non-immigrant visa paid for by the United States. Oryakhil studied English at DLI for approximately six months, but he could not pass the tests required to continue his training at DLI. As a result, Oryakhil's visa was revoked. Oryakhil received a certificate of attendance from DLI, and went back to his family's home in Kabul on September 4, 2006.

Within days of his arrival in Afghanistan, Oryakhil attended a large family wedding. A day or two later, Oryakhil visited a cousin's house in another neighborhood of Kabul. At this point, news of Oryakhil's return had spread. While Oryakhil was at his cousin's house, four Taliban insurgents wearing black turbans and armed with rifles visited his parents' home in the middle of the night, and demanded to know Oryakhil's whereabouts and why the family had sent Oryakhil to the United States. Oryakhil's father immediately called Oryakhil at his cousin's house to warn him that he and his family were in danger. Oryakhil had heard many stories of other "dis-loyal" individuals that disappeared at the hands of armed Taliban militiamen who entered their homes at night. He decided that he was no longer safe in Kabul- which he believed to be the safest city in Afghanistan-and decided to return to the United States.

The next day, Oryakhil purchased an airline ticket back to the United States, but was told by the airline that the next flight would not leave for almost two weeks. About a week later, on September 14, 2006, Oryakhil met with his commanding general at the General Staff College to check in for the first time since his return to Afghanistan. Oryakhil did not tell the officer that he believed that he was in danger or that he intended to flee Afghanistan. The officer told Oryakhil to report for duty two days later, but Oryakhil failed to report as instructed, though Oryakhil realized that his failure to report could result in a twelve-year prison sentence for desertion. Instead, Oryakhil made one final stop at his parents' home during daylight hours to collect his belongings, and left Afghanistan on September 19, 2006. Oryakhil attempted to re-enter the United States when he was detained at O'Hare.

Oryakhil testified at his immigration hearing that he neglected to tell his commanding officer about the threats against his life by the Taliban because the General Staff College did not have sufficient soldiers to protect the school, and because military barracks no longer existed outside of Kabul-in Oryakhil's view, asking the officer for protection would have been futile. Oryakhil also testified that he did not carry a gun in his post as a teacher at the General Staff College, and that he feared that if he sought assistance from the military, it would further draw the Taliban's attention to Oryakhil's allegiance with the United States and would place his family in jeopardy. Oryakhil stated that if he returns to Afghanistan, he will likely be prosecuted for desertion because he failed to report for duty on September 16, 2006.

Oryakhil also presented corroborative testimony from Ann Carlin, an expert witness, who discussed the country conditions in Afghanistan. Carlin testified that since 2004, the Taliban insurgency has been bolstered by external financing, and that their attacks have augmented fourfold to an average of about 600 per month. Carlin stated that the Afghan police force is too weak and ineffective to successfully quell the attacks; in fact, Carlin stated that the police could "barely protect President Karzai" from attack. Carlin elaborated that in addition to targeting Americans, persons affiliated with America, and Afghan army personnel, the Taliban has made many threats against school teachers and health workers because they see them as "easy targets." Carlin also explained that the Taliban often carries out attacks against these targets while they commute to and from work in the evening, or at night while the targets sleep. In an affidavit provided to the immigration court, Carlin noted that if Oryakhil lived alone outside of his family home, he might be at risk because he would be viewed suspiciously given that Afghans live with their immediate and extended families.

Along with the hearing testimony of Oryakhil and Carlin, the IJ had before her an extensive record that contained, among other things: affidavits from Oryakhil and Carlin, Oryakhil's asylum application, Oryakhil's certificate from DLI, State Department travel advisories and reports on country conditions in Afghanistan, a United Nations report on Afghanistan, and over two dozen ...

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