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Almas Abraham v. Eric H. Holder

June 1, 2011

ALMAS ABRAHAM, PETITIONER,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL OF THE UNITED STATES, RESPONDENT.



On Petition for Review of an Order of the Board of Immigration Appeals. A099 333 747*fn1

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

Case type: agency

SUBMITTED JANUARY 19, 2011

Before POSNER, KANNE and ROVNER, Circuit Judges.

Almas Abraham petitions for review of a decision of the Board of Immigration Appeals ("BIA" or "Board") denying her application for asylum and withholding of removal. Because we lack jurisdiction to review the Board's denial of her application for asylum in the circumstances presented here, we dismiss her petition with respect to asylum. We deny her petition with respect to her application for withholding of removal.

I. Abraham is a native and citizen of Syria. She is also a Christian in a country where the vast majority of citizens are Muslims. Abraham entered the United States on*fn2May 17, 2004, at Chicago, with a K-1 nonimmigrant visa, which is also known as a "fiancee visa." A fiancee visa permits a foreign citizen fiancee of a U.S. citizen to travel to the United States to marry his or her citizen sponsor within ninety days of arrival. See 8 U.S.C. 1101(a)(15)(K)(i). Abraham did not marry her citizen sponsor within ninety days. She also failed to depart from the United States at the end of the ninety-day period. After over-staying her visa for more than a year, she filed an application for asylum on November 5, 2005. Abraham was*fn3 served with a Notice to Appear charging that she was removable from the United States because she had remained longer than was permitted. She conceded that she was removable, and her application for asylum and withholding of removal proceeded to a full hearing before an Immigration Judge ("IJ").

Abraham testified that she came from Tel-Sakra, a small village of approximately fifty households, all of whom are Assyrian Christians. While working on a farm, she met a Muslim man named Mahmood Al-Deri. She began a relationship with Al-Deri that started as a dating relationship but quickly became abusive when she refused Al-Deri's demands that she convert to Islam.*fn4 Al-Deri threatened to expose the relationship to her family unless she converted. Eventually he made good on his threat, and when her family learned she was dating a Muslim man, her father and her eldest brother beat her multiple times and threw her out of the house. After a month of mistreatment, she moved to the capital city of Damascus where she met Ben Dawood, a U.S. citizen originally from Iraq. After knowing Dawood for a week, she became engaged to him and traveled to the United States on a fiancee visa. Once Abraham and Dawood were in the United States, the relationship quickly fell apart. According to Abraham, Dawood refused to carry through with his promise to marry her after his family and friends told him "bad things" about her. Abraham testified that after she broke up with Dawood, she intended to return to Syria because she had no life in the United States. She then received a letter from an uncle in Syria telling her not to return and conveying what she considered to be a thinly veiled threat. According to the uncle, Al-Deri was causing trouble for her family. The uncle warned Abraham not to return to "this tarnished land" because her actions had shamed her entire tribe and because Al-Deri had made demands on the family. R. at 221. After receiving the letter, Abraham became afraid that her father or brother would kill her if she returned to Syria because she had disgraced the family's honor. Such murders of women, inaptly referred to as "honor killings," are well-documented in Syria. See United States Department of State 2009 Human Rights Report: Syria, http://www. state.gov/g/drl/rls/hrrpt/2009/nea/136080.htm (last visited May 10, 2011) (hereafter "Human Rights Report") (noting that various human rights organizations report up to several hundred honor killings each year in Syria, although no official tracking takes place). Several months after receiving this letter from her uncle, Abraham filed her application for asylum.

Abraham's testimony before the IJ was riddled with inconsistencies. She testified, for example, that she lived with her parents until she moved to Damascus, but she also testified that she spent a month living with AlDeri's family after her family forced her to move out and before she moved to Damascus. She said that she began her relationship with Al-Deri in 2002 and that it went on for six or seven months before ending in June 2003. She later testified that the relationship began in 2001 and ended in August 2002. She told the IJ that she moved to Damascus in 2003 and became engaged to Dawood in April 2003, a time line that overlaps with her testimony that she broke off her relationship with Al-Deri in June 2003. She testified that she knew Dawood for only one week before becoming engaged to him and traveling to the United States, but she came to the United States in 2004, approximately one year after she claimed the engagement occurred. She testified that she lived with Dawood's aunt and his first cousin's family in Damascus and that the aunt introduced her to Dawood. But she also said that she lived in a church building that served as a refuge for people from Iraq, and that Dawood's aunt was the only member of his family living in the church. She testified that, except for the letter from her uncle, she had no contact with any members of her family after moving to Damascus, but she also submitted to the IJ a photocopy of a permanent resident card for one of her brothers who was living in the United States. And after telling the IJ she had no contact with her family after leaving for Damascus, she also told the IJ that "of course" her parents knew she was coming to the United States in 2004 because she had to gather all of her documents and papers in order to file the forms to come to the United States. She testified alternately that her family first learned of her relation-ship with Al-Deri in 2002 and in 2003.

She testified consistently that after moving to Damascus, she suffered no more abuse from her family or Al-Deri. She conceded that she never reported any abuse from her family or from Al-Deri to the police because she did not want anyone to know what had happened and because the police do not help in these cases. The Human Rights Report confirms that the police are rarely contacted and are not helpful when a report of domestic violence is lodged.*fn5

When asked what would happen if she returned to Syria, Abraham testified, "Either they would shun me and because I wouldn't have any life to live there, I probably might kill myself." R. at 129. She also testified that she feared harm from her family if she returned to Syria. Abraham also presented testimony from a cousin residing in the United States to corroborate her concern that her family might harm her if she returned to Syria. Her cousin testified that he believed Abraham would be the victim of an honor killing if she returned to Syria. He noted that he had a friend who served only three days in jail for killing his sister after she dishonored the family. The Human Rights Report also confirms that, until very recently, judges were allowed to waive or reduce punishment for perpetrators of honor killings. The law now stipulates a mandatory two-year minimum sentence for anyone convicted in an honor killing, but at the time Abraham left, a family member who killed her was unlikely to face significant legal sanctions. See Human Rights Report.

The IJ found that Abraham's asylum application was not timely filed and that she did not meet any of the exceptions for extending the time to file. The IJ concluded that Abraham did not meet the standards to qualify for withholding of removal or for relief under the Con-vention Against Torture, and therefore denied her application in its entirety. The IJ first noted that Abraham had failed to file her application for asylum within one year of arriving in the United States. Under 8 U.S.C. § 1158(a)(2)(B), a claim for asylum not filed within a year of arrival in the United States will be denied unless it meets one of the exceptions contained in the statute. The IJ rejected Abraham's argument that the letter from her uncle satisfied the only applicable exception for changed circumstances. See 8 U.S.C. § 1158(a)(2)(D) (permitting consideration of a late-filed application for asylum "if the alien demonstrates to the satisfaction of the Attorney General either the existence of changed circumstances which materially affect the applicant's eligibility for asylum or extraordinary circumstances relating to the delay in filing an application within the [one-year] period"). The IJ found that the letter did not meet the materiality requirement of the statute because the letter only repeated a threat to Abraham's safety that existed when she left Syria. Because those same circumstances existed when Abraham first arrived in the United States, the IJ found that she should be held to the one-year limit for filing claims for asylum. The IJ also noted that Abraham provided no information regarding the timing of her breakup with Dawood and thus it was impossible to determine whether she filed within a reasonable time after her nonimmigrant status expired. The IJ therefore denied the application for asylum as untimely.

The IJ then considered whether Abraham was eligible to be considered for withholding of removal. In order to qualify for withholding of removal, an applicant must demonstrate a clear probability that she will suffer persecution on account of race, religion, nationality, member-ship in a particular social group, or political opinion if she returns to her country of origin. See 8 U.S.C. § 1231(b)(3)(A). The IJ found that Abraham failed to demonstrate a "clear probability" that she would be persecuted on her return to Syria because her testimony was not credible, not persuasive, and not detailed enough to meet the standard of proof required. The IJ noted the multiple inconsistencies in Abraham's testimony and found that, absent corroboration, Abraham had not shown that it was more likely than not that she would be persecuted. The IJ also found that Abraham had failed to establish that she had been persecuted in the past on account of one of the protected grounds in the statute. Again finding that Abraham's testimony was not credible, the IJ also noted that the incidents of abuse she described were not severe, caused no injuries and required no medical treatment. Moreover, the IJ found that Abraham's stated intent to return to Syria even though these incidents occurred undermined her claim that she had been persecuted in Syria. The IJ also noted that Abraham was able to live in Damascus for some period of time without any further abuse from either her family or Al-Deri. The IJ therefore concluded that Abraham would not be seriously harmed if she returned to Syria. Finally, the IJ concluded that Abraham had also failed to establish that any abuse she suffered was due to one of the protected grounds in the statute.

Abraham appealed to the BIA. The BIA first agreed with the IJ that Abraham's claim for asylum was statutorily barred because it was untimely. The BIA then considered Abraham's claim for withholding of removal and concluded that she failed to present sufficient corroborating evidence of critical elements of her claim. After noting that Abraham could have obtained corroboration from her brother living in the United States, the people with whom she lived in Damascus, her uncle, or anyone else who knew her in Syria, the BIA adopted and affirmed the IJ's denial of relief. Abraham's appeal was therefore dismissed.

II. On appeal here, Abraham argues that the IJ and the BIA applied an incorrect legal standard to her application for asylum. She also asserts that the BIA's decision is not supported by substantial evidence. Finally, she contends that we should reverse the decision denying her withholding of removal because the IJ and BIA ignored corroborating evidence that ...


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