Hana v. Gonzales

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 05a0963n.06
Filed: December 14, 2005

No. 04-4005

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

SABRI AZIZ HANA, )
)
Petitioner, )
)
v. ) PETITION FOR REVIEW FROM THE
) BOARD OF IMMIGRATION APPEALS
ALBERTO GONZALES, Attorney General, )
)
Respondent. )

Before: SILER, CLAY, and ROGERS, Circuit Judges.
ROGERS, Circuit Judge. Petitioner Sabri Aziz Hana1 petitions this court to review the

decision of the Board of Immigration Appeals, which, without opinion, affirmed the Immigration

Judge’s denial of Hana’s application for asylum, withholding of removal under the Immigration and

Nationality Act, and protection under the Convention Against Torture. After a hearing to consider

the government’s removal proceedings against Hana for remaining in the United States longer than

authorized, the Immigration Judge determined that Hana’s story of political persecution in Iraq was

not credible because of several material inconsistencies. The Immigration Judge also determined

that, even if Hana’s testimony were credible to establish past persecution, the government submitted

sufficient evidence of changed circumstances in Iraq to overcome the presumption that Hana’s fear

of future persecution was well-founded. The Immigration Judge ended her opinion by deciding that

1
Petitioner’s name is sometimes spelled “Hanna” in the record.
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Hana v. Gonzales

Hana’s alleged torture did not warrant asylum despite changed circumstances.

Because substantial, unrebutted evidence supports the Immigration Judge’s finding that

changed circumstances in Iraq overcome the presumption that Hana has a well-founded fear of

future persecution, we deny Hana’s petition for review without considering the Immigration Judge’s

credibility findings. We also conclude that substantial evidence supports the Immigration Judge’s

decision not to grant asylum based on severe past persecution. Because Hana failed to raise his

religious persecution argument before the Immigration Judge and failed to proffer any evidence of

such persecution to the Board or this court on review, we do not consider Hana’s religious

persecution claim.

I.

The Immigration and Naturalization Service2 initiated removal proceedings, under Section

237(a)(1)(B) of the Immigration and Nationality Act (“Act”), in the United States Immigration Court

in Detroit against Hana for remaining in the United States longer than permitted. JA 51. At a

hearing before the Immigration Judge, Hana admitted that he was a citizen and native of Iraq; that

2
Although the former Immigration and Naturalization Service (“INS”) was an agency of
the Department of Justice, the INS’ functions were divided into three agencies within the
Department of Homeland Security on March 1, 2003. See Homeland Security Act of 2002, Pub.
L. No. 107-296, 116 Stat. 2135 (2002). The Attorney General continues, however, to direct the
Executive Office for Immigration Review, which includes the immigration courts and the Board
of Immigration Appeals. See Department of Justice Rules and Regulations Regarding Aliens
and Nationality, 68 Fed. Reg. 10349 (Mar. 5, 2003) (codified as amended in scattered sections of
8 C.F.R.).

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he received permission on December 21, 2000, to remain in the United States until June 20, 2001;

and that he remained in the United States beyond June 20, 2001. JA 52. Hana submitted a timely

application for asylum under section 208(a) of the Act, for Withholding of Removal under section

241(b)(3) of the Act, and for consideration under Article 3 of the United Nations Convention

Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984,

1465 U.N.T.S. 85 (“Convention”). JA 52-53.

In his initial application, Hana alleged that he “suf[f]ered by the hands of [the] Iraqi

[government] on the basis of [his] family affiliation with the Kurdish who live in the north of Iraq.”

JA 179. He claimed that he was arrested in 1979 because the Iraqi government accused him of

assisting the Kurdish movement. JA 179. Hana alleged that his main problem occurred in 1997

when the Iraqi government discovered that Hana’s son-in-law, Kamal Hana, was employed with the

American Forces in Kurdistan from 1990 until the American forces left in 1996. JA 179. Hana

claimed that he was arrested for two-month periods once in 1997 and once in 1999 because the

Iraqis accused him of assisting and spying for the American forces. JA 180.

When an asylum officer later interviewed Hana, Hana alleged for the first time that he was

sentenced to one year’s imprisonment for treason in 1979 and that, during his imprisonments in

February 1997 and April 1999, security agents beat him with sticks and cables every other day,

resulting in the loss of his front teeth. JA 186. He claimed that he was released only after pledging

to join the Ba’ath Party but that he was “constantly followed by Amen agents and Ba’ath Party

members.” JA 186. Hana stated that he feared being tortured upon his return to Iraq because of his

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assistance to the American troops and because of his habitation in the United States. JA 181.

At a hearing in February 2003, Hana amended his application to add several assertions. JA

84-86. Relevant to our review, he claimed that he was an Assyrian Christian, but he did not assert

that he was persecuted for his religious affiliation. JA 169. Hana submitted several articles and

reports describing human rights abuses committed by Saddam Hussein’s regime in Iraq. See JA

189-90. The government submitted documents describing the United States’ recent liberation of

Iraq from the Hussein dictatorship. JA 146-61.

Besides recalling several events that were mentioned in his application, Hana said that the

Moslems confiscated his lands in Iraq after “the last bombarding,” JA 101, which he later said

referred to the 2003 invasion of coalition forces, JA 114. When his counsel asked Hana if he was

afraid of returning to Iraq, Hana stated that he had no house, money, or farm to which to return. JA

104. On cross-examination, the government asked Hana whether he was afraid of the security forces

upon his return to Iraq, and Hana responded, “[T]hey don’t exist, I’m not afraid of them, but if I go

back there is no food, . . . no jobs.” JA 116.

The Immigration Judge denied Hana’s application in all respects on May 8, 2003, because

she found material aspects of Hana’s testimony incredible and because the government offered

uncontested evidence that coalition forces overthrew Saddam Hussein’s regime in 2003. JA 64, 144.

The overthrow of Hussein, she determined, demonstrated that Hana had no objective, well-founded

fear of future persecution in Iraq. JA 68. She also stated that, while Iraq may be experiencing civil

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unrest, such generalized unrest is an insufficient ground on which to base asylum. JA 69. She ended

her opinion by noting that Hana’s alleged torture was insufficient for a grant of asylum despite

changed circumstances. JA 72.

Hana appealed the Immigration Judge’s decision to the Board of Immigration Appeals, and,

for the first time, he asserted that he feared persecution based on his religious status as an Assyrian

Christian. See, e.g., JA 11-12. Hana requested that the Board remand his claim to the Immigration

Judge for her to consider his religious persecution claim, JA 39-42, but he proffered no evidence to

support his new claim. Hana also challenged the Immigration Judge’s credibility findings and denial

of his application. See JA 7. The Board affirmed without opinion. JA 3. Hana now petitions this

court to review the Board’s decision.

We deny Hana’s petition for review of the Immigration Judge’s decision, which was the final

agency determination in this case,3 because there was substantial evidence to support the

Immigration Judge’s decision regarding changed circumstances in Iraq. We also conclude that

Hana’s alleged brutal treatment, even if true, was not so severe as to warrant asylum despite changed

circumstances in Iraq. Finally, we do not consider whether Hana faces religious persecution on his

return to Iraq because he neither raised the issue with the Immigration Judge nor proffered any

evidence to the Board or this court to support his claim.

3
When the Board affirms without opinion, this court reviews the Immigration Judge’s
decision as the final agency determination. See Yu v. Ashcroft, 364 F.3d 700, 702 (6th Cir.
2004).

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II.

When reviewing denials of asylum, this court determines “whether the alien qualifies as a

refugee under a substantial evidence test.” Yu v. Ashcroft, 364 F.3d 700, 702 (6th Cir. 2004); see

also Allabani v. Gonzales, 402 F.3d 668, 674 (6th Cir. 2005) (applying the substantial evidence test

to findings of both past and future persecution). The Immigration Judge’s factual findings are

“conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.”

8 U.S.C. § 1252(b)(4)(B); see also Yu, 364 F.3d at 703. We cannot reverse the Immigration Judge

merely because “we would have decided the matter differently.” See Mikhailevitch v. I.N.S., 146

F.3d 384, 388 (6th Cir. 1998).

Because substantial evidence supports the Immigration Judge’s findings that conditions have

changed in Iraq to such an extent that Hana’s fear of future persecution is unfounded, this court need

not consider whether substantial evidence supports the Immigration Judge’s credibility findings.

“A well-found fear of persecution . . . has both a subjective and an objective component . . . .”

Pilica v. Ashcroft, 388 F.3d 941, 950 (6th Cir. 2004). Substantial evidence supports the Immigration

Judge’s finding that Hana had no objective fear of future persecution. The documents submitted by

the government, see JA 146-62, established that “the regime which [Hana] asserts that he was

persecuted by no longer exists in Iraq.” JA 68. For example, the government submitted a speech

by the President, given in Dearborn, Michigan, stating that Saddam Hussein was no longer in power

and that the coalition forces were creating a democratic state in Iraq. See JA 146-50. Other

submitted documents described the interim government in Iraq and the goal of creating a free state

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for all people in Iraq. See, e.g., JA 152-55. Because the only evidence that Hana submitted of the

abusive conditions in Iraq concerned abuses before the coalition forces entered Iraq in 2002, JA 189-

90 and Hearing Exhibit 8, the government’s evidence of changed circumstances after March 2003

was unchallenged. Substantial evidence, therefore, supported the Immigration Judge’s conclusion

that Hana could not demonstrate an objective fear of future persecution.

Substantial evidence not only supports the Immigration Judge’s finding that Hana lacks an

objective fear but also supports finding that Hana had no subjective fear of future persecution in

Iraq. When asked whether he feared the security forces that allegedly tortured him, Hana plainly

admitted, “I’m not afraid of them” because “they don’t exist . . . .” JA 116. Instead, Hana revealed

that he feared returning because of economic hardship. See JA 104, 116. Considering the evidence

submitted by the government and Hana’s testimony, substantial evidence supports the Immigration

Judge’s findings that changed circumstances prevented Hana from demonstrating a well-founded

fear of future persecution.4

4
Hana’s claims for withholding of removal and for protection under the Convention also
fail because, as he failed to meet the less demanding “well-founded fear” standard required for
asylum, he cannot satisfy the more demanding standards regarding prospective persecution
required for withholding of removal and protection under the Convention. See Yu, 634 F.3d at
703 n.3. Moreover, Hana’s argument that the alien’s credibility is irrelevant to claims brought
under the Convention is misplaced because the Immigration Judge did not rely on Hana’s
credibility when determining that he could not obtain relief under the Convention. The
Immigration Judge denied Hana’s Convention claim because of changed circumstances. See JA
73.
We also deny Hana’s request for remand of his case to the Board for consideration of
whether circumstances have changed in Iraq since the time of the Immigration Judge’s decision;
Hana has failed to proffer any evidence of such changed circumstances.

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III.

Hana’s persecution, if believed, was not so severe as to warrant asylum despite Iraq’s

changed circumstances. An alien can receive asylum, despite changed circumstances, if he can

provide “compelling reasons for being unwilling or unable to return to the country arising out of the

severity of the past persecution.” 8 C.F.R. § 208.13(b)(1)(iii)(A). Hana’s alleged persecution was

not as severe as that in Matter of Chen, in which the alien was constantly subjected to various forms

of serious physical and psychological torture for several years. See 20 I & N Dec. 16, at *21 (BIA

1989). Hana was, at most, subjected to three detentions, none of which lasted longer than two

months. He alleged no psychological torture, and he had only missing teeth and bruises on his return

from his imprisonment. JA 126-27. While such abuse, if true, is reprehensible,“severe persecution”

is reserved for extreme cases, such as “for the case of the German Jews, the victims of the Chinese

‘Cultural Revolution’, [and] survivors of the Cambodian genocide . . . . .” See Bucur v. I.N.S., 109

F.3d 399, 405 (7th Cir. 1997) (citations omitted). Hana has not alleged persecution that severe.

IV.

We do not consider Hana’s religious persecution claim because Hana did not present this

claim to the Immigration Judge at the hearing and because he has proffered no evidence of such

persecution during his requests for review. 8 U.S.C. § 1252(d)(1) deprives federal courts of

jurisdiction to review immigration decision when aliens do not exhaust administrative remedies.

Although Hana stated in his application that he was a Chaldean Catholic Christian, he did not allege

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that he was persecuted because of his religious affiliation, either in his applications or at the hearing

before the Immigration Judge. It is, consequently, misleading for him to claim that the Immigration

Judge “erred in her decision by not addressing this separate and distinct form of relief . . . .”

Petitioner’s Br. 27. Hana missed, but was not denied, his opportunity to present his religious

persecution claim, and he, therefore, failed to exhaust his administrative remedies.

Moreover, even if Hana had exhausted his administrative remedies by raising his religious

persecution claim on appeal to the Board, Hana has not proffered any evidence to support his

religious persecution claim. Although Hana cites one book, Indigenous People by Fred Afrim

(Harper’s 2003), that describes the general plight of Assyrian Christians in the Middle East, he

offers no evidence that he was persecuted or has a reasonable fear of persecution by the current Iraqi

government based on his religious affiliation. Hana’s brief alleges myriad facts about the treatment

of Assyrian Christians throughout history, but the unsupported assertions of Hana’s counsel are not

evidence. See Carrillo-Gonzalez v. I.N.S., 353 F.3d 1077, 1079 (9th Cir. 2003). Because Hana

failed to present his religious persecution claim to the Immigration Judge and failed to proffer any

evidence to support his claim, we do not consider it.

V.

For the foregoing reasons, we DENY Hana’s petition for review.

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