In the
United States Court of Appeals
For the Seventh Circuit
No. 10-2899
S AAD S ARHAN and SARA ISSA M OHAMAD D ISI,
Petitioners,
v.
E RIC H. H OLDER, JR., Attorney General
of the United States,
Respondent.
Petitions for Review from an Order
of the Board of Immigration Appeals.
Nos. A 076 766 381, A 076 766 390
A RGUED A PRIL 13, 2011—D ECIDED S EPTEMBER 2, 2011
Before P OSNER, W OOD , and T INDER, Circuit Judges.
W OOD , Circuit Judge. This petition presents the
question whether a woman who will fall victim to an
“honor killing” at the hands of a family member is
entitled to relief either under the Convention Against
Torture (CAT) or under the procedure known as “with-
holding of removal.” For the latter, she must prove
2 No. 10-2899
that she is a member of a “particular social group”
within the meaning of the Immigration and Nationality
Act (INA), 8 U.S.C. § 1231(b)(3). We hold that she
has successfully established that she is. In addition,
for purposes of both the CAT and withholding, we find
that the decision of the Board of Immigration Appeals
(the Board) finding that she has not shown a clear proba-
bility that she will be killed on account of her member-
ship in that social group if she is returned to Jordan is
not supported by substantial evidence. The Board failed
to consider significant evidence that she presented that
supports a finding that the Jordanian government is
currently unable or unwilling to protect her. The relief
requested by her husband, who is the other petitioner,
is an issue that the Board of Immigration Appeals
must reconsider in the first instance. We grant the peti-
tions for review and remand to the Board for further
proceedings consistent with this opinion.
I
Saad and Sara Sarhan, a married couple who are
citizens of Jordan, received visitor visas and came to the
United States with their two children in the 1990s. (Sara
also goes by Sara Issa Mohamad Disi; we refer to her as
Disi in the interest of keeping the parties straight.) Shortly
after they arrived, Disi gave birth to a third child. The
Sarhans’ new daughter had kidney problems, and so
the family stayed in the United States beyond the ex-
piration of the parents’ visas to ensure that the child
received the care she needed. They settled in Chicago, and
eventually the couple had two more children.
No. 10-2899 3
Nuha Sarhan is Sarhan and Disi’s sister-in-law (she
is married to Sarhan’s brother). There is a history of
animosity between Nuha and her in-laws. Disi is con-
vinced that it was Nuha who triggered the current pro-
ceedings by revealing to the immigration officials that
Disi and Sarhan were in the United States illegally.
Before Nuha did that, however, she started a rumor
that Disi had committed adultery. Nuha told this story
to her mother, who took the news to Amman, Jordan,
and there informed Disi’s family—including Disi’s
brother, Besem Disi—that Disi had been unfaithful and
had dishonored the family. Disi first heard about these
false accusations in 2003, when Sarhan’s parents visited
the United States and told her that these rumors were
swirling in Jordan. Neither Sarhan nor the rest of his
family believe that anything Nuha has said is true,
but Disi’s brother Besem is convinced that Disi has com-
mitted adultery and has ruined the family’s reputation.
Sarhan’s parents told Disi during their visit that
Besem planned to kill her when she returned to Jordan
in order to restore the family’s honor.
“Honor killings” (an oxymoron if we ever heard one)
happen “when a family feels that their female relative
has tarnished their reputation by what they loosely
term ‘immoral behavior.’ The person chosen by the
family to carry out the murder (usually male: a
brother, father, cousin, paternal uncle or husband)
brutally ends their female relative’s life to cleanse the
family of the ‘shame’ she brought upon them.”
R ANA H USSEINI, M URDER IN THE N AME OF H ONOUR xi
(2009). See generally Islamic ‘Honor’ Killings in Jordan,
4 No. 10-2899
http://www.youtube.com/watch?v=iVRvQtGTv-s (CNN re-
port available on YouTube). Such killings are com-
monplace around the world and typically happen in
countries where the moral code tightly restricts the be-
havior of women; government offers little protection
for the victims; and killers receive light punishment,
if charges are not dropped altogether.
Besem has long been obsessed with family honor, as
defined by religious and social norms in Jordan, and
he cannot be deterred from murdering his sister in re-
sponse to the rumors Nuha started. Besem’s persistence
is perplexing given the evidence that Nuha has manu-
factured scandals similar to this one in the past.
Before sullying Disi’s name, Nuha once accused
Sarhan’s mother (her own mother-in-law) of infidelity;
this slur caused Sarhan’s father to attempt an
honor killing against his wife. Thankfully, Sarhan and
his brothers intervened to save their mother’s life, and
the family later discovered that Nuha had made the
whole thing up. Nonetheless, Besem is resolute, because
he apparently believes that the rumors alone have
harmed his reputation in the community enough to
warrant killing Disi—the truth no longer matters. In
2006, Besem visited Disi in Chicago and told her that
he planned to murder her when she returned to Jordan.
In the proceedings in the Immigration Court, Disi
testified that Besem said, “[W]hen you come back to
Jordan, I’m going to kill you. Here [in the United States],
I can’t do, because there is a penalty for this, but in Jordan,
nobody can do for another killing.” Sarhan and his father
have corroborated the sincerity of Besem’s threat.
No. 10-2899 5
The Sarhans appeared in Immigration Court on
January 17, 2006, and conceded that they were re-
movable because they had overstayed their visas.
They filed applications for asylum and withholding of
removal and requested relief under the CAT based
on Besem’s death threat. (More formally, the CAT
is the United Nations Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or
Punishment, New York, December 10, 1984. See
http://untreaty.un.org/cod/avl/ha/catcidtp/catcidtp.html.
By virtue of Pub. L. No. 105-277, 112 Stat. 2681-821, it is
part of U.S. law.) Sarhan and the Sarhans’ two children
who are not U.S. citizens are listed as beneficiaries on Disi’s
application. After hearing testimony that included the
details we have just recounted, Immigration Judge Zerbe
(the IJ) denied all relief (except for voluntary departure,
which is not relevant here) and ordered the Sarhans
removed to Jordan. The IJ denied the Sarhans’ application
for asylum as untimely because it had been filed more than
a year after they arrived in the United States. In the IJ’s
view, they had not shown changed circumstances or
any other acceptable reason for the delay. See 8 U.S.C.
§ 1158(a)(2)(B) & (D). With respect to withholding of
removal, the IJ denied relief for a number of reasons: while
Judge Zerbe found that the petitioners had testified
credibly about Besem’s plans to kill Disi, he concluded
that this was not enough to demonstrate that Besem
posed a continuing threat to Disi; he also ruled that
Disi was not a member of a particular social group and
that, even if she was, she had not shown that Besem
intended to kill her on account of her membership in
6 No. 10-2899
that group. After reviewing evidence about honor
killings in Jordan, the IJ drew the conclusion that
Jordan would protect Disi even if Besem did pose a
threat. Finally, if all other reasons to deny relief failed,
the IJ added that he saw no reason that Disi could not
relocate to avoid the threat once she arrived in Jordan.
The IJ denied relief under the CAT for similar reasons.
The Board affirmed in a two-page opinion, and the
Sarhans filed these petitions.
II
The Sarhans have focused on the Board’s denial of
withholding of removal in their petitions for review.
As they recognize, we lack jurisdiction to review
its conclusion that their application for asylum was
untimely and not excused by extraordinary circum-
stances. Restrepo v. Holder, 610 F.3d 962, 964 (7th Cir.
2010). Although they have not made any points
particular to the CAT in the brief before this court, the
Board ruled on the merits of the CAT claim, and the gov-
ernment has conceded that both the withholding claim
and the CAT claim are before this court. Brief for
United States at 10 n.4. Our discussion below applies for
the most part to both theories, but they differ in some
important respects, as we note.
Before proceeding, it is helpful to clarify what decision
we are reviewing and what standards apply. The parties
dispute whether we should review the Board’s opinion
alone or the IJ’s decision as supplemented by the Board.
No. 10-2899 7
The government argues for the latter approach, and we
agree with its position. The Board did not supply an
opinion independent of the IJ’s decision in this case, e.g.,
Liu v. Ashcroft, 380 F.3d 307, 311 (7th Cir. 2004); nor did
it expressly adopt the IJ’s analysis in its entirety, e.g., Pop
v. INS, 270 F.3d 527, 529 (7th Cir. 2001). Instead, the
Board agreed with the IJ and supplemented his opinion
with additional observations of its own. When this hap-
pens, we review the IJ’s decision wherever the Board
has not supplanted it with its own rationale; where the
Board has spoken, we review its opinion. Mema v. Gonzales,
474 F.3d 412, 416 (7th Cir. 2007). The agency’s factual
findings related to the petitioners’ claims must be sup-
ported by substantial evidence. Feto v. Gonzales, 433
F.3d 907, 910-11 (7th Cir. 2006). We review its legal con-
clusions de novo, Ahmed v. Ashcroft, 348 F.3d 611,
615 (7th Cir. 2003). Finally, our review is constrained by
the agency’s reasoning: we may uphold its conclu-
sion only on a basis that was articulated by the agency
itself. Moab v. Gonzales, 500 F.3d 656, 659 (7th Cir. 2007).
III
A
Withholding of removal is mandatory under the INA
if an applicant establishes that it is more likely than
not that she would be persecuted in the country of
removal “because of [her] race, religion, nationality,
membership in a particular social group, or political
opinion.” 8 U.S.C. § 1231(b)(3); see also Benitez Ramos v.
8 No. 10-2899
Holder, 589 F.3d 426, 430-31 (7th Cir. 2009). The require-
ments for obtaining relief under the CAT are also
stringent, but they differ in some respects from those
for withholding. “To obtain protection under CAT, one
must show that ‘it is more likely than not that one would
be tortured if removed to the proposed country of re-
moval.’ ” Toure v. Holder, 624 F.3d 422, 429 (7th Cir. 2010)
(quoting from Rashiah v. Ashcroft, 388 F.3d 1126, 1131
(7th Cir. 2004)). “Torture” for these purposes is defined as:
any act by which severe pain or suffering, whether
physical or mental, is intentionally inflicted on a
person for such purposes as obtaining from him or
her or a third person information or a confession,
punishing him or her for an act he or she or a third
person has committed or is suspected of having com-
mitted, or intimidating or coercing him or her or a
third person, or for any reason based on discrimina-
tion of any kind, when such pain or suffering is in-
flicted by or at the instigation of or with the consent
or acquiescence of a public official or other person
acting in an official capacity.
8 C.F.R. § 208.18. Unlike the remedy of withholding of
removal, relief under the CAT is not conditioned on
proof that the alien has been persecuted because of one
of the five grounds listed in the INA. On the other hand,
the need to prove “torture,” as so defined, sets a high
bar for relief. Relief under both the CAT and the with-
holding provisions requires the applicant to prove that
it is “more likely than not” that the adverse consequences
will occur if she is returned to the country in question.
No. 10-2899 9
Focusing first on withholding of removal, the IJ rejected
Disi’s argument that she was a member of a social group
for purposes of the statute. The Board agreed with the
IJ. Defended by the government, the Board described
Disi’s social group as Muslim women falsely accused of
adultery. This is not accurate. As the petitioners point
out in their briefs, the truth or falsity of the accusations
against the woman who is targeted for an honor killing
makes no difference. Nor need a woman’s transgression
rise to the level of adultery as the term is understood in
the United States. See B LACK’S L AW D ICTIONARY (9th
ed. 2009) (defining adultery as “[v]oluntary sexual inter-
course between a married person and someone other
than the person’s spouse”). In Jordan, cause for an
honor killing may arise where a woman commits such
a “sin” as going for a walk with a man who is not her
husband or relative. The social group that Disi and
Sarhan propose includes all Jordanian women who, in
accordance with social and religious norms in Jordan,
are accused of being immoral criminals and, as a conse-
quence, face the prospect of being killed without any
protection from the Jordanian government.
We have acknowledged that the terms “race, religion,
nationality,” “particular social group,” and “political
opinion” are not necessarily self-defining and, conse-
quently, that the Board’s understanding of them is
entitled to Chevron deference. Chen v. Holder, 607 F.3d
511, 512 (7th Cir. 2010); 18 U.S.C. § 1231(b)(3); see also
Chevron U.S.A. v. Natural Res. Def. Council, 467 U.S. 837
(1984). Only official pronouncements of the Board
are entitled to this treatment, however. If the Board
10 No. 10-2899
has spoken through a non-precedential decision that
does not rely on binding Board precedent, its interpreta-
tion is not one that receives Chevron deference. Arobelidze
v. Holder, 2011 WL 3132459 at *6 (7th Cir. July 27, 2011)
(en banc). In addition, Chevron does not apply to
factual findings; they are reviewed instead under the
“substantial evidence” standard. Vahora v. Holder, 626
F.3d 907, 910 (7th Cir. 2010). Under the “substantial
evidence” standard, we will uphold the Board’s deter-
mination only if it is “supported by reasonable, substan-
tial, and probative evidence on the record considered as
a whole.” Id., quoting Raghunathan v. Holder, 604 F.3d
371, 376 (7th Cir. 2010). We may overturn the Board’s
decision “only if the record compels a contrary result.”
Brucaj v. Ashcroft, 381 F.3d 602, 606 (7th Cir. 2004).
The Act does not define “particular social group,” “but
the Board has defined it as a group whose members
share ‘common characteristics that members of the
group either cannot change, or should not be required
to change because such characteristics are fundamental
to their individual identities.’ ” Gatimi v. Holder, 578
F.3d 611, 614 (7th Cir. 2009) (Gatimi I) (quoting In re
Kasinga, 21 I. & N. Dec. 357, 365-66 (BIA 1996), and citing
In re Acosta, 19 I. & N. Dec. 211, 233-34 (BIA 1985)).
The Board has suggested that a key characteristic of
a “particular social group” is its social visibility. E.g.,
In re S-E-G-, 24 I. & N. Dec. 579, 582-86 (BIA 2008). In
this case, the Board relied on social visibility to decide
against Disi’s proposed group. This court decided in
Gatimi I, however (after the IJ ruled) that the social visi-
bility criterion “makes no sense,” and we rejected it as
No. 10-2899 11
inconsistent with the Board’s and our own past cases.
578 F.3d at 615-16. “Women who have not yet under-
gone female genital mutilation in tribes that practice it,”
we wrote, “do not look different from anyone else.” Id.
at 615. So, too, when it comes to women whose behavior
leads them to be threatened with honor killings: except
at the moment when they are talking to a strange man,
or expressing affection in an “impermissible” way, they
are indistinguishable from all other women before
they are murdered by their families.
The Board also reasoned that the members of Disi’s
proposed group have nothing in common except “a
shared experience with other members of Jordanian
society who have been targeted for honor killings.” This
conclusion is based on a misapplication of the Board’s
legal standard to the facts before it. We realize that the
agency “has a legitimate interest in resisting efforts to
classify people who are targets of persecution as
members of a particular social group when they have
little or nothing in common beyond being targets.”
Gatimi I, 578 F.3d at 616. That is why people who are
persecuted solely because they have cooperated with
police or people who are debtors to the same creditor are
not considered to be part of a defined social group. Id.
(referring to Scatambuli v. Holder, 558 F.3d 53 (1st Cir.
2009), Castillo-Arias v. U.S. Att’y Gen., 446 F.3d 1190 (11th
Cir. 2006), and Cruz-Funez v. Gonzales, 406 F.3d 1187, 1191-
92 (10th Cir. 2005)). The social group in this case, how-
ever, does not suffer from that flaw. It is a function of
a pre-existing moral code in Jordanian society, just as
the dress code for “modest” women that helped to
12 No. 10-2899
define a social group in Yadegar-Sargis v. INS, 297 F.3d
596 (7th Cir. 2002). Social stigma causes the violence.
Society as a whole brands women who flout its norms
as outcasts, and it delegates to family members the task
of meting out the appropriate punishment—in this
case, death. The Board’s factual finding to the contrary
is not supported by substantial evidence. (To the extent
that this Board decision may have added to the Board’s
existing standards, we note that it is not entitled to
Chevron deference because it is a non-precedential opin-
ion. 8 CFR § 1003.1(g) (2011); BIA, Practice Manual,
1.4(d), 4.6(d) (2004). Arobelidze, 2011 WL 3132459 at *6.)
Disi’s proposed social group is consistent with others
we have found in analogous circumstances. Sepulveda v.
Gonzales, 464 F.3d 770, 771-72 (7th Cir. 2006), holds that
former subordinates of the attorney general of Colombia
who had information about insurgents plaguing that
nation are members of a social group. That opinion
also contains a useful list of other qualifying examples,
including “the educated, landowning class of cattle
farmers targeted by Colombian rebels; . . . parents of
Burmese student dissidents; and children who escaped
after being enslaved from Ugandan guerillas who had
enslaved them.” Id. (citations omitted). Gatimi I
recognized as a social group the former members of a
violent criminal faction in Kenya called the Mungiki,
578 F.3d at 615; and Benitez Ramos concluded that former
gang members who face persecution after quitting are
members of a particular social group, 589 F.3d at 429-
30. Women facing honor killings in Jordan are no less
cohesive than these groups and no more able to
No. 10-2899 13
shed the stigmatizing characteristics that render them
victims. Consider how similar women in Disi’s position
are to the social groups recognized in Agbor v. Gonzales,
487 F.3d 499, 502 (7th Cir. 2007) (women who fear they
will be victims of female genital mutilation), In re
Kasinga, 21 I. & N. Dec. 357 (BIA 1996) (same), Yadegar-
Sargis, 297 F.3d at 603 (Christian women in Iran who
do not wish to adhere to the Islamic female dress code),
Lin v. Ashcroft, 385 F.3d 748, 752 (7th Cir. 2004) (Chinese
women who face forced sterilization), and Bi Xia Qu
v. Holder, 618 F.3d 602, 607-08 (6th Cir. 2010) (women
who are sold or forced into marriage and involuntary
servitude). We conclude that Disi is a member of the
particular social group of women in Jordan who have
(allegedly) flouted repressive moral norms, and thus
who face a high risk of honor killing.
To the extent that Disi is proceeding under the CAT, as
we mentioned earlier, she does not need to show that
she belonged to a particular social group. For that
claim, one can skip down immediately to parts III.C. and
IV of this opinion; those sections address the issues that
are common to her withholding claim and her CAT claim.
B
Addressing Disi’s withholding claim, we conclude
that she has met her burden of demonstrating a clear
probability that, if returned to Jordan, she would be
persecuted on account of her membership in the social
group she has identified. The IJ, the Board, and the At-
torney General all take the position that if Besem did
14 No. 10-2899
kill Disi, his action would reflect only a personal
dispute, not anything based on her membership in a
broader social group. If that were an accurate descrip-
tion of the situation, the government would be correct
that relief is unavailable. See, e.g., Grava v. INS, 205
F.3d 1177, 1181 n.3 (9th Cir. 2000) (“Purely personal
retribution is, of course, not persecution on account [of
a protected ground].”). The IJ concluded, “[Besem]
intends to harm the respondent, not because of [her]
affiliation with other women accused of adultery, but
rather, because he believes she has engaged in conduct
that would bring dishonor to the family.” This was
evident, the IJ thought, because there was no indication
“that Besem is actively seeking out other women
accused of adultery.” The Board and the government’s
briefs repeat this position almost verbatim, including
the argument that Besem’s dispute must be personal
because he is not threatening death to other women.
Perhaps there is superficial appeal to this argument,
but its force dissipates quickly when we examine it more
carefully. There is no personal dispute between Disi and
her brother. He has not vowed to kill her because of a
quarrel about whether she or Besem should inherit a
parcel of land, or because she did a bad job running
his store, or because she broke Besem’s favorite toy
as a child. She faces death because of a widely-held
social norm in Jordan—a norm that imposes behavioral
obligations on her and permits Besem to enforce them
in the most drastic way. The dispute between Disi and
Besem is simply a piece of a complex cultural construct
that entitles male members of families dishonored by
No. 10-2899 15
perceived bad acts of female relatives to kill those
women. The man who does the killing may have a
personal motivation in the sense that he is angry that
his sister has dishonored the family, or he may regret
the need to take such an irrevocable step. Either way,
he is killing her because society has deemed that this
is a permissible—maybe in some eyes the only—correct
course of action and the government has withdrawn
its protection from the victims. The very fact that these
are called “honor killings” demonstrates that they are
killings with broader social significance.
This helps to explain why the fact that Besem does not
have either a duty or (we assume) the inclination to kill
women from other families is immaterial. The social
code that Besem follows has anointed him (or another
of Disi’s male relatives) as the person with the right to
kill the woman who dishonored his family; it has not
given him the role of killing women who dishonor other
men’s families. In the same way, in a society that
practices female genital mutilation, each family is re-
sponsible for carrying out the operation on its own
girls. But the families are not taking this step to make
a personal statement. They do it because their society
tells them that they are harboring an outcast and their
own social standing will suffer if they do nothing. The
fact that Besem has not killed others says nothing
about whether his persecution of Disi will be on account
of her membership in a particular social group. Imagine
the neo-Nazi who burns down the house of an African-
American family. We would never say that this was a
personal dispute because the neo-Nazi did not burn
16 No. 10-2899
down all of the houses belonging to African-Americans
in the town. The situation here is analogous. If Besem
killed Disi it would be on account of her membership in
the particular social group to which she has been assigned.
C
That leaves the question—relevant both to withholding
and the CAT—whether it is probable that Besem actually
will kill Disi if she returns to Jordan. After hearing Disi’s
and Sarhan’s testimony on that issue, the IJ wrote, “In
regards to the details of the threat made by Besem, and
the respondents’ testimony about the manner and cir-
cumstances of the threat and the fear they experienced
after it was made, the Court finds that the testimony
was credible.” The Board said nothing about that credi-
bility finding. When he issued his decision, the IJ listed
as a reason for denying relief that he did not think that
Disi faced a continuing threat from Besem. The IJ’s
opinion says that its “limited credibility judgment does
not extend to the respondents’ speculation that [Disi]
will be assassinated in an honor killing on her return to
Jordan or that the Jordanian government is unable or
unwilling to protect her.” Perhaps this means that the IJ
thought that Disi and Sarhan genuinely believed that
Besem would kill Disi, but that their belief was unrea-
sonable. But that is not what he said. We cannot
reconcile the judge’s willingness to believe the evidence
that Besem has sworn to carry out this murder with his
later dismissal of that threat as entirely speculative.
In all these cases, the prospect of harm occurring in
the future is an inference based on facts in the record. The
No. 10-2899 17
IJ accepted the evidence in the record showing that
Besem made these explicit threats. This included not
only Disi’s and Sarhan’s credible account of the danger
posed by Besem, but also evidence that Besem had been
abusive to Disi in the past and the letter from Sarhan’s
father that recounted Besem’s plan to kill Disi. There is
literally no evidence on the other side of the balance in
this record—nothing to cast doubt on Disi’s testimony,
and nothing to indicate that Besem has forgiven or for-
gotten Disi’s alleged dishonorable act. Without such evi-
dence, the record overwhelmingly supports the proposi-
tion that it is more likely than not that Besem will
either severely harm or murder her if she is returned
to Jordan. Cf. Shtaro v. Gonzales, 435 F.3d 711, 715 (7th
Cir. 2006).
IV
This brings us to the role of the Jordanian govern-
ment. “Persecution is something a government does,
either directly or by abetting (and thus becoming respon-
sible for) private discrimination by throwing in its
lot with the deeds or by providing protection so
ineffectual that it becomes a sensible inference that the
government sponsors the misconduct.” Hor v. Gonzales,
400 F.3d 482, 485 (7th Cir. 2005); see also Balogun v.
Ashcroft, 374 F.3d 492, 499 n.8 (7th Cir. 2004). Disi con-
tends that the government of Jordan cannot and will
not do anything to protect her, but the agency re-
jected this argument. After reviewing the evidence of
the Jordanian government’s treatment of honor crimes, we
18 No. 10-2899
conclude that the record permits no conclusion other
than that the government is ineffective when it comes
to providing protection to women whose behavior
places them in the group who are threatened with
honor killings. We note that this showing satisfies both
the standards for finding governmental action for
purposes of withholding and also those under the CAT,
which requires that the “pain or suffering” must be
“inflicted by or at the instigation of or with the consent
or acquiescence of a public official or other person
acting in an official capacity.” 8 C.F.R. § 208.18 (em-
phasis added).
A
The Board had before it a substantial amount of in-
formation about honor killings in Jordan, including the
State Department’s 2007 Country Report on Human
Rights Practices for Jordan, http://www.state.gov/g/
drl/rls/hrrpt/2007/100598.htm, an Amnesty International
publication, “Legalized Murder: Killing for ‘Honor’ ” (see
Agency Record at 437), a Human Rights Watch publica-
tion called, “Honoring the Killers,” (see Agency Record
at 514), a law journal article, Valerie Plant, Honor Killings
and the Asylum Gender Gap, 15 J. T RANSNAT’L L. & P OL’Y
109 (2005), and various other newspaper accounts and
affidavits about the problem of honor killings.
According to the State Department’s 2007 report, during
that year there were “17 reported instances of honor
crimes that resulted in the death of the victim, although
activists reported that additional unreported cases likely
No. 10-2899 19
occurred. A November [2007] UN Development Fund
for Women study stated that 25 percent of honor crime
victims in the country were killed merely because
they were suspected of involvement in an illicit relation-
ship.” U.S. Dep’t of State, Country Report on Human
Rights Practices for Jordan (2007). At oral argument,
the government called our attention to the fact that
this amounts to 17 honor killings during a one-year
period in a country with a population of 6 million. Ap-
parently it meant to suggest that the low number of
honor killings means it is not much of a problem. We
do not see the logic; a common (though not inevitable)
feature of persecution is that the victims come from
minority populations. That there are few publicly
recorded instances of killings within a particular social
group does not mean that the U.S. government is free
to remove someone who has experienced a direct and
credible threat of such a killing. Nor does it address
the twin problems of underreporting and measures
short of killing (such as mutilation) that take place. Com-
pare the mutilation described by John Wendle, The
Aisha Bibi Case: Her Father Wants to Petition the Taliban
for Justice, T IME, July 14, 2011 (woman whose ears and
nose were sliced off for failing to adhere to Shari’a law).
We find similarly unconvincing the unadorned fact
that all 17 honor crimes committed during 2007 were
prosecuted. Prosecution at times is an empty gesture.
The sentences given out in Jordan for honor crimes
show that prosecutions of honor crimes result in little
more than a slap on the wrist. The State Department put
it this way: “While the defendants are almost always
20 No. 10-2899
universally found guilty, defendants often received
token sentences, with the charges often reduced from
premeditated murder to manslaughter. Many men con-
victed of an honor crime received minimal prison sen-
tences, usually no more than six months.” U.S. Dep’t of
State, Country Report on Human Rights Practices for
Jordan (2007). A six-month sentence for this kind of
premeditated murder, when all other murders are pun-
ished much more severely, sends a strong social mes-
sage of toleration for the practice.
Such lenient sentences are made possible by a legal
framework that favors those who commit honor killings.
The Board had information about the Jordanian legal
regime before it, but it did not discuss the legal
framework in either of its decisions. Article 340 of the
Jordanian penal code provides a legal justification for
honor crimes. Efforts to repeal that provision have
failed repeatedly in the elected lower house of Jordan’s
Parliament. Moreover, those who commit honor killings
often invoke article 98 of the code, which reduces
penalties when the crime is committed in a “fit of fury.”
According to one report that the agency considered:
If the extenuating excuse is established for a crime
punishable by death, such as premeditated murder,
article 98 provides that the penalty be reduced to
a minimum of one year in prison. For other felonies,
it is reducible to a minimum of six months and a
maximum of two years. Moreover, courts may
further halve the sentence if the victim’s family
“waives” its right to file a complaint of the crime.
No. 10-2899 21
In murders for “honor,” given the family’s complicity
in the crime, the family nearly always “waives” the
right to file a complaint. Thus, “honor” killers may
receive sentences of six months—and often do. If a
killer has served that much time awaiting trial, the
sentence may be commuted to time served and he
may walk away a free man.
Though gender-neutral in language, article 98 in
practice is applied to benefit only men.
Human Rights Watch, Honoring the Killers (Agency
Record at 532). This legal regime and the minimal punish-
ments that result mean that the Jordanian government
at best does almost nothing and at worst promotes
the practice of honor killings.
The only protection that Jordan offers to those who
would otherwise become victims is voluntary impris-
onment; a woman who fears that she is in danger may
turn herself in to a prison where she can be kept in cus-
tody. Jordanian authorities “regularly place[] potential
victims of honor crimes in involuntary protective
custody . . . where some have remained for up to 20 years.”
U.S. Dep’t of State, Country Report on Human Rights
Practices for Jordan (2007). At the end of 2007, at least
15 women were in protective custody. This practice
strikes us as being much closer to persecution than to
protection from harm—the victim must choose
between death and an indefinite prison term (indeed,
a term longer by an order of magnitude than the one
faced by her persecutor). In this connection, it is
important to recall that the INA prohibits removal to a
22 No. 10-2899
country where “the alien’s life or freedom would be threat-
ened” on account of a protected ground. 8 U.S.C. § 1231
(emphasis added).
Little seems to have changed in Jordan. The State De-
partment’s report from 1999 explained that the law al-
lowed for reduced punishments for honor crimes and
that law enforcement treatment of men accused of
honor crimes “reflects widespread unwillingness to
recognize the abuse involved or take action against
the problem.” U.S. Dep’t of State, Country Reports on
Human Rights Practices for Jordan (1999), http://www.
state.gov/g/drl/rls/hrrpt/1999/418.htm. In that year there
were at least 16 honor killings in Jordan; the police im-
prisoned women to protect them; and the Jordanian
legislature rejected efforts to reform the penal code. Id.
Compare to these facts the report from 2009 (which
the agency did not consider but to which we may refer
in the course of reaching our decision, Agbor v. Gonzales,
487 F.3d 499, 503 (7th Cir. 2007)), which relates
that “[v]iolence and abuse against women continued,
including . . . numerous honor crimes” and that
“[a]uthorities prosecuted the 24 reported instances of
homicides related to honor crimes that occurred during
the year.” U.S. Dep’t of State, Country Report on
Human Rights Practices for Jordan (2009), http://www.
state.gov/g/drl/rls/hrrpt/2009/nea/136071.htm. The only
bright spot in this picture came from one newly
launched initiative:
On July 28, [2009,] the chief judge of the criminal
courts announced the establishment of a special
No. 10-2899 23
criminal court tribunal to hear all honor crime cases.
In its first ruling on October 12, [2009,] the tribunal
issued a 15-year murder sentence . . . . This sen-
tence marked the first time a lower court issued a
full murder sentence in an honor crime case without
granting some form of leniency.
Id. The report contrasts this long prison term to the
typical six-month sentences and then puts the reform
effort in context: “Despite the judicial efforts the gov-
ernment had no plan or program to change public
attitudes toward honor crimes or to deter future
killings, and it had made no legislative changes to
strengthen sentencing guidelines.” Id. This final state-
ment represents the strongest condemnation that the
State Department has issued relating to the Jordanian
government’s effort to curb honor killings.
B
After reviewing these materials, the IJ decided that
“[t]he objective evidence of record does not establish
that the government of Jordan would be unable or unwill-
ing to protect the respondent from future harm.” The
Board agreed, concluding that “the Jordanian govern-
ment condemns the practice of honor killings.” We are
at a loss to understand how they came to this conclu-
sion in light of the evidence we have just reviewed.
The IJ noted that honor crimes are punished much
less severely than other crimes (quite an understate-
ment—the 2007 State Department report says that in
24 No. 10-2899
ordinary cases the maximum penalty for first-degree
murder is death, and the maximum penalty for second-
degree murder is 15 years in prison), but he added
that “various non-governmental organizations, with the
support of the current King and Queen, are trying to
reform the penal code.” (Emphasis added.) Attempted
reform, like a bill that fails to become law, does not
count as concrete government action. In fact, the
only concrete measure the agency could name that the
Jordanian government has taken was its offer to put
women in jail if they felt threatened. The agency said
with commendable understatement that this “is not an
attractive option for victims.” As we explained above,
it is not an option at all—it is direct persecution, in the
form of deprivation of an innocent person’s liberty, by
the government.
The agency ignored strong evidence of governmental
toleration of, or indifference to, honor crimes. Cf. Gatimi I,
578 F.3d at 617. Attempts to amend laws to help curb
violence against women are welcome steps, but they are
not evidence that the government of Jordan has the
power or the desire to protect a woman in Disi’s position.
Nor is there much evidence that efforts are coming
from within the Jordanian government—most reforms
seem to be proposed by non-governmental organizations.
Other cases recognize the problem of honor killings
and the government’s lackadaisical attitude. See Suradi
v. Holder, 2011 WL 2215548, at *2 (9th Cir. June 8, 2011)
(“The IJ’s finding that the Jordanian government does
not acquiesce in honor killings is not supported by sub-
stantial evidence.”). See also Abdelghani v. Holder, 309
No. 10-2899 25
F. App’x 19, 22 (7th Cir. Feb. 3, 2009); Yaylacicegi v. Gonza-
les, 175 F. App’x 33, 36 (7th Cir. Mar. 29, 2006). The Sixth
Circuit decided in Khalili v. Holder, 557 F.3d 429 (6th Cir.
2009), that a man fearing he might be killed because of
marital misconduct if he returned to Jordan was not
entitled to withholding of removal. The obvious dif-
ference between that case and this one is that the
petitioner in the Sixth Circuit was not a female, and
the problem we have identified is one that concerns
violence by men against women.
We conclude that the agency reached the wrong con-
clusion. The government of Jordan is complicit in the
harm that Disi will suffer at the hands of her brother.
V
We must address two remaining issues before we
conclude. The agency decided that even if the Sarhans
were otherwise entitled to relief, withholding of re-
moval or protection under the CAT was not necessary
because they had not shown that they would be unable
to relocate to avoid Besem once they arrived in Jordan.
The IJ did not provide much reasoning to support this
conclusion, the Board did not mention relocation at all,
and the government’s brief does not address the issue.
This lack of reasoning is alone enough to justify re-
manding the issue to the agency. E.g., Ssali v. Gonzales,
424 F.3d 556, 564 (7th Cir. 2005). But there is a deeper
problem. “Relocating to another part of the country
does not mean living in hiding.” Agbor, 487 F.3d at 505.
The evidence indicates that Besem will be looking for
26 No. 10-2899
Disi specifically; in a country the size of Jordan, she
would have to live in hiding to avoid him. (Jordan is 34,495
square miles, see http://travel.nationalgeographic.com/
travel/countries/jordan-facts/, just a little bit larger than
the State of Maine, which is 33,128 square miles. See
http://www.theus50.com/area.php.)
Finally, the government urges that, even if we
conclude that further proceedings are warranted, we
should dismiss Sarhan’s derivative claim on the
ground that the Act does not provide benefits to an
alien’s family when the alien claims withholding of
removal or relief under the CAT. Neither the IJ nor
the Board appears to have considered whether Sarhan’s
case should be rejected on this ground, because they
chose instead to deny relief to both petitioners. That
means that the government’s alternative basis for
affirming the agency’s decision in part is not before
us. “The Supreme Court of the United States has admon-
ished, in [SEC v. Chenery, 318 U.S. 80, 87-88 (1943)], that
we may not sanction an agency decision based upon
the post-hoc rationalizations of appellate counsel for the
agency’s decision.” Moab, 500 F.3d at 659.
In any event, it is not apparent to us at this juncture
that the government’s position is correct. While courts
have recognized that the provisions of the INA gov-
erning asylum explicitly permit derivative claims and
that those governing withholding of removal do not, e.g.,
Ali v. Ashcroft, 394 F.3d 780, 782 n.1 (9th Cir. 2005) (com-
paring 8 U.S.C. § 1158(b)(3) with 8 U.S.C. § 1231(b)(3)),
we see no reason to read into the Act’s silence a
No. 10-2899 27
hidden rule that bars derivative claims in all instances
where an alien seeks withholding of removal. Moreover,
Sarhan’s claim may not even be derivative: in some
instances persecution of one spouse can itself constitute
persecution of the other spouse. Kone v. Holder, 620
F.3d 760, 765 (7th Cir. 2010) (quoting Gatimi I, 578 F.3d
at 617 for the proposition that “[g]enital mutilation of
one’s wife, unless one happens to be a supporter of the
practice, is a way to punish one”). If Disi were com-
pelled to return to Jordan because Sarhan was removed
(maybe for financial reasons, or simply to keep the
family together), perhaps the threat of Disi’s death
would be sufficient persecution of Sarhan to grant him
withholding as well. On remand, Sarhan will have the
opportunity to develop his own claims for relief apart
from those that are derivative of Disi’s. We recognize
that the Board may conclude that Sarhan is not eligible
for relief. If it does, however, it is always possible to
make a final appeal to the Attorney General for the
exercise of his humanitarian power in this painful situa-
tion. These questions are for the agency in the first in-
stance; we do not resolve them here.
VI
The practice of honor killing is still widespread in
certain parts of the world. Along with female genital
mutilation, human trafficking and slavery, spousal rape,
and domestic battery, it is among the most severe
abuses that women face around the globe. Vital though
the enforcement of our immigration laws may be, it is
equally important to give full force to the features of
28 No. 10-2899
those laws that are designed to give shelter in the
United States to people who would experience extra-
ordinary abuse if they were sent back to their home
country. The laws regarding asylum, withholding of
removal, and the United States’s international obliga-
tions under the CAT are no less important than the
laws establishing the general rules for immigration. The
Board’s decision in this case looked too narrowly at
the abhorrent practice of honor killing in Jordan. In so
doing, it failed to realize that women whose behavior
violates that society’s moral norms (and who thus may
suffer this consequence) form a coherent social group,
that the ensuing death normally at the hand of a family
member amounts to persecution on account of their
membership in that group, and that the government
continues to be unwilling or unable to stop this brutality.
In this case, Disi has shown that it is more likely than
not that she will be murdered by her brother if she is
returned to Jordan because she is part of this social
group. The Jordanian government can or will do
nothing to help her, and she cannot reasonably be
expected to relocate, because Besem will track her down
no matter where she is within Jordan. Sarhan’s case
and that of the children is more complex. What is clear
is that further proceedings are necessary before either
Disi or her family members can be removed. We there-
fore G RANT the petitions for review and R EMAND the
cases to the agency for further proceedings consistent
with this opinion.
9-2-11