IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
___________________
No. 94-41155
___________________
MAMDOUH L. ABDEL-MASIEH,
Petitioner,
versus
UNITED STATES IMMIGRATION AND
NATURALIZATION SERVICE,
Respondent.
________________________________________________
Petition for Review of and Order of the Immigration
and Naturalization Service
________________________________________________
January 15, 1996
Before WISDOM, GARWOOD and JONES, Circuit Judges.
GARWOOD, Circuit Judge:
The Immigration and Naturalization Service (INS) initiated
deportation proceedings against Mamdouh Abdel-Masieh (Abdel) on
December 4, 1990. The immigration judge found Abdel to be
ineligible for asylum and for withholding of deportation under the
Immigration and Naturalization Act. The Board of Immigration
Appeals (BIA) affirmed the immigration judge’s decision and
dismissed Abdel’s appeal. Abdel brings this petition to review the
final order of deportation pursuant to 8 U.S.C. § 1105a(a). We
vacate the order of deportation and remand to the BIA.
Facts and Proceedings Below
Petitioner Abdel is a thirty-two year old native and citizen
of Sudan. He was employed in Sudan as an aircraft mechanic and
engineer, an occupation which he has characterized as well-paying.
Abdel is a member of the Coptic faith, a Christian denomination
comprising a small fraction of the Christian minority residing in
the predominantly Muslim nation of Sudan. In the aggregate, ten
percent of Sudanese citizens are Christians. Prior to leaving
Sudan for the United States, Abdel resided in Sudan most of his
life, leaving only for a two and one-half year period of study in
India from 1985 to 1987.
In June 1989, the democratically elected government of Sudan
was overthrown in a military coup and replaced by a military
government heavily influenced by the National Islamic Front (NIF).
The new government quickly instituted a drive to Islamicize Sudan,
replacing secular judges with Islamic ones, and imposing the
Islamic Shari’a laws on all Sudanese people, Muslim and non-Muslim
alike.1 The imposition of the Shari’a on non-Muslim Sudanese,
which provides for such harsh penalties as amputation, stoning, and
lashes, has raised a volatile issue in that nation, an issue which
is important in the civil war raging in the southern portion of
Sudan.
1
Abdel concedes that the difficulties for Christians can be
traced to 1983, when Sudan was governed by Chatrin Numary. Numary
initiated the application of Shari’a in Sudan, and Abdel testified
that Numary’s government and the current NIF government are closely
associated.
2
In August 1989, soon after the NIF government seized power,
Abdel participated in a demonstration against the government’s
efforts to apply the Shari’a to all Sudanese citizens. From a
group of two hundred protesters, twenty-five to thirty were
arrested, including Abdel. During his three-hour detention, Abdel
was interrogated and beaten. Before releasing Abdel, the officials
recorded his name and other identifying information, but filed no
charges against him.
Then, in late December 1989 or early January 1990, one of
Abdel’s cousins was arrested and ultimately executed by the
government for allegedly carrying United States currency in an
airport. This cousin was the son of a Coptic priest who was a
leader in the Sudanese Coptic community. Trials of the sort
afforded to Abdel’s cousin were summarily conducted by military
tribunals, and the accused were denied representation by counsel.
In January 1990, the funeral procession for Abdel’s cousin evolved
into a large demonstration against this perceived religious
persecution.2 In an effort to prevent the funeral procession,
comprised of an estimated 10,000 protestors, from passing in front
of the United States embassy in Khartoum, security forces arrested
approximately 20 demonstrators, including Abdel. He was again
detained for three hours, during which time he was interrogated and
beaten. After his release, Abdel was picked up again for an
2
Abdel noted the contrast between the capital sentence imposed
against his cousin and the minimal sentences received by five
members of an Islamic terrorist organization convicted of killing
seven people in an attack on a Khartoum hotel.
3
additional two hours. As was the case with his August 1989 arrest,
Abdel was not charged upon his release. He was able to return to
work after each of these episodes involving the police, and
ultimately left his employment voluntarily in February 1990.
On February 24, 1990, Abdel entered the United States as an
“M-1" nonimmigrant student pursuant to 8 U.S.C. § 1101(a)(15)(M).
He testified that he left Sudan for the United States for two
reasons: first, he sought to advance his education and obtain a
permit related to his aircraft engineering vocation; second, he
hoped to escape his conflict with the government of Sudan. He
further testified that he was able to obtain his passport
renewal——on January 6, 1990——and visa only through the help of a
brother-in-law with American connections. It is clear that many
Sudanese in suspect classifications have great difficulty obtaining
passports and exit visas. Since his arrival in the United States,
Abdel has worked as a cash register attendant in a gas station.
Abdel points to several events which have occurred since his
departure from Sudan in support of his contention that he will face
persecution if he returns to that nation. He indicated in his
application for asylum that his mother, formerly a department
director of a textile factory, was fired because of her religious
beliefs. Abdel’s brother, who operates his own business, was
arrested, detained, and beaten by Sudanese security forces in an
effort to obtain information regarding Abdel. Abdel’s brother and
a co-worker have warned Abdel not to return to Sudan under any
circumstances. Abdel testified that he is on a “wanted list” at
4
the Khartoum airport, although he concedes that he has never seen
this list and does not explain how he knows he is on it.
Additionally, individuals assumed by Abdel to be government agents
have on several occasions made inquiries at his former place of
employment regarding his whereabouts and the duration of his stay
in the United States. Finally, Abdel has indicated that his
family’s telephone conversations and mail have been monitored, a
practice which the United States Department of State has
characterized as pervasive in Sudan.
Abdel’s student visa expired on March 26, 1990, and
deportation proceedings were commenced against him on November 26,
1990. Abdel conceded deportability in these proceedings, and the
immigration judge denied his application for asylum or temporary
withholding of deportation. Pursuant to 8 U.S.C. § 1254(e), Abdel
was given two months to voluntarily depart the United States.
Abdel appealed this decision to the BIA, and the BIA dismissed
Abdel’s appeal on October 5, 1994. Abdel timely brought the
present petition before this Court to review the BIA’s final order
of deportation pursuant to 8 U.S.C. § 1105a(a).
Discussion
Abdel seeks asylum pursuant to 8 U.S.C. § 1158(a). This
section of the Immigration and Naturalization Act (INA) affords
asylum to aliens who are “refugees”, defined by the INA as:
“[A]ny person who is outside any country of such person’s
nationality ... who is unable or unwilling to return to,
and is unable or unwilling to avail himself or herself of
the protection of, that country because of persecution or
a well-founded fear of persecution on account of race,
religion, nationality, membership in a particular social
5
group, or political opinion ...” 8 U.S.C. §
1101(a)(42)(A).
We review the BIA’s factual determination that Abdel is not a
“refugee” within this definition, and therefore that Abdel is not
eligible for asylum nor for withholding of deportation, under the
substantial evidence standard. Ozdemir v. INS, 46 F.3d 6, 7 (5th
Cir. 1994)(citations omitted); Adebisi v. INS, 952 F.2d 910, 912
(5th Cir. 1992)(citations omitted). The errors or other failings
of the immigration judge’s opinion are considered only if they have
some impact on the BIA’s decision. 952 F.2d at 912.
I. Past Persecution
The BIA agreed with the immigration judge’s finding that
Abdel’s two arrests did not rise to the level of “persecution”
contemplated by the INA. After reviewing the facts surrounding
Abdel’s two arrests, the BIA cited three cases to support its
finding that these arrests did not constitute persecution.
However, in all three of these cases, the prisoners were not
mistreated during their respective detentions. See Zalega v. INS,
916 F.2d 1257, 1260 (7th Cir. 1990)(Zalega, though arrested and
interrogated five times, with detentions of up to thirty-six hours,
“was not mistreated while incarcerated”); Mendez-Efrain v. INS, 813
F.2d 279, 283 (9th Cir. 1987)(four days’ detention; “There is no
indication that [Mendez] was tortured or molested while in
detention”); Kubon v. INS, 913 F.2d 386, 388 (7th Cir. 1990)(no
evidence that Kubon was mistreated during his five-day detention).
Additionally, in Zalega and Kubon, the Seventh Circuit also relied
on the improving political situation in Poland to justify its
6
affirmance of the BIA’s denial of asylum in both cases. 913 F.2d
at 388; 916 F.2d at 1261 n.5. None of the evidence in the present
case suggests a similar “improvement” is on the horizon in Sudan.
On the other hand, in each of those cases the detention was for
substantially longer than here.
While the term “persecution” under the INA is by no means
well-defined, the BIA has provided some insight into the working
parameters of this term:
“[T]he infliction of suffering or harm, under government
sanction, upon persons who differ in a way regarded as
offensive (e.g., race, religion, political opinion,
etc.), in a manner condemned by civilized governments.
The harm or suffering need not be physical, but may take
other forms, such as the deliberate imposition of severe
economic disadvantage or the deprivation of liberty,
food, housing, employment or other essentials of life.”
Matter of Laipenieks, 18 I&N Dec. 433, 456-457 (BIA
1983), rev’d on other grounds, 750 F.2d 1427 (9th Cir.
1985).3
In Laipenieks, the BIA applied this interpretive language and
determined that:
“While punishment of criminal conduct in itself is not
persecution, where that punishment entails such things as
severe beatings or being sent to a Nazi concentration
camp——i.e., is ‘excessive or arbitrary’——and is motivated
by one of the specified grounds, such punishment would
constitute persecution under the Act.” Id. at 459 n. 18.
Abdel asserts that he was twice arrested, twice detained, and
beaten on both occasions. As Abdel’s credibility has not been
impugned in these proceedings, his testimony may be sufficient to
sustain his burden of proof without corroboration. 8 C.F.R. §
3
See also Osaghae v. INS, 942 F.2d 1160, 1163 (7th Cir. 1991)
(persecution encompasses “punishment for political, religious, or
other reasons that our country does not recognize as legitimate”).
7
208.13(a). However, Abdel does not in his testimony characterize
the beatings he received as “severe”, nor does he demonstrate that
his detentions were “excessive or arbitrary”. He was never
detained overnight. Most importantly, Abdel fails to establish
that he was singled out and arrested on either occasion due to his
religious or political affiliations. Abdel was twice arrested
while participating in large, public demonstrations. He has not
demonstrated that the treatment he received was different than that
which would have been received by any other participant in a public
disturbance in Khartoum. It seems plausible that Abdel may have
been arrested on both occasions simply because he was at the front
of the crowd. There is no evidence to the contrary. Each time he
was detained, the authorities were apparently unaware of his
identity. In short, it is by no means clear that Abdel’s
mistreatment was motivated by his “differ[ences] in a way regarded
as offensive (e.g., race, religion, political opinion, etc.).”
Thus, we cannot say that the BIA erred in finding that Abdel has
not suffered past persecution.
II. Well-Founded Fear of Future Persecution
In concluding that Abdel failed to demonstrate a well-founded
fear of future persecution, the BIA noted that:
“If the government was interested in persecuting the
respondent, they [sic] had ample opportunity when he was
in their [sic] custody twice. Particularly the second
time the respondent was in custody the government had
full information about who he was and what he had done.
Nevertheless, the government released him after a
relatively short period of detention.”
The BIA has apparently taken the position that, since Abdel
8
was not——during his two episodes of detention and
beating——mistreated to such a degree that his experiences would
constitute “persecution”, he should not fear persecution by the
Sudanese government in the future. Without more, this reasoning by
the BIA is unpersuasive. There is little reason to generally
suppose that a government’s past actions in this respect create an
“outer limit” on its future actions. In fact, the evidence in the
record suggests that the opposite is true in the present case;
since the time of Abdel’s second arrest, the Sudanese government
has become even more active in this context. Abdel’s mother, who
still had her job at the time of Abdel’s second arrest, was
subsequently fired due to her religious beliefs. Also after the
second arrest, Abdel’s brother was detained and beaten, not because
he participated in any civil protest, but because the Sudanese
security forces wanted additional information regarding Abdel. The
evidence further suggests that, while the government’s involvement
with Abdel in the past was reactive——reacting to public
demonstrations in which he participated——the Sudanese government has
now taken the initiative to locate Abdel for purposes as yet
unknown. In addition, it is clear that the Sudanese government can
be ruthless with regard to its own citizens. The United States
Department of State Country Reports on Human Rights Practices for
1991 (February 1992) for Sudan indicate that the government has
likely perpetrated any number of heinous atrocities against its
citizenry. Twenty-five civilian residents of southern Sudan
disappeared in 1991, purportedly the result of military executions
9
relating to the civil war in that region. Id. at 378.
Additionally, the State Department reports that persons suspected
of activity against the Sudanese government have been whipped,
clubbed, shocked with electricity, kicked in the ribs and kidneys,
bound for long periods, boiled, and psychologically tortured. Id.
Responding to the evidence brought forward by Abdel, the BIA
found that:
“The fact that unidentified people were asking questions
about the respondent at his former work place does not
show that the government may now be inclined to persecute
him upon his return to Sudan. He was supposed to return
to Sudan and his job there after a 3-month period of
study in the United States. He does not alleged that the
government has discovered any new facts about him which
might change their interest in him.”
This paragraph constitutes the BIA’s complete analysis of the
evidence introduced by Abdel pertaining to the developments which
have occurred in Sudan since Abdel’s departure to the United
States. We do not require the BIA to specifically address every
piece of evidence put before it, but, in the present case, the BIA
has failed to address much of Abdel’s key evidence in this respect.
The BIA makes no mention of Abdel’s testimony regarding the firing
of his mother or the beating and questioning of his brother.4
As the BIA found that Abdel did not have a well-founded fear
of persecution, it is settled that we may not conclude that he did
unless the evidence is “such that a reasonable factfinder would
have to conclude that the requisite fear of persecution existed.”
4
And, the asserted appearance of Abdel’s name on a wanted list at
the airport is not mentioned.
10
INS v. Elias-Zacarias, 112 S.Ct. 812, 815 (1992). Nevertheless, we
generally also review the BIA’s decision “‘procedurally’ to ensure
that the complaining alien has received full and fair consideration
of all circumstances that give rise to his or her claims.” Zamora-
Garcia v. INS, 737 F.2d 488, 490 (5th Cir. 1984). While we do not
require that the BIA address evidentiary minutiae or write any
lengthy exegesis, Ramos v. INS, 695 F.2d 181, 189 (5th Cir. 1983),
its decision must reflect meaningful consideration of the relevant
substantial evidence supporting the alien’s claims. Id. at 188.
See also Diaz-Resendez v. INS, 960 F.2d 493, 495, 497-98 (5th Cir.
1992); Ganjour v. INS, 796 F.2d 832, 839 (5th Cir. 1986).
In a recent case involving an alien’s appeal of a BIA decision
denying his application for asylum, the Seventh Circuit recognized
the petitioner’s heavy burden on appeal in light of the Supreme
Court’s language in Elias-Zacarias. Sanon v. INS, 52 F.3d 648, 651
(7th Cir. 1995). Also recognizing the fact-sensitive nature of
such cases, together with the general observation that appellate
judges are often not experts in immigration or foreign affairs, the
court noted its tendency to defer in such matters to the BIA.
Nevertheless, the court observed that it must “require some proof
that the Board has exercised its expertise in hearing a case.” Id.
After noting the BIA’s failure to adequately consider the situation
in Sanon’s country——Burkina Faso——as well as Sanon’s evidence that
his family was afraid to contact him, the court held that the BIA
should address these issues on remand. Id. at 651-52. In the
present case, the BIA has likewise failed to expressly address the
11
relevant conditions in Sudan and the experiences of Abdel’s family
members and co-workers since his departure for the United States.
In Sanon, the Seventh Circuit held that, “Where an agency has
failed to comply with its responsibilities, we should insist on its
compliance rather than attempt to supplement its efforts.” Id. at
652. We find this approach to be appropriate in the present case.
In concluding that Abdel failed to make the requisite showing
that the Sudanese government had the ability to seek him out, the
BIA found that:
“The respondent lived in the capital city of Sudan. He
stated that he never lived in the southern part of the
country. He stated that the southern part of the country
is predominantly Christian. The respondent has the
burden of showing he could not live in southern Sudan.”
In support of its conclusion that Abdel had failed to make the
requisite showing in this regard, the BIA cited Matter of R-,
Interim Decision 3195 (BIA 1992), for the proposition that,
“[A]n alien seeking to meet the definition of a refugee
must do more than show a well-founded fear of persecution
in a particular place or abode within a country——he must
show that the threat of persecution exists for him
country-wide.”
The BIA appears to have relied on the opinion of the
immigration judge, who stated that Abdel “could probably live in
safety in those sections of Sudan ... where Christians constitute
the majority of the particular community.”
We hold that the BIA erred in finding no reasonable likelihood
of persecution on the theory that Abdel could escape persecution by
living in southern Sudan where Christians were in the majority.
The immigration judge sua sponte reached the above conclusion——that
12
Abdel could probably live in safety in southern Sudan——after the
deportation hearing was concluded; the INS had not previously
raised this issue and Abdel had no opportunity to address it during
the hearing.5 Furthermore, there is no substantial evidence in the
record to support the BIA’s holding that Abdel failed to establish
a likelihood of persecution on a country-wide basis. Abdel brought
forward evidence that the NIF-dominated military government has
consistently promoted an agenda for imposing the Islamic Shari’a
laws on all Sudanese citizens, and that these efforts by the
government have markedly increased religious intolerance and
discrimination throughout Sudan. The INS has presented no evidence
which might suggest that the efforts or influence of the present
military government in Sudan are localized.6
The Ninth Circuit recently addressed the issue of whether a
5
In his appeal of the immigration judge’s ruling to the BIA,
Abdel introduced evidence that the concentration of Sudan’s
Christian citizens in the southern part of the country explained
why the civil war was raging in that region, also noting that the
United States Department of State has characterized considerable
portions the southern region of Sudan as “largely unpopulated and
plagued by banditry”. Country Reports, supra, at 376. These
reports also observe that 4.5 million Sudanese have been displaced
by the civil war in that nation. Id. Even if we were to agree
that relocation to southern Sudan would free Abdel from persecution
at the hands of Sudanese security forces, it seems unreasonable to
expect him to make such a move under the present circumstances. In
addition, nothing of record suggests that Abdel would be able to
avoid flying back into Khartoum if he is deported; we suspect that
Abdel’s efforts to bypass Khartoum and travel directly to southern
Sudan would be difficult, if not impossible.
6
The INS states twice in its brief to this Court that Abdel
conceded the probability that he could live safely in the southern
part of Sudan. This is inaccurate. The INS’s citations in support
of these statements are to the immigration judge’s findings, not to
any testimony given by Abdel.
13
petitioner must prove that the persecution he faces is “country-
wide” when the alleged “persecutor” is the national government.
See Singh v. Moschorak, 53 F.3d 1031 (9th Cir. 1995). The
petitioner in Singh was a Sikh who had been persecuted by the
national Indian army in his home state of Punjab. The Ninth
Circuit held that:
“[T]he district court remanded to the [BIA] to determine
if Singh can ‘live safely in another region of India’
distinct from his home. The district court apparently
believed that Singh would not qualify for asylum if his
persecution by India for political opinion was confined
to the Punjab. Such is not the law ... We have
recognized that where there was a danger of persecution
in a single village from guerillas who knew the
petitioner, and no showing of such danger elsewhere in
the country, the petitioner failed to establish
eligibility for asylum. The [INS] argues by analogy that
these cases control this case. But where the persecution
is by the government of the nation no such distinction
may be taken ... It has never been thought that there are
safe places within a nation when it is the nation’s
government that has engaged in the acts of punishing
opinion that have driven the victim to leave the
country.” Id. at 1034 (citations omitted).
Without deciding whether we agree with the Ninth Circuit’s ultimate
reasoning and conclusions in Singh, we recognize that the Ninth
Circuit properly allocated the parties’ respective burdens in such
a case. When a party seeking asylum demonstrates that a national
government is the “persecutor,” the burden should fall upon the INS
to show that this government’s persecutive actions are truly
limited to a clearly delineated and limited locality and situation,
so that the applicant for asylum therefore need not fear a
likelihood of persecution elsewhere in the nation. The INS made no
such showing in the present case. Moreover, that an alien (at
least one whose residence in a country was in that part of it under
14
the government’s control) might be safe from persecution by the
national government in other areas of the nation (such as those
under rebellion) where the government’s writ does not run, does not
suffice to show that the alien lacks the requisite fear of
persecution.
Conclusion
For the foregoing reasons, the Board of Immigration’s order of
deportation is VACATED, and the case is REMANDED for
reconsideration consistent herewith.
VACATED and REMANDED
15