Abraham v. Holder

In the

United States Court of Appeals

For the Seventh Circuit

No. 10-2256

A LMAS A BRAHAM ,

Petitioner,

v.

E RIC H. H OLDER, JR., Attorney General

of the United States,

Respondent.

On Petition for Review of an Order of

the Board of Immigration Appeals.

A099 333 747

S UBMITTED JANUARY 19, 2011 1—D ECIDED JUNE 1, 2011

Before P OSNER, K ANNE and R OVNER, Circuit Judges.

R OVNER, Circuit Judge. 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

1

We granted the petitioner’s unopposed motion to waive

oral argument. Thus, the appeal is submitted on the briefs

and the record. See Fed. R. App. P. 34(f).

2 No. 10-2256

jurisdiction to review the Board’s denial of her applica-

tion 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.2 Abraham entered the United States on

May 17, 2004, at Chicago, with a K-1 nonimmigrant visa,

which is also known as a “fiancé visa.” A fiancé visa

permits a foreign citizen fiancé 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 applica-

tion for asylum on November 5, 2005.3 Abraham was

2

Seventy-four percent of Syrians are Sunni Muslims. Christians

comprise approximately 10% of the Syrian population. See

United States Department of State, Background Note: Syria,

http://www.state.gov/r/pa/ei/bgn/3580.htm (last visited

May 10, 2011) (hereafter “State Dept. Report”).

3

An application for asylum is automatically considered a

request for withholding of removal. See 8 C.F.R. § 208.3(b) (“An

asylum application shall be deemed to constitute at the

(continued...)

No. 10-2256 3

served with a Notice to Appear charging that she was

removable from the United States because she had re-

mained 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.4

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

3

(...continued)

same time an application for withholding of removal, unless

adjudicated in deportation or exclusion proceedings com-

menced prior to April 1, 1997.”).

4

Like much of Abraham’s testimony, her account of her

relationship with Al-Deri contains a number of seeming incon-

sistencies. She twice described the relationship as a “dating

relationship,” but also said it was “forced” and “not voluntary.”

R. at 125, 132-33. At one point, she testified, “It was like he

fall [sic] in love with me and he wanted me and I couldn’t

do anything about it.” R. at 124. She also said that Al-Deri

blamed her for starting the relationship and that for a time,

she also blamed herself. R. at 132-33.

4 No. 10-2256

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 fiancé 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

No. 10-2256 5

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 Al-

Deri’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 testi-

mony 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

6 No. 10-2256

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.5

5

According to the Human Rights Report, “The law does not

specifically prohibit domestic violence, and violence against

women occurred during the year. A 2006 study reported that

as many as one in four women surveyed had been victims

of domestic violence. The majority of domestic violence

and sexual assault cases went unreported; victims have tradi-

tionally been reluctant to seek assistance outside the family

for fear of social stigmatization. Observers reported that when

some abused women tried to file a police report, the police

did not respond to their claims aggressively, if at all. Women

reported incidents at police stations of sexual harassment,

verbal abuse, hair pulling, and slapping by police officers

when attempting to file police reports, particularly at the

(continued...)

No. 10-2256 7

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-

5

(...continued)

criminal security branch at Bab Musallah in Damascus. Victims

of domestic violence have the legal right to seek redress in

court, but few did so because of the social stigma attached

to such action.”

8 No. 10-2256

vention Against Torture, and therefore denied her ap-

plication 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) (per-

mitting consideration of a late-filed application for

asylum “if the alien demonstrates to the satisfaction of

the Attorney General either the existence of changed cir-

cumstances which materially affect the applicant’s eligi-

bility 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 rea-

sonable 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

No. 10-2256 9

demonstrate a clear probability that she will suffer perse-

cution 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 testi-

mony 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 testi-

mony 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 perse-

cuted 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

10 No. 10-2256

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 cor-

roborating 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 applica-

tion 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 she provided and failed to

forewarn her that they required additional corroborating

evidence.

A.

Section 1158(a)(2) provides that an alien must apply

for asylum within one year of the date of the alien’s

arrival in the United States unless “the alien demonstrates

to the satisfaction of the Attorney General either the

existence of changed circumstances which materially

No. 10-2256 11

affect the applicant’s eligibility for asylum or extra-

ordinary circumstances relating to the delay in filing

an application within the period specified[.]” 8 U.S.C.

§ 1158(a)(2)(B) and (D). Section 1158 also provides

that “[n]o court shall have jurisdiction to review any

determination of the Attorney General under paragraph

(2).” 8 U.S.C. § 1158(a)(3). Therefore, in general, we lack

jurisdiction to review the Attorney General’s rejection of

an untimely request for asylum. Restrepo v. Holder, 610

F.3d 962, 964 (7th Cir. 2010). Notwithstanding that limita-

tion on our jurisdiction, we retain authority to review

constitutional claims and questions of law. 8 U.S.C.

§ 1252(a)(2)(D).

In order to get around the limit on our jurisdiction,

Abraham attempts to characterize her claim as one in-

volving a question of law. A review of her brief, how-

ever, reveals that she simply disagrees with the IJ’s con-

clusions regarding the facts of the case. In particular, she

contests the IJ’s conclusion that she did not present evi-

dence of a “material” change in circumstances. The IJ’s

conclusion that Abraham lacked sufficient credible evi-

dence to meet the materiality standard is not a question

of law. Restrepo, 610 F.3d at 964-65 (noting that our

circuit limits § 1252(a)(2)(D) to strictly legal controversies,

and so we are not authorized to review applications of

law to facts); Khan v. Filip, 554 F.3d 681, 687-89 (7th Cir.

2009), cert. denied, 130 S. Ct. 1049 (2010) (concluding

that our review under § 1252(a)(2)(D) is limited to “pure”

questions of law); Vasile v. Gonzales, 417 F.3d 766, 768-69

(7th Cir. 2005) (holding that the agency’s determination

that an alien failed to file his asylum claim within one

12 No. 10-2256

year and failed to qualify for an extension of time

was an unreviewable question of fact and exercise of dis-

cretion). We therefore lack jurisdiction to consider Abra-

ham’s petition as it relates to her claim for asylum

and dismiss that part of her petition.

B.

We turn next to Abraham’s petition for review of the

decision of the IJ and the BIA to deny her application

for withholding of removal. Where the BIA’s order

adopts and supplements the IJ’s decision, we review

both. Surganova v. Holder, 612 F.3d 901, 904 (7th Cir.

2010); Milanouic v. Holder, 591 F.3d 566, 570 (7th Cir. 2010);

Krishnapillai v. Holder, 563 F.3d 606, 615 (7th Cir.

2009); Khan, 554 F.3d at 690. We examine the IJ’s factual

findings deferentially and uphold them so long as they

are supported by substantial evidence. Krishnapillai, 563

F.3d at 615; Khan, 554 F.3d at 690; Balogun v. Ashcroft,

374 F.3d 492, 498 (7th Cir. 2004). Under the substantial

evidence test, we must uphold the IJ’s findings if they

are supported by reasonable, substantial, and probative

evidence on the record considered as a whole. Balogun,

374 F.3d at 498. We may reverse the IJ’s determinations

only if the evidence compels a different result. Balogun,

374 F.3d at 498.

Credibility determinations are questions of fact subject

to this standard of review. Balogun, 374 F.3d at 498. See

also Krishnapillai, 563 F.3d at 617 (holding that only in extra-

ordinary circumstances will this court overturn an IJ’s

No. 10-2256 13

credibility assessment). The Immigration and Nationality

Act (“INA”), as amended by the REAL ID Act of 2005,

sets forth the parameters for the Immigration Judge’s

credibility determinations:

Considering the totality of the circumstances, and all

relevant factors, a trier of fact may base a credibility

determination on the demeanor, candor, or respon-

siveness of the applicant or witness, the inherent

plausibility of the applicant’s or witness’s account, the

consistency between the applicant’s or witness’s

written and oral statements (whenever made and

whether or not under oath, and considering the cir-

cumstances under which the statements were made),

the internal consistency of each such statement,

the consistency of such statements with other

evidence of record (including the reports of the De-

partment of State on country conditions), and any

inaccuracies or falsehoods in such statements, with-

out regard to whether an inconsistency, inaccuracy,

or falsehood goes to the heart of the applicant’s

claim, or any other relevant factor. . . .

8 U.S.C. § 1158(b)(1)(B)(iii). The REAL ID Act also

modified the INA to allow immigration judges substan-

tial discretion “to demand corroboration of an asylum

applicant’s allegations whether or not the judge finds

the applicant credible.” Krishnapillai, 563 F.3d at 618.

“Only if such evidence is beyond the reasonable ability

of the immigrant to obtain is the judge precluded from

demanding corroboration.” Krishnapillai, 563 F.3d at 618;

8 U.S.C. § 1252(b)(4); Eke v. Mukasey, 512 F.3d 372, 381

(7th Cir. 2008).

14 No. 10-2256

In this case, the IJ expressly found that Abraham’s

testimony was not credible. That finding was well-sup-

ported by the numerous internal inconsistencies in

her testimony. As we noted above, she testified inconsis-

tently on a number of issues including: (1) her living

situation after Al-Deri told her family about the relation-

ship; (2) the time line for her relationship with Al-Deri,

her move to Damascus, and her engagement to Dawood;

(3) whether she had any contact with her family after

moving to Damascus; and (4) whether her relationship

with Al-Deri was consensual or forced upon her. We

will not disturb the IJ’s credibility finding because it is

supported by substantial evidence.

Nor is there any reason to overturn the decision of the

IJ or the BIA requiring that Abraham produce corrobora-

tion of her claims. We cannot say that it would have

been unreasonable in these circumstances to require

corroboration because Abraham had contacts in

Damascus who could verify her story, and also appears

to have been in contact with her uncle and with a

brother in the United States. Abraham complains that if

the IJ wished for her to produce corroborative evidence,

she should have been given notice of this requirement.

But the REAL ID Act:

clearly states that corroborative evidence may be

required, placing immigrants on notice of the conse-

quences for failing to provide corroborative evi-

dence. See 8 U.S.C. § 1158(b)(1)(B)(ii) (“Where the

trier of fact determines that the applicant should

provide evidence that corroborates otherwise cred-

No. 10-2256 15

ible testimony, such evidence must be provided

unless the applicant does not have the evidence and

cannot reasonably obtain the evidence.”). To hold

that a petitioner must receive additional notice

from the IJ and then an additional opportunity to

provide corroborative evidence before an adverse

ruling, would necessitate two hearings—the first to

decide whether such corroborating evidence is re-

quired and then another hearing after a recess to

allow the alien more time to collect such evidence.

This would add to the already overburdened

resources of the DHS, and such an approach

would seem imprudent where the law clearly

notifies aliens of the importance of corroborative

evidence.

Raphael v. Mukasey, 533 F.3d 521, 530 (7th Cir. 2008). There

is therefore no need for additional notice. Abraham

notes that the IJ and BIA did not address the testimony

given by her cousin that she would be the victim of

an honor killing on her return to Syria. That testimony

did corroborate that honor killings occur in Syria and that

punishment for the killers is virtually nonexistent. The

cousin also stated his opinion that Abraham would be

the victim of an honor killing if she returned to Syria.

Although the IJ and BIA did not expressly mention

this testimony, the IJ did not dispute that honor killings

occurred in Syria and agreed that they are a “terrible

problem” there. Oral Decision of the IJ (August 7, 2008), at

13. But the IJ found that, in light of all of the evidence,

and because Abraham’s family and former boyfriend

did not disturb her after she moved to Damascus, it was

16 No. 10-2256

unlikely that they would harm her if she returned to

Syria. Having reviewed the short and conclusory testi-

mony of Abraham’s cousin, we conclude that no further

analysis by the IJ or the BIA was necessary. It is clear

from the record and from the IJ’s decision that the IJ

understood all of the evidence presented and still

found Abraham’s proof lacking. See Kiorkis v. Holder, 634

F.3d 924, 928-29 (7th Cir. 2011) (recognizing that it is

impossible for immigration courts to write an exegesis

on every contention an applicant raises).

In short, the IJ found that Abraham did not produce

sufficient credible evidence that she had suffered past

persecution or would suffer persecution on her return

to Syria. The IJ and BIA concluded that Abraham also

failed to provide corroborating evidence of her claim

in circumstances where it was not unreasonable to

require her to produce corroboration. Because the deci-

sions of the IJ and BIA are supported by substantial

evidence, Abraham’s petition regarding withholding

of removal is denied.

D ISMISSED IN P ART AND

D ENIED IN P ART.

6-1-11