Elias v. Gonzales

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 07a0222p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

X

Petitioner, -

NAJAH GORGES ELIAS,

-

-

-

No. 06-3366

v.

,

>

ALBERTO R. GONZALES, United States Attorney -

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Respondent. -

General,

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N

On Petition for Review from the

Board of Immigration Appeals.

No. A95 575 407.

Submitted: April 18, 2007

Decided and Filed: June 15, 2007

Before: MERRITT and GRIFFIN, Circuit Judges; LAWSON, District Judge.*

_________________

COUNSEL

ON BRIEF: Roger R. Rathi, LEGALQUEST NETWORK, Southfield, Michigan, for Petitioner.

Jamie M. Dowd, Michelle Gorden Latour, UNITED STATES DEPARTMENT OF JUSTICE,

Washington, D.C., for Respondent.

The court delivered a PER CURIAM opinion. MERRITT, J. (pp. 9-10), delivered a

concurring opinion.

_________________

OPINION

_________________

PER CURIAM. In this asylum case, petitioner Najah Gorges Elias, a native of Iraq and

Chaldean Christian, seeks reversal of a Board of Immigration Appeals (“BIA”) decision dismissing

his appeal from an oral decision of an Immigration Judge (“IJ”). For the following reasons, we grant

the petition for review, vacate the decision of the BIA, and remand for a new hearing before another

IJ.

*

The Honorable David M. Lawson, United States District Judge for the Eastern District of Michigan, sitting

by designation.

1

No. 06-3366 Elias v. Gonzales Page 2

I.

At the time of his removal hearing on October 20, 2004, petitioner was a thirty-one year old

male citizen of Iraq who entered the United States on or about May 1, 2003, in or near Detroit,

Michigan. He is an ethnic Chaldean who practices the Catholic religion. In addition to being

identified as a “minority religion” in Iraq, there is evidence that Assyrian and Chaldean Christians

are considered by other Iraqis to constitute a distinct non-Arab ethnic minority.

Petitioner entered the country on a visa that identified him as the fiancé of a United States

citizen and allowed him to stay in the country until July 30, 2003. Petitioner and his fiancée decided

not to get married, and petitioner stayed in the country beyond July 30, 2003. Petitioner conceded

removeability, but sought relief from removal through an application for asylum, which is also

considered an application for non-discretionary withholding of removal. Petitioner also applied for

relief from withholding of removal pursuant to Article 3 of the United Nations Convention Against

Torture (“CAT”).

At the removal hearing, the parties and the interpreter were all present in a courtroom in

Detroit, Michigan; but the IJ sat in New York City, hearing the case through televideo connection.

Petitioner claims that he began to be harassed at the age of 15 when he was forced to attend

mandatory religion classes in Islam at his high school. He also testified that on December 12, 1990,

he was arrested one day at school for distributing anti-religion and anti-government fliers, which he

says he did not do. After this arrest, he was detained for about 33 days at various locations, beaten,

and given little food. He was released and1returned home, but did not seek any medical treatment.

He returned to school on January 17, 1991, but he claims he was not allowed to return. His asylum

application states that he completed high school in June 1991.

Petitioner testified that he was conscripted into the Iraqi Army in February 1991, and that

he was detained for three months, from August 1992 until November 1992, when he was found

reading the Bible in his barracks.

Petitioner testified that he left Iraq in November 1998 due to fear that he would be harmed

by Baath Party members based on two incidents in November 1998. In the first incident, petitioner

intervened when some Baath Party members began to harass female members of petitioner’s church

as they left church on Sunday, November 1, 1998. He drove the harassers off, but petitioner claims

that they swore to get revenge on him. Petitioner became involved in another encounter with Baath

Party officials on November 12, 1998, after they harassed his sister and her friend outside the store

where he worked. An altercation ensued and a Baath Party member pulled a gun, but petitioner was

not injured. Petitioner’s brother was arrested and detained.

After the second incident, petitioner’s family decided that petitioner needed to leave Iraq.

A false passport was obtained, and petitioner testified that he left Iraq for Jordan on November 29,

1998. He remained in Jordan until March 2002. He then traveled to Malta where his family had

arranged for him to marry a native-born United States citizen whose family was from Malta.

Although he had spoken on the phone to the woman, this was the first time they met. He then

traveled to the United States on a visa secured by his fiancée, and they planned to marry within a

few months of his arrival. Once in the United States, petitioner said he and the woman decided not

to marry because she was too “westernized.”

1

The judge’s oral decision says “January 17, 2001,” but the judge must have misspoken given that the month

after December 1990 is January 1991.

No. 06-3366 Elias v. Gonzales Page 3

Petitioner’s application for the visa to come to the United States to marry a U.S. citizen

stated that he had lived in Amman, Jordan since April 1997, not November 1998. Petitioner signed

the application and attested to its truthfulness, but stated at the hearing that he had no idea what the

visa application said and that his lawyer had filled it out.

The IJ issued an oral decision at the conclusion of the hearing and found petitioner lacked

credibility on issues material to his claim. The judge cited the discrepancy between petitioner’s visa

application that said he had been in Amman, Jordan from April 1997 to 2002, and petitioner’s

hearing testimony that he was in Iraq until November 1998 when he then fled to Jordan after the

altercation with the Baath party members. We acknowledge the confusion around this issue – with

the visa application saying he left Iraq in April 1997, his passport bearing an issuance date of

September 1998,2 and petitioner testifying that he did not request or receive the passport until

November 1998. Based on these discrepancies, the IJ concluded that petitioner was not in Iraq in

November 1998 and that he had fabricated the story about the altercation with Baath Party members

in November 1998.

The judge also pointed to the discrepancy between the asylum application and petitioner’s

testimony concerning when he left high school and joined the Army. Petitioner testified that he was

expelled from high school and conscripted into the Army in February 1991, but his application states

that he left high school in June 1991. The judge did not believe that petitioner joined the Army in

February 1991, because petitioner did not know exactly when the first Gulf War ended and that local

uprisings had occurred in Iraq in March and April of 1991. The judge found that if petitioner had

been a soldier in the Iraqi Army during this time he would know this information.

The judge also did not believe petitioner’s testimony regarding the genuineness of his

engagement to a U.S. citizen whom he had only just met. He found it difficult to believe that

petitioner’s family had arranged his marriage to an American woman whose family came from

Malta, stating that it looked like the proposed marriage was arranged simply so that petitioner could

come to the United States. Despite persistent questioning by the IJ, petitioner insisted that the

engagement was not a sham, that arranged marriages were not uncommon in his culture, and that

he did intend to marry his fiancée when he came to the United States, but that when they got to know

each other better, they decided that marriage was not a good decision for them.

The IJ also found the petitioner’s asylum application frivolous, thereby barring a grant of

asylum to petitioner forever. The judge also found petitioner was a “persecutor” of others based on

some of his duties during his service in the Iraqi Army, which provides another basis to ban

petitioner forever from asylum in this country.

As to petitioner’s fear of future persecution should he be returned to Iraq, the IJ noted that

during the time of the Hussein regime, Christians were generally not bothered and were allowed to

practice their religion freely. In discussing the evidence submitted by petitioner concerning the

documented increase in violence against Christians and “violent attacks” on churches since the fall

of the Hussein regime, the judge dismissed it because “there is no systematic and organized

persecution or systematic and organized practice of persecution in the Christian community there.”

The judge also dismissed petitioner’s claim under the CAT in one paragraph, stating there was no

evidence that any mistreatment rose to the level of torture and that any threat of torture came from

individuals, not the government.

2

Petitioner testified that the person from whom the false passport was purchased backdated the passport to

September to make it look like petitioner was not leaving based on the altercations with the Baath Party members in

November.

No. 06-3366 Elias v. Gonzales Page 4

In its short opinion affirming the IJ, the BIA identified two bases for its decision to affirm

the IJ. First, it found support in the record to defer to the IJ’s adverse credibility determination.

Based on these alleged misrepresentations, the Board also upheld the IJ’s finding that petitioner filed

a frivolous application. The BIA’s second rationale for affirming the IJ is that petitioner did not

challenge on appeal the IJ’s finding that, while in the Iraqi Army, petitioner was involved in the

persecution of others based on their political opinions, and he is therefore barred from a grant of

asylum under § 208(b)(2) of the Immigration and Nationality Act.

The Board, however, did not adopt and affirm the IJ’s “intemperate” description of an

altercation between the petitioner and men who allegedly had harassed his sister and her friend.

Although the Board acknowledged the IJ’s improper comments, it did not find that the IJ’s conduct

deprived petitioner of a full and fair hearing. Board of Immigration Appeals decision, Case No.

A95-575-407, Feb. 16, 2006, at 2.

The Board said nothing about the claim for asylum based on the current status of Chaldean

Christians in Iraq or about the changed circumstances in Iraq since petitioner filed his application.

It also did not mention petitioner’s claim under the CAT.

II.

To be eligible for asylum, an alien must prove that he is a “refugee,” i.e., a person who is

“unable or unwilling to return to” his country “because of persecution or a well-founded fear of

persecution on account of race, religion, nationality, membership in a particular social group, or

political opinion.” 8 U.S.C. § 1101(a)(42)(A). An alien must establish that he was persecuted in

the past or that he has a well-founded fear of being persecuted in the future before being deemed a

refugee. Pilica v. Ashcroft, 388 F.3d 941, 950 (6th Cir. 2004); 8 C.F.R. § 208.13(b). An applicant

who establishes past persecution shall be presumed to have a well-founded fear of future persecution

on the basis of the original claim. 8 C.F.R. § 208.13(b)(1). This presumption of future persecution

can be rebutted if the IJ finds by a preponderance of the evidence that there has been “a fundamental

change in circumstances such that the applicant no longer has a well-founded fear of persecution in

the applicant’s country of nationality.” 8 C.F.R. § 208.13(b)(1)(i)(A). Additionally, an asylum

applicant can also prove a well-founded fear of future persecution by showing that he genuinely

(subjectively) fears he will be persecuted based on a protected ground if returned to his native

country, and that his fears are objectively reasonable. Jamal-Daoud v. Gonzales, 403 F.3d 918, 922

(7th Cir. 2005).

Where, as here, the BIA expressly adopts and affirms the IJ’s decision but adds comments

of its own, we directly review the decision of the IJ while also considering the additional comments

made by the Board. See Gilaj v. Gonzales, 408 F.3d 275, 283 (6th Cir. 2005).

III.

We have concerns about the adverse credibility determination made by the IJ and affirmed

by the Board. For example, the IJ questioned why petitioner’s passport was dated September 1998

when he did not leave the country until November 1998. Petitioner tried to explain that it would

look suspicious if he had a passport dated at the time the authorities were looking for him, so it was

backdated. The judge said petitioner’s explanation did not make any sense, but, in any event, we

do not see how the apparent discrepancy is particularly relevant. The judge seemed to view this

discrepancy of two months on the passport issue date as demonstrating a lack of credibility about

the November 1998 altercation, but the passport was false anyway, and petitioner’s family purchased

it so that he could get out of the country. The issuance date on a false passport is not particularly

relevant to petitioner’s claim of persecution and does not demonstrate that he was not in the country

in November 1998.

No. 06-3366 Elias v. Gonzales Page 5

The judge also found that petitioner’s lack of knowledge about the end date of the first Gulf

War and about the uprisings in the north and south of Iraq against the Hussein regime immediately

after the war demonstrated a lack of credibility as to when he entered the military. The IJ questioned

petitioner at length about the start and end dates of “the war,” and when petitioner’s recollection of

those dates did not coincide with the3 judge’s, the judge interpreted this to mean that petitioner had

not been in the Army in early 1991. Whether petitioner is familiar with the specifics of the war

is of little matter here. His complaint is that he was persecuted while in the Army based on his

religion, specifically noting a detention from August 1992 to November 1992, and whether he

entered the Army in February 1991 or June 1991 does not seem material. The judge does not

question that petitioner actually served in the Army and was there in 1992, which seems to be the

relevant issue.

The judge also found it incredible that petitioner did not seek medical treatment after being

detained for 33 days in late 1990. He stated that petitioner should have at least gone to a doctor here

in the United States to look for remnants of the beatings petitioner claims took place during this

detention, such as “bruises or scars.” It is highly unlikely that there would be any physical evidence

of beatings that occurred 11 years prior to petitioner’s arrival in the United States – certainly any

bruises would have long-since healed. Furthermore, petitioner never claimed that the beatings left

any permanent injury or broke any bones – he testified only that he had been hung from a fan, beaten

repeatedly, and deprived of food for 33 days.

The judge also expressed incredulity about petitioner’s arranged marriage to the United

States woman whose family came from Malta, stating that it looked like the marriage was arranged

simply so that petitioner could come to the United States. Petitioner insisted that the engagement

was not a sham and that he did intend to marry his fiancée when he came to the United States. The

judge appeared to base his finding that the engagement testimony lacked credibility first on the fact

that petitioner would marry someone he had only just met. Arranged marriages are still common

throughout the world, even if not in the United States. See, e.g., United States v. Anwar, 428 F.3d

1102, 1107 (8th Cir. 2005) (“Saqib Chudarry (Chudarry), a native of Pakistan, testified Anwar stated

he had arranged marriages . . . .”), cert. denied, – U.S. –, 126 S. Ct. 1806 (2006); Lata v. INS, 204

F.3d 1241, 1243 (9th Cir. 2000) (“Lata testified that, as Hindus, ethnically Indian Fijian girls have

arranged marriages . . . .”); United States v. Sriyuth, 98 F.3d 739, 742 (3d Cir. 1996) (referring to

“the Laotian custom of arranged marriages”). Second, the judge found the testimony lacked

credibility because petitioner said he and his fiancée planned a large wedding to take place shortly

after petitioner arrived in the United States. The judge said that it was impossible to put together

a “large” wedding in just a month or two and found this to demonstrate lack of credibility. We do

not know how an immigration judge in New York has any idea how long it takes to plan a wedding

of any size in Michigan – things may be different in Dearborn, Michigan, than they are in New York

City. It may be entirely possible to plan a “large” wedding in a couple of months in the Dearborn

community.

The IJ was clearly frustrated with what he saw as lack of responsiveness and evasiveness by

petitioner during the teleconference hearing. The transcript demonstrates that petitioner was having

a hard time understanding the judge. The cause for petitioner’s failure to understand may have been

language problems, distance, or nervousness. As will be discussed below, the judge often berated

petitioner during the hearing, and this approach exacerbated petitioner’s nervousness. What the IJ,

hundreds of miles away in New York, took to be evasiveness and lack of responsiveness may have

been fear or intimidation.

3

In fact, Iraq invaded Kuwait on August 2, 1990. The United States offensive began on January 16, 1991, with

missile fire. The ground offensive by U.S. and coalition troops ran between February 24 and 28, 1991. A review of the

transcript seems to demonstrate that when the judge kept referring to the “war,” the judge meant the U.S. invasion of

Iraq in early 1991, and petitioner was referring to the Iraqi invasion of Kuwait, which was about five months earlier.

No. 06-3366 Elias v. Gonzales Page 6

IV.

While we have stated our concerns about the IJ’s credibility determination, we are especially

troubled by the conduct of the IJ during the hearing and its effect on the petitioner’s ability to testify

accurately. We cannot conclude that the IJ’s adverse credibility determination is supported by

substantial evidence due to the IJ’s behavior during the hearing. The record contains many instances

of questioning and commentary by the IJ that lead us to believe that petitioner did not receive a fair

hearing. This is the rare case where remand is required because of the IJ’s apparent bias and

hostility toward Elias.

An immigration judge has a responsibility to function as a neutral, impartial arbiter and must

refrain from taking on the role of advocate for either party. During the course of the hearing, the

IJ repeatedly addressed petitioner in an argumentative, sarcastic, and sometimes arguably insulting

manner that went beyond fact-finding. “Even when, as here, an [IJ] firmly believes a petitioner is

not truthful, repetitive verbally abusive comments and questions taint the proceeding and erode the

appearance of fairness and call into question the results of the proceeding.” Islam v. Gonzales, 469

F.3d 53, 55-56 (2d Cir. 2006). The judge’s questioning and comments created an atmosphere in

which it may have been difficult for Elias to advocate fully on his own behalf. In fact, the interpreter

told the judge at one point when the judge was berating petitioner that he believed that petitioner

was “afraid” of the judge. Because the IJ’s conduct at the hearing creates substantial uncertainty

as to whether the record below was fairly and reliably developed, we find it necessary to remand for

a new hearing. Several examples of this improper conduct follow.

When referring to dates, petitioner used the form common throughout much of the world:

day-month-year. For example, February 15, 1991, would be stated as “15-2-91.” The IJ seemed

at first confused and then angered by this form of speech and accused the petitioner of trying to

confuse him when there was nothing in the record to support that accusation. The petitioner tried

to give dates in the form the judge wished, but he sometimes forgot or would get himself confused

in trying to make the date clear. The judge showed little patience for this and in his opinion stated

“[t]hat tended to be how he usually gave dates, not stating a month but merely rattling off numbers

in that fashion.” (Emphasis added.) At the least, this demonstrates ignorance of the manner in

which much of the world communicates dates.

In his oral decision, the judge derided petitioner’s explanation of how he verbally sparred

with Baath Party members and raised a stick to them when they were armed with guns. The judge

likened petitioner’s conduct to the movie characters Indiana Jones or Jackie Chan, stating that the

description seems “more like something out of an action adventure movie than anything akin to

reality” and stated that he believed none of it.

The judge at one point asked the interpreter if petitioner understood the interpreter, and the

interpreter indicated that he thought so and said that he thought that petitioner was “just not

comfortable.” The judge sarcastically replied, “He’s not comfortable. Well, can we get him a pillow

or something?” The petitioner admitted later in the hearing in response to a question by the judge

that he was not understanding the questions very well and that he was “afraid” of talking to the

judge.

It was clear throughout the hearing that petitioner and the IJ did not always understand each

other, especially when they were discussing numbers and time frames. For example, after going

back and forth for a couple of minutes concerning petitioner’s detention in late 1990, the IJ asked

petitioner to tell him how long he was detained. Petitioner tried to explain that he was first held for

three days at a Baath Party office and then he was transferred to Mosul, where he remained for about

one month. The judge interrupted him and said,

No. 06-3366 Elias v. Gonzales Page 7

Q: Sir, listen. Don’t talk, listen. Nobody asked you to speak. You were asked

how long you were detained, period, in total. You said three days. Sir –

A: I’m sorry, I didn’t understand.

Q: I didn’t ask you to speak. I asked you to listen. Every time you speak we’ll

start over again. So, for the third time, you were asked how long you were

detained in total. You answered three days. You answered three days.

A: Your honor?

Q: Huh?

A: You want me to answer Your Honor?

Q: [to interpreter] He is not to speak. Did he answer?

...

Q: . . . Okay, we’re going off the record. Maybe [petitioner’s attorney] should

explain to you what it means not to speak, OK?

When they went back on the record, the judge accused petitioner of either making up his own

questions and then answering them or having a prepared response and told petitioner that he “would

lose his case for sure” if he continued to answer the questions in a manner the judge did not like.

Despite the judge’s confusion about the time frame of petitioner’s detention in 1990, a review of the

transcript shows that petitioner was always clear that the detention was for 33 days and that he only

mentioned the three days in response to a question about where he was held – which was two

different places for two different amounts of time totaling 33 days. The judge frequently cut off

petitioner’s attempts to explain, thereby prohibiting petitioner from fully answering the question and

resulting in confusion on both sides.

This is not the first case in which the conduct of this IJ has raised substantial questions as

to his bias and hostility toward a petitioner. We agree with the BIA that his manner was

“intemperate,” and he was inappropriately sarcastic with petitioner and appeared at times to badger

petitioner – likely making petitioner more nervous and affecting his testimony.

Since the admonishment by the BIA in this case, the IJ has been removed from the bench.

His inappropriate conduct had been noted in at least ten opinions or orders issued by the Second

Circuit since 2005. Chen v. Gonzales, No. 06-1940-ag (summary order) (2d Cir. Jan. 30, 2007);

Islam v. Gonzales, 469 F.3d 53 (2d Cir. 2006); Yu Hua Xiao v. Gonzales, No. 04-5736-ag (summary

order) (2d Cir. Oct. 26, 2006); Ti Wu Gao v. Gonzales, No. 05-0012-ag (summary order) (2d Cir.

Sept. 29, 2006); Qiu Hui Liu v. United States Dep’t of Justice, No. 05-3181-ag (summary order) (2d

Cir. Aug. 1, 2006); Huang v. Gonzales, 453 F.3d 142 (2d Cir. 2006); Jin Yong Chen v. Gonzales,

No. 04-5826 (summary order) (2d Cir. Apr. 28, 2006); Liu v. Board of Immigration Appeals, No.

05-0903-ag (summary order) (2d Cir. Feb. 17, 2006); Hajderasi v. Gonzales, No. 04-2784-ag

(summary order) (2d Cir. Feb 13, 2006); You-Mei Ding v. CIS, No. 034915 (summary order) (2d Cir.

Aug. 8, 2005). Before his removal, the Second Circuit, in a highly unusual move, requested4 that a

Justice Department appeals board review all immigration cases on appeal involving this IJ. Ba v.

Gonzales, No. 05-5043-ag (summary order) (2d Cir. Feb. 21, 2007).

Based on the removal of the IJ from the bench and the request of the Second Circuit to

review all his pending cases, as well as our own review of the record in this case, we must vacate

4

IJs are appointed by, and employees of, the United States Department of Justice.

No. 06-3366 Elias v. Gonzales Page 8

and remand. Petitioner was entitled to a fair hearing, but did not receive one. Where such displays

of hostility or bias have occurred, we have remanded for reconsideration before a different

immigration judge. See Mece v. Gonzales, 415 F.3d 562, 578 (6th Cir. 2005).

V.

The BIA’s decision is vacated and the case is remanded to the Board with instructions that

it be assigned to a different IJ for further proceedings consistent with this opinion.

No. 06-3366 Elias v. Gonzales Page 9

______________________

CONCURRENCE

______________________

MERRITT, Circuit Judge, concurring. I concur separately to note that even if the

presumption based on past persecution has been rebutted, petitioner still has a well-founded fear of

persecution based on current conditions in Iraq. He has submitted several newspaper articles from

the time period of the hearing (October 2004) demonstrating worsening conditions for Christians

in Iraq since the regime change in 2003. While acknowledging the newspaper articles, the judge

noted that the claims of danger presented by petitioner were consistent with general civil strife rather

than the targeted persecution needed to establish refugee status. The Board of Immigration Appeals

did not address the fear-of-future-harm argument raised by petitioner, or the regime change in Iraq,

so the immigration judge’s oral decision is the only ruling on this matter.

Regarding petitioner’s fear of future persecution, the immigration judge’s finding of changed

country conditions due to the fall of Saddam Hussein’s regime does not dispose of Elias’ religious

and ethnic persecution arguments. The fact that the Baath Party has been removed from power does

not mean that conditions in Iraq have improved for Christians. See Dawood v. Gonzales, No. 05-

4496 (6th Cir. Feb. 26, 2007) (Chaldean Christian); Margos v. Gonzales, 443 F.3d 593, 598 (7th

Cir.2006) (Assyrian Christian) (“Ironically, under [ ] Hussein’s iron fist, Assyrian Christians and

similar minorities were arguably better off as their dictator did not tolerate factional strife and civil

unrest within ‘his’ country (unless it furthered his own ends).”). Independent analysis of a claim of

fear of future persecution is required. See Youkhana v. Gonzales, 460 F.3d 927, 932 (7th Cir. 2006)

(immigration judge erred in not looking to how changed country conditions affected petitioner’s

fear-of-future-persecution claim).

Even back in 1998, at or near the time petitioner still lived in Iraq, the State Department’s

1998 Country Report on Iraq suggested that the Iraqi government had engaged in abuses against the

Assyrian Christians. I also take judicial notice of the State Department’s 2005 Country Report on

Iraq that states that while governing law now provides for freedom of religious belief and practice,

“[d]eficiencies in security force capabilities and in the rule of law made it difficult for the justice

system to investigate or address violations of these rights,” noting particularly the “harassment of

Christians.” More generally, it paints a picture of “[a] climate of extreme violence” in which

“[r]eports increased of killings by the government or its agents” as well as by “common criminals,

insurgents, and terrorists . . . sometimes masking their identity in police and army uniforms.”1 On

remand, therefore, I believe the immigration judge must consider whether the Iraqi government has

failed to protect Chaldean Christians like Elias from persecution by insurgents or Muslim extremist

organizations, and, if so, whether this constitutes a ground for granting asylum (or some other form

of relief from removal) to Elias. See Galina v. INS, 213 F.3d 955, 958 (7th Cir. 2000) (persecution

can be found even though “government authorities . . . did not actually perpetrate or incite [ ]

persecution, [if they] condoned it or at least demonstrated a complete helplessness to protect the

victims”).

Moreover, since the petitioner’s hearing in October 2004, conditions for Christians in Iraq

have worsened further. Although always a very small minority in Iraq, about 1.5 million Christians

lived there in the early 1980s, as they had for hundreds of years, coexisting with their Muslim

1

Since the conclusion of the initial phase of the U.S. action in Iraq, various governing authorities have existed.

As of May 16, 2003, Iraq was governed by the Coalition Provisional Authority. On June 28, 2004, the Coalition

Provisional Authority transferred power to the Iraqi Interim Government, which in turn handed the reins over to the Iraqi

Transitional Government on January 30, 2005; since that time, in early 2006, the elected government of Iraq has taken

over.

No. 06-3366 Elias v. Gonzales Page 10

neighbors. Even under much of the Hussein regime, which was basically secular, Christians were

not generally targeted for persecution or harassment. That began to change in the 1990s as Iraq

came under the influence of Islamic clerics. The number of Christians in Iraq is put at less than

500,000 today. Many have left the country or are trying to leave.

A panel of our court addressed the plight of Chaldean Christians recently in Dawood v.

Gonzales, No. 05-4496 (6th Cir. Feb. 26, 2007). In that case, the immigration judge found that since

Hussein has been overthrown, there “is no information or documentation that would lead it [the

court] to believe that Christian or ethnic Chaldeans are singled out for persecution by any group in

Iraq.” Id. at *1. The immigration judge in the instant case made a similar finding: “[T]here is no

systematic and organized persecution or systematic and organized practice of persecution in the

Christian community there [in Iraq]. I do not find that the [petitioner] has established at the present

time even that there’s a pattern or practice against Christians.” Oral decision of the Immigration

Judge at 22.

On remand, Elias’ claim of fear of future persecution should be reexamined in light of

conditions described in the Department of State country report on Iraq. The report states in part:

There were numerous incidents of violence against the Christian community this

year, ranging from individual killings to intimidation . . . . The number of Christians

leaving the country rose after bombings of 14 churches in Baghdad and Mosul from

August through December [2004]. The bombings left 43 dead and 340 injured, as

well as damaging the churches.

(http://www.state.gov.g.drl/rsl/hrrpt/2004/41722.htm.) Recent press reports demonstrate that these

attacks against Christians continue. See, e.g., Associated Press, In Jordan, Christians From Iraq

Harassed, N.Y. Times, Mar. 15, 2007 (describing that Iraqi Christians who endured persecution in

Iraq before fleeing to Jordan continue to face persecution in Jordan because they are Christian);

Patrick Cockburn, “Exodus” of Iraq’s Ancient Minorities, Independent (United Kingdom), Feb. 26,

2007 (one reason Christians targeted in Iraq because U.S. and Britain, the countries blamed for the

war, are predominantly Christian nations); Niraj Warikoo, Detroit Anticipates More Iraqi Refugees,

Detroit Free Press, Feb. 14, 2007 (noting that at least 200,000 Iraqi Christians have fled Iraq since

2003); Statement of Nina Shea, Director, Center for Religious Freedom, Before the Committee on

International Relations Subcommittee on Africa, Global Human Rights, And International Operation

(Dec. 21, 2006) (concerning persecution of Christians in Iraq); Statement of the Chaldean Federation

of America On the Iraqi Christians Plight To the U.S. Senate Committee on the Judiciary (Jan. 16,

2007) (full statements may be found at http://www.chaldeanfederation.org/news/senate.html ); see

also Press reports cited in Dawood v. Gonzales, at *3. Both the press reports and government

reports show that followers of the Christian faith make up a small and shrinking minority in Iraq and

that the number of Christians has decreased dramatically in recent years. Based on this evidence,

I would remand petitioner’s asylum claim on the additional ground of fear of future persecution

based on his Christian religion should he be returned to Iraq.

So long as our asylum standards remain the same as they are today for aliens, the Department

of Justice enforcement agencies must improve the quality of their review process. We see too many

mistakes of inappropriate manipulation of credibility findings by reviewing officials, as we find in

this case in which the official was discharged. Nina Bernstein, U.S. Relieves Judge of Duties in

Courtroom, The New York Times, Mar. 13, 2007. See also Nina Bernstein, In New York

Immigration Court, Asylum Roulette, New York Times, Oct. 8, 2006 (noting stark disparities in

whether asylum granted or denied depending on the immigration judge assigned to the case and

particularly noting the rebukes received by then-Immigration Judge Chase from the Second Circuit).