Najah Gorges Elias v. Alberto R. Gonzales, United States Attorney General

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, 2007 Fed.App. 0154N (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, “[deficiencies 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 “[rjeports 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.” On remand, therefore, I believe the immigration judge must consider whether the Iraqi government 1 has *454 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 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, 2007 Fed.App. 0154N (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, *455 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).

. 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 *454 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.