Friday, July 28, 2006

Iraqi Christian, anti-Baathist gets another shot at U.S. asylum

When Iraqi citizen Thamer Salem Toma, his wife Raide Emanuel Karim, and his daughter Maryan Toma arrived in the U.S. illegally in May 2002, they told immigration officials they were seeking asylum because Toma Thamer would be killed based he was Catholic, he sold Christian-themed video tapes, and opposed the government in power at the time.

As with most immigration cases, the challenge for the Immigration Judge was to determine whether Toma was 1.) a member of an oppressed group and 2.) whether the claims of oppression were "credible" and/or 3.) whether Toma had a "well-founded fear" of torture or murder if he was returned to Iraq.

In a 2-1 decision, the 6th Circuit held that an immigration judge had improperly found Toma's claims of religious and political persecution were not credible.

During the course of his immigration proceedings, Thamer told immigration officials that he ran a video store in Iraq - the opinion does not disclose the exact location -- where he sold anti-government and anti-Baathist videos. He said he had been arrested at his store in December 2001 and was held for several weeks, during which he was beaten and interrogated about his anti-government videos and non-Muslim beliefs.

When the immigration official asked Toma if he was being persecuted because he opposed the government or because he was a Christian, he replied that it was both.

Toma also claimed:
*His father was arrested and tortured for preaching Christianity
*His uncle and brother were executed for anti-government activities
*He, his father, and his brothers were harassed on their way to church, including having stones thrown at them and dirty water dumped on them.
*The persecution began when he was young. (He claimed to have received lower grades in school because he was not Muslim, had a teacher tear off his cross, was forced to study the Koran, and had a teacher encourage other students to beat him for being Christian.)
*He was even forced to serve an extra seven years in the Iraqi army in addition to the mandatory two years because of his religion
*He was treated poorly while in the army

When he was allowed to leave the army in 2000, Toma opened his video store. He claimed Baath party members extorted money from him and threatened to report him for selling illegal adult videos, even though Toma said the store sold Christian videos.

He finally stopped selling those videos after local Muslim leaders allegedly threatened to issue a religious order calling for people to burn down his store. He was finally arrested after Baath party members showed up at his store and allegedly demanded a tribute for Muslims killed during war. Toma said his religion required him to decline to donate, and so he was falsely accused of selling anti-government/anti-Baathist video tapes.

During his detention, Toma said his hands were tied, he was hung from a ceiling, and beaten on the stomach. Somehow, his brother managed to help him escape. But local religious leaders apparently found his brother and showed them a religious order, or fatwa, condemning him for preaching Christianity.

"The affidavit indicates that Toma’s 'blood was wanted' and that it was the 'duty of
every jealous Muslim to kill [Toma] and god would repay them,'" according to the appellate court's opinion. "Following the religious leader’s affidavit, Toma decided to flee Iraq with his wife and daughter."

In October 2003, an immigration judge held that Toma had indeed suffered political persecution at the hands of the Baath party, but did not face a "well-founded" fear of persecution if he was sent back because of political developments in the country since 2001, particularly the capture of Saddam Hussein and the U.S.'s disposal of the Baath-party government.

The judge also held Toma's fear of religious discrimination was not credible because he had not asserted it at the initial interview, but only after Hussein and the Baath party were removed from power. "The immigration court interpreted this alleged omission by Toma during his interviews by immigration officers as an indication that his later testimony was fabricated," the 6th Circuit majority said.

The immigration judge also found the religious persecution claim not credible because Toma did not mention the fatwas against him until later in the immigration proceedings. "The immigration court surmised that Toma 'in order to make his claim real or more readily grantable, came up with the story of the fatwa, something out of nothing,'" the 6th Circuit noted.

Based on that reasoning, Toma and his family's asylum application was rejected. Toma appealed to the Board of Immigration Appeals and was rejected again.

Although immigration decisions are often given great deference by the appeals courts, the 6th Circuit reversed the previous decisions after a third appeal by Toma. The court said the record showed that Toma did claim religious persecution in his early statements to immigration officials, although it was not explicit and not the only basis for his application for asylum.

"Additionally, it appears that the immigration court failed to appreciate a subtle but important
distinction in Toma’s testimony," the 6th Circuit continued. "The immigration court seems to have suggested that Toma originally alleged persecution for not being able to sell anti-government videos. This, however, is a completely different claim from Toma’s statements that he was falsely accused of selling antigovernment videos as a way of persecuting him for actually selling Christian videos and refusing to donate to Muslim causes."

Finally the appellate panel said it did not want to "penalize" an asylum-seeker for "failing to state with sufficient detail during an exceedingly brief initial interview the exact nature of the persecution he faces if he returns to his native land. We are reluctant to sustain an adverse credibility finding on the grounds that an applicant’s testimony during a credible fear assessment was not as complete as at the final hearing."

The appellate judges also rejected the lower court's suspicion of Toma's claim that fatwas were issued against him. "While Toma’s application did not use the word fatwa to describe these pronouncements by religious leader, as Toma later described them in his testimony, it is abundantly clear that these pronouncements fall squarely within the definition of a
fatwa. Thus, Toma’s application and his testimony were consistent regarding the actions of the
religious leaders — the only distinguishing feature was his word choice," the court said.

Based on those conclusions, the panel majority vacated the immigration's judges ruling and remanded the case to the BIA for assignment to a new judge and further proceedings.

In a two-page dissent, 6th Circuit Judge John M. Rogers argued that in light of the deference usually afforded to immigration judges, there was enough evidence to support that immigration judge's findings.

"In neither the first interview nor the second, lengthier interview two weeks later (consisting of 41 questions) did Toma discuss selling Christian videotapes, the two alleged Fatwas calling for his death, or any meaningful religious persecution," Rogers said. "In fact, in response to the interviewer’s question concerning how Toma knew he was to be executed if he returned to Iraq—an opportune time to mention the Fatwas—Toma stated only that it was because 'the way they treated me—there was no papers—nobody would know and my brother had a hard time' and because the 'Government is a dictatorship.' It is incredible that one who had two death edicts issued against him and who had such problems stemming from his sales of Christian
videotapes would state only that he feared death for selling anti-government videotapes. For this
reason, and because the panel is reviewing under a 'highly deferential standard,' Yu v. Ashcroft, 364 F.3d 700, 703 (6th Cir. 2004), I would hold that substantial evidence supports the immigration court’s adverse credibility determination."

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