Al-Saher v. INS: 9th Circuit Reverses BIA's Denial of CAT Claim

IMMIGRATION LAW & POLICY

Asylum, Refugee, and Other
Protected Statuses

AL-SAHER V. INS: 9TH CIRCUIT REVERSES BIA'S DENIAL OF CONVENTION AGAINST TORTURE CLAIM
Immigrants' Rights Update, Vol. 15, No. 8, Dec. 20, 2001

The Ninth Circuit Court of Appeals has reversed the Board of Immigration Appeals' denial of a Convention Against Torture (CAT) claim made by an Iraqi man who claimed that Iraqi officials had persecuted him. Following the last of his three arrests, Mr. Al-Saher, the petitioner in this case, managed to flee to the U.S., where he was placed in removal proceedings by the Immigration and Naturalization Service.

According to his testimony, Al-Saher served in the Iraqi military and later worked with the military as a civilian government worker. When he initially applied for military service, he stated that he was a Sunni Muslim from Al Barba despite the fact that he was actually a Shiite. He later stated he had misrepresented himself because of discrimination against Shiite Muslims in Iraq, whose government is dominated by Sunni. His misrepresentations were later discovered when his father identified the family as Shiite on a census form.

Al-Saher was arrested in 1997 for having lied about his religion and place of birth. During his month-long detention, he was interrogated and severely beaten. At his removal hearing, he described being blindfolded with his hands tied behind his back and kicked, punched, and stricken with a thick electric cable until he could no longer stand on his feet. Al-Saher's father ultimately paid a bribe to an official in Sadaam Hussein's office, and Al-Saher was released. He was warned that if he ever disclosed what happened to him, he would be arrested again.

Al-Saher returned to his job and was later instructed to build a fence in a sensitive location near President Hussein. When Al-Saher asked exactly where the fence was to be built, he was arrested again. This time, he was subjected to even harsher beatings and burned with cigarettes. Again, through family intervention, he was released.

In 1998 Al-Saher was arrested a third time because officials heard him say that elite Iraqis eat well while the poor go hungry. Al-Saher and his friends were detained for five to six days, but he was not beaten. He managed to escape and fled to the U.S.

At his removal hearing, he applied for asylum, withholding of removal, and CAT protection. In order to gain asylum, Al-Saher needed to show that he was persecuted on account one of five grounds enumerated in the Immigration and Nationality Act: race, religion, nationality, political opinion, or membership in a particular social group. After the immigration judge denied his claims, Al-Saher appealed to the BIA, which, despite finding Al-Saher credible, also concluded that he had not been persecuted on account of one of the five grounds.

On appeal, Al-Saher conceded that neither of his first two arrests were made on account of one of the five grounds. He argued, however, that he was arrested a third time because the statements he made about elite and poor Iraqis led Iraqi officials to impute to him an antigovernment political opinion. Although the Ninth Circuit agreed with Al-Saher, it concluded that he had not been persecuted following his third arrest. The appeals court also agreed with the BIA that Al-Saher failed to show a well-founded fear of future persecution on account of one of the five grounds.

However, the Ninth Circuit disagreed with the BIA's finding regarding Al-Saher's CAT claim. Article 3 of the CAT states that no signatory state may expel, return, or extradite a person to a country where there are substantial grounds for believing that he would be in danger of torture. The burden is on the CAT applicant to prove that it is more likely than not that he will be tortured if removed to the country of removal. However, he need not show that he would be tortured on account of a protected ground. The BIA had concluded that Al-Saher's experiences did not amount to torture. Holding that the suffering he endured cannot be considered "inherent or incidental to lawful sanctions," the Ninth Circuit instead ruled that it resulted from actions specifically intended to inflict severe physical pain. Moreover, the Ninth Circuit held that Al-Saher had presented evidence that he was likely to be tortured in the future. Thus, the court held that Al-Saher was entitled to withholding of removal under the CAT and accordingly remanded the case to the BIA to issue such an order.

Al-Saher v. INS, 268 F.3d 1143, No. 99-71308 (9th Cir. Oct. 23, 2001).