The impact of 9/11 on the judicial treatment of Middle Eastern asylum applicants in the U.S. courts

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THE IMPACT OF 9/11 ON THE JUDICIAL TREATMENT
OF MIDDLE EASTERN ASYLUM APPLICANTS IN THE U.S.
COURTS

by

Louis Gordon

_________________________________________________________________

A Dissertation Presented to the
FACULTY OF THE USC GRADUATE SCHOOL
UNIVERSITY OF SOUTHERN CALIFORNIA
In Partial Fulfillment of the
Requirements for the Degree
DOCTOR OF PHILOSOPHY
(POLITICAL SCIENCE)

December 2010

Copyright 2010 Louis Gordon

ii

DEDICATION

This work is dedicated to my wife, Hazel, and my children, Anna, Albert and
Gideon, who have provided me with unwavering support during the long years it took to
complete this study.

iii
TABLE OF CONTENTS

Dedication ii

Abstract vi

Chapter 1: Introduction 1
A. Asylum, the Middle East, and the Circuit Courts 1
B. Types of Decisions 8
C. Middle Eastern Asylum Cases 12
D. Literature Review 14
E. The Current Research 18
1. Cases Prior to September 11, 2001 19
2. The World Trade Center Attacks 22
3. Post-September 11, 2001 Cases 24
F. Methodology 25
G. Results of the Study 29
H. The Organization of the Chapters 33
Chapter 1 Endnotes 39

Chapter 2: Studying Asylum Cases: An Analytical Framework 43
A. The Legal Underpinnings of the Asylum Process 43
B. Persecution 44
C. The Executive Office for Immigration Review 46
D. Approaches to Studying Asylum Cases and Judicial Behavior 49
E. Judicial Behavior and Asylum 54
Chapter 2 Endnotes 70

Chapter 3: A Typology of Middle Eastern Asylum Cases 76
A. Nationality and Race 79
B. Political Opinion 81
C. Religion 84
D. Social Group 89
Chapter 3 Endnotes 98

Chapter 4: Selected Circuit Court Cases Before and After 9/11 102
A. A Detailed Analysis of Selected Circuit Court Cases Prior 102
to September 11, 2001
B. Selected Circuit Court Decisions, After September 11, 2001 112
C. A Post 9/11 Pattern 119
Chapter 4 Endnotes 123

iv
Chapter 5: The U.S. Court of Appeals for the Seventh Circuit: Before 126
September 11, 2001
A. Nationality, Ethnicity, or Race 127
B. Religion 130
C. Membership in a Particular Social Group 137
D. A Restrained Court; The Seventh Circuit on the Eve of 139
September 11, 2001
Chapter 5 Endnotes 141

Chapter 6: The U.S. Court of Appeals for the Seventh Circuit: 143
After September 11, 2001
A. Introduction: Post-9/11 Cases 143
B. Race, Ethnicity, and Nationality 144
C. Political Opinion 147
D. Religion 153
E. Membership in a Particular Social Group 165
F. The U.S. Court of Appeals after September 11, 2001 168
Chapter 6 Endnotes 172

Chapter 7: The Ninth Circuit: Before September 11, 2001 176
A. Introduction 176
B. Nationality 177
C. Political Opinion 178
D. Religion 185
E. Membership in a Particular Social Group 189
F. The Ninth Circuit on the Eve of September 11, 2001 192
Chapter 7 Endnotes 195

Chapter 8: The U.S. Circuit Court of Appeals for the Ninth Circuit: 198
After September 11, 2001
A. Introduction 198
B. Race, Ethnicity, and Nationality 199
C. Political Opinion 201
D. Religion 211
E. Membership in a Particular Social Group 216
F. Extending Asylum; The Ninth Circuit after 219
September 11, 2001
Chapter 8 Endnotes 223

Chapter 9: Interviews with Attorneys and Judges 227
A. Introduction 227
B. Attorneys 228
C. Judges 235

v
D. Analysis 245
Chapter 9 Endnotes 250

Chapter 10: The Circuit Courts as Asylum Regimes 252
A. Introduction 252
B. Regime Theory 253
C. Components of the Regime Model of Asylum Determinants in 257
the Circuit Courts
1. Hierarchical Model 257
2. Reverse Hierarchical Model 259
3. The Attitudinal Model 260
4. Small Group Model 263
5. Alpha Judge 264
6. Foreign Policy Considerations 265
7. Specifically Middle Eastern Characteristics 266
8. More than One Issue 268
9. The Wild Card; No Apparent Explanation 269
D. Conclusion: The Asylum Regime, A Formidable Framework 270
Chapter 10 Endnotes 273

Chapter 11: Conclusion 275
Chapter 11 Endnotes 287

Bibliography 288
A. Cases 288
B. Statutes, Articles, Regulations 295
C. Interviews and Correspondence 296
D. References 297

Appendices
Appendix A: Table of All Published Circuit Cases, 1995-2001 311
Appendix B: Table of All Published Circuit Cases, 2001-2007 312
Appendix C: Table of Seventh Circuit Judges Serving on Panels 314
Appendix D: Table of Judges Serving on Panels in the U.S. 315
Court of Appeals for the Ninth Circuit
Appendix E: Selected Doctrines Set Forth in the Circuit Court 316
Cases, 1995-2007

vi
ABSTRACT

The goals of this study are to better understand decision making in Middle Eastern
asylum cases, and to determine whether the September 11, 2001 attacks on the World
Trade Center had an affect on the adjudication of these cases. To this end, I analyze
published circuit court decisions on Middle Eastern Asylum cases as well as the
comments of attorneys and judges working in the field of Immigration Law. I review all
published circuit court cases in the six year period prior to 9/11 and all published cases in
the six year period after that date. I include an in-depth analysis of each decision in two
key circuit courts, the Seventh and Ninth, during that time frame. The Seventh Circuit
has been chosen because it is highly dominated by Republican appointees, and the Ninth
Circuit has been chosen both because of its liberal reputation and because it has decided
more asylum cases than any other circuit. The study provides primary qualitative but
also basic quantitative evidence concerning the effect of the event on asylum cases
decided by the circuit courts, along with new information on the types of cases included
in the published decisions and the legal analyses used to support them.
As the overall universe of published cases in this study is relatively small, I have
also conducted interviews with or queried 12 attorneys and 4 judges to supplement the
information which is culled from the cases. Attorneys are notable sources of information
in the immigration context because they often practice on different levels within the
immigration system, and are thus able to compare the attitudes of judges on the circuit
court level with those of other actors, including Immigration Judges and officers

vii
employed by the U.S. Citizenship and Immigration Services. Immigration Judges are
also excellent sources of information on the circuit courts because they are the judicial
officers who must apply the new circuit court precedent in their daily work.
Finally, I use the information obtained from the cases and interviews to create a
framework to better understand what factors individually and collectively influence a
court in its posture towards asylum determinations, a stance which I call an “Asylum
Regime.” I examine how various factors have come together to create two different
asylum regimes in the Seventh and Ninth Circuits.

1
CHAPTER 1.
INTRODUCTION

A. Asylum, the Middle East, and the Circuit Courts
Perhaps no topic is more controversial in current political discussions than the
public debate on illegal immigration. With numerical estimates of illegal immigrants in
the United States ranging from 12 to 20 million, the situation affects virtually all
Americans, from the corporate officer to the average worker. Yet if the debate over
immigration has permeated mainstream political discourse, one of the most controversial
areas debated among scholars of immigration is the more mysterious institution of
asylum, which, in simplest definition, is the mechanism through which an oppressed
person may petition the United States government for refuge from his or her tormentors.
Aliens may receive asylum in the United States if they can prove that they have
been persecuted or that they have a well-founded fear of future persecution on account of
their race, religion, and membership in a particular social group or political opinion.
1

Asylum can be granted on an administrative level by the U.S. Citizenship and
Immigration Services, by Immigration Judges in removal proceedings, or by the Board of
Immigration Appeals, an administrative review board sitting in Falls Church, Virginia.
Aliens who are unsuccessful before these administrative tribunals may further petition the
appellate judges sitting in the 12 U.S. Circuit courts of appeal to review their cases.
In the twenty-first century the immigration judges, who decide the fate of
thousands of aliens each year, have come under considerable attack from political and

2
legal quarters for what many believe are inappropriate or biased decisions. Further, the
Board of Immigration Appeals, as a result of streamlining regulations implemented by
former Attorney General John Ashcroft, has been rendered largely impotent as an
independent appellate body. This situation has thus left the federal appellate courts
flooded with immigration cases. As late as 2005, Cathy Catterson, then clerk for the U.S.
Court of Appeals for the Ninth Circuit, noted that immigration appeals constituted one
third of the Court’s docket.
2
While many of the immigration appeals deal with cases of
criminal aliens or those who have raised constitutional issues over which the Circuit
Courts have jurisdiction, a large portion of the cases involve asylum and/or withholding
of removal under the United Nations Convention Against Torture. The asylum cases are
considerably different from other cases before the Circuit Courts— and even other
immigration cases— because they often require the judges and their clerks to measure
and weigh political conditions in various countries before determining whether an alien
was denied asylum in error.
Though many hotspots throughout the world have produced applicants for asylum
in the United States, perhaps no area has been the source of as much fear and controversy
as the Middle East. With a multitude of ethnic and religious groups, despotic regimes
and human right violations, the region— extending from the far reaches of Western
Africa to the Afghanistan-Pakistan border— has produced thousands of refugees seeking
relief from past or future persecution. A good argument can be made that asylum as a
concept is Middle Eastern in origin. Indeed, the original cities of refuge depicted in the
Hebrew Bible allowed a person who had committed manslaughter to flee to a city where

3
he was given asylum from the victim’s family.
3
Yet Middle Eastern asylum seekers in
the twenty-first century have often found themselves in a catch-22 situation: they are
persecuted in their home countries on religious, ethnic, or political grounds, and then
viewed with suspicion by the countries in which they have sought refuge. Indeed,
numerous applicants have found that the very steps they have taken toward relief—rather
than leading to a solution—have, on the contrary, ensnared them in legal proceeding that
drag on for years, culminating only with decisions by the circuit courts of appeal.
The gap in the adjudication of Middle Eastern asylum claims reflects the overall
knowledge gap in understanding the Middle East, which has plagued many American
diplomats as well as presidents from Jimmy Carter to George W. Bush. Though a
thorough understanding of country-specific culture is often crucial to reaching a proper
decision in a case, judges— like politicians— often face a learning curve in acquiring
that knowledge and then applying it in a productive way. Further, the use of such
knowledge has not always been uniform, but rather ebbs and flows according to various
political concerns.
During the late 1980s and early 1990s, circuit court judges, such as Richard
Posner of the Seventh Circuit, expressed an interest in reviewing in detail the specific
country situations that had led to Middle Eastern applicants filing for asylum.
4
On some
level, the cross-cultural complexities of the asylum cases were well served by the
analyses of the judicial elite. Thus, the cases of Iranian Christians as well as other
dissidents—be they religious or political—were analyzed with serious scrutiny and
became the subject of numerous published decisions that often delved into the

4
complexities of Middle Eastern culture and politics. Then the events of September 11,
2001 unfolded. Suddenly, the United States was faced with the potential threat of
terrorism from Middle Easterners residing in the United States. While the vast majority
of asylum applicants certainly had fled their countries to escape contact with the Islamic
extremists who posed a threat to American interests, the U.S. Government was suddenly
faced with the specter of terrorists who might be masquerading as asylum applicants.
Though the Bush Administration denied that it was profiling Middle Easterners and no
official change in asylum policy was announced, many who worked with asylum
applicants from the Middle East sensed a change in the way such cases were perceived.
The sentiments of one Certified Immigration Specialist, who has been practicing
immigration law for nearly thirty years, sums up that perception, noting, “There is a built
in prejudice against anyone from the Middle East, including Israelis because of their
appearance and speech.”
5

Moreover, a special registration program was enacted, which required men from
various Middle Eastern countries to register with the newly organized Department of
Homeland Security. Immigrant advocates thus feared that the new environment had led to
a decrease in the number of asylum grants. There were some strong arguments that this
result would occur. For example, government programs utilized in the aftermath of 9/11,
such as “extraordinary rendition,” the transfer of an individual by the United States, or its
agents, to a foreign state where he would be tortured, were, as Michael Sage has noted,
supported by the judiciary.
6
In one of the most famous of such cases, Arar v. Ashcroft,
(E.D.N.Y. 2006),
7
Maher Arar, a Syrian and Canadian citizen, was detained by U.S

5
authorities and sent to Syria, where he was tortured.
8
When he brought suit before the
Eastern District Court of New York, the Court held that it must defer to the executive
branch and bar redress for any injuries.
9
The judge, citing an immigration case, ruled
that the balancing of individual rights against national security concerns must be taken
with the guidance of the other branches of government.
10

H.L. Pohlman has noted that the war on terrorism resulting from 9/11 created
other constitutional controversies that have not abated.
11
Law Professor David Cole has
argued that the government’s response to the events of 9/11 violated three crucial
principles. The first was the need to recognize overreaction in times of fear. The second
was the need to prevent limitations on basic constitutional rights, including due process,
individual privacy, and equal protection unless absolute necessity was shown. The third
was that the liberties of vulnerable minorities should not be sacrificed when balancing
security and liberty.
12
To Cole, the Patriot Act, enacted hastily in the aftermath of 9/11,
gave the executive branch new power that unnecessarily infringed on civil liberties.
13
At
the same time, Cole claims the government intruded on the liberties of thousands of
people without known terrorist connections, and targeted the majority of its infringement
on vulnerable Arab and Muslim Immigrants.
14

Donald Kerwin, the Executive Director of the Catholic Legal Immigration
Network, Inc. has noted that the Bush Administration justified all its immigration control
strategies based on national security, though many of the measures were unsuccessful and
actually undermined refugee and immigrant rights.
15
Kerwin argues that the September
11 attacks led to additional burdens and restrictions on asylum seekers, noting that some

6
applicants were prosecuted for document fraud before determinations on their claims had
ever been made. This finding, in effect, made them convicted criminals because of the
way they escaped their countries, a practice that violates the rights of asylum seekers and
undermines international law.
16

Maria Pabon Lopez has argued that whereas immigration law was already in
“crisis” before September 11, 2001, a post-9/11 reality provoked further infringements
upon the rights of Hispanics and Arabs, noting such infringements as “collateral
damage.”
17
She further cites the post-9/11 anti-immigrant sentiments expressed in
initiatives such as Proposition 200 “Protect Arizona,” which bans undocumented
immigrants from access to public benefits and requires persons to provide proof of their
citizenship when registering to vote and applying for “public benefits.”
18
Other anti-
immigration measures enacted by various states may also have their roots in the events of
9/11.
From a different angle, scholars such as Jennifer Holmes and Linda Keith have
claimed that an increasing body of empirical evidence indicates that humanitarian
concerns in asylum cases have been trumped by foreign policy considerations.
19
They
state that while critics feared that security-based asylum reforms such as the 1996
Immigration Reform and Control Act, the 2001 USA Patriot Act, and the 2005 Real ID
Act would lead to the rejection of worthwhile applicants who would be forced to face
persecution in their home countries, their assessment of such acts is mixed. They note
that the number of asylum cases decided upon decreased in response to both the 1996
Reform Act and the Real Id Act, though the percentage of successful claims before the

7
Immigration Courts actually increased during the same time period. However, they find
that despite fewer court cases, post-9/11 factors may signal security risks to judges.
Thus, according to Holmes and Keith, the presence of Al-Qaeda activity or state
sponsorship of terror in an applicant’s home country or whether the applicant speaks
Arabic may, after 9/11, substantially decrease his/her chances of success.
20

While the arguments of scholars like Pohlman, Cole, Kerwin, Lopez, Holmes, and
Keith are well-taken, the question remains as to whether the post-9/11 atmosphere
actually led to any changes in judicial policy on asylum, particularly on the appellate
level, where most of the cutting edge case law was made. Did the Circuit Courts of
Appeal modify their actions in light of such fears, or did the events of September 11,
2001 produce no such change?
While some of the cited research has looked at changes in asylum policy before
the U.S. Citizenship and Immigration Services as well as at the Immigration Court, to
date, no research has been undertaken to assess how the circuit courts responded to 9/11.
A comprehensive study, however, would provide an important barometer both as to the
effect of the events of September 11, 2001 on asylum and to the effect security concerns
have on the independence of the judiciary in a democracy during a time of high security
concerns. Such research would also provide a complementary body of information that
could be viewed in conjunction with the emerging body of information on the methods
and legal justifications employed by the Bush Administration in the War on Terrorism in
the years after the 2001 tragedy. The legal justifications, many of which were prepared
by John C. Yoo in the Office of Legal Counsel, claimed that the president alone had the

8
power to make rules during the war against terrorism.
21
Although the justifications were
ultimately rejected, their very existence reveals that some legal thinking in the post-
September 11
th
atmosphere advocated the curtailment of constitutional rights, thus
making an understanding of the way the Circuit Courts of Appeals responded to the
security concerns during those same years all the more important.
In light of such concerns, Middle Eastern asylum cases, which often balance
human or constitutional rights against national security, present an exceptional area for
this type of study. Such cases provide a view into the thinking of asylum adjudicators
concerned with both protecting human rights and preventing the entry of terrorists into
the United States. Furthermore, the circuit courts— as the de facto final arbiters of most
asylum cases— present an unparalleled opportunity to observe how policy is made by the
courts in a time of a intense national security debate.

B. Types of Decisions
Circuit Court decisions are issued in two formats. The first, the memorandum
decision, is an unpublished disposition used for the vast majority of cases. The
memorandum decision is not precedent and its holding applies only to its own case. Non-
precedential decisions are often a boon to asylum seekers, as the Department of
Homeland Security is less likely to appeal an unpublished decision that makes no new
law than a published one, though for purposes of scientific study they are much less
likely to reflect court doctrine rather than the contingencies of the moment. Moreover, as
immigration appeals continue to swamp the federal appellate docket without a significant

9
increase in the number of appellate judges and law clerks, there is a good possibility that
the quality of the unpublished decisions will continue to decline.
The second type of decision is the published precedent, which is marked by the
Court “For Publication” and is issued in slip opinions, and published in the official
Federal Reporter. Published decisions are almost always more comprehensive than
memorandum decisions and, for a number of reasons, are the preferable source of study
for those seeking to understand Middle Eastern asylum cases. To begin with, they create
many of the actual rules of law that are followed by the Board of Immigration Appeals
and the Immigration Courts.
22

Second, the published decisions often set forth either actual policy or reasons, or a
rationale as to why a certain policy should be followed by the judiciary. Although this
response may, at times, seem like a violation of the Separation of Powers Clause of the
U.S. Constitution, the Circuit Courts do, on a regular basis, engage in immigration policy
determinations. In the asylum context, where political issues are often raised, in-depth
analyses of the published decisions are of great importance. In addition the published
decisions offer insight into which issues were considered important by a particular panel
of judges. While attorneys often set forth the issues they deem most important in the
order of presentation in their appellate briefs, the unpublished memorandum often
dismisses or sustains the issues raised in a single line or even a few words, leaving both
litigants and litigators clueless about which issues were paramount to the court. The
published decisions, on the other hand, provide considerably better insight into what the
court thought was important in the case, as well as the specific cultural facts of the case.

10
There is another very important reason why published cases are the best source
for studying decision making in circuit court asylum cases. Unlike most other areas of
law, in immigration cases the government has no statutory right to appeal a grant of
asylum by the Board of Immigration Appeals (BIA), the administrative appellate body
that handles asylum cases. While government attorneys may appeal an immigration
judge’s asylum grant, once the Board has ruled, the government cannot appeal into the
circuit courts. This outcome, however, is not true for the alien who, after a denial by the
BIA, has a thirty-day period within which he or she may appeal to the Circuit Courts.
23

Thus, the result of this unusual situation that is codified by statute is that the very best
asylum cases are never seen by the circuit courts because they were granted at some point
along the lines by Citizenship and Immigration Services, an immigration judge, or the
Board of Immigration Appeals. At the same time, and again unlike other areas of law,
the immigration judge decisions are never published as precedents. While the BIA does
publish precedents, these are relatively few, thus creating a situation in which new law
must either be made by the Attorney General via some published decisions and
regulations codified in the Code of Federal Regulations, or, most importantly, through
circuit court decisions.
Thus, the published Circuit court decisions are unique in that they apply the
courts’ most careful thinking to the weakest body of cases within the spectrum of asylum
cases, thus creating the rules by which the system is subsequently run and the policy
decisions that affect the USCIS and Department of Homeland Security. They also allow

11
for the consideration of unique country-specific facts that are of great concern to area-
specific researchers.
24

The use of published circuit court decisions is not without its downside. Among
the plausible arguments against the use of published cases is their relative paucity, the
fact that judges may be on their best behavior when composing them, and that
unpublished cases present a more accurate picture of the overall posture of a court. The
theory underlying the second two criticisms is simply that judges are less likely to
succumb to pressure from the other judges on a panel when the case is unpublished.
There are other criticisms as well. According to Richard Posner, a University of Chicago
Law School professor and sitting judge on the U.S. Court of Appeals for the Seventh
Circuit, published opinions often conceal the true reasons behind a judicial decision,
which are buried in a “judicial unconscious.”
25
Posner hypothesizes that if the intuitive
judgments that underlie a decision could be different than what they are, the opinion’s
reasoning is not the real cause of the decision, but rather a rationalization. Still, even he
admits that the published “opinions create, extend, and fine-tune rules; they are
supplements to constitutional and other legislative rules.”
26

Ultimately, though it may be possible that some judges will act differently in
published decisions than they do in unpublished ones, the relative downsides to studying
them in the immigration context is outweighed by the numerous benefits.
27
In addition,
given the importance that the published decisions play in the field of Immigration Law,
one can argue that circuit court judges— aware that they are creating actual law to be

12
followed by the Immigration Bar— take great care to avoid any result other than the
development of strict legal precedent and starei decisis.
28

C. Middle Eastern Asylum Cases
Given the long-term instability of the Middle East, the region has produced a
number of critical human rights situations that have in turn increased the number of
asylum applications from the constituent countries. While the bases for asylum
applications from Middle Eastern nationals may be never-ending, a number of common
patterns has emerged. These include opponents of non-democratic regimes, individuals
persecuted for their minority ethnic status, persons persecuted for religious reasons, and
members of particular social groups that are specific to the Middle Eastern environment.
Although the cases have generated a fair amount of publicity in the mainstream and
ethnic media, little study has been given to the decisions granting or denying asylum to
specifically Middle Eastern applicants, and to whether particular judicial doctrines have
arisen regarding these cases. To what extent the Middle East as a cultural region affects
judicial disposition toward a case is part of the larger debate between regional specialists
and political scientists as to whether culture has an effect on political behavior. Middle
East specialists argue that knowledge of Middle Eastern cultural behavior is essential for
an understanding of the political behaviors from the region. Indeed, according to these
specialists, without an adequate understanding of Islam, including its Sunni and Shiite
branches, one cannot truly understand the motives behind political behavior in any given
country, particularly in those where Islam is inextricably linked to the political elite. As

13
Wolfgang Von Weisl, the Near Correspondent for the Viennese Neu Frei Presse, noted in
1925, the first thing one needs to know about the Islamic world is the difference between
Sunnis and Shiias.
29
Probably very little has changed in the Middle East on this score in
nearly 90 years. Von Weisl was not the only student of the Near East to report on issues
that remain relevant today. Consider the statement of the prototype Arab nationalist
George Antoinous, who made this note in his 1937 book The Arab Awakening about the
problems of the British occupying force in Iraq:
30
“The tribes were perhaps the most
serious difficulty. Tribes are always a problem in the establishment of orderly
government, but in Iraq it was rendered more complex by a variety of local factors such
as land, water and religion.”
Moreover, in the asylum context, cultural behavior is crucial to understanding the
mindset of the persecutors as well as of their victims. Some members of traditional
societies may respond to particular actions allegedly committed by persecutors in
distinctly Middle Eastern ways. For example, the specter of the honor killing, in which a
Middle Eastern man murders his sister or daughter because she has engaged in
inappropriate behavior with a member of the opposite sex, is often considered justified
because the woman’s act is perceived as bringing shame to the family. The only escape
from this fate that a woman in such a situation may have is to apply for asylum in a new
country, even though the circumstance that have produced her flight may seem fantastic
or even improbable to those who are adjudicating her claim. In the context of American
asylum law, an adjudicator may view the action of such male persecutors as irrational
(and thus as a domestic assault, which cannot qualify for the relief of asylum), or weigh

14
the account of the woman’s actions in the context of how an American woman would
have acted. Yet, as many courts have held, attempting to impose subjective Western
views to determine how the applicant should have acted is improper speculation that
could lead to the wrong result. While the courts have developed an entire spectrum of
legal standards to adjudicate such issues, from the point of view of a regional specialist,
the conclusions reached by such courts do not necessarily match the conclusions one with
a deep knowledge of the Middle East would reach.

D. Literature Review
The available literature on circuit courts and asylum litigation is increasing, but
by no means large. However, a wide range of literature on judicial behavior focusing on
the circuit courts does exist, and the models that have been developed by scholars
working in this field are useful in understanding how and why the courts reach decisions
in asylum cases. These models include Jeffery Segal and Harold Spaeth’s Attitudinal
Model, which holds that the Supreme Court decides disputes in light of a case’s facts and
the ideological attitudes and values of the justices.
31
This model is helpful for
understanding how political ideology affects decisions in asylum cases, particularly when
a panel composed of Republican appointees votes to deny asylum, or a panel composed
of Democratic appointees votes to grant it.
A second model used to evaluate Circuit Court is the Hierarchical Model. Under
this model the judges on the Courts of Appeals are obligated to apply Supreme Court
precedents, whether they personally agree with them or not.
32
Several scholars have

15
conducted empirical studies of the relationship between the U.S. Court of Appeals and
the U.S. Supreme Court. Donald Songer and Susan Reid have explored circuit court
decision making in substantive due process and First Amendment cases after changes in
Supreme Court doctrine, and found the circuit courts reflective of those changes.
33

While the Hierarchical Model fits well with the traditional legal view of judicial
performance, there is also reason to be skeptical that it presents an adequate model of the
Circuit Courts’ behavior, because the principal-agent theory that underlies the
Hierarchical Model assumes that the Supreme Court would have to monitor the Circuit
Courts and impose sanctions when the circuit courts do not follow their directions.
However, the heavy workloads of both courts indicate that there is little such monitoring
of circuit court decisions by the Supreme Court.
34

A third model used to study the circuit courts is the Small Group Model. Under
Small Group theory, various factors influence the individual participants to vote
differently in a group than if they acted alone. According to this theory, the key to
understanding the behavior of a judge on a three-judge panel is to understand the
background of the judge and his/her fellow judges. The idea here is that some judges
may be influenced by how other judges, such as a chief judge, would act.
35

Other studies focusing on the behavior of circuit courts have been undertaken as
well, some of which even focus on asylum cases. While the earliest literature focuses on
circuit courts in general, in recent years a number of studies have evaluated the
performance of the circuit courts in the asylum context, although none has dealt with
Middle Eastern applicants in any meaningful fashion. Donald R. Songer, Jeffrey A.

16
Segal, and Charles M. Cameron have conducted research finding that while appeals court
judges were constrained by the Supreme Court, the wide variety of actual situations
presented in appellate cases, as well as their complexity, have provided circuit court
judges with the room to maneuver.
36
Further work has shown that there may be clear
political patterns affecting the voting of circuit court judges, particularly in the case of en
banc decisions.
37

Asylum cases present other challenges. As far back as 1985, the Commission on
Behavioral and Social Sciences and Education noted the difficulty of collecting data on
refugees and asylees and the differences in what information should be collected by
different agencies.
38
Among the most salient criticism of some of the early published
works on asylum litigation is their failure to separate cases by country. Indeed, a
comparison of two judges’ records on asylum may say very little if their decisions draw
on applicants from different countries. For instance, a Miami judge’s decision on largely
Cuban applicants may offer little insight into how a Los Angeles Judge would deal with a
caseload comprised largely of Armenian applicants. Similarly, the record of a New York
Judge dealing almost entirely with Haitian asylum claims is not readily comparable to a
judge sitting in Chicago deciding the claims of a largely eastern European applicant base.
Of course the same criticism would apply to Middle Eastern asylum applicants.
Studies of both immigration judges and circuit court judges rank and rate judges
using an overall ratio of the judges’ grants of asylum. One of the most important
scholarly studies to date is David S. Law’s on the effect of the publication of a decision
on a judge’s willingness to vote for a grant of political asylum in the U.S. Court of

17
Appeals for the Ninth Circuit. Law concludes that the failure of past studies to find
evidence of strategic judicial lawmaking is based on the fact that strategic behavior is
unlikely to be detected by a simple comparison of the composite publication records of
panels that are either majority Democratic or majority Republican. Here, however, the
positive effect of publication upon voting was observed only by the estimation of a
complex computer model focused on the behavior of individual judges.
Nevertheless, while Law’s study is perhaps the most sophisticated quantitative
study to date— and an interesting barometer of the judicial actions of individual judges—
it says little about the overall changing philosophy toward asylum and cannot measure
evolving attitudes. Further, the use of all asylum cases, including unpublished decisions,
complicates the interpretation of the study’s results because of the great difference in the
quality of published and unpublished decisions.
Another substantive study of asylum decision making in the United States is
“Refugee Roulette: Disparities in Asylum Adjudication,” by Jaya Ramji-Nogales,
Andrew I. Schoenholtz, and Phillip G. Schrag, which appeared in the Stanford Law
Review in 2007.
39
In this piece, the authors analyze decisions from all four levels of the
asylum process during a seven-year period, finding great disparities in grant rates even
when different adjudicators in the same office considered large numbers of applicants
from nationals of the same country.
40
The authors noted:
remarkable variation in decision making from one office to the next, from one
region to the next, from one court of appeals to the next, and from one year to the
next, even during periods when there had been no intervening change in the law.
41

18
“Refugee Roulette” also addresses the performance of the circuit courts in the
adjudication of asylum appeals; the results of their data compilation indicate a
“surprising” amount of variation.
42
However, while it remains the most comprehensive
analyses of asylum cases across the board, the study has a number of weaknesses, which
are discussed in Chapter Two, and offers little insight into Middle Eastern asylum cases,
which are the focus of this study.

E. The Current Research
The goals of this study are to better understand decision making in Middle
Eastern asylum cases, and to see whether the September 11, 2001 attacks on the World
Trade Center had an affect on the adjudication of these cases. To this end, I analyze
published circuit courts decisions on Middle Eastern Asylum cases, as well as the
comments of attorneys and judges working in the field of Immigration Law. I review all
published circuit court cases in the six-year period prior to 9/11 and all published cases in
the six-year period after that date. I include an in-depth analysis of each decision in two
key circuit courts, the Seventh and Ninth, during that time frame. The study further
provides primary qualitative— but also basic quantitative— evidence concerning the
effect of the event on asylum cases decided by the circuit courts, along with new
information on the types of cases included in the published decisions and the legal
analyses used to support them.
The primary hypothesis (H-1) is that there was a change in the precedent
decisions by the circuit courts regarding Middle Eastern asylum cases in the years
following the September 11, 2001 World Trade Center bombing. The alternative

19
hypothesis (H-2) is that whereas there was change on the lower level of the immigration
system toward Middle Eastern asylum applicants in the years after 9/11, no change can
be found in the precedent decisions on the circuit court level. A third and corollary
hypothesis (H-3) is that each individual circuit court, in its precedent decisions, moved in
the same direction after 9/11, as before.

1. Cases Prior to September 11, 2001
In one of the only studies to be undertaken on this topic, this author reviewed the
asylum claims of Middle Eastern Christians in the years before the tragic events of
September 11, 2001.
43
My study looked at the claims of Christian groups who charged
that the Immigration and Naturalization Service (INS) imposed impossible tests for
asylum (such as demanding that applicants explain complex theological concepts) on
applicants.
44
The issue that had frustrated many converts to Christianity, as well as their
advocates, reached a crescendo when Christian leaders such as Richard Czik of the
National Council of Evangelicals argued that the appeals of Evangelicals were routinely
denied by a bureaucracy insensitive to religion.
45
Others noted that immigration judges
were frequently unwilling to acknowledge that Christians faced imprisonment or death in
several countries. Despite some improvements by the State Department and the
Immigration and Naturalization Service, including the establishment of Country Reports
on Religious Freedom, the situation prior to September 11, 2001 remained critical for
many Middle Eastern Christians seeking asylum in the United States.

20
The case of Farid Ghaly, an Egyptian Copt, was typical. Ghaly applied for asylum
in the mid-1980s, claiming that Christians were subjected to discrimination and even
violence in Egypt due to their faith. At a 1987 hearing, an immigration judge, however,
concluded that the prejudice and occasional discrimination faced by the Copts were not
systematic or officially inspired. His denial was upheld by both the Board of
Immigration Appeals and the U.S. Court of Appeals for the Ninth Circuit.
46

This situation seemed fairly uniform throughout the American judicial system.
The U.S. Court of Appeals for the Eighth Circuit affirmed a judge’s reliance on a State
Department decision in the 1993 Yacoub v. INS, (8
th
Cir. 1993),
47
asserting that there
was no systematic official discrimination in Egypt, and that the situation had improved
since outbreaks of religious violence in the early 1980s. In denying an asylum case, the
Ninth Circuit in El Nager v. INS, (9
th
Cir. 1991),
48
cited a Bureau of Human Rights and
Humanitarian Affairs report, which concluded that, as a convert, El Nager was not
subject to “government inspired or tolerated” persecution, and that “Full judicial and
administrative remedies exist in Egypt and the government goes to considerable efforts to
answer that violence or the threat of violence against Christians—converts or
otherwise—does not occur.”
Despite the reluctance or outright refusal of the circuit courts to reverse asylum
denials for applicants from an American ally such as Egypt, the situations for Christians
in other countries received deeper analysis in the circuit courts and the U.S. Court of
Appeals, for the Seventh circuit in particular. In Bastanipour v. I.N.S. (1992),
49
Judge
Posner wrote a Seventh Circuit decision reversing the BIA’s denial of asylum, criticizing

21
the idea that the Iranian government might not find out the respondent was an apostate.
Posner noted that apostasy is a capital offense in Islam, writing,
Whether Bastanipour believes the tenets of Christianity in his heart of hearts or, as
hinted but not found by the Board, is acting opportunistically (though at great risk
to himself) in the hope of staving off deportation would not, we imagine, matter to
an Iranian religious judge.
50

Similarly, in Najafi v. INS, (7
th
Cir. 1997),
51
the U.S. Court of Appeals for the
Seventh Circuit reversed and remanded a case of a petitioner who converted to
Christianity after his arrival in the United States. The Court found that the Immigration
Court had erred in requiring Najafi to prove that Iranian authorities would know about his
religious activities, noting that while evidence that authorities lie in wait to punish an
asylum applicant would certainly strengthen any petition to the BIA, it was not evidence
necessary to the “well-founded fear inquiry.”
52

Though the above-cited cases indicate a pattern that Christian applicants facing
persecution in Iran were more deserving in the eyes of the circuit courts than those from
Egypt, they by no means represent the entire spectrum of published Middle Eastern
asylum cases prior to September 11, 2001. Asylum applicants include those who have
been persecuted on account of the reasons set forth in the Immigration and Nationality
Act: race, religion, nationality, membership in a particular social group and political
opinion. Given the changing nature of despotic governments in the Middle East,
particularly in Iraq and Algeria, without actually studying the full spectrum of cases, we
cannot know what happened to Middle Eastern applicants in the courts during those
years. Applicants claiming persecution on the grounds of race or nationality represent a
whole spectrum of cases of which there has been little formal study. Yet in the judicial

22
arena their cases often illuminate human rights and foreign policy concerns that have not
yet reached mainstream media.
The “Particular Social Group” is the most ambiguous concept of the five protected
grounds, and though it has been the focus of constantly evolving litigation, no real study
has considered how the circuit courts have acted regarding applicants claiming asylum on
such grounds, either before or after the events of September 11, 2001. In this study I
will also discuss the issue and the application of “particular social group” to uniquely
Middle Eastern categories in the context of the published cases the Seventh and Ninth
Circuits. I have chosen to analyze these two courts for several reasons. The first is that
they both regularly decide large numbers of asylum cases. The second is that the regions
in which they are situated attract immigrants from different countries, thus producing
different types of asylum claims. The third reason is that the two circuits have a different
composition of judges. The Ninth Circuit is split between judges appointed by
Democratic presidents, whereas the Seventh Circuit is largely comprised of Republican
appointees.

2. The World Trade Center Attacks
The World Trade Center Attacks of September 11, 2001 represent the most
serious foreign attack on American soil in U.S. history. After the perpetrators were
revealed to be Middle Eastern men committed to a fanatical form of Islam, many
Americans expressed anti-Islamic and anti-Middle Eastern sentiments. From my vantage
point as an advocate who argued Middle Eastern asylum cases in the months following
the September 11
th
attacks, the possibilities for asylum narrowed—even though many of

23
the would-be applicants had fled the very type of fanaticism that had motivated the 9/11
attacks. On both the trial level and at the Board of Immigration Appeals, the possibilities
of winning asylum for a Middle Eastern applicant seemed to decrease. Particularly
problematic were the credibility problems for Middle Eastern applicants, who were no
longer given the benefit of the doubt in close cases.
While the judicial trajectory of such cases could be explained by a number of
different facts unrelated to the events of September 11, 2001, it is equally likely that they
were influenced on some level by those events. Indeed as anti-Middle Eastern animosity
increased in years following the attack on the World Trade Center, it is not implausible
that such sentiments—perhaps even unconsciously—permeated the thinking of the
judiciary, from the trial level to the Circuit Courts. While the Bush Administration took
action to prevent anti-Islamic prejudice within the United States, Congress passed the
USA Patriot Act in order to better identify terrorist and other security risks to the United
States, many of them originating in the Middle East. The legislation implemented new
standards on the admissibility to the United States of persons linked to terrorist
organizations, eliminating in one stroke the ability of certain persons to apply for asylum.
One such category included members of the Iranian Mujahadin, a group listed on the
State Department’s list of terrorist organizations. Under the Patriot Act those who had
given material support to members of such terrorist groups were deemed ineligible for
asylum. Was there a spill over into general asylum adjudications after 9/11? Only by a
careful review of the actual cases can we see if there was such an effect.

24
3. Post-September 11, 2001 Cases

The study of asylum cases can, at times, take on the feeling of shooting at a
moving target. If the events of September 11, 2001 provided an impetus for adjudicators
to deny asylum cases from some Middle Eastern applicants, then regime changes and
other political developments in the Middle East may have presented adjudicators with
cases they could not deny. The post-9/11 era has also seen Iran increasing its efforts at
discovering and arresting converts to Christianity, thereby creating a new group of
persons who would seem to qualify for asylum. Indeed, after the election of Mahmoud
Ahmadinejad and the subsequent repression brought on by his regime, human rights
organizations reported increased repression and use of torture. But how have changed
conditions in Iran played out in the context of judicial decisions? A preliminary look at
some post-2001 cases involving Iranian applicants seeking relief under the higher burden
of proof of the Convention Against Torture reveals that applicants alleging fear of
torture—an extreme form of persecution— were successful in the circuit courts, at times
relying on a Board precedent Matter of G-A, (BIA 2002),
53
which was decided after the
World Trade Center bombings. In Matter of G-A, the Board found that an Iranian
Christian respondent who had spent an appreciable amount of time in the United States,
and who had been convicted of a drug trafficking offense, would be subjected to torture
upon his return to Iran. The Board specifically noted that the State Department confirmed
that Iranian citizens returning from abroad are “subject to search and extensive
questioning by government authorities for evidence concerning anti-regime activities
abroad.”
54
The Board further cited the State Department Country Reports noting that:

25
It is well known that the Islamic Republic of Iran has arrested, imprisoned,
tortured, and sometimes killed Iranians who were forcibly returned to Iran after
departing Iran unlawfully, traveling abroad without authorization, and or applying
for asylum in another country.
55

Relying, then, on Matter of G-A, the U.S. Court of Appeals for the Sixth Circuit in
Mostafa v. Ashcroft, (6th Cir. 2005),
56
reversed a BIA decision that did not consider the
danger of torture in Iran as required under the standards set forth in Matter of G-A.
The U.S. Court of Appeals for the Ninth Circuit has also—in the post 9/11 era—
taken note of the propensity of Iran’s government to commit human rights abuses,
reversing a BIA denial and noting that the evidence here is “so compelling that no
reasonable fact finder could fail to find the requisite fear of persecution” Jahed v. I.N.S.,
(9
th
Cir. 2004).
57

F. Methodology
This study examines all published circuit court cases in the six-year period prior
to 9/11 and the six-year period after that event to determine whether change has occurred
in circuit court decision making. The composite grant rates for all circuits before and
after 9/11 are computed, as are the grant rates for every individual circuit that issued
published decisions before and after September 11, 2001. In addition, many published
decisions are digested and analyzed in detail to see whether changes occurred in light of
9/11, as well as to understand what factors have prompted the courts to decide as they
did. All published cases in two very different circuits, the Seventh Circuit and the Ninth
Circuit, are analyzed in full. As I have previously noted, the two circuits have been
chosen because they represent very different approaches to asylum law.

26
Because the overall universe of published cases in this study is relatively small
(20 before 9/11 and 50 afterwards), I also conducted interviews or queried 12 attorneys
and four judges to supplement the information culled from the cases. Attorneys are a
notable source of information in the immigration context because they often practice on
different levels within the immigration system, and are thus able to compare the attitudes
of judges on the circuit court level to those of other actors. These include Immigration
Judges and officers employed by the U.S. Citizenship and Immigration Services, who
also adjudicate asylum and other immigration cases. Immigration Judges are also an
excellent source of information on the circuit courts because they are the judicial officers
who must apply the new circuit court precedent in their daily work. While the circuit
court judges range widely in the areas of law in which they work, for example, from anti-
trust to criminal to immigration, when both hearing and deciding cases, the immigration
judges hear only immigration cases and are thus very much attuned to changes that arise
in circuit court policy.
To create a better understanding of the types of asylum cases decided by the
courts, I have also created a typology of cases based on the five protected grounds under
which an alien can be granted asylum: a) Race, b) Religion, c) Nationality, d) Political
Opinion, and e) Membership in a Particular Social Group. Cases decided by the circuits
are thus categorized according to this typology and to several subgroups that are unique
to Middle Eastern asylum cases.
The body of cases reviewed in this study are drawn from the West CD Roms
Immigration Database. Given the complexity of Immigration Law, the cases selected for

27
inclusion in this study meet very narrow criteria in that they 1) have been heard by an
immigration judge, 2) were subsequently denied on appeal by the Board of Immigration
Appeals, 3) were appealed in a timely manner via a petition for review to a U.S. Court of
Appeals, and 4) were subsequently reviewed by the court on the merits of the claim,
including underlying credibility findings. The study does not include cases in which
asylum was pretermitted or denied without a trial for statutory reasons, such as a criminal
conviction, which would bar asylum, or for failure to file an asylum application within
one year of entry into the United States. Further, asylum claims reversed on due process
grounds are excluded from the study, though cases that raised a due process claim but
were decided on the merits of the asylum cases are included. The claims reversed on due
process grounds are excluded because they are often based on attorney misconduct or
other issues that shed no light on the subject at hand. The study does not include grants
or denials of withholding of removal, or withholding of removal under the Convention
against Torture, because such cases require different legal standards for reaching a
decision. Withholding cases can only be granted if an applicant shows a clear probability
of future persecution, whereas torture cases can only be granted if an applicant shows that
it is more likely than not that he will be tortured upon returning to his country. In
addition, the torture cases do not require that the harm be based on one of the five
protected grounds required for an asylum case. Thus, in light of these very different
standards, Withholding of Removal and Torture Convention cases cannot be accurately
compared to asylum cases and are thus excluded from this study.
58

28
The study is theoretically limited to 23 Middle Eastern countries, which include
Algeria, Egypt, Oman, Morocco, Jordan, the Palestine Authority, Israel, Bahrain, Tunisia,
Turkey, Sudan, Sria, Lebanon, Iraq, Iran, Kuwait, Libya, Saudi Arabia, and United Arab
Emirates. Each one of these countries was searched with the West CD Rom Immigration
database along with the term asylum in order to generate every asylum case involving
these countries that was decided between September 11, 1995 and September 11, 2007.
All published decisions that appeared in the search results were then selected for further
review. Many cases appeared in multiple searches. Three countries—Oman, Bahrain,
and Libya—did not produce a single published case during the 14-year period.
A secondary review eliminated all cases that did not arise from a petition for
review of a direct asylum appeal. Such cases included those brought in a writ of habeas
corpus after a final order of removal, and petitions for review of a motion to reopen for
changed country conditions to apply for asylum. Cases that the court declined to review
because of statutory ineligibility (meaning that the Court did not have the legal authority
to grant asylum under any circumstances), including the cases of those with criminal
convictions, or those who applied after more than one year, or those determined to be
persecutors, were then excluded from further study. However, if the Court found that the
determination of statutory ineligibility was legally incorrect and then allowed review, the
case is included in the current study.
As discussed above, not all countries produced a published case on asylum in the
12-year period surrounding the events of September 11, 2001. In a similar way, not all
circuit courts issued published precedents on asylum during this period. While the lack

29
of cases from a particular country may be largely due to internal country factors, such as
levels of domestic turmoil and persecution, and aliens’ ability to flee, the reason behind a
circuit court’s failure to issue precedent is completely different.
While some Circuit Courts may not see asylum cases from particular Middle
Eastern countries, others may prefer to rely on sister circuits to create precedent,
particularly when there is a paucity of cases from which to draw. Until this study no
breakdown of precedents of Middle Eastern Asylum cases has been available anywhere,
and the breakdown of such cases—circuit by circuit—reveals both patterns and results
that confirm and challenge many previously held assumptions.

G. Results of the Study
In the period between 1995 and 2001, the circuit courts issued 20 published
decisions. Results included a total of six grants, and a grant rate of 30%. A breakdown of
the cases reveals that four of the cases decided on involved claims based on race,
ethnicity, or nationality, three of which involved Palestinians. All such cases were
denied. Six cases involved claims based on religious persecution, five of which were by
Christians. Four of those claims were granted. In the category of political opinion, seven
decisions were issued, only two of which were granted. Both of those cases, Zahedi v.
INS, (9
th
Cir. 2000) and Al-Harbi v. INS, (9
th
Cir 2001),
59
are treated in depth in Chapter
Seven’s discussion of Ninth Circuit cases issued prior to 9/11. The circuit courts also
issued three precedent decisions dealing with membership in a particular social group, in
the six-year period prior to 9/11, but not one of them was granted. Those cases included

30
claims of persecution as a health care worker in Algeria, as pro-western woman in Iran,
and as a western dressing woman in Iran.
Dividing cases by circuit, the Ninth Circuit granted three of its six cases in the
pre-9/11 era, for a 50% grant rate. During the same period, the Seventh Circuit granted
only one of the six cases it heard, for a 17% grant rate. The First Circuit denied both
cases it heard, whereas the Fifth Circuit granted both of the cases it heard. The Sixth
Circuit denied the three cases it heard and the Eleventh Circuit denied the one case it
heard. Of great interest is the difference between the Ninth Circuit grant rate of 50% and
the overall grant rate without the Ninth Circuit cases, which is 21%.
The country breakdown shows a different pattern. Both Algerian cases decided
prior to 9/11 were denied, whereas one of two Lebanese cases was granted. Three of five
Iranian cases were granted and four of five Iraqi cases were denied. The sole Israeli and
Moroccan cases were denied. The one Sudanese case, which involved a Christian’s claim
of religious persecution, was granted. A case involving a husband seeking asylum from
the United Arab Emirates and his wife seeking asylum from Saudi Arabia was also
denied.
In the period between 2001 and 2007, 50 published decisions on Middle Eastern
asylum cases were issued and 16 were granted, for a grant rate of 32%.
Five cases involving claims of persecution based on race, nationality, or ethnicity
were heard by the circuit courts in the post-9/11 period. Of these, three involved the
claims of Palestinians, one of which was granted. The other grant, which occurred in
Durgac v. Gonzales, (7
th
Cir. 2005),
60
involved a Kurd whose case is discussed in depth

31
in Chapter Six. Twenty-three claims on account of political persecution were issued by
the circuit courts in the post-9/11 period; of these, seven were granted. In the category
of religion, seventeen cases were heard in the post-9/11 period, and five were granted.
Fourteen of the claims involved Christians, four of which were granted. The remaining
claim involved an interfaith marriage and Muslims, including an Israeli Muslim, in
Baballah v. Ashcroft, (9
th
Cir. 2003),
61
which is dealt with in depth Chapter Seven.
Three precedents were issued involving applicants who claimed membership in a
particular social group, two of which were granted. One grant in Diab v. Gonzales, (5
th

Cir. 2005), involved a Moroccan forced to move to Western Sahara. The other, Karouni
v. Gonzales, (9
th
Cir. 2005),
62
dealt with a Lebanese homosexual and is analyzed in detail
in Chapter Eight.
The country pattern in the post-9/11 period includes six Algerian cases, two of
which were granted. Egypt also produced seven applicants, two of whose cases were
granted. Iran produced four cases, one of which was granted. Iraq, perhaps in light of
the war, produced five cases, one of which was granted. Israel produced two cases, one
of which was granted. Kuwait produced two cases, both of which were granted. Lebanon
produced eight cases, two of which were granted. One of two Moroccan applicants was
granted, as were the sole Sudanese and Syrian cases. The two cases involving a Yemeni
applicant were denied.
As noted above, the overall grant rates in the circuit courts both before and after
9/11 are very close, 30% before 9/11, and 32% after 9/11. Is this similarity a
coincidence, or is there more to the pattern? The answer may lie in further breakdown of

32
the cases. The First Circuit, emerging as a major producer of decisions, granted two of
11 cases in the post-9/11 period, for a grant rate of 18%. The Third Circuit denied all
cases it issued during the same time frame. The Sixth Circuit denied seven of the eight
cases it issued, for a grant rate of 12%. The Seventh Circuit granted only three of the
eleven decisions it issued, for a grant rate of 27%. The Eighth Circuit granted two of the
four decisions it issued, for a 50% grant rate. The Ninth Circuit granted six of the eight
cases it issued in the post-9/11 period, for a 78% grant rate. The Tenth Circuit granted
both of the cases it issued in the post 9/11 period. Again, it should be noted that the
overall grant rate without the inclusion of Ninth Circuit cases is 20%, strikingly similar to
the overall grant rate without the Ninth Circuit cases for the period prior to 9/11, which
was 21%!
Equally important is the circuit-by-circuit comparison for circuits that issued
cases in both periods. The First Circuit went from a 0% grant rate to an 18% grant rate.
The Sixth Circuit similarly remained a consistent denier of cases, going from a 0% grant
rate to a 12% rate. The Seventh Circuit went from a grant rate of 17% to a grant rate of
27%. The Ninth Circuit, however, went from a 50% grant rate to a 78% grant rate.
Based on the breakdown of cases, clearly the circuit courts did not change in the
aggregate despite 9/11, which would validate Hypothesis Two (H-1). Moreover, no
circuit changed its posture toward the cases, in that circuits that denied the majority of
their cases prior to 9/11 also did so after 9/11. The Seventh Circuit, which had a low
grant rate prior to 9/11, maintained a low grant rate after 9/11. Similarly, the Ninth
Circuit, which had a high grant rate prior to 9/11, also had a high grant rate after 9/11. In

33
no case did a circuit grant a lower percentage of cases after 9/11 than it did before that
date. Thus, the pattern that emerges from an examination of voting in published circuit
courts cases before and after 9/11 is that at least at the circuit court level, no change
occurred in light of the World Trade Center bombings.
H. The Organization of the Chapters
The additional chapters in this study provide a number lenses within which to view
the study of Middle Eastern asylum cases, beyond the statistics discussed above. Chapter
Two, “Studying Asylum Cases; An Analytical Framework,” looks at the basic structure
of the asylum process and details the various methods that have been used to measure and
study asylum cases in the United States, from both legal and social science perspectives.
The second chapter also reviews primary studies on asylum, judicial behavior, and
approaches to the study of circuit courts, including the attitudinal, hierarchical and small
group models.
Chapter Three, “A Typology of Middle Eastern Asylum Cases,” sets forth a
typology of the tapestry of cultures and ethnicities found in the 23 Middle Eastern
countries included in this study, and places them within the protected categories set forth
under the Immigration and Nationality Act: race, nationality, religion, political opinion,
and membership in a particular social group. The chapter notes the contexts in which
cases involving race and nationality have arisen, and discusses the importance of the
relationship between Islam and politics in many Middle Eastern countries. The Middle
East is also the birthplace of the Sunni and Shiite branches of Islam, Judaism,

34
Christianity, and a myriad of other sects, and the asylum claims which have resulted from
religious persecution are discussed as well.
Chapter Three also discusses Middle Eastern asylum cases which have alleged
persecution on the grounds of membership in a particular social group. Such groups
include women who have claimed that as female members of a particular culture, they
have been subjected to female circumcision, forced marriage, honor killings, and
domestic violence. Courts have also found that persecution on the basis of one’s Sexual
Orientation can also be considered persecution on account of membership in a Social
Group.
The Fourth Chapter, “Selected Cases from Various Circuits,” digests a number of
interesting cases from circuits not included in the full review of Seventh and Ninth
Circuit cases reviewed in Chapters Five through Eight. The Chapter notes that the First
Circuit, from its few published cases in the pre-2001 period expanded into a regime
inclined toward denial, while the Eighth Circuit, which published no cases in the pre-
2001 period, emerged as a middle-of-the-road regime, taking a middle position between
the Seventh and Ninth circuits. The idea is then suggested that we can understand the
Circuit Courts as institutions that have developed a body of jurisprudence and approach
to asylum cases, and that we can characterize them as asylum “regimes” acting as
singular bodies in their overall approach to asylum cases. This idea is further developed
in Chapter Ten.
Chapter Five, “The Seventh Circuit before September 11, 2001,” presents an
in-depth analysis of each published case in that circuit during the six-year period before

35
9/11, and notes the influence of Judge Richard Posner, whose intellectually rigorous
methods of analyzing and deciding cases has left its mark on the circuit. The in-depth
look, then, at the Seventh Circuit cases published in the six-year period prior to the events
of September 11, 2001, reveals that Court, in its denials, often issued doctrines that left
open the possibility of other similarly situated applicants obtaining asylum in the future.
Chapter Six, “The U.S. Court of Appeals for the Seventh Circuit after September
11, 2001,” analyzes all the decisions published by the Seventh Circuit in the six-year
period after 9/11. The cases continue the Seventh Circuit’s posture as a Court or “Asylum
Regime” inclined to deny asylum, but also reveal the Court’s interest in finding
alternative resolutions for some applicants, a policy that may have influenced current
policies being employed by the Obama Administration in response to the immigration
crisis.
Chapter Seven, “The U.S. Court of Appeals for the Ninth Circuit before
September 11, 2001,” looks at the decisions of the U.S Court of Appeals for the Ninth
Circuit during the six-year period prior to 9/11. Though the Court has often perceived a
bastion of liberal judicial philosophy, in the years prior to the World Trade Center
bombings, some of the court’s most interesting opinions were authored by a conservative
judge who articulately enunciated why denials were appropriate in various cases. Yet the
Court in the years prior to 9/11 did take the cases of Middle Eastern asylum applicants
seriously, and its panels did not hesitate to reverse in the published opinions when they
believed that such results were necessary.

36
Chapter Eight, “The U.S. Court of Appeals for the Ninth Circuit after September
11, 2001,” presents an in depth discussion of every asylum case published in the six year
period after 9/11. The Chapter further notes the numerous dissents that split the court in
the years after 9/11, and explains that the Court retained and actually increased its
commitment to granting the cases of Middle Eastern asylum applicants. The chapter
suggests that that Ninth Circuit is an asylum regime inclined to grant cases and challenge
American foreign policy.
Chapter Nine, “Interviews with Attorneys and Judges,” includes interviews and
queries of 12 attorneys and 4 judges. The attorneys were often in a unique position to
comment on the circuit courts because they had presented cases at all levels of the
immigration system. The judges, including two with appellate experience at the Board of
Immigration Appeals, were also in a good position to comment on circuit court behavior
because they are the judicial officers who are required to apply the circuit decisions, and
thus are most familiar with these rulings. Most of the interviewees felt that panel
composition had an effect on circuit court decision making, but there were differing
opinions as to the level of bias that occurred after 9/11. Among the most striking
differences were the observations of the judges. Judge One felt that there was no bias
toward Middle Easterners because of widespread support in the government for Israel;
Judge Three believed that support for Israel was an important factor in the bias against
Middle Easterners. Judges Two and Three felt that there had been no change in circuit
court posture after 9/11, but Judge Three felt that there had been.

37
Other information that came out of the interviews was the effect of the passage of
the 2005 Real ID Act, which changed the rules involving the adjudication of asylum
cases. One interviewee (Judge Four) felt that changes in asylum cases could not be
measured because such cases had not made it into the system. Attorney Nine felt that
Real ID had made it more difficult to litigate asylum cases in Immigration Court.
Chapter Ten, “The Circuit Courts as Asylum Regimes,” develops in detail the
concept of the “Asylum Regime,” which postulates that each circuit creates its own
asylum regime comprised of similar elements/determinants that set the posture of the
circuit. These elements include higher court precedents explained by the Hierarchical
Model, including the rule of substantial evidence set forth by the Supreme Court. It also
includes Administrative Agency precedents explained by the “Reverse Hierarchical
Model.” In addition, the regime includes the ideological preferences of the judges,
which are explained by the Attitudinal Model, as well as Foreign Policy Considerations.
The asylum regime also encompasses the Small Group Model, which explains how
district or other minority judges sitting on panels may affect decisions, and the concept of
the Alpha Judge, an intellectually charismatic or powerful judge, able to influence other
judges. Finally, the “Asylum Regime” includes the interaction of the individual courts
with the Middle Eastern cases themselves.
In conclusion, this study notes that an understanding of the Circuit Courts as
asylum regimes, clarifies that the individual elements when taken together, create a
particular slant, i.e. regime, for a particular court. While this study focused on courts

38
within the United States, the implications of the research and the “Asylum Regime” may
also be applicable to courts in other countries which hear asylum claims.

39
CHAPTER 1 ENDNOTES

1
Immigration & Nationality Act, Section 101(a), (West CD Rom 2010).

2
See also, Louis Gordon, “The ABC’s of the BIA, Appellate Strategies for Immigration Practitioners,” LA
County Bar Immigration Section Newsletter, 10 (Spring 2005): 1-2.

3
Deuteronomy 19:11-13; Joshua 20.

4
See Shehandeh Pey v. INS, 831 F.2d 184 (7
th
Cir. 1987) and the analysis of “Apostasy from Islam” in
Bastinipour v. INS, 980 F.2d 1129 (7
th
Cir. 1992).

5
Interview with Attorney Two, August 9, 2010.

6
All Party Parliamentary Group on Extraordinary Rendition & Ctr. For Human Rights and Global Justice,
N.Y. School of Law, “Torture by Proxy: International Law Applicable to Extraordinary Renditions,” 6
(Dec. 2005), available from http://www.extraordinaryrendition.org/data/APPG_NYU_Briefing_Paper.pdf;
David Weissbrodt and Amy Bergquist, “Extraordinary Rendition: A Human Rights Analysis,” Harvard
Human Rights Journal, 19 (2006): 123, 127 (2006); cited in Michael V. Sage, “The Exploitation of Legal
Loopholes in the Name of National Security: A Case Study on Extraordinary Rendition,” California
Western International Law Journal, (Fall 2006): 122,133.

7
Arar v. Ashcroft, 414 F.Supp. 2d 250, 283 (E.D.N.Y. 2006)

8
Arar v. Ashcroft, 253-255.

9
Sage, 122,133; Arar v. Ashcroft, 287.

10
Id., see Arar v. Ashcroft, 414 F. Supp. 2d at 283, quoting Jama v. Immigration and Customs
Enforcement, 543 U.S. 335, 384 (2005). The District Court decision was ultimately sustained in Arar v.
Ashcroft, 585 F.3d (2
nd
Cir. 2009).

11
H.L. Pohlman, Terrorism and the Constitution, The Post 9/11 Cases (Lantham: Rowman & Littlefield,
2008).

12
David Cole, Terrorism and the Constitution, Sacrificing Civil Liberties in the Name of National Security,
(New York: The New Press, 2006), 174.

13
Id.

14
Id. at 174-175.

15
Donald Kerwin, “The Use and Misuse of ‘National Security’ Rationale in Crafting U.S. Refugee and
Immigration Policies,” International Journal of Refugee Law (Oxford: Oxford University Press, 2005): 751.

16
Id. at 756.

17
Maria Pabon Lopez, “The Intersection of Immigration Law and Civil Rights Law: Noncitizen Workers
and the International Human Rights Paradigm,” Brandeis Law Journal, 44 (Spring 2006): 611, 625; citing
Mary Romero and Marwah Serag, “Violation of Latino Civil Rights Resulting from INS and Local Police’s
Use of Race, Culture and Class Profiling: The Case of the Chandler Roundup in Arizona,” Cleveland State
Law Review 75 (2005); Adrienne Bellino, “Changing Immigration for Arabs with Anti-

40

TerrorismLegislation: September 11th Was Not the Catalyst,” Temple International and Comparative Law
Journal, 123 (2002); Catherine Cullition, “How Racial Profiling and Other Unnecessary Post-911 Anti-
Immigrant Measures Have Exacerbated Long Standing Discrimination Against Latino Citizen and
Immigrants,” University of the District of Columbia/David Clark School of Law, Law Review, 141
(2005); Kevin R. Johnston, “September 11 and Mexican Immigration: Collateral Damage Comes Home,”
Depaul Law Review, 829 (2003).

18
Id. at 625.

19
Jennifer S. Holmes and Linda Camp Keith, “Does the Fear of Terrorists Trump the Fear of Persecution in
Asylum Outcomes it the Post-September 11 Era?” Political Science, (July 2010): 431,
doi:10.1017/S10490965100000685.

20
Id.at 431, 435-436.

21
Josh Meyer and Julian Barnes, “Memos Gave Bush Overriding Powers,” Los Angeles Times, 3 Mar.
2009, pp. A1, A14; David G. Savage, “Bush-era Memos Stun Legal Experts,” Los Angeles Times, 4 Mar.
2009, p. A13. The Office of Legal Counsel is an obscure office that writes legal opinions for different
people in government including the Attorney General.

22
It would not be farfetched to state that the Immigration Outline created by the U.S. Court of Appeals for
the Ninth Circuit is at least as valuable as a source of law as are Title 8 of the Code of Federal Regulations
governing immigration law, and the Immigration and Nationality Act itself. Immigration Outline, Office of
the Staff Attorney, (U.S. Court of Appeals for the Ninth Circuit, 2009).

23
8. U.S.C. 1252(d)(1) specifically states that a court may review a final order of removal only if the alien
has exhausted all administrative remedies available to the alien as of right…”

24
Indeed, the use of published cases to study Middle Eastern Asylum grants is a perfect demonstration of
the ongoing debate within political science of qualitative versus quantitative analyses. Each published
case is full of details that are rarely found in the unpublished cases, but have great significance to
researchers with deeper understanding of the Middle East. Moreover, they can be subjected to quantitative
analyses as well.

25
Richard A. Posner, How Judges Think (Cambridge: Harvard University Press, 2008), 111.

26
Id.

27
With the advent of the Internet, all decisions are actually published though they are not used as
precedents.

28
For a number of years, all cases have essentially been published either through the legal research services
of Westlaw and Lexus Nexus or on the Circuit Court websites themselves.

29
Wolfgang Von Weisl, “New Light on Arabia” Vossiche Zeitung (Berlin Liberal Daily) reprinted January
25, reprinted in The Living Age, 332(4305).

30
George Antonious, The Arab Awakening (Norwich: Jarrold and Sons, LTD, 1938), 364.

31
Id. at 86.

41

32
David E. Klein, Making Law in the United States Courts of Appeals (Cambridge: Cambridge University
Press, 2002), 7.

33
Martinek, 136.

34
Id. at 135-136. See also, Virginia Hettinger, Stefanie A. Lindquist, and Wendy Martinek, Judging on a
Collegial Court, Influences on Federal Appellate Decision Making (Charlottesville: University of Virginia
Press, 2006).

35
Wendy L. Martinek, “Appellate Workhorses of the Federal Judiciary,” Exploring Judicial Politics edited
by Mark C. Miller (Oxford: Oxford University Press: 2009), 136-137.

36
Donald R. Songer, Jeffrey A. Segal, and Charles M. Cameron, “The Hierarchy of Justice: Testing a
Principal-Agent Model of Supreme Court Circuit Court Interactions,” American Journal of Political
Science, 38(3) (August 1994), 673-96.

37
Phil Zarone, “Agenda Setting in the Courts of Appeals: The Effect of Ideology on En Banc Hearings,”
The Journal of Appellate Practice and Process 2 (Winter 2000): 157.

38
Commission on Behavioral And Social Sciences and Education, Immigration Statistics: A Story of
Neglect (1985), 115.

39
Jaya Ramji-Nogales, Andrew I. Schoenholtz, and Phillip G. Schrag, “Refugee Roulette: Disparities in
Asylum Adjudication,” Stanford Law Review, 60(2) (2007): 295-411.

40
Id. at 296.

41
Id. at 302.

42
Id. at 361-363.

43
Louis A. Gordon, “Christians in the America Legal System, Middle East Quarterly, (Spring 2001): 71-
81.

44
Id.

45
Id.

46
Ghaly v. INS, 58 F.3d 142 (9th Cir. 1995)

47
Yacoub v. INS, 999 F.2d 1296 (8th Cir. 1993)

48
El Nager v. INS, 93 F.2d 784 (9th Cir. 1991)

49
Bastanipour v. I.N.S., 980 F.2d 1129 (7th Cir. 1992)

50
Id. at p. 1132.

51
Najafi v. INS, 104 F.3d 943, 948 (7th Cir. 1997)

52
Id.

42

53
Matter of G-A, 23 I & N Dec. 366 (BIA 2002)

54
23 I & N Dec. 366, at 369.

55
23 I & N Dec. 366, at 369.

56
Mostafa, v. Ashcroft, 395 F.3d 622 (6th Cir. 2005)

57
Jahed v. I.N.S., 356 F.3d 991 (9th Cir. 2004)

58
The Real ID Act has eliminated the use of habeas corpus for aliens who have final orders of removal.
Under Real ID, all habeas corpus petitions must be included as part of a final order of removal in a petition
for review to the U.S. Courts of Appeals.

59
Al-Harbi v. INS, 242 F.3d 882 (9
th
Cir. 2001)

60
Durgac v. Gonzales, 430 F.3d 839 (7
th
Cir. 2005)

61
Baballah v. Ashcroft, 367 F.3d 1037 (9
th
Cir. 2004)

62
Karouni v. Gonzales, 399 F.3d 1163 (9
th
Cir. 2005)

43
CHAPTER 2.

STUDYING ASYLUM CASES: AN ANALYTICAL FRAMEWORK

A. The Legal Underpinnings of the Asylum Process
This chapter looks at the basic structure of the asylum process and then details the
various methods used to measure and study asylum cases. To begin with, someone
applying for asylum in the United States
1
must show that he/she has been persecuted in
the past, or has a “well-founded fear” of future persecution on the basis of his/her race,
religion, membership in a particular social group, ethnicity, or political opinion. Under
section 208(a)(1) of the Immigration and Nationality Act, any alien who is physically
present in the United States or who arrives in the United States may apply for asylum. A
number of exceptions and restrictions exist, including aliens who could be removed to a
safe third country,
2
and aliens who have failed to apply for asylum within one year
following the date of their arrival.
3
Additional bars on asylum exist for aliens who have
engaged in persecution themselves, or have been convicted of particularly serious crimes.
For such aliens, other forms of relief, such as withholding of removal and withholding of
removal under the Convention Against Torture may be available, though these forms of
relief do not lead to permanent residence or citizenship.
4

Aliens present in the United States who wish to apply for asylum will initially
submit what is called an “affirmative” application to the U.S. Citizenship and
Immigration Service at a regional center where he or she is interviewed by an asylum
officer.
5
The process is known as “affirmative” because the asylum officer takes a

44
neutral position toward the applicant and will either grant the case or refer it to the
Immigration Court, where the alien can renew the application in front of an Immigration
Judge.
6
Court proceedings in which an applicant submits what is referred to as a
“defensive” application differ from the affirmative level in that they are adversarial. An
INS prosecutor, called a chief counsel, is present and, in many cases, actively interested
in seeing the applicant removed from the country.
While the Attorney General has the discretion under the Immigration and
Nationality Act to grant an alien asylum if the alien is determined to be a “refugee,”
7
over
the years the legal standards for asylum have developed from a mere statutory basis into a
larger body of case law issued by the Board of Immigration Appeals, circuit courts, and,
at times, the U.S. Supreme Court. This body of law governs numerous aspects of the
asylum process and sets standards on issues such as the definition of persecution,
applicant credibility, who may be included in each of the statutory subgroups, and what
level of proof an applicant needs to prove his/her case.

B. Persecution
The definition of persecution itself has been the subject of numerous cases and
scholarly discussions. Guy Goodwin-Gill, a European expert on asylum has observed:
8

There being no limits to the perverse side of human imagination, little purpose is
served by attempting to list all known measures of persecution. Assessments
must be made from case to case by taking into account, on the one hand, the
notions of individual integrity and human dignity, and on the other hand, of the
manner and degree to which they stand to be injured. A straight-forward threat to
life or liberty is widely accepted, and the repeated condemnation of a wide range
of activities involving violation of International humanitarian law, genocide,

45
crimes against humanity and related offences should also be taken into account,
given the recognition of responsibility at both State and individual level.

The U.S. Court of Appeals for the Ninth Circuit, which has issued many of the most
sophisticated decisions on immigration law in the United States, has defined persecution
as “the infliction of suffering or harm upon those who differ ... in a way regarded as
offensive.”
9
For example, the Ninth Circuit has noted, “Our case law characterizes
persecution as an extreme concept, marked by the infliction of suffering or harm ... in a
way regarded as offensive” Li v. Ashcroft, (9
th
Cir. 2004).
10
The Court has found that
although purely personal retribution is not persecution on account of political opinion,
where a persecutor has mixed personal and political motives for retaliating against a
political opponent, the mixed motives do not make the opposition less political, or the
applicant less deserving of asylum.
11
The Court has also found that a well-founded fear
of future persecution requires a “subjectively genuine” and an “objectively reasonable”
fear of persecution on account of political opinion or membership in a particular social
group. “The subjective component requires that the applicant have a genuine concern
that he will be persecuted,”
12
and may be satisfied by the applicant’s testimony that she
genuinely fears persecution.
13
A political opinion imputed to an applicant by his
persecutors can also qualify as political opinion.
14

Appellate courts have also developed standards regarding how much evidence an
applicant may need to win an asylum case. The Supreme Court in INS v. Cardoza-
Fonseca (S.Ct. 1987),
15
held that an asylum applicant needs to introduce only enough
evidence that persecution is a reasonable possibility. However, questions around what
type of evidence is sufficient to prove asylum remains a source of tension between the

46
Ninth Circuit and Congress, which in the Real ID Act of 2005 sought to impose statutory
requirements on evidentiary standards for asylum cases.

C. The Executive Office for Immigration Review
The Executive Office for Immigration Review is under the control of the Attorney
General and includes both the Immigration Courts and the Board of Immigration
Appeals. While the Immigration Judges have long been considered to be in the best
position to determine credibility issues in cases, the credibility decisions of such judges
and the BIA have, as a practical matter, been reversed by Circuit courts unhappy with
both the procedural mistakes as well as the actual results in certain cases.
Moreover, the willingness of some circuit courts to correct perceived judicial
injustices perpetrated by the Immigration Judges and Board of Immigration Appeals has
led to further litigation over the proper role of circuit court intervention. Defenders of the
EOIR, along with other agencies, have argued that Federal Administrative agencies were
better positioned to make rules regarding administrative cases due to their specialized
experience.
16
The issue came to a head in National Cable & Telecomm. Ass’n v. Brand
X Internet Servs. (S.Ct. 2005),
17
where the U.S. Supreme Court found that a Federal
Communications Commission construction of a statute should take precedence over one
preferred by the Ninth Circuit. Following suit, the Board of Immigration Appeals issued
a number of rulings rejecting circuit court decisions in favor of its own interpretations.
While many of these decisions remain in litigation, the Supreme Court may ultimately
choose to uphold the BIA’s interpretation over those of the circuit courts.
18

47
If an asylum applicant is denied relief by an immigration judge, he or she is
entitled to file an appeal with the Board of Immigration Appeals, based in Falls Church,
Virginia. The Board is the appellate body charged with reviewing administrative
decisions by immigration judges. Directly under the control of the Attorney General, the
Board is mandated to resolve questions brought before it in a timely, impartial manner
that is consistent with the regulations. Subject to these standards, Board members
maintain independent judgment and discretion in their review of individual cases, and
have been under considerable pressure to churn out decisions in of the face of an ever-
increasing caseload.
19

As a practical matter, the Board is often the last stop before deportation for many
immigrants without the funds to pay for further circuit appeals. Further, the Board,
whose decisions are of particular importance because of its resolution of many critical
questions, is for practical purposes often immune from further review under what is
known as the “Chevron Doctrine.” In Chevron U.S.A. Inc. v. Natural Resources Defense
Council, Inc. (S.Ct. 1984), the Supreme Court held that federal courts must give special
deference to an administrative agency’s interpretation of a statute it is charged with
implementing. In other words, if a circuit court finds that the agency’s interpretation is
one that any reasonable person could reach, it must uphold that interpretation, even if the
court itself would have reached a different decision.
20
The Supreme Court further
expanded its understanding of the “Chevron Doctrine” in such cases as Aguirre v.
Aguirre, (S.Ct. 1999),
21
where the Court noted that deference is “especially appropriate”
in the immigration context, where officials exercise sensitive political functions, noting

48
that a decision by the Attorney General to label certain violent offenses committed in
another country as political in nature, and thus to allow the perpetrator to remain in the
United States, could affect American relations with that country. The Court reasoned
that that judiciary is not in the proper position to shoulder primary responsibility for
assessing the likelihood and importance of such diplomatic repercussions.
22

The Board has been the subject of considerable criticism across the political
spectrum. Some critics have noted that despite its significance, the Board, like
immigration judges, “is sorely lacking in independence from the political branches, as
Board members serve at the behest of the Attorney General.”
23

The Board’s published decisions offer substantial information that may be of
interest to social scientists, including full fact statements detailing the nature of the claims
and grounds under which they are granted. During the last decade, the Board has also
begun to release “unpublished decisions” with no precedential value. The unpublished
decisions, however, vary in the amount of information they contain and may be less
helpful for those studying asylum insofar as they often reveal little about the process used
to arrive at such decisions.
24

Cases decided by the Circuit Courts of Appeal also provide a window into the
asylum process. Like those made by the Board of Immigration Appeals, such decisions
are divided between the published decisions and unpublished memorandum. The former
are much more nuanced and exact in their discussion of asylum claims and the legal
analyses used to arrive at a decision. The unpublished cases can at times contain little
more than a few paragraphs and often do not state the facts of the case in any detail.

49
Nevertheless, the asylum cases that are decided by the circuit courts present their own
issues, which must be evaluated before any study can be undertaken. To begin with, the
vast majority of clear-cut asylum cases never make it to the circuit court level because
they are either granted by USCIS on the affirmative level or by the Immigration Court on
the defensive level. Unlike litigants in some other areas of law, the ability of an asylum
applicant to reach the U.S. Supreme Court via a writ of certiorari is often financially
limited. Thus, on a very practical level, the Circuit Courts of Appeal are the final arbiter
of many issues in asylum law, and parallel bodies of generally similar but occasionally
different case law exist within the circuits.

D. Approaches to Studying Asylum Cases and Judicial Behavior
A number of different approaches to studying asylum cases exist, including
traditional legal studies, political science works, and even sociological analyses. A good
starting point for the analysis of this literature is the work written by law professors who
have analyzed asylum. For example, Guy Goodwin’s classic text, The Refugee in
International Law, sets forth an extensive discussion of the definitions of refugees and
asylees, tracing how the concept of asylum has evolved through international treaties.
25

Goodwin also discussed the origins of a number of Middle Eastern asylum cases that are
the subject of this study, including Iraq’s persecution of its Kurdish population and use of
chemical weapons against this minority. Moreover, Goodwin discusses the violence and
human rights violations in Lebanon, which prompted the flight of many refugees.
26
In

50
addition he devotes a considerable portion of his text to possible solutions to the
problems of asylum under international law.
27

Goodwin’s approach has been echoed by other legal scholars, such as Karen
Musalo, who has written extensively on asylum based on the grounds of religion and
membership in a particular social group. In her seminal work, “Claims for Protection
Based on Religion or Belief,” she compares asylum claims for religion-based asylum in
Canada, the United States, the United Kingdom and New Zealand, and offers
considerable insight into the overlap among religious, political, and gender-based claims,
concluding that religion-based claims are rarely solely about religion, but that this fact
should not stop them from being “recognized as religion-based cases where the facts
support such a determination.”
28
Her discussion of Middle Eastern asylum claims that
have arisen in these countries covers interreligious marriages, credibility among converts,
and the problem of convincing adjudicators of the sincerity of an applicant’s faith.
29

I offered a different approach to the specific problem of Christian applicants from
the Middle East in my 2001 article in the Middle East Quarterly.
30
In the years before
9/11, I argued, the problem of Christians in the Middle East was not adequately addressed
by an asylum process that often expected Christians applicants to demonstrate their faith
or produce evidence that was difficult (if not impossible) to obtain. I detailed the
dismissal by the circuit courts of some such claims, and noted ways for such applicants to
obtain secondary evidence that, when viewed in the aggregate, might prove that an
applicant was really a Christian.
31

51
Another commentator on asylum with work greatly relevant to the cases studied
here is Susan Musarrat Akram, whose “Orientalism Revisited in Asylum and Refugee
Claims” utilizes the legal approach pioneered by Goodwin but reaches different
conclusions about the meaning of many published asylum cases. Akram draws on
Edward Said’s classic theory of “Orientalism,”
32
the attitude that Middle Easterners or
Arabs, as “Orientals,” are fundamentally different from Westerners, to argue that asylum
applications from such persons are similarly misinterpreted.
33
She notes that most
religion cases from Middle Eastern countries involved women and that, in most cases, the
source of their persecution is usually presented as either Islamic law or mores. She takes
issue with this conclusion, arguing that the true source of persecution in these cases is
narrow interpretations of Islam, which are utilized by a male-dominated society to
reinforce male power structures and an elitist political and religious hegemony.
34
To
Akaram, such “Neo-Orientalist” stereotypes serve to support the most extreme and
repressive versions of Islam.
35

In a more recent book, Rejecting Refugees, Political Asylum in the 21st Century,
Carol Bohmer and Amy Shuman take a different approach to the study of asylum.
Bohmer, an attorney and sociologist, and Shuman, a folklorist, utilized the documents
that often compromise an asylum case to illustrate the conflict between the countries’
needs for immigration enforcement and the very real harms faced by bone fide asylum
applicants. To this end, they present actual questions and answers of applicants, and the
statements that have been submitted on their behalves, setting forth their claims and fears.
While Bohmer and Shuman do not particularly focus on Middle Eastern applicants, they

52
do note the difficulties of fitting a number of domestic harms perpetrated in the Middle
Eastern context into one of the protected categories; these include honor killings, the
practice whereby a woman’s relative kills her because she had brought shame to the
family by engaging in a prohibited relationship, as well as women who defy or ignore
dress codes and other gender specific rules. They believe that immigration adjudicators
have been willing to accept these forms of persecution as political, citing an unpublished
case where a judge granted asylum based on the grounds that women who refuse to
conform to a government’s gender specific laws and social norms constitute a specific
and visible group targeted for persecution.
36
Bohmer and Shuman also cite the case of an
Iranian woman who, after becoming pregnant from a Pakistani journalist, was threatened
with stoning by her father and brother. When the case was reviewed by USCIS, the
adjudicator perceived this punishment as political rather than private, and thus granted
her asylum.
37

Yet another approach to the study of asylum has been taken by Matthew Price in
his book Rethinking Asylum,
38
which traces the political roots of asylum and argues that
this relief should be focused on remedying state malfeasance, specifically state-sponsored
persecution or a state’s unwillingness, rather than on its inability to protect against non-
official violence. He argues that this interpretation of asylum— which he calls the
“protection approach— is a mistaken view of asylum’s role in refugee policy, and that
there are other ways to help those who have been victimized but do not fit within the
definition of those who qualify for asylum.
39
Price argues that states need to police the
asylum process to prevent abuse by those with no legitimate claim to asylum, and states

53
that burdens imposed on asylum applicants need to satisfy three principles: hospitality,
selectivity, and caution. According to Price, hospitality requires states to resist polices
that require asylum applicants to undergo serious hardship to prove they have a legitimate
claim. Selectivity means that states should pursue the elimination of bad faith asylum
applicants rather than the reduction of applications. The principle of caution requires that
procedural rules be designated to minimize mistaken denials of asylum rather than to
minimize overall grants of asylum. Price argues that many current polices “fail miserably
when measured against these three principles.”
40
However, Price’s emphasis on limiting
asylum to a very narrow class of people misses the humanitarian dimensions of asylum
noted by Bohmer and Shuman.
Another type of study of asylum has emerged from an unlikely place. Utilizing
social science work on Regime Theory, Connie Oxford has argued that there is a “gender
regime” of asylum perpetrated by asylum officers, immigration attorneys, immigration
judges, service providers who prepare asylum applications, and asylum seekers
themselves.
41
Oxford posits that constituents of this regime operate so as to protect
female asylum seekers from what they perceive as the negative cultural practices of
foreign men. She also believes that a national gender regime exists, in which American
men and women protect female asylum seekers from the cultural practices of non-citizen
women, including female circumcision and honor killing. In addition, Oxford perceives
the existence of a national gender regime, in which American men are viewed as
protecting non-citizen women from American women, many of whom often are asylum
officers.
42

54
Oxford argues that the gender regime is structured in part by an insecurity of
ethnocentric harm and a fear of exotic harm. In other words, she believes that American
asylum workers use the American experience of certain forms of harm, such as rape and
domestic violence, to set a standard for the adjudication of these types of asylum claims.
Conversely, the same people manifest “exotic assumptions” about the violence that only
migrant woman experience, such as honor killings and female circumcision.
43

The upshot of this projection of American perspectives, according to Oxford, is
that women are instructed by attorneys and service providers to shape their claims based
on what Americans believe to be persecution. She claims that none of the women she
interviewed left their country because they were fleeing a forced circumcision, or because
they considered a female circumcision to be persecution. On the contrary, such persons
left their countries due to torture, detention, or the threat of detention or torture to their
spouse.
44
Oxford’s theory, which is echoed in the comments of a former judge
interviewed for this study, offers an alternative approach to the way asylum is viewed by
practitioners and scholars.

E. Judicial Behavior and Asylum
The available literature on circuit courts and asylum litigation, though growing, is
by no means large. However, a long history of literature on judicial behavior exists,
which has shed light on how circuit courts function, and is relevant to one of the central
question of this study: whether the circuit courts changed their posture towards Middle
Eastern asylum applicants after the events of September 11, 2001.

55
The study of judicial behavior is rooted in the particular theory of judging that is
used to analyze a case or set of cases. Political scientists have long agreed with the idea
that judges engage in more than just the application of law to facts, but they have strongly
disagreed as to the significance of an individual judge’s interest in good law or policy.
45

Whereas some jurists, such as Benjamin Cardozo, argue that jurisprudence that is not
constantly brought into relation to objective or external standards runs the risk of
becoming jurisprudence based on feelings,
46
other judges have viewed decision making
as the pure application of law to facts.
With this tension in mind, a large body of literature has evolved over the years
examining why and how judges vote in particular cases. Among the earliest pioneers in
this field was C. Herman Pritchett, whose work aligned judicial political research with
behavioral studies. Pritchett theorized that the social background of a judge shaped
attitudinal values, which were expressed in the observable behaviors of the judges, such
as their decisions.
47
However, not all Public Law scholars accepted Pritchett’s theories of
judicial behaviorism. Typical of his critics was Wallace Mendelson, who argued that
while behavorialism as a by-product of libertarian activism could be applied to activist
judges, it was not applicable to every member of the modern Supreme Court.
48
In light
of his critics, Pritchett was concerned about the limitations of behavioral methodology,
including arguments that classifying cases into categories imposed unclear and subjective
criteria, and that counting votes as equal in all cases was simply not accurate. However,
he sought to overcome these arguments by combining statistical evidence with analysis of
published opinions. This move led him to conclude that while a final decision could be

56
categorized for or against a particular value, this finding did not mean that the judge saw
that value present when he made his decision. Thus, Pritchett acknowledged the value of
an interpretative dimension to quantitative analyses of data.
49

Another influential scholar in judicial behavior during the 1960s and 1970s was
Glendon Schubert, who extended Pritchett’s use of extralegal determinants of judicial
decision making and basic statistics in a more sophisticated and in-depth manner.
50

Schubert also investigated the voting patterns and motivations of swing justices and
Supreme Court policy at the certiorari phase.
51

Other scholars have furthered early work in judicial behavior by attempting to
create theories or models that explain why judges act as they do.
52
Such models can
include a decision to vote a particular way, or to cast a dissenting or concurring opinion.
53

While they are not reality themselves, the models can be said to be simplified depictions
of reality, which intentionally focus on a specific set of crucial and often connected
factors, while ignoring other aspects of reality. The model can thus be used to gain an
understanding of the real world that descriptive approaches may not offer.
54

Among the oldest of models used to explain judicial behavior is the Legal Model,
which basically states that courts are influenced by the facts of the case in light of the
plain meaning of the Constitution and statutes, the intent of the Framers, and/or
precedent. Judges, legal scholars, and political scientists all propound the legal model to
various extents.
55
Jurists such as Supreme Court Justice Anton Scalia and D.C. Court of
Appeals Judge Harry Edwards have propounded the legal model as the primary
explanation for how cases are decided. Judge Edwards noted that, “it is law – and not

57
the personal politics of the individual judges – that controls judicial decision making in
most cases resolved by the court of appeals.”
56
However, it cannot be understated that
the legal model is also the method by which many attorneys argue their cases.
57

A number of critiques of the Legal Method exist, not the least of which is that
judges decide cases for many reasons beyond merely the law. As Seth Lipsky, former
publisher of the New York Sun has noted, “Whether one prefers the so-called living
Constitution of say, Justice Brennan or Breyer or the so-called dead Constitution of
Justice Scalia, the fact is that not all matters can be solved by the Constitution.”
58
Other
critiques include the numerous psychological factors inherent in judicial decision making,
which have been propounded by the behavioralists.
The models of judicial behavior are not limited to those explaining a court’s
ultimate vote. H.W. Perry, Jr. has developed a model explaining the processes by which
Supreme Court justices decide to grant writs of certiorari, the legal mechanism that
allows a case to be heard by the Supreme Court. Perry argues that the decision whether
to take a case is an ordered process of decisional steps or gates that a case must pass
through successfully in order to be accepted by the Court. Perry argues that two different
types of decisional steps are employed, depending on the issues of cases, the “outcome
mode” and the “jurisprudential mode.” If a judge cares strongly about a case, he or she
enters an “outcome mode” to decide whether or not to take the case. If, on the other
hand, the judge does not feel particularly strong about the case’s ultimate outcome, he or
she enters the “jurisprudential” mode with a different set of steps.
59

58
In addition to the above models that have been used to explain Supreme Court
behavior, three models have gained prominence in the study of the U.S. Court of
Appeals: the Attitudinal Model, the Hierarchical Model, and the Small Group Model.
60

The Attitudinal Model had its origins in the legal realist movement of the 1920s, led by
Karl Llewellyn and Jerome Frank. In contrast to the then prevalent theory that judges
find rather than create law, the legal realists postulated that lawmaking was inherent to
the act of judging.
61
Two different schools of thought comprised the legal realism
movement. The first focused on social forces; the second on the characteristics of
individual judges. However, both schools of thought viewed the law as indeterminate
and posited that there was often more than one legal basis for a particular decision and no
absolutely mandated legal outcome.
62

The Attitudinal Model was refined by other scholars, but in recent years has been
primarily propounded by Jeffery Segal and Harold Spaeth in their seminal study, The
Attitudinal Model,
63
and its successor, the Attitudinal Model Revisited.
64
The
Attitudinal Model, in its essence, holds that the Supreme Court decides disputes in light
of a case’s facts and the ideological attitudes and values of the justices. As Segal and
Spaeth note, the model explains that Thurgood Marshall voted as he did because he was
extremely liberal and William Rehnquist voted the way he did because he was extremely
conservative.
65
Segal and Spaeth have argued that both attitudes and facts impact
Supreme Court decisions, though they hold that these are separate influences on the
Court’s decisions, and that the juxtaposition of the facts, set against the attitudes of the
justices, determines how any particular justice reaches a decision in a given case.
66

59
Whereas Segal and Spaeth have demonstrated a preponderance of evidence in
support of the Attitudinal Model, it has not been devoid of critics. Other scholars have
questioned the Attitudinal Model’s singular focus on conservative versus liberal
outcomes with little consideration of the legal bargaining that takes place in many
decisions or the content of such opinions themselves.
67

This Attitudinal Model would indeed be very valuable if it could explain
decisions the circuit courts have made regarding asylum cases. However, while ideology
clearly does affect judges’ views in many cases, it cannot explain all or even a majority
of cases in the Middle Eastern context for a very different reason: the lack of consensus
within a given type of ideology regarding specific foreign policy considerations on the
Middle East. For example decisions on asylum applications that may result from the
Arab-Israeli conflict could not be easily predicted by looking at the party of the senators
who appointed a particular judge, or even at their political ideologies.
A second model used to evaluate Circuit Court is the Hierarchical Model. Under
this model, the judges on the Courts of Appeals are obligated to apply the precedent of
the Supreme Court, whether they personally agree with it or not.
68
Like Supreme Court
justices, circuit court judges are appointed for life; however, unlike Supreme Court
justices, they are subject to review by the Supreme Court. This structure has led some
scholars to suggest that the U.S. Courts of Appeal serve as agents of the Supreme Court,
thereby creating an agent/principal relationship. While the preferences of the circuit
court judges may in fact differ from those of the Supreme Court justices, they are

60
required to abide by decisions of the higher court and to apply precedents the court has
reached.
69

Several scholars have conducted empirical studies of the relationship between the
U.S. Court of Appeals and the U.S. Supreme Court. Donald Songer and Susan Reid have
explored circuit court decision making in substantive due process and First Amendment
cases after changes in Supreme Court doctrine, and found the circuit courts reflective of
those changes. Sara Benesh has examined decision making on the U.S. Court of Appeals
in confession cases, also concluding that the U.S. Supreme Court has influenced the
circuit court decisions.
70
David Klein has tested the Hierarchical Model in a different
way. He notes that while researchers have developed a highly credible body of evidence
indicating that circuit and other lower court judges generally follow the dictates of their
superiors, this evidence says nothing about how such precedents are applied to new
decisions on new questions. Klein explains that if the Supreme Court became
increasingly conservative in a particular area of law, so would the precedent on such
cases that came before the circuit judges. He notes that we would expect to see a
conservative trend in circuit court decisions regardless of whether the judges tried to
decide cases as the Supreme Court would.
71
Klein thus added to the existing studies by
concentrating on the announcement and treatment of new legal rules, which he defines as
a) rulings on issues not previously addressed by the Supreme Court or any federal court
of appeals, or b) unprecedented approaches to issues that were previously addressed in
different ways.
72

61
While the Hierarchical Model fits well with the traditional legal view of judicial
performance, there is reason to be skeptical that it presents an adequate model of the
circuit courts’ behavior— because the principal-agent theory that underlies the
Hierarchical Model assumes that the Supreme Court would have to monitor the circuit
courts and impose sanctions when the circuit courts do not follow their directions.
However, the heavy workloads of both courts indicate that there is little such monitoring
of circuit court decisions by the Supreme Court.
73

A third model used to examine the circuit courts is the Small Group Model.
Under Small Group theory, various factors influence the individual participants to behave
differently from the way they would act toward the same case if they acted alone.
According to this theory, the key to understanding the behavior of a judge on a three-
judge panel is to understand the background of the judge as well as of his fellow judges.
The idea is that some judges may be influenced by how other judges, such as a chief
judge, would react.
74

Virginia Hettinger, Stefanie Lindquist, and Wendy Martinek argue that the chief
judge in a circuit may be more sensitive to issues of collegiality than other judges
because the chief judge position mandates insight into the workings of the circuit and
bears responsibility for its proper functioning.
75
This view is confirmed by Richard
Posner, who writes that as a cooperative enterprise, appellate judging does not work well
when the judges’ relation with each other are hampered by animosity and that
maintaining collegiality under such conditions requires a continual effort to limit sources
of irritation, such as dissents. The phenomenon results in what he calls “dissent

62
aversion.”
76
Another type of judge that has been discussed in the scholarly literature is
the so-called freshman judge, or new judge who does not yet have extensive experience
on the circuit court. Such judges must familiarize themselves with the procedures,
expectations, and customs of the court.
77

Two other types of judges would fall under the rubric of the Small Group Model.
These include senior judges, who have the option of taking their full salaries while
hearing fewer cases. Senior judges have the luxury of more time to write their decisions,
but may be more sensitive to the judicial legacy they leave behind.
78
They may also be
“less representative of the consensus of the court than those of active judges.”
79
District
Court judges sitting by designation are another type of judge that sit on circuit court
panels. While the practice is fairly common, some district judges have been found to be
less assertive as panel participants than their appellate colleagues.”
80
District court
judges are not the only judges from outside the circuit to sit on appellate panels. Judges
from other circuit courts have been regularly utilized to fill Ninth Circuit panels, and a
strong argument can be made that a district judge from within a circuit is more familiar
with the issues facing a panel in his own circuit than a circuit court judge from another
circuit. This familiarity is true in the context of asylum law, where the Supreme Court
does not issue very many decisions.
While the Attitudinal, Hierarchical, and Small Group models are helpful in the
study of asylum in the Immigration Court, the Board of Immigration Appeals, and the
circuit courts, the unique nature of immigration— and particularly asylum litigation—
present additional challenges to the researcher. Indeed, the relatively few statistical

63
studies that have been undertaken on the Immigration Court and its judges have looked
almost exclusively at the alien’s country of origin and whether he/she was represented by
an attorney. The Department of Justice’s statistical studies are similarly focused
on measuring the allocation of Judge Resources in the national system.
4

One of the most salient criticisms of the published studies on asylum litigation is
the failure to separate the cases by country. Indeed, a comparison of two judges’ records
on asylum may say very little if their decisions draw on divergent applicants. Yet the
majority of studies of both immigration judges and circuit court judges rank and rate
judges using an overall ratio of the judges’ granting of asylum. In one of the most
important scholarly studies to date, David S. Law studied the behavior of members of the
U.S. Court of Appeals for the Ninth Circuit to see the effect of the publication of a
decision on a judge’s willingness to vote for a grant of political asylum. Law argues that
little attention has been given to the idea that judges use publication rules to shape the
development of case law in an ideological direction. To this end, he empirically tested the
hypothesis that the decision to publish is influenced by the judge’s ideology, using a
statistical analysis of all asylum cases during a ten-year period.
81

While it is perhaps the most sophisticated quantitative study to date, and an
interesting barometer of the judicial actions of individual judges, Law’s study says little
about the overall changing philosophy towards asylum and cannot measure evolving
attitudes. Further, the use of all asylum cases, including unpublished decisions,
complicates the interpretation of the study’s results due to the great difference in the
quality of published and unpublished decisions. Published decisions usually articulate

64
the thought process behind a panel’s or an en banc court’s decisions. In contrast, many
unpublished decisions are mere recitations of the court’s holding with the barest of facts.
Some are poorly written, and even contradict long-standing precedent.
Perhaps the most substantive study of asylum decisions in the United States is
“Refugee Roulette: Disparities in Asylum Adjudication,” by Jaya Ramji-Nogales,
Andrew I. Schoenholtz, and Phillip G. Schrag, which appeared along with two other
articles in the Stanford Law Review in 2007.
82
The authors analyzed the databases of
decisions from all four levels of the asylum process, including 133,000 decisions for
nationals from 11 countries decided by asylum officers during a seven-year period.
These included 140,000, decisions of 225 immigration judges during a period spanning
four and half years; 126,000 decisions of the BIA during a six-year period; and 4,215
circuit court decisions during 2004 and 2005. The authors found that their analyses
revealed great disparities in grant rates even when different adjudicators in the same
office considered large numbers of applicants from nationals of the same country.
83
The
authors noted that the statistics that they collected suggested that:
[in the] world of asylum adjudicators, there is remarkable variation in decision
making from one office to the next, from one region to the next, from one court of
Appeals to the next, and from one year to the next, even during periods when
there had been no intervening change in the law.
84

“Refugee Roulette” also addressed the performance of the Circuit Courts in the
adjudication of asylum appeals. The authors stated that they did not think the likelihood
of success should depend on the state in which the applicant had settled, and that
conventional thinking would lead to the conclusion that federal courts would be sensitive

65
to significant disparities in grant rates between the circuits. Still, the results of their data
compilation indicated a “surprising” amount of variation in the circuit courts of appeal.
85

Along these lines, the authors hypothesized that the remand rate might be higher
in the Seventh Circuit than in the Fourth Circuit if the immigration judges located within
the Seventh Circuit had been “inappropriately” hesitant to grant asylum. Yet, according
to the data, the Chicago immigration court, the only one located within the Seventh
Circuit, was no less inclined to grant cases than its counterpart in the Fourth Circuit.
Thus, according to the authors, the statistics revealed that the grant rates in the Circuit
Courts reflected not the relative merits of the cases nor the differential grant rates of the
immigration judges; rather, the disparity in grant rates in the Circuit Courts reflected the
differing attitudes that the various circuit court judges held in the aggregate, with respect
to the claims, or at the minimum in their degree of skepticism toward the adequacy of IJ
and BIA decision making. The authors further noted that the three Southern Circuits
were the ones with the lowest grant rates, and the statistics supported their hypothesis that
the variation was in some way tied to a regional culture, “which apparently affects federal
appellate judges as well as other citizens, more than any identifying characteristic of
these asylum cases.
86

While preparing their analysis, the authors also considered the potential criticism
that comparisons across circuits were not meaningful, because the Fourth, Fifth, and
Eleventh Circuits, courts with the lowest remand rates, might receive more appeals from
Mexican or Central American applicants with relatively weak asylum claims, whereas the
Seventh Circuit might receive most of its appeals from asylum seekers from countries

66
with the worst human rights records. Taking this possibility into account, they also
calculated the remand rates for decisions issued during 2004 and 2005 for aliens from the
15 countries they labeled APCs, which excluded Mexico and the other countries of
Central America. However the disparity levels between circuits in remanded cases
remained significant. Of note, the remand rate for the Ninth Circuit was 22.1%, the
Seventh Circuit 31.2% the two highest, whereas the First

Circuit was 7.7% and the
Eleventh Circuit 3.85%.
87

“Refugee Roulette” remains the most comprehensive study of asylum cases across
the board due to the sheer number of cases it considers, and the depth of its analyses.
Still, it has a number of weaknesses, some which are not accounted for by the authors,
and offers little insight into the issue of Middle Eastern applicants dealt with in the
current study. To begin with, the study was accompanied by two critical essays,
“Learning to Live with Unequal Justice: Asylum and the Limits to Consistency,” by
Stephan Legomsky of the Washington University School of Law,
88
and “Refugee
Roulette in an Administrative Law Context; The Deja vu of Decisional Disparities in
Agency Adjudication,” by Margaret H. Taylor of the Wake Forest Law School.
89

Legomsky argued that while the “Asylum Study” generated “hard questions
about our moral responsibility to fellow humans in distress,” there are times when we
need to live with unequal justice because the alternatives are worse, and that extensive
correction of “adjudicative inconsistency” would bear costs that are socially
unacceptable.
90
He also notes that precisely how harmful the inconsistencies are might
depend on their type and on whether they emerge at the initial or appellate state of the

67
asylum process. Turning to the BIA and the Circuit Courts, Legomsky points out that as
not all cases were precedents, and since even precedents produced differing
interpretations, the degree of consistency that could be expected from the BIA or a Court
of Appeals was reduced when the majority of the decisions was rendered by fewer than
the court’s full membership.
91
Legomsky considered the elimination of the number of
decisional units (i.e., judges) but concluded that a reduction in the number of decisional
units would mandate less attention per case and could actually impair the ability of such
units to arrive at consistent results. Thus, he felt that a change in decisional units would
have mixed impact on consistency.
92
He similarly felt that unless adjudicators could be
made ideologically homogeneous, substantial disparities in asylum approval rates would
always exist.
93

Margaret Taylor’s article sought to place “Refugee Roulette” into the context of
political science literature, noting that the “Asylum Study” broke no new methodological
ground and could be cited by empiricists who usually applied more sophisticated
multivariate statistical models to small datasheets. Yet she also underscored how
important it was for empiricists to understand the procedural and legal contexts of their
datasets, and that the authors’ expertise had been refined during years representing
asylum seekers, which was essential to the design and implementation of the Asylum
Study.
94
Still, she noted that the Asylum Study demonstrated the boundary that existed
between political scientists and legal scholars who did not read each other’s work, and
that this divide was underscored by the absence in the Asylum Study of the theoretical
models political scientists use to explain judicial behavior, in particular the strategic

68
model, which accepts that judges vote according to their ideological preferences, but are
also subject to compromises imposed by political constraints as well as by their
colleagues.
95

Taylor then went on to compare the administrative processes between social
security and immigration law, noting that in both areas of law,
decision makers needed to navigate through statutes, case law and regulations
though at the same time, the actual decisions turned on “fine-grained attention to
the intimate facts on the record’ and an assessment of whether the applicant is
telling the truth.”
96

Taylor, however, was not sanguine about the prospects for any actual improvement of the
asylum system without an understanding of the broader administrative law contexts and
the tradeoffs that would result in restructuring an agency such as the Executive Office for
Immigration review.
97

The asylum study also has deficiencies not addressed by the commentators in the
two accompanying essays. Indeed, the authors never consider that the cases that make it
to the circuit courts are generally the worst cases, as the most meritorious cases are
generally won at the lower court level. The study also does not control for the use of
expert testimony, which, in this author’s trial experience, is the single most accurate
predicate of winning or losing an asylum case. In addition, while the authors state that
their study found differences in grant rates from year to year, when there was no change
in the law, their study does not consider the possibility of grant rates differing due to
changes in precedent within a given year, which as any trial lawyer knows can change the
grant or denial ratio dramatically. Take, for instance, the Ninth Circuit’s decisions
concerning Indonesian Christian asylum seekers in the two precedent cases, Lolong v.

69
Gonzales (9
th
Cir. 2005), (Lolong I, and Lolong v. Gonzales, (9
th
Cir. 2007), (Lolong II).
In the first case, the Court discovered a presumption that Indonesian Christians were
members of protected group, which made it relatively easy for an alien to establish
asylum. The full Ninth Circuit however reversed its decision in Lolong II, deciding that
such a presumption did not exist. This decision, of course, made it much harder for an
Indonesian Christian asylum seeker to win his or her case— and decisions rendered after
Lolong II lead to many more denials of such cases.
98
Thus, the effect of a precedent on
the grant rate can be substantial and can skew the results of any study based in a specific
time frame.
More importantly for the research undertaken here, however, the authors of
“Refugee Roulette” do not include any Middle Eastern countries within the Asylum
Producing Countries (APC’s) that comprised their study. Thus, their approach, though
helpful in understanding general trends among the circuits, does not offer any insight into
the questions raised here.

70
CHAPTER 2 ENDNOTES

1
Aliens physically present in a foreign country may request refugee status in the United States from a U.S.
Counsel or embassy. As a matter of practice, those who request and are accorded refugee status are
required to relocate to a refugee camp situated within a third country until a visa to the United States is
available. While this policy remains U.S. law, it is often deemed impractical by those who are actually
fleeing persecution. Such persons often attempt to proceed directly to the United Sates and apply directly
for asylum.

2
INA Section 208(a)(2)(A), (West CD Rom 2010)

3
INA Section 208(a)(2)(B), (West CD Rom 2010)

4
Withholding of Removal bars the removal of an alien to another country if there is a clear probability of
harm based on one of the five protected grounds, whereas Withholding of Removal under the Convention
Against Torture bars his or her removal to a country where he/she would be tortured. The torture does not
have to be undertaken on account of one of the five grounds.

5
During the 1990s, aliens whose cases were likely to be denied were sent so-called intent to deny letters,
and a backlog developed at the asylum-processing centers. At the INS’s Laguna Niguel center, one could
file for asylum and wait six or seven years until his or her case was called for an interview!

6
The backlog of asylum cases was compounded by the widespread activities of so-called notaries or
”notarios” who deceptively would charge aliens to “fix their papers,” but who would in reality file an
asylum case—often where one did not exist. The aliens who often did not know any better were issued the
employment authorization cards which were available to all asylum applicants, and were fooled into
believing that they were in the process of obtaining their green cards.

7
Section 101(a)(42)(a) of the Immigration and Nationality Act, (West CD Rom, 2010)

8
Guy Goodwill-Gill, The Refugee and International Law (Oxford: Oxford University Press, 1983), 69.

9
Sangha v. INS, 103 F.3d 1482, 1487 (9th Cir.1997), citing Sagermark v. INS, 767 F.2d 645, 650 (9th
Cir.1985); see also Pitcherskaia v. I.N.S., 118 F.3d 641 (9
th
Cir. 1997).

10
Li v. Ashcroft, 356 F.3d 1153, 1158 (9
th
Cir. 2004) (en banc) quoted in Cheri L. Ho, Immigration Law in
the Ninth Circuit, Selected topics, updated by Michele Hirzel, Office of the Staff Attorneys, United States
Court of Appeals for the Ninth Circuit, January 2008, p. 59.

11
Zhu v. Mukasey, 2008 DJDAR (August 4, 2008), quoting Grava v. INS, 205 F.3d 1177, 1181, n. 3. (9
th

Cir. 2000)

12
Pitcherskaia at 646 quoting Aguilera-Cota v. INS, 914 F.2d 1375, 1378 (9th Cir.1990)

13
Pitcherskaia at 646, quoting Acewicz v. INS, 984 F.2d 1056, 1061 (9th Cir.1993)

14
Gonzales-Neyra v. INS, 122 F.3d 1293, 1296 (9th Cir.1997)

15
INS v. Cardoza-Fonseca, 480 U.S. 421, 440 (S.Ct. 1987)

71

16
The Supplementary Information to 8 C.F.R. section 3.1(d)(3) which was transferred to 8 C.F.R. section
1003.1(d)(3) in 2003, in 67 Fed. Reg. At 54,902, 888-89, noted that “Immigration Judges are better
positioned to discern credibility and assess the facts with witnesses before them,…”

17
National Cable & Telecomm. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005).

18
See, for example, the BIA decisions in the matter of Guadalupe Escobar, 24 I & N Dec. 231 (BIA 2007)
and Matter of Ramirez-Vargas, 24 I & N Dec. 5999 (BIA 2008). The theory behind the Brand X case is
that the circuit court may issue its own statutory interpretation if the BIA has not issued its own, or if a BIA
interpretation is wholly irrational.

19
“Judicial Independence and Asylum Law,” Remarks Prepared for Delivery by Judge Stephen Reinhardt,
at the Annual Conference of the international Association of Refugee Law Judges, Wellington, New
Zealand, October 24, 2002, at 5.

20
Id. at 5; Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)

21
Aguirre v. Aguirre, 526 U.S. 415, 425 (S.Ct.1999); See Michael G. Heyman, “Immigration Law in the
Supreme Court: The Flagging Spirit of the Law,” Journal of Legislation 113 (2002).

22
Heyman, 142.

23
Reinhardt, 5.

24
For example the West Immigration CD Roms contain numerous but not all unpublished cases decided in
recent years by the BIA.

25
Goodwin, 172-204.

26
Id. at 188.

27
Id. at 247-295.

28
Karen Musalo, “Claims for Protection Based on Religion or Belief,” International Journal of Refugee
Law, 16.2, (2004): 275.

29
Id. at 217, 220.

30
Louis A. Gordon, “Christians in Court,” Middle East Quarterly (Winter, 2001): 79-80.

31
Id.

32
Edward W. Said, Orientalism (New York: Vintage, 1979).

33
Susan Musarrat Akram, “Orientalism Revisited in Asylum and Refugee Claims,” International Journal of
Refugee Law 12.1 (2000): 9-40.

34
Id. at 18.

35
Id. at 9.

72

36
Carol Bohmer and Amy Shuman, Rejecting Refugees, Political Asylum in the 21
st
Century (New York:
Routledge, 2008), 232.

37
Id.

38
Mathew Price, Rethinking Asylum: History, Purpose and Limits (Cambridge University Press, 2009),
159.

39
Id.

40
Id. at 206-207.

41
Connie G. Oxford, “Protectors and Victims in the Gender Regime of Asylum,” NSWA Journal 17.3 (Fall
2005): 18-39, at 23.

42
Oxford, 22.

43
Oxford, 23.

44
Oxford, 29.

45
Lawrence Baum, The Puzzle of Judicial Behavior (Ann Arbor: University of Michigan Press, 1997), 56.

46
Benjamin N. Cardozo, The Nature of the Judicial Process (New Haven: Yale University Press, 1971),
106.

47
Elliot E. Slotnick, “Judicial Politics,” Political Science, Looking to the Future: American Institutions,
edited by William Crotty, 4:67-97, (Evanston, IL: Northwestern University Press, 1991), 74, cited in The
Pioneers of Judicial Behavior, edited by Nancy Maveety (Ann Arbor: University of Michigan Press: 2003),
10-11.

48
Wallace Mendelson, “The Neo-Behavioral Approach to the Judicial Process: A Critique,” American
Political Science Review 57:593-603, cited in Maveety, 12.

49
Walter F. Murphy, and Joseph Tanenhaus, The Elements of Judicial Strategy (Chicago: University of
Chicago Press, 1972), 126, cited in Maveety, 14.

50
Maveety, 14.

51
Id. at 15.

52
See also, Virginia Hettinger, Stefanie A. Lindquist, Wendy Martinek, Judging on a Collegial Court,
Influences on Federal Appellate Decision Making (Charlottesville: University of Virginia Press, 2006), 28-
30.

53
Wendy L. Martinek, “Appellate Workhorses of the Federal Judiciary,” Exploring Judicial Politics, edited
by Mark C. Miller (Oxford: Oxford University Press: 2009), 134.

54
Jeffrey A. Segal, and Harold J. Spaeth, The Supreme Court and the Attitudinal Model Revisited (New
York: Cambridge University Press, 2002), 45.

55
Id. at 48

73

56
Harry T. Edwards, “Public Misperceptions Concerning the ‘Politics’ of Judging: Dispelling some Myths
About the D.C. Circuits,” University of Colorado Law Review 619 (1985): 620, cited in Segal and Spaeth
at 49.

57
See Thomas A. Mautt, Fundamentals of Trial Techniques (Boston: Little Brown, 1988).

58
Seth Lipsky, The Citizen’s Constitution, An Annotated Guide (New York: Basic Books, 2009). Lipsky
notes that in his view, the real heroes of constitutional law are the citizens themselves, the litigants who put
their faith in the courts and the Constitution and often dedicating their life savings to such contests, though
they do not always prevail on the law.

59
H.W. Perry, Jr., Deciding to Decide, Agenda Setting in the United States Supreme Court (Cambridge:
Cambridge University Press, 1991), 274.

60
Martinek,134.
61
Jeffrey A. Segal and Harold J. Spaeth, The Supreme Court and the Attitudinal Model Revisited (New
York: Cambridge University Press, 2002) 86-87.

62
Hettinger at p. 30. The dichotomy seems to parallel the debate between Karl Marx and Thomas Carlyle.
Marx had argued that history was the product of economic forces while Carlyle propounded the theory that
the great man most influenced history.

63
Jeffrey A. Segal, and Harold J. Spaeth, The Supreme Court and the Attitudinal Model (New York:
Cambridge University Press, 1993).

64
Jeffrey A. Segal and Harold J. Spaeth, The Supreme Court and the Attitudinal Model Revisited (New
York: Cambridge University Press, 2002).

65
Id., p. 86.

66
Id. p. 324.

67
Martinek, “Appellate Workhorses of the Federal Judiciary,” 134. See also Frank B. Cross, Decision
Making in the U.S. Courts of Appeals, (Stanford: Stanford University Press, 2007).

68
David E. Klein, Making Law in the United States Courts of Appeals (Cambridge: Cambridge University
Press, 2002), 7.

69
Martinek, 136.

70
Martinek, 136.

71
David E. Klein, Law Making in a Hierarchical Judicial System, (Cambridge: Cambridge University
Press, 2002), 7.

72
Id. at 7-8.

73
Id. at 135-136. See also, Virginia Hettinger, Stefanie A. Lindquist, Wendy Martinek, Judging on a
Collegial Court, Influences on Federal Appellate Decision Making (Charlottesville: University of Virginia
Press, 2006).

74
Martinek, 136-137

74

75
Id. at 52.

76
Posner, 33.

77
Id. at 52.

78
Id. at 54.

79
Carrington, Paul, “Crowded Dockets and the Court of Appeals: The Threat to the function of Review and
the National Law,” Harvard Law Review, 82:52-617, cited in Judging On a Collegial Court, at 54.

80
James J., Brudney and Core Ditslear, “Designated Diffidence: District Court Judges on the Courts of
Appeals,” Law and Society Review 35 (2001): 565-606, in Judging on a Collegial Court, at 54.

81
David S. Law, Strategic Judicial Lawmaking: Ideology, Publication, and Asylum Law in the Ninth
Circuit,” University of Cincinnati Law Review 73 (Spring 2005): 817. The unpublished version cited in this
synopsis is entitled, “Strategic Judicial Lawmaking: An Empirical Investigation of Ideology and
Publication in the Ninth Circuit” at 40.

82
Jaya Ramji-Nogales, Andrew I. Schoenholtz, and Phillip G. Schrag, “Refugee Roulette: Disparities in
Asylum Adjudication,” Stanford Law Review 60.2 (2007).

83
Id. at 296.

84
Id. at 302.

85
Id. at 361-363.

86
Id. at 363-364.

87
Id. at 365-366, The authors also noted that they examined the individual decisions of Third and Sixth
Circuit judges who had cast 23 or more votes in asylum cases, finding that the Third Circuit judges
demonstrated “a remarkable degree of consistency from judge to judge,” while the judges in the Sixth
Circuit deviated from the circuit’s mean rate of votes to remand by more than 50%. The other circuits
either had too few or too many cases to enable a comparison.

88
Stephan Legomsky, “Learning to Live with Unequal Justice: Asylum and the Limits to Consistency,”
Stanford Law Review 60.2 (2007): 413-474.

89
Margaret H. Taylor, “Refugee Roulette in an Administrative Law Context; The Deja Vu of Decisional
Disparities in Agency Adjudications,” Stanford Law Review 60. 2: 475-502.

90
Legomsky, 414-416.

91
Id. at 424-429.

92
Id. at 431.

93
Id. at 445.

75

94
Taylor at 476-477. Taylor went to great lengths to deprecate the work of a non-attorney, Ming H. Chen,
“Explaining Disparities in Asylum Claims,” Georgetown Public. Policy Review 29 (2007), pointing out
that Chen’s lack of immigration knowledge led to faulty conclusions. Whether Taylor was aware of
Connie Oxford’s study is not clear.

95
Id. at 479.

96
Id. at 490 citing Charles H. Koch, Jr. and David A. Koplow, “The Fourth Bite at the Apple; A Study of
the Operation and Utility of the Social Security Administration’s Appeals Council,” Florida State
University Law Review 199, 229 (1990): note 44.

97
Id. at 501.

98
Lolong v. Gonzales, 484 F.3d 1173, (9
th
Cir. 2007)

76
CHAPTER 3.
A TYPOLOGY OF MIDDLE EASTERN ASYLUM CASES

While the statutory and legal definitions set forth in the Immigration and
Nationality Act may create a rubric for a typology of Middle Eastern asylum cases, any
framework is incomplete without consideration of the particular claims that are endemic
to the region. Indeed, the population of the Middle East has been said to resemble a
tapestry of cultures and ethnicities, and many persons from the 23 countries included in
this study often possess attributes that span more than one category. For example, an
Iraqi Kurd may fall into the categories of both Kurdish nationality and Sunni Muslim
religion, while also holding a particular political opinion. An Egyptian Coptic Christian
could similarly be at once Arab, Egyptian, and Christian, and also a member of a social
group of Christians who actively proselytize. A Jewish Iranian may be at once Iranian,
Jewish, and an opponent of the government, while a Sudanese may be an African, a
Sunni, and a member of a smaller ethnic tribe. Moreover, as Andersen, Siebert, and
Wagner note, large regions in the Middle East are set apart from others by distinctive
cultures and languages, the most prominent being linguistic differences among Turkish,
Arabic, and Persian speakers. Each one of these groups views itself as having distinct
cultural roots, while occupying a large contiguous area in the Middle East.
1

In order to better explicate the types of asylum cases involved in this study, I
utilize a typology that divides the claims of applicants into the protected grounds of
race/nationality, ethnicity, religion, membership in a social group, and political opinion,
while focusing on the types of specifically Middle Eastern claims that fit into these

77
categories. But before the actual categories— and the problems inherent to weighing
and evaluating cases from members of these categories—can be examined, the sources
for the creation of the typology should be taken into account.
For years the most widely used tool to evaluate claims of asylum applicants has
been the State Department Country Reports on Human Rights. The Reports prepared by
State Department officials are designed to provide coverage of human rights issues in all
countries around the world, noting such topics as human rights, freedom of the press,
illegal arrests, the use of torture, and freedom of religion. The Reports are usually
provided to the Immigration Judge by the attorney for the government in asylum cases,
and are invariably part of any record reviewed by the Circuit Court of Appeals, which—
along with many human rights advocates— has not always looked kindly on the State
Department’s take on asylum issues.
The Lawyers Committee on Human Rights found a corollary State Department
Profile on asylum claims, which was often provided along with the reports, of such little
value that they called upon the State Department to abolish them. The Committee
claimed that the Profiles exceed the State Department’s mandate seeking to assist the
Immigration and Naturalization Service in detecting fraud and abuse in asylum claims,
noting:
2

they are replete with factual errors, misstatement and tendentious reporting, and
often demonstrate a complete misunderstanding of the legal requirement for
establishing eligibility for asylum. The profiles add little of substantive value to
the information contained in the Country Reports, and their only contribution
appears to be to give asylum adjudicators (questionable) grounds for denying
asylum requests.

78
The State Department Reports are not the only set of yearly produced reports
illustrating country and human rights conditions that bear on an applicant’s eligibility for
asylum. Amnesty International and Human Rights Watch, two organizations dedicated
to promoting human rights around the world, issue their own reports on many countries,
which at times contain information not available in the State Department Reports.
Freedom House, a Washington based organization, also produces reports on country
conditions and issues a rating on a scale of one to ten of a country’s respective level of
freedom. Like the State Department Reports, the material produced by these
organizations has also been labeled as biased; Amnesty International and Human Rights
Watch in favor of the left, and Freedom House in favor of the right.
Whatever the merits of such allegations, because the reports are designed and
implemented by professional human rights monitors and not necessarily country or
regional experts, they can at times miss cultural nuances. In this sense, the individual
yearly studies of Middle Eastern countries in a number of university coursebooks offer
important supplements to issues that might not make it into the other reports. Finally,
with the development of the Internet, the availability of new sources for research has
dramatically increased since the mid-1990s, when attorneys representing appellants in
asylum cases were well advised to peruse the clippings files at Amnesty International’s
offices. While the official newspapers in many Middle Eastern countries are highly
regulated by their governments, a number of good sources remain, including Aljazerra
the Qatar based news agency, Haaretz.com (the English web-site of the liberal Israeli

79
Daily), and The National, an English daily based in the United Arab Emirates, which
posts an online edition.
Various sources provide a vast network with which particular claims can be
documented, but aside from the State Department reports, do not actually divide the
claims into the categories. This work can only be done by analyzing the various claims
that arise—or potentially could arise—in the context of the five categories set forth under
the Immigration and Nationality Act, as previously introduced in Chapter Two.

A. Nationality and Race
Though Race and Nationality are listed as separate protected grounds under the
Immigration and Nationality Act, as a practical matter they are usually considered
together along with Ethnicity in asylum claims. I also combine such claims for purposes
of this study. Worthy of noting is that no Middle Eastern example of persecution or well-
founded fear of persecution on account of race or nationality is included in David
Martin’s seminal compendium of precedent circuit court decision in asylum cases,
Asylum Case Law Sourcebook.
3
The omission, however, does not seem be one of
editorial choice, but is rather illustrative of the fact that nationality cases from the Middle
East are less likely to reach the panels of the circuit courts. Margarett O’Donnell believes
that the lack of court cases dealing with race is attributable to the fact that race is often
the secondary basis for an asylum claim and that there is an especially high probability of
one of the other protected grounds overlapping with race.
4
O’Donnell further views the

80
term “nationality” as an unfortunate word choice because it suggests the idea of national
borders, when the concept is primarily concerned with linguistic and ethnic groups.
5

Nevertheless, race and nationality remain an important category of Middle
Eastern asylum cases and an area of concern to the human rights organizations.
6
For
example, one issue of importance to Human Rights Watch in the years preceding the
scope of this study was the fate of ethnic minorities in Kuwait, including Bedoons and
Palestinians. Since the liberation of Kuwait from Iraq in the 1991 Gulf War, the Bedoons
were accused of aiding the Iraqi forces and were subsequently prevented from sending
their children to school. Those employed by the government were dismissed from their
jobs, and the government opposed reopening the citizenship application process to give
them an opportunity to make the claim that their ancestors had settled in Kuwait before
1920. The Kuwaiti government further suppressed the Bedoons through arbitrary arrests,
detention, torture and ill treatment of prisoners, unlawful searches, fines and public
humiliation. Claims, then, by Bedoons would fall into the category of persecution on the
basis of nationality or ethnicity.
7

Similar difficulties in Kuwait were recounted by stateless Palestinians asylum
applicants, who had originally come from the Gaza Strip but were not allowed by Israel
to return. In the mid-1990s, many Gazans were harassed, threatened with imprisonment,
denied employment and education, and subjected to fines for remaining in Kuwait. The
resulting claims of persecution were most likely filed under the categories of nationality
or ethnicity. Similarly, claims on behalf of Kurds or Arabs who have been expelled from
Iraq’s Kirkuk area would fall under the category of nationality.
8
While race as a sole

81
issue is less common in Middle Eastern cases, Africans from the Sudan have filed claims
for persecution at the hands of the dominant Arab elite.

B. Political Opinion
Historically, the majority of asylum cases filed has been based on political
opinion, and that category has been said to be voluminous, turbulent, and difficult to
grasp.
9
Persecution on account of a political opinion requires an applicant to have had a
particular belief, which was made known to the persecutor, who then targeted the
applicant for his or her views. However, precisely what qualifies as political opinion or
related activities is not defined by the statue or the Code of Federal Regulations, which in
title Eight sets forth regulations governing asylum procedures.
10
Moreover, political
opposition does not actually need to be stated but can be expressed non-verbally or even
privately.
11
In the context of the Middle East, political opinions span a wide range of
issues, including opposition to the revolutionary government in Iran, to the coercive
policies of Saddam Hussein, or to repression by the Egyptian government. Of particular
importance in understanding the context of political opinions in many Arab countries is
the relationship between Islam and politics. Within the Sunni tradition, government often
intermingles with Islamic rulership, which at least until the creation of the Iranian Islamic
Republic remained a minority political force.
Asylum applications based on political opinion necessarily ebb and flow with
political developments such as regime change. For example contemporary Iraqi asylum
cases are different today than they were during the 1980s and 1990s at the height of

82
Saddam Hussein’s regime, when the Ba’ath Party was in power. In one 1984 case, the
U.S. Court of Appeals for the Sixth Circuit considered the claim of three Iraqis, one of
whom alleged persecution because of his opposition to the ruling Ba’ath Party and his
sympathetic support for the Kurdistan Democratic Party (JDP). Another claimed
persecution based on his membership in the JDP as well as his Chaldean Christian
Religion. Despite testimony that one of the applicants had been subjected to a nine-
month jail term in 1971, and the other a 1961 beating, the Court found that they had
failed to present specific evidence that would satisfy the standard!
12
The Sixth Circuit
reached a similar type of decision in Gumbol v. INS, (6
th
Cir. 1987),
13
where it denied
asylum to an Iraqi who claimed he had been beaten at his work place by members of the
Ba’ath Party for political and religious reasons. The Court found that Gumbol gave
inconsistent accounts.
14
With the overthrow of Saddam Hussein, cases from Iraq now
revolve around issues relating to Iraq’s new rulers.
With the rise of the Islamic Republic of Iran, the idea of a governing Shia polity
has taken hold, and many asylum cases have been filed by political opponents of this
regime dating back to the 1980s. In Motamedi v. INS, (10
th
Cir. 1983),
15
the Tenth
Circuit reversed a BIA decision that denied reopening based on an applicant’s fear that he
would be persecuted for participating in anti-Khomeii activities while in the United
States, as his brother and cousin who had participated in such activities had recently
returned to Iran and had suffered persecution.
16
In Sakhavat v. INS, (9
th
Cir. 1986),
17
the
U.S. Court of Appeals for the Ninth Circuit considered the cases of an Iranian member of
Mojahedin studying the United States. Though Sakhavat had early on supported the

83
Iranian revolution, after the 1981 purge of Mojahedin, Sakhavat turned against the
Khomeini and participated in anti-government demonstrations at Fresno State University.
During one protest Sakahvat was beaten with bats and chains. Sakahvat’s family in Iran
also was persecuted, with one brother executed on political charges, while two others
went into hiding.
18
The Ninth Circuit overruled the BIA decision not to reopen his case
on the grounds that he was likely to be persecuted as a Mojahedin were he returned to
Iran.
19

Not all political opinion cases concerning America’s foes have resulted in asylum
grants. In Alsheweikh v. INS, (8
th
Cir. 1993),
20
the U.S. Court of Appeals for the Eighth
Circuit actually declined to grant asylum to a Libyan student who had performed songs
against his government and who had been contacted by and spoken with the FBI, but who
could not produce any evidence that the Libyan government was aware of his political
opinions. The results may comport with the general middle-of-the-road approach often
taken to legal problems by the U.S. Court of Appeals for the Eighth Circuit.
21

It should be noted that the Middle East also takes on unique issues with regard to
the doctrine of “imputed political opinion.” An imputed political opinion is an opinion
foisted on an applicant by the persecutor, who undertakes a campaign of persecution
based on a belief he or she believes the victim holds. The applicant’s own beliefs are not
as important as is the focus on the subjective belief or the persecution itself.
22
In the
context of the Middle East, some of the more complex issues that continue to arise
involve Druze from Southern Lebanon, who claim that they are viewed by Hezbollah as
supporting Israel regardless of their true political orientations and, as discussed below,

84
can overlap with membership in a particular social group.
23
The issue can also arise in
cases where various applicants are imputed pro-American opinions by their persecutors.

C. Religion
It is futile to try to understand the Middle East without considering the role of
religion. The Middle East is more than just place the place of origin for the Sunni and
Shiite branches of Islam, Judaism, and Christianity. Within the geographical boundaries
of the region, hundreds of indigenous sects have developed their theologies and doctrines.
Depending on the country and the religion, claims of religious asylum have played out in
unique ways, with the Arabic orientation of many Middle Eastern churches often
confounding Western observers.
Asylum cases filed by Middle Eastern Christians are not a new phenomenon, but
have been exacerbated by the rise of Islamic fundamentalism. Indeed, anticipating a
future flood of cases by Middle Eastern Christians in Bastanipour v. I.N.S., (7
th
Cir.
1992),
24
Judge Richard Posner wrote a decision rejecting an idea propounded by the
Board of Immigration Appeals that the Iranian government might not find out that the
respondent, who had converted to Christianity, was an apostate. Posner noted that
apostasy is a capital offense in Islam, writing that:
Whether Bastanipour believes the tenets of Christianity in his heart of hearts or, as
hinted but not found by the Board, is acting opportunistically (though at great risk
to himself) in the hope of staving off deportation would not, we imagine, matter to
an Iranian religious judge.
25

85
The case recognizes the proposition that in the eyes of Islamic fanatics, the actual
practice of the new religion is less important than the act of apostasy.
The Board of Immigration and Federal Court precedents have granted asylum to
Christians for other reasons. In In re A-N and R-M-N, (BIA 1999),
26
the applicants
claimed that they would be persecuted in their home country merely for being associated
with Christians and “pro-Western” ideas. The applicants argued that subsequent to their
hearing, country conditions in Afghanistan had changed, and the “ultra-conservative”
Taliban had taken control of Afghanistan. The applicants submitted evidentiary material
demonstrating that the Taliban would find them guilty of apostasy on account of their
association with Christians and their adoption of “Western” culture, and that as apostates,
they would be subject to “immediate arrest, imprisonment, and execution.”
27
The BIA
concluded that the applicants met their burden and showed a reasonable likelihood of
success on the merits, thus granting their motion to reopen.
28

While Iranians comprise a large number of Christian asylum applicants, Iran is
not the only country where such persecution continues to occur. Another segment of
persecuted Middle Eastern Christians is the Iraqi Christian population, whose 1.5 million
population has been greatly depleted since the U.S led invasion in 2003. Muslim
extremists have burned churches and Christian owned shop and homes while murdering
priests who serve a population now estimated at less than 500,000. A number of cases by
Iraqi Christians are included in the published decisions analyzed in this study.
29

Another Middle Eastern Country that produces a considerable number of asylum
claims from Christians is Egypt, where the six million strong Coptic Christian minority

86
has long claimed discrimination and persecution at the hands of both the Egyptian
government as well a fundamentalist Muslim Brotherhood the government is unable to
control. The case of Farid Ghaly is typical of the problems that Egyptian Copts have
faced while seeking asylum. Ghaly applied for asylum in the mid-1980s, claiming that
Christians were subjected to discrimination and even violence in Egypt due to their faith.
At a 1987 hearing, an Immigration Judge admitted a March 1986 State Department
Report that concluded that Copts faced prejudice and occasional acts of individual
discrimination from Egypt's Muslim majority, but denied that these acts were systematic
or officially inspired. Both the Board of Immigration Appeals and the Ninth Circuit Court
of Appeals found that while Copts are subject to discrimination in Egypt, these
circumstances were insufficient as a basis for granting asylum.
9

Subsequent cases often seemed to repeat the result in Ghaly, to the dismay of the
Coptic community. Why the Copts have had such difficulties succeeding in their claims
is not completely clear, though the important U.S. relationship with the Mubarak
government would seem to put restraints on how much American Courts can criticize
human rights in Egypt. Indeed, from a security point of view, the U.S. may have few
options but to support Mubarak, despite the repressive nature of his government.
30
Issues
of proof have also played a problem for the Copts, who like many refugees have often
fled their countries with little more than the shirts on their backs. Still some unique
methods of proving cases exist, and this writer has elsewhere noted various strategies that
may be employed to preserve and present such evidence successfully.
31

87
Among the most troubling issues in cases involving claims of religion is the
problem of convincing asylum officers and judges that applicants claiming past or future
religious persecution are sincere adherents of their faiths. Karen Musalo points out that
while it is of concern in all religion based cases, this issue is particularly vexing in cases
where the applicant converted to a persecuted religion after leaving his/her country.
32

This issue often manifests itself in a simplistic search for the right theological answer,
which has led to seemingly wrong decisions. Such scenarios have arisen when an officer
uses his or her own knowledge of the asylum seeker’s religion to assess credibility, even
though the knowledge was wrong or involved a different branch of the religion than that
practiced by the applicant.
33
Despite years of litigation and legislation making it arguably
easier to obtain religious asylum, the problem of sincerity in religion cases is not settled.
This complexity was clearly revealed in Toufighi v. Mukasey, (9
th
Cir. 2008),
34
a
decision issued subsequent to the publication of the main body of cases analyzed in this
study. In Toufighi, the U.S. Court of Appeals declined to reverse a BIA decision denying
reopening an asylum case by an Iranian Christian convert, because of an underlying
determination by an immigration judge finding that he was not a sincere convert to
Christianity. The Immigration Judge doubted Toufighi’s sincerity as a Christian despite
attendance at church services for a year and a half because he could not name the 12
apostles, and found that his alleged apostasy was merely a ruse to gain asylum. Based
on these findings, the IJ concluded that Toufighi had not established past persecution, or
a well-founded fear of persecution upon his return to Iran.
35
Though Toufighi did not
appeal the denial all the way to the U.S. Court of Appeals, a subsequent denial of a

88
motion to reopen based on worsening country conditions did make it before the Ninth
Circuit, which declined to reverse, noting that as Toufighi had not actually converted, the
new information was irrelevant.
36
The decision prompted a dissent by Judge Berzon,
who noted that, “the question is not what Toufighi believes but what Iran understands
him to believe—or, more accurately, not to believe.”
37

Flawed knowledge of religious beliefs can be devastating to Middle Eastern
applicants seeking asylum, many of whom are not Christian. Another type of religion
case that belongs in any typology of Middle Eastern asylum cases has been the traditional
Egyptian mosque goer who declines pressure by fundamentalists to aid them in anti-
government activity, but at the same time is accused of participating in extremist Islamic
activities by the Egyptian State Security Service. The phenomenon has its roots in 1987,
when the Egyptian government decided to engage in mass arrests on the theory that
wholesale repression would solve the growing problem of Islamic fundamentalists. A
large number of those arrested was falsely assumed to be Islamic activists because they
showed “Islamist” tendencies, including wearing beards and attending sermons and
services at mosques considered Islamist.
38
During the 1990s, I successfully litigated
several cases on behalf of such men who were religious Muslims, but in no way
supporters of the Muslim Brotherhood or Islamic Jihad, who found themselves in catch-
22 situations that caused them to seek asylum in the United States.
Religion overlaps with other issues, and Karen Musalo has gone so far as to argue
that religious claims are rarely solely about religion, though this fact should not prejudice
them from being recognized as religion-based applications when the facts indicate this is

89
true.
39
An example of the overlap between religion and womens’ issues occurred in In
Re S-A, (BIA 2000), where the BIA dealt with a Moroccan woman who was the victim
of her father’s escalating physical and emotional abuse, which arose out of religious
differences between the two. The respondent there held liberal Muslim views, while her
father held strict orthodox Muslim beliefs. The BIA found that the source of the
Petitioner’s harm was not the government but her own father, and that even though she
did not request protection from the government, the evidence was that the Moroccan
authorities would have been unable or unwilling to control her father’s conduct.
40
Thus,
it held that the persecution occurred on account of the Petitioner’s religious beliefs.

D. Social Group
Eligibility for asylum based on membership in a particular social group is among
the most difficult to prove of all the protected grounds. To receive asylum based on
membership in a particular social group, an alien must 1) identify the particular social
group, 2) establish that he is or she a member of the group, and 3) show that because of
the membership, he or she would be persecuted or has a well-founded fear of future
persecution.
41
The primary feature of a particular social group has been said to be a
“voluntary associational relationship among the purported members, which imparts some
common characteristic that is fundamental to that identity as a member of the discrete
social group.”
42
Further, the characteristic has been held to be immutable or so
fundamental to the individual’s conscience or identity, that he should not be required to
change it.
43
Given the tapestry of overlapping ethnicities, faiths, and identities that

90
constitute the Middle East, the area covers especially fertile ground when new “particular
social groups” are considered.
The U.S. Court of Appeals for the Ninth Circuit has “recognized that, in some
circumstances, a family constitutes a social group for purposes of the asylum and
withholding of removal statues.”
44
One Middle Eastern minority with a unique family
structure is the Druze, an offshoot of Islam that remain separate from other Islamic
groups in Lebanon, Syria, Jordan, and Israel. Druze who live in Lebanon often maintain
family ties to an ancestral village that may be in an area controlled by another power.
This issue has arisen in the case of Druze with ties to areas that had been controlled by
Israel and who were targeted by the Shiite group Hezballah for their ability to travel with
relative ease to areas controlled by Israel. The Druze are also unusual in that they are a
non-Jewish, Arabic speaking group that has supported the Jewish state, both in the late
Mandate period and since Israel’s independence through service of Druze young men in
the military and paramilitary border police.
45
This fact has often given Druze access to
areas controlled by Israel. Thus their targeting either for recruitment or persecution can
be said to be based upon their membership in a particular social group, as well as upon
religion, ethnicity, or imputed political opinions.
Women’s issues are another area that comprises a large percentage of Middle
Eastern Asylum cases, though it has been a fight to have various clusters of women
recognized by the courts as “particular social groups.” Women have been granted
asylum based on repressive social environments, female circumcision, forced marriage,
honor killings, domestic violence, and other issues.
46
The majority of cases can be

91
broken down into two basic areas. The first is an opposition to sexual discrimination in
the Islamic context, often in Iran. Such cases usually involve a claim that the women has
been discriminated against solely or partly because of her gender. The second type of
asylum case deals with the topic of female genital mutilation, which has been the subject
of much litigation and controversy over the past years.
One early discussion of a Middle Eastern Social Group involving women
occurred in Fatin v. INS, (3
rd
Cir 1993),
47
where Judge Samuel Alito (now Justice Alito)
held that an Iranian woman could face persecution as a member of a “a very visible
specific subgroup” of “Iranian women” who refused to conform to the government’s
social norms and gender specific laws. The definition, however, was limited to Iranian
women who found the laws so abhorrent that they refused to conform, though the penalty
included 74 lashes, one year in prison, and a strong probability of rape and death. Alito
noted that, “limited this way the particular social group might satisfy the BIA’s definition
because if a women’s opposition was so profound that she would choose to suffer the
severe consequences of noncompliance, she should not be required to change,” and
conform to the regime’s norms. Alito declined to find in her favor, however, because the
record did not establish that she was a member of such a group, because her opposition
was not of the “depth and importance required.”
48

In Safaie v. INS, (8
th
Cir. 1994),
49
another Iranian woman presented two
alternative theories on social groups involving women, including the argument that
Iranian women, due to the combination of their innate gender characteristics and the
harsh restrictions placed upon them by the revolutionary government, were a social

92
group. In the alternative, she argued that that a particular social group could be defined
as women who opposed Iranian customs relating to behavior and dress. The U.S. Court
of Appeals for the Eighth Circuit found the first category too broad, but agreed with a
previous decision by the Third Circuit in Fatin v. INS, (3
rd
Cir. 1993),
50
that the group of
women whose opposition to the Iranian codes was so profound that they would choose to
“suffer the severe consequence of noncompliance” could possibly satisfy the definition.
The Eighth Circuit, however, did not find her a member of the group because it did not
find that compliance with the gender specific laws would be so offensive that it could be
called persecution.
51

A different type of asylum claim based on social group that has been raised by
Middle Eastern women is founded on past or future persecution due to Female Genital
Mutilation (FGM). Female genital mutilation involves the cutting and removal of all or
some of a girl or a woman's external genitalia. Often performed under unsanitary
conditions with rudimentary instruments, the procedure is “extremely painful” and
“permanently disfigures the female genitalia ... expos[ing] the girl or woman to the risk
of serious, potentially life-threatening complications.”
52
Because the female genitalia
are removed for cultural or religious reasons, those who have been subjected to the
procedure or fear future subjection to it, are often prompted to apply for asylum.
53

While the BIA issued a precedent decision granting asylum based on FGM as far
back as 1996 in In re Kasinga,
54
whether an individual personal experience of FGM met
the “on account of” requirement to be a social group or, whether to obtain asylum, the
applicant needed to belong to a political group protesting FGM remained debatable.

93
Courts now generally agree that FGM occurs on account of membership in a particular
social group, so applicants do not necessarily require a political nexus for the claim to
succeed.
55
Thus, the fact that a woman has been subject to— or has a fear of—
persecution as a women likely to be subjected to FGM, would qualify her for asylum.
While most of the reported cases seem to involve African applicants, the doctrines and
associated problems involved with such claims are equally pertinent to Middle Eastern
asylum cases.
Despite Kasinga, however, just how a victim of FGM would qualify as a member
of a particular social group has undergone a long battle in the courts. In Mohammed v.
Gonzales, (9
th
Cir. 2005),
56
the U.S. Court of Appeals for the Ninth Circuit found that a
Somali applicant’s claim that she was persecuted “on account of” her membership in a
social group, whether defined as a social group of Somalian females, or the more narrow
defined group of young girls in the Benadiri clan, “not only reflected a plausible
construction of asylum law, but the only plausible construction.”
57
The Board of
Immigration Appeals, however, rejected this approach in In Re A-T, (BIA 2007), finding
that because the applicant had already undergone FGM, even if she were a member of a
particular social group who had in fact suffered past persecution, there was no chance
that she would experience persecution in the future.
58

The case caused a public outrage, and the Attorney General took it “under
certification,” meaning under his authority to review the decision de novo, or from the
beginning.
59
The Attorney General then vacated the prior decision, noting that the Board
had based its analysis on the false premise that female genital mutilation was a onetime

94
act that cannot be repeated, though it is indeed capable of repetition.
60
The Attorney
General further held that the respondent’s claim should not be characterized as FGM
persecution, but rather as a claim of “persecution on account of membership in a
particular social (albeit not a clearly defined) group.”
61
While there may remain
resistance among some government attorneys to finding victims of FGM to be members
of a particular social group, the category has the potential to expand. Indeed, more than
one commentator has argued that asylum should extend to the claims of parents who wish
to protect their children from mutilation.
62
In Re A-T also dealt with and dismissed
another potential social group comprised of Middle Eastern women: those who have been
subjected to an arranged marriage. The Board, in its original decision, found that though
the respondent would prefer to choose her own spouse than acquiesce to pressure from
her family and marry someone she does not love and with whom she expects to be
unhappy,
63
it did not see how acceptance of a family tradition over personal preference
could form the basis for a withholding of removal claim. The Board took this position
even though the purported husband was a first cousin of the Respondent, and she feared
birth defects would occur in subsequent children.
64

Another particular social group pertaining to women that should be considered in
the context of Middle Eastern asylum cases is “Women subjected to Honor killings,” or
to public acts of retribution meant to preserve the reputation of a family. Karen Musalo
and Stephen Knight have reported an unpublished asylum grant in the case of a Jordanian
Catholic woman woman who married and had a child with a Muslim man, against the
wishes of her family. The Immigration Judge in granting asylum found that the woman

95
qualified for asylum as a member of a particular social group of “Jordanian women under
threat of honor killing by their families because they are perceived to have transgressed
family or community norms of sexual morality.”
65
Similarly, in an interesting discussion
of gender based asylum claims, Shoshanna Malett, a former asylum officer, notes that
back in 1998 she granted an asylum case filed by an Egyptian woman under the theory
that the applicant had a well-founded fear of persecution on account of her membership
in a particular social group of “westernized daughters of Islamic fundamentalist fathers
who have irrevocably evinced nonconformity with Islamic mores by having children out
of wedlock.”
66
Carol Bohmer and Amy Schuman have also noted a 1994 unpublished
case where a judge granted asylum to a woman battered by her husband because of her
efforts to obtain high school equivalency, based on the grounds that women who refused
to conform to the government’s gender specific social norms, constituted a visible and
specific group that could be targeted for persecution. The Judge further held that a social
group can include women who have faced harsh and inhuman treatment as a result of
their societies’ social values.
67
As Alison Renteln notes, while it remains unclear what
traditions will be considered serious enough to win a grant of asylum, significant change
has taken place in U.S. law.
68

Finally, persecution on the basis of Sexual Orientation can also be considered
persecution on account of membership in a Social Group. While it has classically been
taboo in most Middle Eastern countries, the topic has become more pronounced due to
the rise of Islamist activities in many countries. For example, the Egyptian government,
in seeking to assuage the concerns of the Islamists in 2001, arrested 52 young men on the

96
Queen Boat, a night club vessel on the Nile waterfront, on the grounds of “habitual
practice of debauchery,” a term used to criminalize behavior not recognized by the law,
such as homosexuality and prostitution. Despite coerced confessions and irregular
evidence, 23 of the defendants were sentenced to up to five years, which Ahmad Saif,
director of an independent NGO that supported the defendants, claimed was the result of
an increase in the electoral gains by the Muslim Brotherhood in the 2000 parliamentary
elections.
69
Though we have no way of knowing whether any of those convicted ever
actually applied for asylum in the United States, the claim of persecution on account of
membership in a particular social group would likely be valid, and homosexuals— as
members of a particular social group— clearly have an avenue for relief from persecution
under asylum law.
What is clearly seen in the various types of asylum claims discussed above is that
given the varying political situations across the Middle East, the full spectrum of race,
religion, nationality, political opinion, and membership in a particular social group are all
found in the claims of applicants from the Middle East. Political opinions are often
expressions of legitimate opposition to government polices but also can be opinions
imputed to an applicant who, in actuality, takes no active political stance. Race and
Nationality claims vary from country and sub-region to sub-region, and can pit various
national group against each other. Religious claims are often, but not always, made by
Christians in a predominantly Muslim Middle East. Membership in a particular social
group is a category that is increasingly complex and evolving, and unique social groups
in the Middle East will continue to present potential asylum cases. While the political

97
and religious claims of Middle Eastern asylum applicants are similar to claims filed by
aliens from other regions, the claims involving particular social groups are often unique
and cannot be formulated without a cultural understanding of the area.

98
CHAPTER 3 ENDNOTES

1
Roy R. Andersen, Robert F. Seibert, and Jon G. Wagner, Politics and Change in the Middle East, Source
of Conflict and Accommodation, 9
th
Ed.(Pearson: Saddle River 2009).

2
Lawyers Committee for Human Rights Critique: Review of the U.S. Department of State's Country
Reports on Human Rights Practices for 1994 (New York: Lawyer’s Committee for Human Rights, 1995),
v-vi.

3
David A. Martin, Asylum Case Law Sourcebook, Case Abstracts for U.S. Court Decisions, 5
th
Ed.
(Thompson West: 2005).

4
Margaret O’Donnell, “On Account of Race, Religions, Nationality, Membership in a Particular Social
group or Political Opinion,” Immigration Briefings, No. 00-07 (July 2000): 20, in West LawDesk (2010).

5
Id.

6
Martin, 258-267.

7
Human Rights Watch World Report, 1996, Events of 1995 (Human Rights Watch: New York 1996), 294-
5.

8
Az Zaman, “Al-Nujeifi: Kurds from Turkey and Iran added to people of Kirkuk,” Mideastwire.com
(accessed July 24, 2009).

9
O’Donnell, 1.

10
Id. at 2.

11
Id. at 4.

12
Youkhanna v. INS, 749 F.2d 360, 362 (6
th
Cir. 1984); Martin, 106.

13
Gumbol v. INS, 815 F.2d 406 96
th
Cir. 1987)

14
Id., Martin at 625.

15
Motamedi v. INS, 713 F.2d 575 (10
th
Cir. 1983)

16
Id., Martin at 638.

17
Sakhavat v. INS, 796 F.2d 1201, (9
th
Cir. 1986)

18
Id. at 1204.

19
Id. at 1205. For another case involving anti-Khomeini activities in the United States, see also
Ghasemimehr v. INS, 7 F.3d 1389 (8
th
Cir. 1993)

20
Alsheweikh v. INS, 990 F.2d 1025, 1026 (8
th
Cir. 1993)

21
Jeffrey Brandon Morris, Establishing Justice in Middle America, A History of the United States Court of
Appeals for the Eighth Circuit (Minneapolis, University of Minnesota Press, 2007

99

22
O’Donnell, 9.

23
For a general history of Lebanon and its various religious and political components, see A.J. Abraham,
Lebanon in Modern Times (Lanham, University Press of America, 2008). For an account of Hezbollah’s
evolution and structure, see Ahmad Nizar Hamzeh, In the Path of Hizbullah (Syracuse: Syracuse University
Press, 2004).

24
Bastanipour v. I.N.S., 980 F.2d 1129 (7
th
Cir. 1992)

25
Id. at 1132.

26
In re A-N and R-M-N, Int. Dec. 3406 (BIA 1999)

27
Id.

28
Id.

29
David Zuccino, “Hoping for Safety on Two Fronts,” Los Angeles Times, April 4, 2008, A1, 16. For a
discussion of some of the issues involving the return of refugees to Iraq, see Steven Biddle, Michael
O’Hanlon, and Kenneth Pollack, “The Evolution of Iraq Strategy,” Restoring the Balance, a Middle East
Strategy for the Next President (Washington D.C.: Brookings Institution Press, 2008).

30
See Aladdin Esaasar, “Is Egypt Stable? Middle East Quarterly (Summer 2009): 69-75,
http://www.meforum.org/2413/is-egypt-stable.

31
Louis A. Gordon, “Christians in the American Court System,” Middle East Quarterly (Winter 2001): 71-
81.

32
Karen Musalo, “Claims for Protection Based on Religion or Belief,” International Journal of Refugee
Law 16.2, (2004): 165-226, at 218.

33
John Paul Ryan, “Political Asylum in the United States and Around the Globe,” Insights on Law &
Society 7.3 (Spring 2007): 26-28.

34
Toufighi v. Mukasey, 538 F.3d 988 (9
th
Cir. 2008)

35
Id. at 991.

36
Id. 991, 996-997.

37
Berzon dissent at 998. The dissent noted Ahmadshah v. Ashcroft, 396 F.3d 917, 920 n. 2 (8th Cir.
2005), which held that even if an Afghani Muslim apostate lacked a clear understanding of Christian
doctrine, it would have been irrelevant to his fear of persecution.

38
Maye Kassem, Egyptian Politics, the Dynamics of Authoritarian Rule (Boulder: Lynne Riener, 2004),
152. The term Islamist as opposed to Islamic is used to define those who seek to impose an Islamic
theocracy in countries such as Egypt.

39
Musalo, 217.

40
In Re S-A, 22 I. & N. Dec. 1328 (BIA 2000)

100

41
Safaie v. NS, 25 F.3d 636, 640 (8
th
Cir. 1994) quoting Fatin v. INS, 12 F.3d 1233, 1240 (3
rd
Cir. 1993).

42
Id. at 640 quoting Sanchez-Trujillo v. INS, 801 F.2d 1571, 1576 (9
th
Cir. 1986).

43
Safaie at 640 citing Ananeh-Firempong v. INS, 766 F.2d 621, 626 (1
st
Cir. 1985); In re Acosta, 19 I & N
Dec. 211, 233-234 (1985), overruled on other grounds, In re Mogharrabi, 19 I & N Dec. 439, 441 (1987).

44
Molina-Estrada v. INS, 293 F.3d 1089, 1095 (9
th
Cir. 2002); Sanchez-Trujillo v. INS, 801 F.2d 1572,
1576 (9
th
Cir. 1986).

45
Israel; The Druzes, http://lcweb2/loc.gov/cgi-bin/query/r?frd/cstdy:@DOCID+il0062 (accessed January
8, 1999).

46
Connie G. Oxford, “Protectors and Victims in the Gender Regime of Asylum,” NSWA Journal 17.3 (Fall
2005): 18-39.

47
Fatin v. INS, 12 F.3d 1233 (3
rd
Cir. 1993)

48
Id. at 1241. One commentator has argued that (at least until the Ninth Circuit’s ruling in Perdomo v.
Holder, (06-75612) (9
th
Cir. 2010), Fatin, more than any other case supported the argument that gender
constituted a particular social group. She further notes that a particular social group can also be defined in
a more limited fashion, using the circumstances of the group to define its parameters. In the context of the
Middle Eastern cases, this notion applies to women who will be punished for their refusal to comply with
restrictive social norms. See Pamela Goldberg, “Asylum Law and Gender-Based Persecution Claims,”
Immigration Briefings, 94-09 (September 1994): 12, in West Lawdesk (2010).

49
Safaie v. INS, 25 F.3d 636, 640 (8
th
Cir. 1994)

50
Id. Fatin.

51
Safaie at 640.

52
Mohammad v. Gonzales, 400 F.3d 785, 789 (9
th
Cir. 2005), citing In re Kasinga, 21 I. & N. Dec. 357,
361 (BIA 1996)

53
Stephanie Sinclair, “A Cutting Tradition, Inside a Female Circumcision Ceremony for Young Muslim
Girls,” New York Times Magazine, January 10, 2008, 44-50. According to Sinclair, the most common
form of the female circumcision, which represent around 80 percent of cases worldwide, includes the
excision of the clitoris and the labior miora.

54
In re Kasinga, 21 I. & N. Dec. 357, 361 (BIA 1996)

55
Carol Bohmer and Amy Shuman, Rejecting Refugees (London: Routledge, 2008), 228; Mohammad v.
Gonzales, 400 F.3d 785 (9
th
Cir. 2005)

56
Mohammed v. Gonzales, 400 F.3d 785 (9
th
Cir. 2005)

57
Id. at 789.

58
24 I & N Dec. 296 at p. 299, quoting Oforji v. Ashcroft, 354 F.3d 609, 615 (7
th
Cir. 2003)

59
Matter of A-T, 24 I & N Dec. 617 (A.G. 2008)

101

60
Id. at 621.

61
Matter of A-T, 24 I & N Dec. 617 (A.G. 2008), Matter of A–T, 25 I & N Dec. 4 (BIA 2009).

62
See Melanie A. Conroy, “Refugees Themselves: The Asylum Case for Parents of Children at Risk of
Female Genital Mutilation,” Harvard Human Rights Journal 22 (2009), 109-131, at p. 113.

63
24 I & N Dec. 296.

64
Id. The most recent Board decision in the case remanded for further fact finding. See Matter of A-T, I &
N Dec. 4 (BIA 2009).

65
Karen Musalo and Stephen Knight, “Asylum for Victims of Gender Violence, An Overview of the Law,
and an Analysis of 45 unpublished Decisions,” Immigration Briefings, No. 03-12 (December 2003): 13, in
West LawDesk (2010).

66
Shoshana Malitt, “Gender as a Ground for an Asylum claim” Can You Should You?” Immigration
Briefings, No. 07-08 (November 2007): 2, in West LawDesk (2010).

67
Bohmer and Schuman, 232.

68
Alison Dundes Renteln, The Cultural Defense (Oxford: Oxford University Press, 2004), 53.

69
Kassem at 177, citing Issandr Elamrani, “180 Degrees,” Cairo Times (May 30-June 5, 2002).

102
CHAPTER 4.
SELECTED CIRCUIT COURT CASES BEFORE AND AFTER 9/11

A. A Detailed Analysis of Selected Circuit Courts Prior to September 11, 2001
All published cases issued by the Seventh and Ninth Circuits both before and after
9/11 are analyzed in detail in Chapters Five through Eight. While space limitations
prohibit a detailed examination of all published cases in the other circuits, this chapter
analyzes in detail a number of important cases both before and after 9/11. The current
section, however, specifically looks at cases that arose prior to 9/11, starting with the
U.S. Court of Appeals for the First Circuit. That circuit issued only two published
decisions in the years prior to the World Trade Center bombings. Both decisions,
Meguenine v. INS (1998)
1
and Debababu v. INS (1998), were remarkably similar in that
they denied asylum to Algerian applicants, deferring to Congress on issues involving
foreign policy.
In Meguenine v. INS, the Court dealt with the case of Mohammed Meguinne,
who had arrived in the U.S. in July, 1993, when tensions between Algeria’s military
government and Islamic fundamentalists was increasing. Menguenine overstayed his visa
and applied for asylum, claiming that, as a moderate Muslim, he favored neither side in
the political conflict. He also claimed that Islamic fundamentalists had targeted workers
treating injured government soldiers at the hospital where he worked. After a letter was
received at the hospital threatening those who engaged in such treatment, workers at the
hospital and elsewhere were injured or killed by the terrorists. According to Meguenine,

103
this circumstance established a well-founded fear of persecution on account of his
religion as a moderate Muslim, or on account of his membership in the particular social
group of health care professionals, or on account of his political opinion of neutrality.
After denials by the Immigration Service and the Immigration Judge, Meguenine filed an
appeal with the Board of Immigration Appeals. The BIA found that the evidence was
insufficient to show that there was a systematic persecution of neutral health care workers
and that Meguenine had not shown a nexus between his fear of harm at the hand of
Islamic fundamentalists and his position in the government hospital. The BIA further
found that the threatening letter Meguenine had observed was too general to cause him
reasonable fear that he had been personally targeted for persecution.
2
Meguenine
appealed the decision to the U.S. Court of Appeals for the First Circuit. The Court
upheld the Board under the “substantial evidence” standard, noting that “It is entirely
reasonable for people to fear harm if they are required to return to Algeria during the
current conflict, but Congress has not chosen to open the door to this country on such a
basis.” The Court further stated that general fears of future harm based on political
upheaval or terrorist violence were not enough to establish eligibility for asylum.
3
Thus,
the Court denied a case that arguably could have been granted—for purely foreign policy
reasons— noting that Congress “had not opened the door for it.”
4

Meguenine was followed by another First Circuit decision denying asylum to an
Algerian, Debab v. v. INS, (1
st
Cir. 1998).
5
There, the same judge as in Meguenine—
although supported by a different panel— reviewed the case of Abiddine Debab, who
claimed he had received threats from two or three unknown men when he refused to

104
agree to their demands to sabotage the state-owned chemical company where he worked
as an engineer. Debab had been approached by the men at a café, and when he did not
comply with their request to cause an explosion was told at a second encounter to comply
or to see what would happen to him. About three weeks later, three different men
approached Debab and made similar comments, after which he fled, eventually leaving
for the United States.
At his hearing before an Immigration Judge, Debab’s description of the unrest
was found credible, while the claim that these events had caused him to depart Algeria
was not. The Immigration Judge denied the case and Debab appealed to the Board of
Immigration Appeals, which dismissed it, finding that Debab presented insufficient
evidence to support a claim of past persecution or a reasonable fear of future persecution
by Islamic militants. Debab filed a petition for review with the First Circuit, which—
echoing its decision in Meguinine— noted the following in its decision to deny the case:
6

The horrors of Algeria’s civil war are real and not to be minimized. This is
reason to be sympathetic to Debab’s plight as well as to the plight of other
Algerian citizens. The limits on Congress’s willingness to grant asylum are also
real, and these judgments are committed to Congress.
7

Thus, we can see in the two precedents out of the First Circuit during the years of the
study prior to the World Trade Center bombings that the Court was interested in making
a policy statement regarding the civil war in Algeria, which sought to curtail asylum for
refugees from that country. The First Circuit, though located in what is perceived as a
liberal political district in Boston, then chose to deny asylum on policy grounds in the
only two published cases it issued dealing with Middle Eastern applications in the years
prior to the World Trade Center bombings. The decisions are particularly important

105
because in both cases the Court observed the humanitarian aspects of the case, but
declined to grant on the grounds that Congress had not allowed it—perhaps an unusual
and indirect way to express the separation of powers principle in the context of an asylum
case. The decisions in Meguinne and Debab, which were both authored by Judge Sandra
Lynch, who was appointed by President Clinton, are also both illustrations of the
weakness of the Attitudinal Model and offer insight into Judge Lynch’s thinking in her
subsequent famous decision in Doe v. Bush, (1
st
Cir. 2003), where the Court declined to
issue an injunction against President George W. Bush and Secretary of Defense Donald
Rumsfeld, enjoining him from attacking Iraq on the ground that the issue was not yet fit
for judicial review.
8

While the U.S. Court of Appeals for the Second, Third, and Fourth Circuits did
not issue precedent decisions regarding Middle Eastern Asylum cases during the six-year
period prior to the World Trade Center Bombings, the U.S. Court of Appeals for the Fifth
Circuit did so in a pattern very similar to that employed by the First Circuit. Indeed, in
Abdul-Masieh v. INS (5
th
Cir. 1996) and Mikael v. INS (5
th
Cir. 1997), the conservative
Circuit Court sitting in New Orleans issued two precedents, both granting asylum to
Christians, a posture that comported well with its location firmly in the heart of the Bible
Belt. As discussed in the Taxonomy of Middle Eastern asylum cases set forth in Chapter
Three, the relative paucity of relief for Middle Eastern Christians has been a concern to
many human rights advocates and attorneys. Yet the issue, at least as a matter of
published law, was perhaps a bit paradoxical, but not as controversial in the Fifth Circuit.

106
In Abdel-Masieh v. U.S.I.N.S., the Court dealt with the issues of Coptic Christians
in the Sudan after the June 1989 overthrow of the democratically elected Sudanese
government by the National Islamic Front (NIF), and its subsequent campaign to
Islamicize Sudan.
9
Two months later, Mamdouh Abdel-Masieh was arrested after
participating in a demonstration of some 200 people against the implementation of the
Shari’a in the country. While Abdel-Masieh was released without charges, his name and
identifying information were recorded.
10
A few months later Abdel-Masieh’s cousin, the
son of a priest, was arrested and executed for supposedly carrying U.S. currency at the
airport. His funeral procession evolved into a 10,000 strong demonstration against what
was perceived as religious persecution. Approximately 20 demonstrators, including
Abdel, were arrested and detained for three hours. During that time he was beaten and
interrogated and, after his release, he was again taken into custody for another two hours,
but not charged. In February 1990, Abdel arrived in the U.S. and subsequently applied
for asylum.
11

After his application was denied by an Immigration Judge and the BIA, Abdel
appealed to the U.S. Court of Appeals for the Fifth Circuit. While it upheld the BIA’s
finding that Abdel’s mistreatment did not constitute past persecution, the Court
challenged the finding that he did not have a fear of future persecution. The Court wrote,
“there is little reason to generally suppose that the government’s past actions in this
respect create an ‘outer limit’ on its future actions,” noting that Abdel’s brother had been
arrested and fired since his second arrest, and his father had been detained and beaten

107
because the government wanted more information on Abdel. The Court thus vacated and
remanded the case to the BIA.
12

About a half-year later, the Court issued a decision in a case involving another
Christian with criminal problems, Mikhael v. INS (5
th
Cir. 1997). The relatively
extensive facts presented here are crucial to understanding the Court’s ruling on the claim
of Hekmat Wasih Mikhael, a Greek-Orthodox Christian Lebanese citizen born in Sierra
Leone and moved to Lebanon in 1975.
13
That year the Lebanese Civil War began and
the family suffered the kidnapping of Mikhael’s father, the bombing and burning of their
house, and the shooting in the leg of Mikhael’s brother, all by Muslims. Another brother
was kidnapped by Palestinians and tortured with electric shocks for his activity in the
Phalange political group.
14

In 1987 Mikhael was detained by the Syrians and accused of being a Phalangist.
During the three-hour detention, he was hit on the forehead with a gun and left with a
permanent scar. In December 1988 Mikhael’s father sent him to the U.S. He
subsequently made two trips back to Lebanon to visit his family, and the first time was
detained by the Syrians for 45 minutes.
15

In 1993, after his return the United States, Mikhael was convicted of conspiracy
to commit wire fraud and subsequently placed in deportation proceedings, where he
applied for asylum before an Immigration Judge, who denied his case, finding that he
lacked credibility. Mikhael appealed to the BIA, which conducted a de novo review and,
while declining to address the credibility issue specifically, denied the appeal.
16
Mikhael
appealed to the U.S. Court of Appeals for the Fifth Circuit, which stated that it was

108
“constrained” by its standard of review to conclude that Mikhael had not presented
evidence so compelling that no reasonable fact finder could fail to find otherwise.
17
The
Court, however, found that the BIA had upheld a legal error by the Immigration Judge in
requiring Mikhael to prove he would be subject to persecution if deported, rather than
that he had a well-founded fear of future persecution. Though it made no determination
on the merits of the claim, the Court remanded for further proceedings under the
appropriate standard.
18
Of great interest here is that in both Abdel-Masieh and Mikhael,
the Fifth Circuit declined to find past persecution for a Christian applicant, but remanded
to the Board of Immigration Appeals to consider the issue of well-founded fear of
persecution. The Court in Mikhael did so despite the fact that Mikhael had serious
criminal convictions, lending credence to the idea that the U.S. Court of Appeals for the
Fifth Circuit understood the complexities of the issue of asylum for Middle Eastern
Christians.
The U.S. Court of Appeals for the Sixth Circuit denied asylum in all four
published decisions it issued in the six years period prior to September 11, 2001. Though
the denial of one case to a Jordanian was quite predictable in light of the strong U.S.
relationship with that country, more interesting is that the Court denied asylum to
applicants from Suddam Hussein’s Iraq in the other three. Still, the denial of asylum to
citizens of the same repressive regime indicates the same type of familiar pattern we saw
in the First and Fifth Circuits.
The Seventh and Ninth Circuits, which are the subject of in-depth analysis in
Chapters Five to Eight, each issued six precedents during the years prior to 9/11. The

109
Seventh Circuit denied five, whereas the Ninth Circuit denied only three. Only two of the
remaining Circuits issued precedents – the Tenth, with one published decision, and the
Eleventh, with an extremely long precedent denying asylum to a Palestinian couple
fearing persecution in Saudi Arabia and United Arab Emirates.
In addition to the First and Fifth Circuit cases discussed above, several important
patterns jump out from the chart of all published asylum cases denied in the six-year
period prior to the events of September 11, 2001. The first is the denial of asylum in five
out of six Iraqi cases that reached the courts, three of which were in the Sixth Circuit, and
one of which denied asylum to a Christian applicant. The one grant, which occurred in
Al-Harbi v. INS, (9
th
cir. 2001), involved an Iraqi who had actually been evacuated to the
United States.
Another pattern of note is the denial of all three published cases involving
Palestinians, which, in addition to Wajjar v. Ashcroft, (11
th
Cir. 2001), included a Ninth
Circuit case, Khorassany v. INS, (9
th
Cir. 2000), which is dealt with in detail in Chapter
Five and is well-known in Immigration Law because of its ruling on a collateral issue
involving relief under the Convention Against Torture. The third case, Najjar v.
Ashcroft, (11
th
Cir. 2001),
19
has been cited by Professor David Cole as an example of the
problems with secret evidence.
20
The case concerned Mazen and Fedaa Al Najjar, a
husband and wife who sought asylum in consolidated deportation proceedings. Mazen
was born in Gaza in 1957 and resided in Palestine until 1967, when he moved with his
family to Saudi Arabia. Fedaa was born in 1964 to Palestinian parents who resided in
Saudi Arabia, but never qualified for Saudi citizenship. The couple was active in Arab-

110
American and Muslim communities in Florida, with Mazen serving in a role similar to an
Imam, and Fedaa teaching classes. Mazen also helped found the World and Islam
Studies Enterprise (“WISE”), an Islamic think-tank.”
21

In 1985 the Immigration and Naturalization Service initiated deportation
proceedings against Mazen but the case was administratively closed because he failed to
appear at the hearing. Two weeks later he requested that the case be reopened for lack of
notice, but the motion went unanswered for nearly ten years before the case was
recalendered. Fedaa self-reported for deportation proceedings, and in July 1996
consolidated proceedings were held before an Immigration Judge, where the couple
declined to designate a country of deportation on the grounds that they were stateless
Palestinians. At the merits hearing, the INS produced evidence purporting to show an
association between Mazen and persons who supported Middle Eastern terrorism.
22

A considerable amount of this evidence concerned his and WISE’s association
with Ramadan Abudllah Shallah, a WISE official who, at the funeral of the founder and
leader of the Palestinian Islamic Jihad (“PIJ”), threatened to eliminate Israel and
applauded the assassination of Israeli Prime Minster Yitzhak Rabin. On May 13, 1997
the Immigration Judge issued separate decisions in both Mazen’s and Fedaa’s cases,
denying asylum and all other forms of relief. The Immigration Judge designated UAE as
the country of deportation for Mazen and Saudi Arabia as the country of deportation for
Fedaa. The Al Najjars appealed both decisions.
23

On the day of the decision, the FBI and INS agents took Mazen into custody based
on classified information and, at a custody hearing, the Immigration Judge issued a

111
decision that this information demonstrated Mazen was a threat to national security, and
thus declined to release him.
24
In October 1999, the BIA affirmed the deportation
order.
25
The Al Najjars filed petitions for review and, during the pendency of the appeal,
Mazen filed a writ of Habeas Corpus with the District Court for the Southern District of
Florida, which found that his right to procedural due process had been violated by the use
of classified information, and Mazen was released. Before the Court of Appeals, the Al
Najjars argued that there were three errors in the determination that they did not have a
well-founded fear of persecution. The first was that they would be persecuted in the
UAE and Saudi Arabia due to their political opinions, which advocated Palestinian self-
determination. Second, they argued that the terrorist sympathies attributed to Mazen—
regardless of their truth— would subject them to persecution on account of imputed
political opinion. Third, they argued that substantial evidence proved that they would be
denied entry into Saudi Arabia and the UAE because of their Palestinian ancestry.
26

The Court held that Mazen failed to show a well-founded fear on account of his
actual political opinion were he returned to the UAE. Citing the documentary evidence
in the record, the Court found that the State Department Report indicated that the Emirate
government is not hostile to Mazen’s opinion, but “in fact sympathizes with his position
regarding Palestinian autonomy.”
27
The Court further found that the record was devoid
of evidence that the Emirate government had ever detained, arrested, tortured, or harmed
any suspected member of the PIJ or other Islamic terrorist groups opposed to the Israeli-
Palestinian peace process, and that Fedaa has similarly failed to present any evidence that

112
Saudi Arabia had persecuted suspected members of the PIJ or others opposed to the
Israeli-Palestinian peace process.
28

The Court also dealt with the Al Najjars’ claim that they would be denied entry
into the UAE and Saudi Arabia because of their status as stateless Palestinians, which
they claimed constituted persecution on account of nationality. However the Court
upheld the Immigration Judge, citing Faddoul v. INS, (5
th
Cir. 1994), for the proposition
that Saudi Arabia’s “method of conferring citizenship was not persecution, because all
non-Saudis were subject to the same entry and exist restrictions.
29
On the issue of
stateless Palestinians, the Eleventh Circuit reached a decision not only in sync with but
actually drawing upon the ideas set forth by the Fifth Circuit.

B. Selected Circuit Court Decisions After September 11, 2001
Perhaps the most striking feature of the published Circuit Court decisions in the
period post-September 11, 2001 is the large increase in numbers. Twenty decisions were
issued in the United States in the six-year period before the World Trade Center
bombings. In the six-year period following the tragedy, 50 published decisions were
issued, many in circuits that had issued no published decision on any Middle Eastern
issue during the earlier period. Though some of this increase can be explained by a
corollary increase in the overall number of petitions for review filed in the circuit courts,
the increase in published decisions may also be due to a need to create law to fit rapidly
developing events in specific Middle Eastern countries. Indeed, published decisions for
applicants from Morocco, Yemen, Gaza, Tunisia, Kuwait, and Turkey were issued in the

113
post-2001 period, whereas not one decision for an applicant from these countries was
published during the pre-2001 period.
The First Circuit, which accounted for only two published decisions from 1996-
2001, produced 11 in the post September 11, 2001 period, denying eight and granting
three. In Mediouni v. INS, (1
st
Cir. 2002),
30
the Court dealt with the case of Sadek
Mediouni. Mediouni’s father, a former French military police officer in Algeria, was
kidnapped in 1962 shortly before Mediouni’s birth, and later declared dead.
31

Mediouni’s Algerian mother remarried an Arab Algerian soon after and, until he was
nine, Mediouni suffered harassment and threats as the son of a French police officer. He
did not experience further abuse until he was approximately 18 and applied for an
identity card to take academic exams. Though Mediouni eventually obtained Algerian
citizenship, he was detained and interrogated by the police four times in a four-year
period. In 1988 he opened a video store but Algerian authorities interfered with his
business and investigated him for allegedly distributing anti-Algerian videos. Mediouni
arrived in the U.S. in 1991 and sought asylum before an Immigration Judge who denied
the claim.
32
After an unsuccessful appeal to the BIA, Mediouni appealed to the U.S.
Court of Appeals, which held that though the evidence might permit an inference that the
son of a deceased colonial-era military police officer could be targeted for attack by
terrorists, it did not compel it. The Court thus denied the petition.
33
The case is
noteworthy for the First Circuit’s refusal to apply the category of membership in a
particular social group to the son of a police officer, even thought the BIA had held in a
precedent decision, Matter of Fuentes, (BIA 1998) that status as a former policeman is an

114
immutable characteristic, and mistreatment resulting from this status could amount to
persecution on account of membership in a particular social group.
34

In Haoud v. Ashcroft, (1
st
Cir. 2003), the U.S. Court of Appeals issued its only
published decision granting an Algerian applicant in the 12-year period surrounding the
events of September 11, 2001.
35
Haoud, who entered the U.S. as a visitor in 1995, was
arrested in 1999 by the FBI and the police for carrying a fraudulent permanent resident
card. He was then questioned regarding terrorist activities and, though no criminal
charges were ever filed against him, many newspaper articles linked him to the terrorist
scare on the eve of the millennium, as well as to an Algerian arrested for connections
with the Armed Islamic Group of Algerian (“GIA”). At an asylum hearing, Haoud
claimed that based on the arrest and national publicity, he feared persecution upon his
return to Algeria. At the hearing he presented the expert testimony of Dr. John Entelis of
Fordham University, who testified that because of a climate of fear in Algeria, Haoud
would be in danger because the government would consider him an enemy of the state or
a terrorist. Haoud was denied asylum by an Immigration Judge, who found his claim
untimely. However, while the case was on appeal, the BIA issued a precedent involving
another man arrested in Boston on the same night as Haoud, on the same suspicion of
terrorism. The BIA reversed that case, concluding that the respondent had a well-
founded fear of persecution based on imputed political opinion.
36
Despite the precedent,
the BIA affirmed without opinion the Immigration Judge’s decision in Haoud. The First
Circuit, however, found that since the precedent “bears strongly” on Haoud’s application,
it had to remand the case to the BIA for further proceedings.
37
While the decision fits the

115
criteria of this study, it is not a full grant, and can also be considered in line with the First
Circuit’s posture as a Circuit inclined toward denying asylum toward Middle
Easterners— and specifically Algerians— both before and after 9/11.
38

Another circuit that denied asylum to the overwhelming majority of Middle
Eastern applicants both before and after 9/11 is the Sixth Circuit, which denied four cases
in the first period and seven out of eight in the post-9/11 period. Equally interesting to
note is that the Third and Eighth Circuits, which together published no decisions
concerning Middle Eastern asylum in the pre-2001 years, produced four and six
precedents respectively, in the post-2001 period.
The Seventh Circuit went from six to 12, first denying five out of six, and then ten
out of 11. The Ninth Circuit granted three out of six published decisions before the
events of September 11, 2001, and granted seven out of ten in the period following the
tragedy. (Full breakdowns of all Seventh and Ninth Circuit cases are presented in
Chapters Five through Eight). The Tenth Circuit, which had issued one decision in the
pre-2001 period, issued two published two grants in the post-9/11 period. While the
movement within individual circuits is not indicative of any change, the fact that none of
the circuits manifested any changes indicates an overall pattern of no change in circuit
courts despite the events of 9/11.
The U.S. Court of Appeals for the Tenth Circuit issued an interesting decision in
Chaib v. Ashcroft, (10
th
Cir. 2005).
39
Here, Noureddine Chaib challenged a denial of an
asylum claim based on past persecution and fear of future persecution by an armed
insurgent group and the Algerian government.
40

116
Chaib’s persecution started when he discovered that a co-worker at the Public
Treasury was performing unauthorized transactions. Chaib confronted the man, who said
everything would be explained at his house. Chaib went to the co-worker’s house, where
he met two men linked to an armed insurgent group known as the Islamic Salvation Front
(FIS). Chaib was pressured to join the FIS and discovered that the co-worker was
diverting funds from the Public Treasury to a related group, the Armed Islamic Group.
Because the funds were transferred for only a short period, diversion was reported as a
mistaken transaction, though it earned significant interest for GIS.
41

Chaib was warned that he and his family would be killed if he did not help in the
scheme and would be severely punished if they reported the activity. Chaib asked for
time to evaluate the issue and ultimately obtained a visa to the U.S. While in the U.S., he
learned that two men from the FIS had been arrested and had implicated him in the
scheme. He also learned that government agents who had been looking for him did
considerable damage to his house during a search, and had beaten his brother.
42

The Immigration Judge found that Chaib had not suffered past persecution and
that he lacked credibility. As the BIA issued a summary affirmance, the Tenth Circuit
reviewed the Immigration Judge’s decision and found that his statement that Chaib’s
story “did not have a ring of truth” referred to the reasonableness of his fear, and not to
disbelief of the underlying facts that supported that fear.
43
The Court noted that the
Immigration Judge’s reasoning that the banking scheme was something that a modern
computer system could tap into and find that the guilty party was based on pure
conjecture.
44

117
The Court further noted that the Immigration Judge viewed the Algerian form of
due process through an American lens, although there was ample evidence in the record
to support a fear of persecution based on suspicion of allegiance to the armed insurgent
group, regardless of the truth of the accusation. The Court stated, “The realities of
Algerian society differed greatly from ours where one is innocent until proven guilty.”
45

The Court thus found that the Immigration Judge’s credibility decision was not based on
substantial evidence and remanded for further proceedings.
46
While Chaib’s claim was
based on often-ignored political persecution in Algeria, the decision is truly noteworthy
for acknowledging a difference between the justice system in United States and that in
Algeria, which could be viewed as a specifically Middle Eastern institution.
Another Tenth Circuit post-9/11 grant is also of interest. Elzour v. Ashcroft, 378
F.3d 1143 (10
th
Cir. 2004),
47
dealt with the case of Mahmoud Sheike Elzour, a Syrian
man born and raised in Hamah, a town closely associated with the religion-based
opposition group, the Muslim Brotherhood. Though Elzour did not support the
government or the Brotherhood, his brother had occasionally spoken favorably of the
group, and Elzour once let a member stay at his home for several days.
48

In 1981 Elzour was drafted into the military, and in June 1983, while working as
an air traffic controller, was arrested and taken to a security area. On the same day, his
brother was also arrested. Elzour was transferred to an underground cell in Damascus,
where he was beaten on a daily basis and suffered a broken nose and ribs. He was
interrogated regarding the Muslim Brotherhood, asked to identify friends in the group,
and questioned regarding the activities of his brother. The government considered his

118
time in custody to be military service and awarded him back compensation. In 1991
Elzour was again arrested and held for several months at a military installation in Hamah,
where he was beaten daily, his nose, arm, and ribs broken, and his eye injured. In
September 1991, he was notified that he had been tried in absentia and sentenced to life
in prison.
49

In December 1995 Elzour was released as part of a general amnesty. He stayed at
his father’s home for five or six months and underwent two eye operations. In June 1996
he left Syria for the Czech Republic and then went to Canada, where he applied for
asylum. In 2000 he learned that his asylum application had been deemed abandoned and
he fled to the U.S.
50

The Immigration Judge found that Elzour was firmly resettled in a third country
and thus was not eligible for asylum. He denied Elzour’s application for withholding
because he was not a credible witness. The Immigration Judge reasoned that 1) Syria
would not arrest a military person in the manner Elzour recounted had occurred; 2) Syria
could not be interested in Elzour more than a year after Elzour or his brother supported
the Brotherhood; 3) that Elzour was arbitrarily detained for the length of time he asserted;
and 4) that Elzour was compensated by the Syrian military after his initial release from
prison.
51

The U.S. Court of Appeals for the Tenth Circuit, however, found that that
Elzouzer’s stay in Canada did not show that he had obtained permanent refuge there,
52

and that the Immigration Judge’s determination that Elzour’s testimony was implausible
was not supported by substantial evidence. The Court reasoned that uncontradicted

119
materials in the administrative record indicated that arbitrary detention was problematic
in Syria and that the suspected Muslim Brotherhood members and their relatives were
likely to be detained.
53
The Court thus reversed the decision. Again, the Tenth Circuit
uses the idea of specifically Middle Eastern characteristics, here the lengthy arbitrary
detention period for Muslim brotherhood members, as a basis to reach a grant. The case
is also noteworthy for being one of the relatively few cases to grant asylum to someone
imputed to be an Islamic radical. Seen in another way, the Court went out of its way to
grant asylum to a person the Syrian government believed was involved in the support of
terror, an unusual stance for an American court to take, particularly in the post -9/11 era.

C. A Post 9/11 Pattern
What the pattern of published cases after 9/11 tends to show is that courts such as
the Seventh Circuit, which were inclined to deny cases in the pre-2001 period,
maintained that posture in the post-9/11 period, whereas the Ninth Circuit, which was
more inclined to grant, maintained— and even increased— that posture during that time
frame. Thus, Hypothesis Two turns out to be proven by the results of this study. Further,
Hypothesis Three, that the individual Circuit Courts maintained the same postures after
9/11 as they had before it, is also verifiable in the decisions of the Seventh and Ninth
Circuits, which had large number of cases before and after 9/11. How do we explain
these results that do not indicate any change in asylum determinations by the Circuit
Courts post 9/11?

120
As noted in Chapter Two, the various models used to explain judicial behavior on
the U.S. Court of Appeals, including the Attitudinal Model, the Hierarchical Model, and
the Small Group Model, along with foreign policy considerations and specifically Middle
Eastern characteristics, are all applicable to various decisions. The Hierarchical Model
by definition can only explain cases where the court reached its decision by following a
Supreme Court precedent. Similarly, the Small Group Model is only relevant to explain
cases where a minority judge votes along with the rest of a panel. Foreign policy
considerations, and specifically Middle Eastern characteristics, also only apply to certain
cases. The Attitudinal Model could theoretically explain the largest number of cases,
because all of the cases involve Democratic or Republican appointees. However, one
policy problem differentiates asylum cases from other types of cases that have been
looked at in studies employing the Attitudinal Model— which in general says that
conservative judges vote for in favor of conservative issues, and liberal judges vote in
favor of liberal issues.
54
Thus, while it’s clear that ideology does affect judges’ views in
many cases, it cannot explain all or even a majority of cases in the Middle Eastern
context for a very different reason. That reason is the lack of consensus within a given
type of ideology regarding specific foreign policy considerations on the Middle East. For
example decisions on asylum applications that would result from the Arab-Israeli conflict
could not be easily predicted by looking at the senators who appointed a particular judge.
One who looked at Republican senators as more likely to support Israel over the
Palestinians would be wrong if the senator held to views espoused by conservatives in the
orbit of former Secretary of State Jim Baker. If one considered Democrats more likely to

121
support Israel, they might again be wrong if the senators espoused a more left of center
position. In a similar way, various views exist within both the Democratic and
Republican parties regarding asylum for Christians. Republicans could be said to be
skeptical of many asylum applications but some are vehemently pro-Christian even if
they are economic populists such as Mike Huckabee. On Iraq, some Republicans may be
more or less inclined to grant asylum to victims of the enemies of America—whereas
some democrats may be less inclined to grant asylum to such applicants on foreign policy
grounds. Thus, ultimately the concept of ideological voting that underlies the Attitudinal
Model is too limited to be a sole barometer of prediction in asylum cases.
Moreover, if we take seriously Judge Richard Posner’s claim that judges on the
court are bound by internal judicial constraints, a better answer would appear to be that
the courts are more inclined to act as a singular body with crystallized ideas on how
asylum cases should be decided. In other words, if we understand the circuit courts as
institutions that have developed a body of jurisprudence and approach to asylum cases,
we can characterize them as asylum “regimes” that act as singular bodies in their overall
approach to asylum cases. Thus, the Seventh Circuit as a whole leans towards denial as
a matter of public policy, and despite a serious national crisis such as the World Trade
Center bombings, continues in same direction. The regime concept would also explain
the Ninth Circuit’s increase in grants cases after the very same national crisis. We can
use this approach to explain the behavior of the First Circuit, which from its few
published cases in the pre-2001 period expanded into a regime inclined toward denial,
whereas the Eighth Circuit, which published no cases in the pre-2001 period, emerged as

122
a middle-of-the-road regime, taking a middle position between the Seventh and Ninth
circuits. Though the individual samples are small, no circuit moves in the opposite
direction in the second seven-year period, providing a portrait of an appellate judiciary
unmoved by the events of 9/11 to change its views on asylum.
While the breakdown of the results in all circuit courts during the six-year period
both before and after September 11, 2001 gives us a deeper understanding of the patterns
that have emerged, this type of breakdown— as we see from the few cases analyzed in
this chapter— does not give us a complete picture of what is happening in the actual
published cases. Thus a full analysis of all published cases in both the Seventh and Ninth
Circuit is presented in Chapters Five through Eight, with an eye towards understanding
the cases and country specific issues that have arisen.

123
CHAPTER 4 ENDNOTES

1
Meguenine v. INS, 139 F.3d 25, 27(1
st
Cir. 1998)

2
Id.

3
Id. at 28-29.

4
Id.

5
Debab v. v. INS, 163 F.3d 21 (1
st
Cir. 198)

6
Id.

7
Id. at 27.

8
Doe v. Bush, 323 F.3d 133 (1
st
Cir. 2003), in Craig Ducat, Constitutional Interpretation, Power of
Government, vol. I, 46-48 (Canada: Wadsworth, 2009).

9
Abdel-Masieh v. U.S.I.N.S., 73 F.3dd 579 (5
th
Cir. 1996)

10
Id. at 581-582.

11
Id. at 582.

12
Id. at 584, 587.

13
Mikhael v. INS, 115 F.3d 299, 301 (5
th
Cir. 1997)

14
Id. at 301.

15
Id.

16
BIA has no authority pursuant to 8 C.F.R. section 1003.1(d)(3) to engage in such fact-finding in the
course of deciding an appeal. The Supplementary Information to 8 C.F.R. section 3.1(d)(3) which was
transferred to 8 C.F.R. section 1003.1(d)(3) in 2003, in 67 Fed. Reg. At 54,902, 888-89, noted that
“Immigration Judges are better positioned to discern credibility and assess the facts with witnesses before
them,…”
17
Mikhael at 304.

18
Id. at 305, 307. Judge Emilio M. Garza issued a dissent arguing that the IJ did follow the appropriate
legal standard.

19
Najjar v. Ashcroft, 257 F.3d 1262 (11
th
Cir. 2001)

20
Cole, pp. 152-155, 161.

21
Id. at 1271-1272.

22
Id. at 1272.

23
Id. at 1273.

124

24
Id. at 1274.

25
Id. at 1275. The BIA also affirmed the IJ decision to pretermit suspension of deportation applicants.

26
Id. at 1285-1286.

27
Id. at 1288.

28
Id. at 1290.

29
Id. at 1291.

30
Mediouni v. INS, 314 F.3d 24 (1
st
Cir. 2002)

31
Id. at 25-26.

32
Id. at 25-29.

33
Id. at 28.

34
Matter of Fuentes, 19 I & N Dec. 658, 661 (BIA 1988)

35
Haoud v. Ashcroft, 350 F.3d 201 (1
st
Cir. 2003)

36
Id. at 202.

37
Id. at 208.

38
The case is considered to satisfy the criteria for study because the issue of untimely filing was not
affirmed by the Circuit Court.

39
Chaib v. Ashcroft, 397 F.3d 1273 (10
th
Cir. 2005)

40
Id. at 1275.

41
Id. at 1275.

42
Id. at 1275.

43
Id. at 1278.

44
Id. at 1278-1279.

45
Id. at 1279.

46
Id. at 1279.

47
Elizour v. Ashcroft, 378 F.3d 1143 (10
th
Cir. 2004)

48
Id. at 1146.

125

49
Id. at 1146.

50
Id. at 1147.

51
Id. at 1148.

52
Id. at 1151

53
Id. at 1153.

54
See Jeffrey A. Segal and Harold J. Spaeth, The Supreme Court and the Attitudinal Model Revisited
(New York: Cambridge University Press, 2002). See also Frank B. Cross, Decision Making in the U.S.
Courts of Appeals (Stanford: Stanford University Press, 2007).

126
CHAPTER 5.
The U.S. Court of Appeals for the Seventh Circuit:
Before September 11, 2001

The U.S. Court of Appeals for the Seventh Circuit, located in Chicago, Illinois,
serves a large area in the middle of the United States. Though Chicago is known for its
eastern European immigrants, the area also has numerous Middle Eastern as well as other
immigrants, and often battles downstate on political issues. The unique makeup of
immigrants within the jurisdiction is something anyone studying the Court’s stance on
asylum should consider. The Seventh Circuit is, as noted earlier in this study, also the
location of Judge Richard Posner, whose prolific writings seem to have left no area of the
law untouched. Though Posner served on only two panels that decided Middle Eastern
asylum cases during the 12 years of cases examined in this study, his intellectually
rigorous methods of analyzing and deciding cases have nevertheless left their mark on
this area of jurisprudence particularly because he authored the seminal 1992 decision in
Bastanipour v. I.N.S., (7
th
Cir. 1992).
1
There, he reversed a BIA denial of asylum,
grounded in the theory that that the Iranian government might not discover that the
respondent was an apostate Muslim and convert to Christianity. Judge Posner noted that
apostasy is a capital offense in Islam, writing:
Whether Bastanipour believes the tenets of Christianity in his heart of hearts or, as
hinted but not found by the Board, is acting opportunistically (though at great risk
to himself) in the hope of staving off deportation would not, we imagine, matter to
an Iranian religious judge.
2

127
The case stood for more than just its narrow legal principle. Indeed, Posner introduced a
tone of intellectual rigor over ideology, which can be seen in a number of Seventh Circuit
decisions that defy the logic of the attitudinal model both before and after the events
covered in this study. Yet in the years following Bastanipour, the Seventh Circuit rarely
granted asylum in any Middle Eastern cases, issuing such decisions in only 17% of the
cases before 9/11 and 27% afterwards, for an overall grant rate of just 23% in the 12-year
period looked at in this study. The statistics, however, are a stark contrast to Posner’s
humorous remark at a 2009 Georgetown symposium on asylum, where he noted that the
Seventh Circuit did not have the heaviest case load so that’s why it reverses all the cases.
3

Indeed, at least as far as Middle Eastern applicants go, the Circuit has not been hospitable
to asylum applicants.
This chapter, then, looks at the published decisions of Seventh Circuit on asylum
before the events of September 11, 2001, keeping in mind the unique characteristics of
the facts and the Circuit judges. It also places the cases into the typology set forth in
Chapter Three, and looks at the patterns that have emerged from this body of cases.

A. Nationality, Ethnicity, or Race
The Seventh Circuit issued its sole pre-9/11 precedent in a case alleging
persecution on account of nationality, Mousa v. I.N.S. (7th Cir. 2000).
4
Ahmad Mousa, a
citizen of Jordan who had overstayed his six-month nonimmigrant visa, was convicted of
mail fraud under 18 U.S.C. section 1709 in 1991, and subsequently placed in deportation

128
proceedings. Mousa applied for asylum and withholding of deportation and argued that
as a Palestinian he was stateless.
5

Mousa was born in an area that became part of the new state of Israel in 1948 and,
as a child, fled to the West bank of the Jordan River, where he grew up. After the 1967
Israeli annexation of the West Bank, Mousa joined the Fatah wing of the Palestinian
Liberation Organization. In 1968 Mousa led a group of five Fatah members in an
attempted attack on a non-combatant Israeli military camp on the West Bank. The armed
group’s efforts were foiled by an Israeli helicopter crew, and the five captured Fatah
members were tried by an Israeli military tribunal. Mousa was sentenced to 25 years of
imprisonment and served 14 years before his 1982 release on account of medical
problems.
6

After his release Mousa returned to Jordan, where he was harassed by the
Jordanian police over a period of five years, and interrogated on the grounds that he was
an Israeli spy. He also had difficulties obtaining a job due to his Fatah and Israeli
connections.
7
Mousa believed the Jordanian police would persecute him upon his return.
Eventually he came to the United States where, after his conviction, he applied for
asylum before an Immigration Judge. The judge, however, denied his claim on the
grounds that he was statutorily ineligible for refugee status, because the 1967 attack on
the Israeli base amounted to persecution of Israelis; he was thus barred from asylum
under 8 U.S.C. section 1101(a)(42)(b) for having engaged in persecution.
8
The BIA
summarily affirmed the Immigration Judge’s decision, and Mousa argued in a subsequent
appeal to the Seventh Circuit that activities directly related to a civil war are not

129
persecution. The Court of Appeals agreed with Mousa’s argument, citing the BIA’s own
decision in Matter of Rodriguez-Majano, (BIA 1988):
9

Were we to hold that practices such as attacking military bases, destroying
property, or forcible recruiting constitute persecution, members of armed groups
throughout the world would be barred from seeking haven in this country… We
do not believe that Congress intended to restrict asylum and withholding to only
those who had taken no part in armed conflict.

The Court, however, found that “the Immigration Judge’s reasoning, minimal
as it was, was rational and supported by the record.” It noted that Mousa’s claim could
reasonably be characterized as harassment and that searches, interrogation, and even
threatening phone calls were not persecution unless they rose to extreme levels. As the
evidence could support or deny asylum, under the standard of review it upheld the BIA’s
decision.
10
The case decided by Judges Wood (Clinton/Democrat), Kanne
(Reagan/Republican), and Ripple (Reagan/Republican) thus presented the Seventh’s
Circuit’s unique approach to affirming U.S. policy to support the Fatah party. The
decision was clearly influenced by foreign policy considerations, which went deeper than
the sentiment that Congress did not intend to restrict asylum to those who had abstained
from armed conflict. Indeed, at the time the decision was issued on August 1, 2000,
President Clinton was deeply engaged in attempting to reach a peace settlement in the
Arab-Israeli conflict, presenting to Palestinian Authority Leader Yasir Arafat a
comprehensive peace plan in July 2000, during the Camp David II Summit.
11
Thus,
while the panel sustained the Immigration Judge in a decision that is both Hierarchical in
that it abides by Supreme Court precedent requiring it to follow substantial evidence, as
well as Attitudinal in that two Republicans voted to grant asylum, there are also

130
specifically Middle Eastern foreign policy dimensions at work here. In cannot be
understated that in declining to find Mousa a persecutor, the Court opened the possibility
of asylum for other members of Fatah, which in mainstream American political circles
was no longer considered a terrorist organization. Though the acts that Mousa committed
occurred in an era when Fatah was considered a terrorist organization, the Court’s refusal
to issue such a finding here can only be seen as aiding a president then engaged in an
important diplomatic mission, which was of great concern to both Democrats and
Republicans. Moreover, in denying asylum, the Court did not alienate important U.S.
political allies in either Jordan or Israel.

B. Religion
The emergence of the Shiite militia Hezbollah (the Party of God) as a dominant
force in Lebanese politics has concerned American security analysts for some time, due
to group’s murky status as a terrorist group with government participation. Not
surprisingly, persecution at the hands of Hezbollah has prompted many Lebanese to flee
the country and request asylum in other countries, including the United States. While
total numbers of asylum applications by those persecuted by Hezbollah has not been
ascertained, the issue resulted in a precedent by the U.S. Court of Appeals for the Seventh
Circuit in Malek v. I.N.S., (7
th
Cir. 2000).
12
The case dealt with the asylum request of a
Lebanese Christian who had been placed into deportation proceedings after pleading
guilty to two counts of wire fraud and one count of misuse of a social security number.
13

In his asylum application, Malek claimed that he was connected to General Michael

131
Aoun and his army during the Lebanese Civil War, and that Hezbollah sought him
because he was a Christian, an active political dissident, and opponent of terrorist groups
sponsored by Syria and Iran. Malek also claimed that he and his wife were kidnapped in
1980 by the Syrians, beaten and subjected to electric shock, and that his wife was
repeatedly raped before him.
14
Malek’s testified that he was kidnapped and detained six
or seven times between 1977 and 1988, for periods of two to five days, and tortured and
beaten. Mrs. Malek, however, testified that she was raped on the street by two men while
going from a store to her house, but was unable to remember when the incident occurred.
The Immigration Judge hearing Malek’s case found that his claim was not “sufficiently
credible, consistent or plausible” to warrant granting asylum. The BIA upheld the
Immigration Judge’s decision, addressing the numerous material inconsistencies between
the Maleks’ application and the testimony, and the U.S. Court of Appeals for the Seventh
Circuit found that the BIA offered cogent reasons for its adverse credibility determination
and denied the petition for review.
15
The case, decided upon as it was by three
Republican appointees, Judges Coffey, Easterbrook, and Rovner, can be viewed as fitting
squarely within the classic Attitudinal Model. However, it also remains important for its
early discussion of the Hezbollah-Iran link, which has only recently gained credence
among Middle East Security analysts, as well as for two issues that are important to
understanding asylum adjudications.
16
These issues include the Court’s unwillingness to
grant asylum for someone convicted of a crime, particularly after the 1996 Immigration
Reform and Control Act brought the issue of criminal aliens to the pubic eye, and
highlighted the difficulties Middle Eastern women often have in adequately detailing

132
incidents of sexual abuse. Pamela Goldberg has noted that women who experience rape
trauma syndrome may display a reluctance to speak, a lack of trust (in men in particular,
but also generally), and an inability to recall or recount details of her trauma.
17
Such
trauma could have easily taken place in this case, though the panel was not inclined to
look at this angle, preferring to rely on “substantial evidence.”
Another case in which the Seventh Circuit denied asylum to a Christian applicant
was Kishtow v. INS (7
th
Cir. 1995).
18
There, the Court heard the appeal of an Iraqi
Assyrian Christian who left Iraq for Kuwait when he was an infant. In 1986 he visited
the U.S along with his family, but when his family returned to Kuwait he remained in
Chicago, aside from a short 1990 trip to Canada. Kishtow then returned to the U.S. and
when he did not leave, he was placed in deportation proceedings where he applied for
asylum on the grounds of religion, political opinion, and membership in a particular
social group, his family.
19

Kishtow claimed that his father was persecuted by the Iraqi government because
he was an active member of different Assyrian organizations, and such activity was
viewed as an anti-Ba’ath policy statement. Kishtow also feared persecution because he
had not served in the Iraqi military during either the Iran-Iraq or Gulf Wars. The
Immigration Judge, however, denied his case, and, on appeal, the BIA held that the
evidence did not indicate that Kishtow’s father’s involvement in the Assyrian
organization was viewed as political by the government. The Seventh Circuit panel,
composed of Judge Cummings, a Democrat, and Judges Bauer and Eschbach, Republican
appointees, found that the Board’s findings were reasonable, and substantially supported

133
by the record. However it noted, “Without a doubt Iraq can be a dangerous place to
live…Nonetheless, immigration policy is to be formulated by Congress and that body has
enacted restrictive asylum eligibility requirements.”
20
Thus we see that despite the recent
sanctions against Iraq, status as a member of the ancient Christian Assyrian religion and
ethnicity did not have much credence when it came to the substantial evidence standard,
though the problems of the Assyrians have been considerable within Iraq.
21
Moreover,
the doctrine set forth by the Court is typical of the Seventh Circuit perspective on
deference to the legislative branch of Congress because it notes the real problem of the
applicant, but does not find in his favor.
In Mansour v. I.N.S., 230 F.3d 902 (7
th
Cir. 2000), the Court heard the claim of
another Iraqi, Samer Mansour, who applied for asylum because he feared returning to his
native country, and was referred to the Immigration Court for a hearing.
22
There,
Mansour testified that he was required to serve in the Iran-Iraq war because his brother
had left the country for the U.S. During his service in 1983, Mansour’s left leg was
injured. He did not return to the army after sick leave, and subsequently did so only
because he learned that security agents were harassing his father. After his return to the
army, Mansour himself was harmed due to his Assyrian Christian background, and the
fact that his brother had left the country. His leg was broken and he was hit in the eye,
resulting in poor vision.
23

In 1989 after he completed his army service Mansour, who was educated at the
Petroleum Institute, began work at an oil refinery. However this work lasted only two
months and he was fired because security agents sent out reports against him. Mansour

134
now wanted to leave Iraq, but was drafted into the army to fight in the Gulf War, during
which his unit was heavily bombarded by enemy forces. Mansour deserted after he
returned to Iraq, and went into hiding at his uncle’s home in Baghdad before leaving the
country for good.
24
At his asylum hearing, Mansour denied being arrested, imprisoned,
or beaten when he returned to Iraq in 1992, though the statement prepared in support of
his application listed such an incident.
25

The Immigration Judge found that Mansour lacked credibility because he had
presented false information, and the BIA upheld the claim. The Panel, comprised of
Judges Bauer, Flaum, and Kanne, all Republican appointees, found that it had no choice
but to accept the BIA’s adverse credibility determination and upheld the BIA’s ruling on
asylum,
26
thus conforming to both the Attitudinal and Hierarchical Models. While the
legal reason for the denial is substantial evidence, a strong argument can be made that the
decision was also based on foreign policy preferences regarding Iraq. Indeed, the
decision in Mansour mirrors the one in Kishtow, despite the fact that only one judge,
Bauer, was involved in both cases. In any event, the Seventh Circuit in its two cases on
Iraq prior to September 11, 2001 did not grant asylum to either party, both of whom were
Christians.
The Seventh Circuit took a different position in Najafi v. INS (7
th
Cir. 1997),
where it dealt with an Iranian, Mehran Najafi, who filed for asylum after abandoning an
application for permanent residency.
27
Najafi based his claim on the facts that his father
had been a high-ranking bank official and member of the Shah’s party prior to the
revolution, and that Najafi himself was a member of the Shah’s youth party. After the

135
revolution Najafi’s father and uncle both lost their jobs and were imprisoned for a short
time, with his family suffering periodic interrogations by the government. Najafi also
feared persecution because he had converted to Christianity in 1989, and attended
services and Bible studies at an Indianapolis church.
28

The Immigration Judge denied Najafi’s case, claiming he had not shown a well-
founded fear of future persecution, and the BIA affirmed the decision.
29
On appeal to
the U.S. Court of Appeals for the Seventh Circuit, Najafi claimed that his family’s
political past and current treatment at the hands of the Iranian government would increase
the likelihood that he would be persecuted for political reasons. The Court, however,
found that he failed to establish a nexus between his relatives’ persecution and himself.
30

Moreover, the Court rejected his argument that he was part of a discrete class of
American-educated Iranians who left the country prior to the revolution, and refused to
serve in the revolutionary army. The Court stated, “Najafi neither defines for us a
cognizable group nor establishes that this group is persecuted upon return to Iran.”
31

The Court, however, took issue with the Immigration Judge’s determination that
Najafi had not proven that the Iranian government would become aware of his religious
beliefs. It further reaffirmed the principle that it had set forth five years earlier in its
decision in Bastanipour v. INS, that the relevant inquiry regarding an apostate is whether
he has turned away from Islam.
32
The Court noted, “we are not as concerned with heart
of the convert, but rather require some bona fide indication of apostasy which would
matter to the Iranian authorities.”
33
The Court further challenged the Immigration
Judge’s determination that Najafi had not presented evidence that the Iranian authorities

136
would find out about his conversion, and remanded the case for a determination on
asylum based on a fear of religious persecution.
34

Again, we see the Seventh Circuit declining to expand the definition of social
group, though its recognition that the key element to establish religious persecution in
Iran is apostasy from Islam rather than the embrace of another religion has had a strong
influence in case law around the country. The Najafi decision is also important for the
social scientist in that it illustrates the precise difficulty of studying such a case. Note
that the court rejected asylum on grounds of political opinion and social group, though it
remanded (considered a grant for purposes of this study) on the ground of religious
persecution. Thus, if we were to count the votes against asylum on political opinion and
social group as six to zero, and the votes for asylum on religious grounds as three to zero,
we would have a negative score in a case (meaning more votes against asylum) that was
actually resolved favorably for the alien! Such an aggregation would be numerically
accurate, but would distort our understanding of how cases are decided.
Najafi is also one of a number of cases where the general expectation of the
Attitudinal Model is inaccurate, as Judges Flaum, Coffey, and Bauer—all Republican
appointees—voted to grant asylum. Interestingly though, the grants are in line with the
approach of the conservative judges on the Fifth Circuit who granted asylum to
Christians in the only two published cases decided by that Court during the 12 years
surrounding 9/11. The distinction among Najafi, Kishtow, and Mansour may lie in the
Posner doctrine set forth in Bastinpour, which makes the test what an Islamic persecutor
would think, and not what is in the heart of the applicant.

137
C. Membership in a Particular Social Group
The Seventh Circuit in July 1996 issued a precedent on a different type of asylum
claim, but one that had the potential to affect a large number of people, in Sharif v. INS,
(7th Circ. 1996).
35
Here, Soroya Sharif petitioned the Court to review a BIA denial of
her claim that if she returned to Iran she would be persecuted as a “westernized woman.”
Sharif was the daughter of a wealthy car dealer who, after the 1979 Iranian revolution,
was required to forfeit some of his wealth. In the years following the revolution, Sharif
was unable to attend college because the Khomeni government reserved 70% of the
enrollment for Hezbollah Party members and she lost a company job when it was taken
over by the government.
36
Sharif was stopped once because authorities believed she was
“mixing” with someone not her husband, but she was released when she produced a copy
of her marriage certificate, which demonstrated that he was indeed her husband. Her
home, which was located near Khomeni’s house, was once the subject of government
surveillance and most of the family lived without significant hardship, though Sharif
claimed her father remained in hiding. She also claimed that she had always harbored
“pro-western” beliefs, though she lived in complete conformity with the Iranian
fundamentalist social code.
37
The Immigration Judge quickly dismissed Sharif’s asylum
claim, and after the BIA affirmed the decision, she filed a petition for review with the
U.S. Court of Appeals for the Seventh Circuit.
38

The Panel, which was composed of all Republican appointees, including Judge
Posner, found it pertinent to examine in detail Sharif’s claim of a well-founded fear of
persecution due to “pro-western” beliefs, though the Court ultimately found that she did

138
not possess such a fear. The Court noted that, “although few ‘pro-western’ persons
would relish the idea of living in accord with Iran’s conservative social mores, living in
accord with conservative social mores is not equivalent to persecution per se.” The Court
reasoned that Sharif offered no evidence indicating that conformance with Iranian law
was tantamount to torture, and that Sharif herself had shown that she was “perfectly
willing and able to live in conformity with Iranian law…”
39

The Court found Sharif’s claim of persecution because she was a “westernized
woman” equaling unavailing. While “it did not quarrel” with Sharif’s argument that she
would be forced to lose the freedoms she enjoyed in the U.S. if she were to return to Iran,
even assuming what it referred to as a debatable theory that westernized women as
defined by Sharif were a cognizable group, she was unable to prove a reasonable fear of
persecution because of her membership in the group. Sharif, the Court reasoned, had no
history of objection to Iran’s social code and there was no evidence that she would be
unable or unwilling to comply with it upon her return to Iran.
40
Thus, the Court declined
to extend asylum protection on account of gender, presenting a defeat to those seeking to
expand the definitions of “a particular social group.” The timing of the decision is also
of interest, as the U.S. in 1997 was on better terms with Iran than it had been in many
years, and an asylum grant could have upset the developing relations.

139
D. A Restrained Court; the Seventh Circuit on the Eve of September, 11, 2001
On the eve of the World Trade Center Bombings, the U.S. Court of Appeals for
the Seventh Circuit was in its published decisions, dominated by Republican appointees
and inclined to deny the cases of Middle Eastern Asylum applicants. The primary
reasons behind the denials seem to be explainable through the Attitudinal and
Hierarchical models, along with foreign policy considerations and, in at least one case,
specifically Middle Eastern characteristics. Thus, the idea of an asylum regime based on
a number of characteristics is at play in the Seventh Circuit decisions prior to 9/11, and it
is a regime that seldom interfered with the findings of the Immigration Courts or the
Board of Immigration Appeals. The reluctance of the Seventh Circuit prior to 9/11 to
break new ground in asylum cases is grounded in the body of doctrine set forth by the
Court, and is strongly affected by foreign policy considerations. At least four of the five
published cases contained a substantive doctrine that, while not necessarily the holding of
the case, sets forth a principle of serious importance and which could be applied to the
adjudication of future cases.
In Kishtow, the Court’s posture that although Iraq can be a dangerous place to
live, Congress has “enacted restrictive asylum eligibility requirements,” set out the
Court’s position that despite many compelling human rights situations, including those in
Iraq, only a small number of people could obtain asylum. Similarly, the Court in Sharif,
while acknowledging the distaste most westerners felt for “Iran’s conservative social
mores,” found that living in accord with such mores “is not equivalent to persecution per
se.” Thus, the Court acknowledged the difficulties many Iranians had living under the

140
Islamic government, but reiterated that asylum cannot be granted to everyone who suffers
harm. This reasoning, first articulated by the Seventh Circuit more than a decade ago, is
now echoed by policy scholars such as Matthew Price, who argues that asylum should
not be used as a remedy for the harm suffered by a broader class of applicants.
41

The idea that asylum could not be granted to all oppressed peoples is not the only
doctrine to come out of the Seventh Circuit in the pre-9/11 era. While denying asylum in
Mousa, the Court reaffirmed an earlier BIA holding that Congress did not intend to
restrict asylum solely to those who had not taken part in armed conflicts. The doctrine
helped avoid a potential foreign policy disaster at a time when the Clinton Administration
was pursuing a solution to the Arab-Israeli conflict. In Malek, the Court also deferred to
Congress by declining to grant asylum to an applicant who had committed a crime.
Finally, in Najafi, the only case granted by the Seventh Circuit before 9/11, the
Court affirmed what had been an enshrined principle in Bastanipour: that the issue on
which the asylum case of a Christian convert turned was not the degree of faith, but
rather how the apostate was viewed by potential persecutors.
In sum then, a look then at the Seventh Circuit cases published in the six-year
period prior to the events of September 11, 2001 reveals a uniformity in the decisions and
extends beyond just votes to deny cases. Indeed, the Seventh Circuit on the eve of 9/11
was a Court that both deferred to the other branches of government and declined to
reverse cases where the decision could have had an affect on U.S. foreign policy in the
Middle East.

141

CHAPTER 5 ENDNOTES

1
Bastanipour v. I.N.S., 980 F.2d 1129 (7
th
Cir. 1992)

2
Id. at 1132.

3
Interesting asylum statistics, Immigration Forum Statistics, Chicago Sun-Times, April 27, 2009,
http://forums.immigration.com/showthread.php?296878-interesting-asylum-
statistics&s=f6c24271eaf9f378c5d8cf1e9d1d5038. See also Lynne Marek, “Posner Blasts Immigration
Courts as "Inadequate" and Ill-Trained,” National Law Journal, April 22, 2008,
http://www.law.com/jsp/law/LawArticleFriendly.jsp?id=900005561504.

4
Mousa v. I.N.S., 223 F.3d 424 (7th Cir. 2000)

5
Id. at 428.

6
Id. at 427-428.

7
Id. at 428.

8
Id. at 428.

9
Id. at 429; Matter of Rodriguez-Majano, 19 I & N Dec. 811, 815-816 (BIA 1988)

10
Id. at 430-431.

11
Barry Rubin, “Israel and the Palestinians,” Contemporary Israel, edited Robert O. Freedman (Boulder:
Westview Press, 2009), 183.

12
Malek v. I.N.S., 198 F.3d 1016 (7
th
Cir. 2000)

13
Id.

14
Id.

15
Id.

16
Jubin M. Goodzari, Syria and Iran: Diplomatic Alliance and Power Politics in the Middle East (London:
I. B. Tauris, 2009).

17
Pamela Goldberg, “Asylum law and Gender Based Persecution Claims,” Immigration Briefings. 94-09,
(September 1994). West LawDesk (2010). Thomson Reuters.

18
Kishtow v. INS, 70 F.3d 1274 (7
th
Cir. 1995)

19
Id.

20
Id.

142

21
The Assyrian problem in Iraq dates back at least to the First World War, when many arrived as refugees
from Anatolia. See Charles Tripp, A History of Iraq (Cambridge: Cambridge University Press, 2005), 74-
75.

22
Mansour v. I.N.S., 230 F.3d 902 (7th Cir. 2000)

23
Id. at 904.

24
Id.

25
Id. at 904.

26
Id. at 905-906. The Court, however, vacated the BIA’s decision denying Mansour’s motion to reopen
under the Convention Against Torture, noting that the BIA had used the phrase “Syrian Christians” and not
Assyrian Christians,” which potentially harmed Mansour’s claim.

27
Najafi v. INS, 104 F.d 943, 94 (7
th
Cir. 1997)

28
Id. at 945.

29
Id. at 945. The Court assumed that INS had denied his case on the affirmative level. Najafi also applied
for suspension of deportation under former 8 U.S.C. 12254.

30
Id. at 946.

31
Id. at 947-948.

32
Id. at 948.

33
Id. at 949.

34
Id. at 949-950.

35
Sharif v. INS, 87 F.3d 932 (7th Circ. 1996)

36
The Iranian Hezbollah is to be distinguished from the Iranian backed Lebanese Party of the same name.

37
Sharif v. INS, at 934.

38
Id. at 934-935.

39
Id. at 935.

40
Id. at 936.

41
Mathew Price, Rethinking Asylum, 164-192.

143
CHAPTER 6.
THE U.S. COURT OF APPEALS FOR THE SEVENTH CIRCUIT: AFTER
SEPTEMBER 11, 2001

A. Introduction: Post-9/11 Cases
As we have seen, the U.S. Court of Appeals for the Seventh Circuit in the years
prior to the September 11, 2001 World Trade Center Bombings was a Court inclined to
deny cases, often out of deference to other branches of government. In the years after
9/11, the Court also gained some attention in immigration circles largely due to the stance
taken by Judge Richard Posner weighing in on the so-called crisis in the immigration
courts. In one published case, Posner noted that the decisions originating in the
immigration courts were reversed more than 40% of the time in the U.S. Court of
Appeals for the Seventh Circuit. While Posner brought to his critique of the immigration
courts the same level of intellectual rigor that characterized his prolific writings, his
criticisms indicate a sense of detachment from the often chaotic atmosphere of the
immigration courts. Interestingly enough, Posner served on only one of the nine panels
that issued decisions on Middle Eastern asylum cases in the six-year period following the
World Trade Center bombings, and that decision was a rare Seventh Circuit grant.
Indeed, in a Court dominated by conservative Republicans, no grant was issued without
the participation of either Judge Posner or Judge Diane Wood, who was strongly
considered for a seat on the Supreme Court by President Obama. On the other hand, not
a single grant was issued by a panel that included Judge Frank Easterbrook. While it

144
admittedly would have been difficult for a Court that granted only 18% of its cases pre-
9/11 to become more conservative, the Court did a good job of maintaining a uniformity
of decisions between the two periods, granting only three of the eleven cases it decided in
the post-9/11 era. Thus, overall, the decisions— when viewed in full— continue the
Seventh Circuit’s pre-2001 pattern of mostly denying such cases on appeal, though only
through a detailed look at the cases can we really understand the patterns that have
affected the results in this circuit.

B. Race, Ethnicity, and Nationality
The only Middle Eastern asylum case in the post-9/11 period dealing with an
applicant persecuted for his nationality was Durgac v. Gonzales, (7
th
Cir. 2005).
1
Here,
Cahit Durgac, a Kurdish University student, and his Turkish wife, Ozgur Yasar, filed for
asylum on the grounds that he was detained and beaten by the Turkish security services
for forming a Kurdish study group. The group’s use of the banned Kurdish language
brought it to the attention of university police officers and nationalist Turkish students.
On several occasions the group found itself in physical confrontations, including a fight
between a nationalist student and Durgac in February 2001.
2

About a month later, Durgac was abducted by police and taken to a police
station, where he was held for 18 days, given dirty food and water, and severely beaten
on the back, knees, and stomach. During his detention, his identity card was taken,
though he was neither interrogated nor asked his name. He was, however, insulted and
called a traitor because his brother had sought asylum in Great Britain. Durgac was

145
released in the middle of March 2001 and warned to stop dating Yasar (then his
girlfriend) and to cease meeting with his study group.
Though he stopped meeting with the study group, Durgac began receiving
threats from nationalist students who wanted him to inform on his friends. Durgac
testified that he could not go to the police because he was afraid that they were
associated with the nationalists, and might again detain and beat him. Deciding he had
no choice, he left Turkey for the United States.
3

At an asylum hearing, an immigration judge held that Durgac was not credible
because 1) a member of a Kurdish study group would not be singled out by the police, 2)
he was not interrogated or asked his name, 3) he had been able to leave Turkey without
problems, 4) he testified inconsistently regarding which branch detained him, 5) he was
unable to provide any evidence confirming his detention, and 6) at the time of detention,
local police would not have had any information about his brother. The BIA affirmed
the Immigration Judge’s opinion and denied a motion to remand in order to present new
evidence.
4

Durgac filed a petition for review and the U.S. Court of Appeals for the Seventh
Circuit systematically dismantled the Immigration Judge’s credibility finding. The
Court found that any skepticism that private meetings to study Kurdish would arouse
hostility was undermined by the fact that most of the meetings were in public, and that
the lack of interrogation was explained by the fact that the police took his identify card.
5

Judge Wood writing for Court concluded that the:
6

146
… IJ’s adverse credibility determination is not supported by substantial
evidence. Durgac’s credibility must be reassessed in light of this opinion. If he
is found to be credible, then the IJ must determine whether an 18-day detention
coupled with blindfolding, underfeeding, and multiple beatings amounts to past
persecution, and if so, whether the government can rebut the presumption
that would arise of a well-founded fear of future persecution.

In addition to Judge Wood, the panel included two Republicans, Judges Kanne and
Sykes. The decision is striking in that it cast a crucial ally, the Turkish government, in a
negative light. Indeed, given the reluctance of the Seventh Circuit in the years prior to
9/11 to issue decisions that went against the tone of U.S. foreign policy, and the U.S.
policy of appeasing Turkish demands particularly on human rights issues such as
recognition of the Armenian Genocide, that the Court issued a decision so strongly in
favor of a Kurd is surprising. This is particularly so in light of the fact that both the
military, which guards secularism in Turkey, and the Islamic Justice and Development
Party, which won a landslide victory in the 2002 elections, are against Kurdish
separatism, and take perceived U.S. or other criticisms of Turkey very seriously.
7

One possible reason, then, for this surprising decision is the presence of Judge
Wood, a Clinton appointee. Another possible reason for this startling grant is the fact
that the Kurdish issue represented such a little publicized issue—it is the only decision on
a Turkish Kurd issued by any circuit court in the 12-year period surrounding 9/11—that
the Court felt compelled to side with the petitioner. The Court’s decision can, in a way,
be viewed as the type of active engagement that could push Turkey and the Kurds toward
the type of diplomatic agreement that Philip Gordon and Omer Taspinar call a “grand
bargain” between long standing rivals, and possibly resolve a political controversy.
8

147
C. Political Opinion
In Ahmed v. Ashcroft, (7
th
Cir. 2003),
9
the U.S. Court of Appeals for the Seventh
Circuit dealt with the case of Djillali Ahmed, who applied for asylum due to his fears of
retribution from Islamic militants. From 1992 to 1994, Ahmed had served in the
Algerian military, guarding Islamic terrorists at a detention camp. In 1994 he joined the
Algerian state police, but he resigned in 1996 after several co-workers were murded by
armed Islamic militants en route to the government compound where they lived.
Djaillali moved to the desert where he lived without problems, but no longer content
hiding, he fled Algeria and entered the United States. In February 1999 he applied for
asylum.
10

At a January 3, 2000 hearing in Immigration Court, the Judge found Ahmed’s
testimony credible but concluded that he was statutorily ineligible for relief. Ahmed
appealed to the BIA, which denied the appeal, finding that Ahmed could not show past
persecution as a military and police officer because the harm was not separate from the
regular hazards of his work. The BIA also found that he had not sufficiently
demonstrated a well-founded fear of future persecution.
11
Ahmed petitioned the Seventh
Circuit, which found that the BIA had correctly found that a fear of persecution resulting
from police work did not ordinarily amount to persecution. The Court, however, found
that, “to the extent the BIA was suggesting that there is a per se rule against finding past
persecution for dangers encountered during service as a police officer, we think that it
may have gone too far.”
12
The Court further found that substantial evidence supported
the BIA’s conclusion and that Ahmed’s “own uncorroborated testimony” and the State

148
Department Reports both reflected that little of Algerian society had been spared from
the “depressing cycle of violence.”
13

If there ever was a time when the potential of Islamic fundamentalist violence
was in the public eye, it was during the first two years after 9/11. Yet the Seventh
Circuit declined to find in Ahmad’s favor despite the fact that he was found credible,
and Islamic militancy was now well known. Of considerable interest here is the doctrine
set forth by the panel, i.e., that there was no per se rule against past persecution for
danger encountered during police service. Thus, though it denied the case, the panel
specifically laid the groundwork to grant asylum to other police officers who had been
targeted due to their work. This method of denying a case recalls the Court’s earlier
decision in Mousa v. INS, were the Court also denied asylum, but refused to find that all
applicants who had taken part in armed actions were barred from asylum. Equally
interesting is the fact that though two out of three of the judges supporting denial were
Republican appointees, the decision— like the one in Durgac— was authored by Judge
Wood. The fact that Wood— who, as we have seen, is not adverse to granting asylum—
would take the lead in writing the denial, however, supports the idea of a Seventh
Circuit regime on asylum that is less dependent on party ideology, and more dependent
on a circuit tendency to deny asylum cases.
Ahmed was not the only political opinion case decided by the Seventh Circuit
after 9/11. In Hor v. Gonzales, (7
th
Cir. 2005),
14
the Court dealt with the case of
Abdelhadi Hor, an active member of the Algerian ruling party, the FLN, and the chief
information officer for a government-owned manufacturer.
15
In March of 2000, Hor

149
was stopped at a roadblock set up by the GIA (Groupe Islamique Arm), the military
wing of the radical Islamic movement. Hor was ordered to provide the GIA with a list
of active FLN members and his employer’s security plan. He was released after
agreeing to do so, but he did not provide the information and instead reported the
incident to the Algerian military, which could not protect him.
16

Five months later, Hor was stopped at another roadblock, where armed men told
him they were going to execute him for failing to provide the information. However,
before this was done, police arrived and killed two of the men. Hor subsequently
visited a psychiatrist, who diagnosed him with post-traumatic stress syndrome, and then
left Algeria for the United States, where he filed for asylum. The Immigration Judge
who heard the case believed Hor’s account of his involvement with the FLN, and that he
feared he would be harmed. However, he did not believe that the GIA would have
allowed five months to elapse between the first encounter and the attempted
assassination. The judge stated that if Hor’s story were true, the GIA would have killed
his family in revenge, and also found it “suspicious” that the psychiatrist did not state
the cause of the post-traumatic stress syndrome.
17
He thus denied the claim, and his
decision was affirmed by the BIA. Judge Posner, however, joined by Judges Flaum and
Kanne, thought differently, writing:
18

That a psychiatrist would not mention a terrorist incident in a psychiatric
diagnosis seems hardly anomalous; and the authenticity of the admittedly quite
strange judicial decision is not challenged. In short, there is no reasoned basis for
the immigration judge’s conclusion, which was based not on Hor’s demeanor on
the stand but on the unsubstantiated conjectures, summarized above, on which
the judge based his assessment of Hor’s credibility. Such a ruling cannot stand.

150
The decision is important because it features an all-Republican panel voting to grant
asylum. Such voting goes against the Attitudinal Model, though given the fact that
Judge Posner is among the most cited judges in the entire country,
19
the outcome would
conform to the Alpha Judge model of a dominant judge persuading his colleagues to go
along with his point of view. Posner’s willingness to challenge the Immigration Judge
on the contents of the psychiatric report—a factor many judges would have shied away
from—is also in line with his voluminous writings including those on the subject of
psychiatry.
Judge Posner’s decision in Hor stands in contrast to the Court’s decision a year
later in Alsagladi v. Gonzales, (7
th
Cir. 2006).
20
Here, Judge Easterbrook, writing a
unanimous opposition of a panel including fellow Republican appointees Judges Coffey
and Manion, denied asylum to Abdalla Alsagladi, a Yemeni citizen who had gone to
Saudi Arabi after alleged persecution in Yemen. While in Saudi Arabia, Alsagladi
sought an American tourist visa and made a fraudulent representation to the U.S.
Embassy in Saudi Arabia, instead of telling them he sought to remain in the U.S.
permanently. Despite the claim that he had been persecuted for his socialist views and
that thugs working for the Yemeni government had repeatedly attempted to kill him, his
case was denied by an Immigration Judge. The Immigration Judge who heard his case
did not believe the account because Alsagladi had worked as the equivalent of a court
clerk with joint appointment as a magistrate judge, which in the Immigration Judge’s
opinion made it unlikely that the government would try to kill him.
21

151
After an unsuccessful appeal to the BIA, Alsagladi petitioned the U.S. Court of

Appeals, which took the opportunity to discourage future visa fraud, writing:
22

Yet instead of telling the consular staff honestly that he wanted to enter the
United States as a refuge— a claim that could have been examined by
officials who had access to contacts in Yemen that could have verified or refuted
his story—Alsagladi swore falsely about the purpose of his visit and his
intentions after reaching the United States.

The Court further noted:
23

Aliens who take the easy but dishonest path when a more honorable if more
difficult one is open cannot insist on administrative lenity. The agency did not
abuse it discretion here, and Alsagladi’s petition for review is denied.

While at first glance, the decision may seem like a perfect reflection of the Attitudinal
Model in that three Republican appointed judges denied the case, it raises two
interesting issues. The first is that the Court upheld the Immigration Judge’s clear
speculation about how the Court system would work in Yemen, a determination which
at least from the reported case seems to have been based solely on the Immigration
Judge’s perception about what the legal system must be like in Yemen, rather than on
evidence of how it actually worked. This conundrum represents, of course, the very
type of speculation rejected by Judge Posner in Hor. Perhaps more importantly the
decision is striking for another reason: it denied asylum to an applicant with a
background very similar to that of Al Qaida leader Osama Bin Laden. The Court’s
posture here towards a to a Yemeni with a Saudi connection indicates a possible
backlash by the Court to the events of September 11, 2001, or it could simply reflect the
makeup of the panel which decided the case.

152
In another political opinion case (which could also be viewed as a religion case),
Margos v. Gonzales, (7
th
Cir. 2006),
24
the Court reviewed the case of Shukria Margos,
an Assyrian Christian Iraqi who had once served as a cook to Ba’ath Party members
close to Saddam Hussein.
25
Two of Margos’ sons served in the military during the
Persian Gulf War and were subsequently accused of desertion and detained. They
eventually fled, and Margos lost contact with them. Inquiring authorities, however,
arrested Margos’ husband on the grounds that he knew their whereabouts. He was held
for six months, during which he was tortured and lost his memory. He was then dumped
on the doorstep of her home and died of his injuries in 1995 or 1996.
26

Margos also detailed other encounters with the Iraqi authorities, including an
incident in which a woman called Margos a “Bush Supporter” and Margos physically
assaulted the woman and tried to throw her from a bus. A police interrogation ensued,
and Margos subsequently had one or more ribs broken after being struck with a gun butt.
Margos testified that the authorities threatened to slit her tongue when she declined to
give a cooperative reply to questioning as to why the label “Bush supporter” made her
angry. Margos was also interrogated numerous times regarding her sons, and threatened
with jail if she did not turn them in. Eventually she tired of the interrogations and
moved to Jordan and then to the United States, where her asylum application was denied
by an Immigration Judge and the BIA.
27

The U.S. Court of Appeals found that Margos did not demonstrate that the
authorities acted because they believed she was a Bush supporter and a political
opponent of the regime, but rather because of her physical attack.
28
The Court also

153
reasoned that the interrogations did not rise to the level of persecution and that she could
not rely solely on the persecution of family members to qualify for asylum, citing its
prior holdings in Ciorba v. Ashcroft, (7th Cir. 2003), and Tamas-Mercea v. Reno, (7th
Cir. 2000).
29

Turning to the question of future persecution, the Court dismissed Margos’ claim
that she qualified for asylum due to the extremely oppressive nature of the Hussein
Ba’athist regime, noting that the potential persecutors were dead or out of power.
30
It
also dismissed the notion that she would face future persecution as an Assyrian Christian,
on the grounds that the issue had not been raised on appeal and thus lacked jurisdiction.
However, in a rare hypothetical statement, the panel— composed of all Reagan
appointees—Flaum, Easterbrook, and Kanne, noted that even if it had jurisdiction, the
claim would fail:
31

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).

The case is significant for acknowledging less than satisfactory results in the war in Iraq
in that the situation of Christians had deteriorated in Iraq after the fall of Saddam
Hussein.

D. Religion
Precedent decisions on Middle Eastern Christians remained a constant between
the years prior to 9/11 and the years afterwards, with similar results. In Dandan v.
Ashcroft, 39 F.3d 567 (7
th
Cir. 2003), the Court dealt with the claim of a Lebanese

154
Christian, Nabil Dandan, who was born in Lebanon and worked in the United Arab
Emirates from 1974 until to 1985. When the UAE declined to renew his visa, Dandan
returned to a Lebanon in the midst of a civil war, and resided around the Maronite
populated West Beirut. After failing to obtain work from private employers, he began
working as a civilian employee of the Lebanese Christian Forces.
32

On June 3, 1989, while returning from work, he was kidnapped by Syrian troops.
For three days, Dandan was held without food, and was beaten and interrogated by
Syrians troops who wanted the names of supporters of the Lebanese Christian forces.
Dandan testified that he provided the names but did not know what those in higher
political positions would know. After his wife paid ransom money, he was released, his
face swollen from the beating. His house was subsequently shelled and partially
destroyed and he went from shelter to shelter in June and July of 1989, before leaving
Lebanon for Cypress, where he obtained a visa for the U.S.
33

Though Dandan applied for asylum in August 1989, a month after his arrival in
the U.S., he did not have an interview until 1996, nor a merits hearing before an
Immigration Judge until October 11, 2000, when the Immigration Judge denied relief.
The judge found that Dandan’s three-day detention did not constitute past persecution,
and that changed country conditions indicated he no longer had an objectively
reasonable well-founded fear of future persecution.
34
Dandan appealed to the BIA,
which dismissed the case in a rare 2-1 decision.
35
The dissenting Board Member,
Cecilia Espinoza, found that the three-day detention rose to the level of persecution, and

155
that Dandan was entitled to a rebuttable presumption that he had a well-founded fear of
future persecution.
36

The Court of Appeals held that it was not compelled to find that Dandan was
subjected to past persecution, and that the type of evidence that could compel a finding
of past persecution had not been presented. The decision noted, “while it is distasteful to
have to quantify suffering for the purposes of determining asylum eligibility, that is our
task.”
37
The Court also found that substantial evidence supported the BIA’s
determination that he did not have well-founded fear of persecution because the State
Department Country Report indicated that Lebanese Christians could settle around and
in Beirut without fear of religious persecution.
38
The composition of the panels that
heard this case both at the BIA level and at the Seventh Circuit is particularly
interesting. Judge Espinoza, who authored the BIA dissent, was, as Judge 3 noted to me
in the interview discussed in Chapter Nine, the first Mexican-American member of a
Board, whose caseload was 50% Mexican, but whose composition was dominated by
white men.
39
This factor probably had much to do with Judge Espinoza’s willingness to
grant asylum, especially when a main factor precluding a grant was a lack of
documentary evidence. The Seventh Circuit panel, which was composed of three
Democratic appointees, Judges Cudahy (Carter), Evans (Clinton), and Williams
(Clinton), can be understood in a different way. Here the argument can be made that in
“quantifying” suffering, the panel missed the true problems of Middle Eastern Christians
and particularly those in Lebanon, which have often been recognized by more
conservative panels. Moreover, without an understanding of the long-standing problems

156
of Lebanese Christians, the panel could easily use a State Department Report to justify a
denial of asylum.
40

In Boctor v. Gonzales, (7
th
Cir. 2007), the U.S. Court of Appeals considered the
case of John Boctor, an Egyptian easily identifiable as a Coptic Christian because of
both a crucifix tattoo on his right wrist, and his first name.
41
Boctor’s claim to asylum
arose from an investigation of his Coptic friend Hanna Mousa, who had married a
Muslim woman who then converted to Christianity. Both Muslim extremists and the
woman’s family learned of the marriage and conversion, and the couple received death
threats, which the police refused to investigate.
42

Boctor and three friends subsequently requested police protection for the couple,
but when he did not achieve this goal, the Mousas went into hiding. Boctor then began
receiving threats that his throat would be cut if he did not reveal the couple’s
whereabouts.
43
The threats soon became violent and, one night while returning home
from work, Boctor was attacked by three men who called him an “infidel,” beat him, and
accused him of covering up for a prostitute and infidel. They also told him they would
kill him if he reported anything to human rights groups. Boctor believed that the
assailants were Islamists due to their dress and long beards.
44

Though Boctor subsequently moved to his uncle’s house, the militants tracked him
down. They broke into the home, beat him and his friends, and demanded the whereabouts
of the Mousas. When Boctor refused to reveal their location, the militants said that they
would kill him the next time he refused to talk. Boctor left Egypt for the United States
about a month later.
45

157
Despite finding Boctor’s testimony credible, the Immigration Judge held that
his attackers were motivated by Boctor’s refusal to tell them where the Mousas were,
and not by his Christian faith. Thus, the Immigration Judge concluded that the
persecution suffered by Boctor was not on account of the protected ground. Boctor
appealed to the BIA, which affirmed the decision, and Boctor filed a petition for review
with the U.S. Court of Appeals for the Seventh Circuit.
46

The U.S. Court of Appeals found that the Immigration Judge’s conclusion
completely ignored the factual context in which the death threats and assaults were
carried out. The Court further found that, “Boctor’s Islamic attackers were pursuing the
Mousas in order to carry out religious punishment for their intermarriage and the wife’s
conversion from Islam to Christianity.” Boctor, the Court explained, was viewed as
“protecting his co-religionists and as a consequence was targeted for violent retribution
and possibly death.”
47
The Court thus held that the Immigration Judge’s determination
was not supported by substantial evidence. The Court granted Boctor’s petition for
review with regard to his asylum and withholding claims, finding that Boctor’s past
persecution on account of his religion entitled him to the presumption of well-founded
fear of future persecution upon his return to Egypt, a presumption it allowed the
Government to rebut in remanded proceedings.
48

The case decided by three Republican appointees, Judges Ripple (Reagan),
Mannion (Reagan), and Sykes (G.W. Bush), challenges the conventional view of the
Attitudinal Model that conservative judges vote against asylum. However, their actions
are consistent with the concept we saw in the Fifth Circuit and in pre-9/11 in the Seventh

158
Circuit in Najafi v. INS, where conservatives vote in favor of asylum for Christians from
Middle Eastern countries. One explanatory theory behind this is that the American
Christian conservatives perceive Middle Eastern Christians as allies in a cultural war
against Islam of the type that Samuel Huntington elaborated upon in The Clash of
Civilizations.
49
The perceived alliance may be so strong that one Judge interviewed for
this study even expressed dismay at how much former Attorney General John Ashcroft
viewed some Middle Eastern Christians as allies.
50
In this case, the pro-Christian
sentiment was strong enough to overcome any foreign policy considerations that
conservatives might have had against casting the Egyptian ally in a negative light. It
should also be noted that Boctor is consistent with the decision in Dandan v. INS, where
an all-Democratic panel voted against asylum for a Middle Eastern Christian.
In Youkhana v. Gonzales, (7
th
Cir. 2006), the Court dealt with an Iraqi Assyrian
Christian who fled the country in 2001 and sought asylum claiming he had been
persecuted by the Ba’ath Party on account of his political opinion, ethnicity, and
religion.
51
Steev Shamoli Youkhana alleged three incidents of arrest and detention by
Iraqi authorities on account of his ethnicity, religion, and political opinion. Youkhana
claimed that during his final year of high school in 1997, he was arrested for having
made derogatory comments regarding Saddam Hussein. Youkhana testified that the
detention occurred because of his refusal to join the Ba’ath Party and the fact that he was
an Assyrian Christian and that the Christians had relations with parties that opposed the
regime. He was beaten and interrogated during forty-five days in custody and required

159
to sign a statement that he would not participate in anti-government activities when he
was released.
52

While serving his mandatory term in the Iraqi military in 1991, he was again
arrested for allegedly throwing dirt at Saddam Hussein’s picture. During the detention,
he was beaten on the head until he lost consciousness and, upon his release, was
required to sign another statement, which stated that if he participated in anti-
government activity again, he would be executed.
53

The first arrest was in 2001 while Youkhana still in the army, and was accused
of aiding the escape of an Assyrian prisoner charged with illegally selling fuel.
(Youkhana denied the allegation when questioned about it in Immigration Court,
explaining that he was singled out for punishment because he was not a member of the
Ba’ath Party and an Assyrian Christian). He was also beaten badly on the head, but after
two days was able to escape, and subsequently left Iraq.
54

Though Youkhana presented extensive evidence regarding the new threat of
persecution Assyrian Christians faced from Muslim radicals, the Immigration Judge
denied the claims, noting that Youkhana had a duty to return to Iran to assist in the
dismantling of the Ba’ath regime. As the Court of Appeals would later note, the
Immigration Judge couched his decision in “patriotic garb”:
55

The government of Iraq, particularly the Ba’ath Party have been removed at
great expense in terms of lives of the coalition forces as well as the Iraqi people
to ignore the effort that has gone into removing the Ba’ath Party would be a
significant injustice to all for those lives that were lost in freeing Iraq from its
persecutors.

160
The Immigration Judge found that though the first two detentions constituted
past persecution sufficient to raise a presumption of well-founded fear of future
persecution, country conditions had changed and the third detention was on the account
of a criminal matter and not a ground for asylum.
56

Youkhana’s appeal to the BIA, which argued that the Immigration Judge failed
to address his religious and ethnic persecution claims, was denied without opinion.
Youkhana then filed a petition for review with the U.S. Court of Appeals for the Seventh
Circuit.
57
The Court, in interpreting the Immigration Judge’s decision, found that the
Ba’ath Party’s removal did not necessarily mean that country conditions in Iraq had
improved for Assyrian Christians.
58
On remand, the Court required the BIA to
consider whether the Iraqi government had failed to protect Assyrian Christians
like Youkhana from persecution by insurgent Ba’ath Party members or Muslim
extremist organizations, and if so, whether this constitutes a ground for granting
asylum or some other form of relief from removal.
59

That the panel was composed of two Republican appointees, Kanne and Rovner, and
Democratic appointee Wood, goes against the Attitudinal Model but again is consistent
with the views of conservative Republicans toward Middle Eastern Christians. The case
is also important for its rejection of the notion that in the aftermath of the War in Iraq, a
newly liberated Iraqi would be required to build up the country.
Despite the grants in Boctor and Youkhana, other decisions such as Chakir v.
Gonzales, (7
th
Cir. 2004),
60
make it apparent that there is still a limit as to how far a
panel composed of conservatives will go in a Christian asylum case. Here, Rachid
Chakir, a Muslim, developed an interest in Christianity and began Christian Bible study
in Morocco. After arriving in the U.S. as a tourist in August 1999, he continued his

161
studies and was baptized. Chakir did not return to Morocco, but instead filed for asylum
based on his fear of persecution as a Christian. His application was referred to the
Immigration Court, where he testified that his primary concern was that the Moroccan
government was unwilling to control persecution by Muslim clerics and their followers,
as well as his family.
61

Chakir presented two witnesses who attended Church with him and who testified
that his conversion was sincere. He also offered an article entitled “A Brief Report
about the Moroccan Church” (2001), which noted that Christians lack freedom to
practice their faith openly and described methods of intimidation used against
Christians.
62

The Government, in response, offered two State Department reports on Morocco,
“Morocco Country Reports on Human Rights Practices--2003” and the “Morocco-
International Religious Freedom Report 2003.” Despite finding Chakir’s conversion
sincere and credible, the Immigration Judge denied his applications for asylum and
withholding of removal.
63
Interestingly, while the Immigration Judge found his
conversion to be a bone fide exception to the requirement that Chakir file for asylum
within one year of entry, he disagreed with Chakir on the likelihood of his mistreatment
at the hands of Moroccan Muslims. The Immigration Judge did not consider Chakir to
be courageous enough to martyr himself for his faith or to practice it so openly in a way
that would attract attention. He distinguished conditions for Christians in Morocco from
those in Iran, and found that Chakir failed to identify any particular individual who
would persecute him.
64

162
Chakir appealed the denial to the BIA, which sustained the Immigration Judge.
Chakir then appealed to the U.S. Court of Appeals for the Seventh Circuit on the
grounds that 1) his right to Due Process had been violated, and 2) he had established a
reasonable possibility of persecution. The Court, in its decision, noted that it had no
doubt that, “the IJ overstepped the bounds of neutral arbiter” in its questioning of
Chakir.
65
However, it found that he had not shown any prejudice resulting from the
Immigration Judge’s conduct.
66

Turning to Chakir’s claim of a well-founded fear of future persecution, the
Court found that the IRFR report, which along with Chakir’s testimony, established that
the Moroccan legal system was not based on Sharia law. The Court also noted that the
IRFR report established that the Moroccan government encouraged tolerance and had
criminalized efforts to prevent religious practice. The Court held that the Immigration
Judge’s conclusion that the Moroccan government was willing to protect a convert if
alerted to something “like a beating,” was supported by substantial evidence. It thus
denied the petition for review.
67

The Panel that decided the case was comprised of Judges Bauer (Ford),
Easterbrook (Reagan), and Rovner (G.W. Bush), three Republican appointees. Yet,
unlike the precedent decisions we saw from the Fifth Circuit or Najafi or Boctor, the
panel here decided against the Christian applicant. The difference in outcome can be
explained by the use of the International Religious Freedom Report, which the State
Department supplied in all asylum cases as a result of the International Religious
Freedom Act,
68
which Christian activists and conservatives had in the late 1990s pressed

163
for to help alleviate the plight of oppressed Christians throughout the world.
69
While
many advocates expressed disappointment in the IRFR, and New Jersey Republican
Congressman Christopher H. Smith noted in a September 2000 hearing on the second
annual report, that it might not have “any practical effect on U.S. policy,”
70
the report
was enough to satisfy concerns of the Republican appointed judges that a Christian
convert would not be persecuted in Morocco. Notably, the decision also avoided casting
an American ally—in this case Morocco—in an unfavorable light.
In Jamal-Daoud v. Gonzales, (7
th
Cir. 2005), the Court wound up affirming a
denial of asylum to an Iraqi Christian Jamal-Daoud, who arrived in the U.S. on February
1, 2000, at the age of 17. At the airport he told an immigration official through a
translator that his passport had been falsified, and gave what the Court of Appeals would
later characterize as somewhat inconsistent answers. When asked why he came to the
U.S., Jamal-Daoud noted the “financial situation” and “hard life in Iraq.” Later when
questioned, he stated he was afraid he would be arrested if returned to Iraq.
71

Jamal-Daoud subsequently filed for asylum, including with his application a
statement noting he was an Assyrian Christian and member of the Chaldean Church, and
that he and his family were being persecuted by the government of Iraq after his father
had begun receiving support from relatives in the United States. His father was
repeatedly arrested and then his mother was arrested. Jamal-Daoud was then pressured
to testify against his father regarding his alleged connections with Kurds and Assyrians
in the north and whether they gave or received money from these groups. When he

164
replied that he did not know the answer, he was spat at and beaten. Jamal-Daoud later
left Iraq with the help of relatives.
72

At a hearing before an Immigration Judge, Jamal-Daoud—now represented by
counsel, testified with the assistance of an interpreter that in February 1999, Iraqi police
arrested his father on the grounds that he worked against the government. He further
claimed that on June 14, 1999, he was taken in for questioning regarding his father’s
activities and slapped, spit on, pushed, and insulted, but not beaten. Jamal-Daoud
conceded that he had provided inconsistent answers to questions at the airport interview,
but explained that he was nervous and that if he had answered differently, he would have
been returned to Iraq.
73

The Immigration Judge, while concluding that Jamal-Daoud’s claim of
persecution as an Assyrian did not contradict the State Department Report, believed that
he had nevertheless failed to present persuasive evidence that he had suffered
persecution. The Immigration Judge further noted that Jamal Daoud was not credible
because his baptism certificate was dated the day before his alleged departure date from
Iran, his airport interview included sworn answers, and he had sought multiple venue
changes during the course of his hearing. Jamal-Daoud appealed to the BIA, which
dismissed the Immigration Judge’s order.
74

Jamal-Daoud appealed to the U.S. Court of Appeals for the Seventh Circuit,
which relied on a Second Circuit opinion in Ramsameachire v. Aschroft, (2
nd
Cir.
2004),
75
for a list of factors to consider in determining when an airport interview is
reliable. After considering the factors, the Court held that it was confident that the

165
airport interview was a reliable and “sound basis” for finding the claim incredible. The
Court relied on two facts—a full transcript of the interview conducted with a translator
and Jamal-Daoud’s failure to previously challenge the transcript.
76
The Court noted that
because the Immigration Judge found him incredible, Jamal-Daoud was obligated to
produce more, and concluded:
in sum, petitioner has presented no extraordinary circumstances that would
justify superseding the Immigration Judge’s adverse credible finding, and we
conclude that the Immigration Judge was reasonable in denying petitioner’s
application for asylum.

The Panel, which was composed of two Republicans, Judges Easterbrook and
Flaum, and one Democrat, Judge Wood, also denied his withholding of removal and
CAT claims. Interestingly, the Court addressed an additional request that it take judicial
notice of the ever-growing violence against Christians in Iraq when considering his
claims. Jamal-Daoud pointed out that in August 2004, five Christian Churches, four of
which were Assryian, were bombed in Iraq. The Court noted, however, that while it was
obvious that conditions in Iraq had dramatically changed since he filed his asylum
application, he failed to show how they affected his individual situation.
77

E. Membership in a Particular Social Group
As has been noted, many asylum claims overlap more than one protected
ground. In some cases, however, the Courts chose to focus on one aspect of a claim.
This selectiveness occurred in Yadegar-Sargis v. INS, 297 F.3d 596 (7th Cir. 2002),
where the Court heard the claim of 71-year-old Armenian-Iranian Nazani Yadegar-
Sargis. Sargis’ problems began after the ascendance of the Ayatollah Khomeini. Her

166
husband was forced to retire and after she sent her son abroad, government soldiers
came to their home looking for him. Sargis believed the intrusions aggravated the heart
condition that ended her husband’s life. Sargis also claimed that as an Armenian she
was forced to the end of food lines and compelled to dress in Islamic clothes, prompting
two police citations. Sargis complied with the dress code out of fear for her safety, but
after her niece was spray-painted for appearing in public without her face covered, she
subsequently left Iran for the United States.
78

In July 1993 Sargis was placed in deportation proceedings and after a merits
hearing the Immigration Judge denied her application for asylum. In his decision the
Immigration Judge characterized Sargis’s claim as “gender-based” because she feared
the consequence of wearing the hidjab. The Immigration Judge further noted that Sargis
actually wore the dress and was never arrested, imprisoned, or harassed by non-
governmental authorities, leading to a conclusion that what she had undergone did not
rise to a level of asylum.
The BIA affirmed the Immigration Judge’s decision, but characterized Sargis’
claim as persecution by fundamentalist Muslims due to her Christian Armenian religious
beliefs and refusal to comply with the Islamic dress code. It further noted that while
members of the social group of “Christian woman who fear the threat of persecution for
failing to conform to the dress code imposed by Islamic laws” may qualify for asylum,
just because Sargis conformed to that code did not mean that she was a member of that
particular social group.
79

167
Sargis appealed her case to the U.S. Court of Appeals for the Seventh Circuit,
which found:
80

she was not physically assaulted; she did not suffer extreme economic
deprivation; nor was she the direct subject of a physical threat. We must
conclude that, under our precedent, the evidence of record does not compel a
finding of persecution.

The Court found that while Sargis identified a particular social group and established
that her well-founded fear of persecution was based on her membership in the group, it
could not say that the evidence conclusively established that she had been persecuted
“on the basis of her inclusion in this group.” The Court thus denied her claim.
81

Still the Court composed of three Republican appointees, Judges Bauer, Ripple
and Kanne, felt it important to write:
82

Although we are bound by the record to sustain the Board’s determination that
Ms. Sargis will not be subject to persecution on the basis of her religion or social
group, the practical reality is that, given her age and her attempt to remain in the
United States, she cannot expect a warm welcome or a very easy life. In fact she
probably can expect, given her age, a very hard life. Inasmuch as the difficulties
that she probably will endure are age-related, the INS must bear significant
responsibility for the situation. To the extent that there exist further steps that
may permit this applicant to avoid these difficulties, it is, we respectfully
suggest, the responsibility of immigration officials to give them very serious
consideration.

Thus, the Court in an unusual way created a different type of precedent in Yadegar-
Sarkis, one that while acknowledging the limits of asylum law, also noted a
humanitarian need for the Immigration Service to take action to prevent a human
tragedy.
83
This conclusion conforms to the Attitudinal Model, in that Republican
appointees denied asylum, but also foreshadows the larger immigration debate in the
United States regarding what to do with eleven million illegal immigrants, many with

168
compelling if not legal reasons to remain in the United States. That dilemma continues
to inform the immigration debate in the United States, and many continue to do so for
years to come.

F. The U.S. Court of Appeals for the Seventh Circuit After 9/11
While the Seventh Circuit often offers among the most rigorous analyses of
asylum cases, review of its decisions after September 11, 2001 reveals that the Court
remained as conservative after the event as it was before, denying eight of the 11 cases
in which it issued precedents. The Court’s pre-9/11 characterization as an institution
deferential to the other branches of government endured in the post-9/11 period. The
only real exception to this pattern occurred in Durgac v. Gonzales, where the panel of
one Democrat and two republicans chose to risk a rupture in Turkish-American relations
in order to grant asylum to a Kurdish student leader. This case is the only published
decision dealing with a Kurd in Turkey to have been issued in any circuit during the
twelve years covered in this study. The primary reason for this may be the influence of
Judge Diane Wood, who had been considered a finalist for the seat on the Supreme
Court, which has now been taken by Justice Kagan. In a conservative circuit, Wood was
present in two out of the three cases the Court actually did grant in the post 9/11-period.
The Seventh Circuit in the post-9/11 period also issued a number of decisions
that declined to grant asylum in situations where a grant may have contradicted
American foreign policy or domestic policy concerns. In Al Sagladi v. Gonzales, the

169
Court denied asylum while chastising a Yemeni applicant with a family background
similar to that of Osama Bin Laden for engaging in a form of visa fraud.
The post-9/11 Seventh Circuit continued to set forth unique doctrines within its
decisions, which while not per se holdings, usually justified the philosophy of denying
cases while offering some type of conciliatory idea that could be applied by attorneys to
future cases. For example, in Ahmed v. Ashcroft, in dealing with an Algerian ex-
policeman’s fear of Islamic militants, the Court stated that the BIA had gone too far in
asserting a per se rule against finding past persecution for the dangers encountered in
police service. The decision leaves open the possibility that another applicant could
obtain asylum under a different set of facts. In Dandan v. Ashcroft, the court expressed
its distaste at having to quantify suffering in the context of an asylum determination,
though this was the task with which it had to deal. The decision expresses the dilemma
of judges who are required to decide the cases of applicants who have faced or fear harm
that does not in fact qualify them for asylum. In Yadegar-Sargis, the Court actually
offered a solution to this problem, writing about the applicant who would encounter age-
related difficulties in Iraq that:
to the extent that there are further steps that may permit this applicant to avoid
these difficulties is, we respectfully suggest, the responsible immigration
officials to give them very serious consideration.

The remedy suggested by the Court— known as “Deferred Action”— allows the
Department of Homeland Security to make the actual deportation of an alien who has
been ordered removed a non-priority. While the procedure has in the past been used
sparingly, Attorney General Erick Holder has increasingly employed it as a strategy to

170
deal with the current immigration crisis, and in a recent memorandum from U.S.
Citizenship and Immigration Services Director, Alejandro Mayorkas notes that, “in the
absence of Comprehensive Immigration Reform,” USCIS can extend benefits and/or
protections to many people by issuing new guidelines and regulations, and exercising
discretion in a number of areas including deferred action.
84
The memorandum
specifically notes that, “where no relief appears available based on an applicant’s
employer and/or family circumstance, but removal is not in the public interest, USCIS
could grant deferred action.”
85
Though the use remedies such as deferred action has
been criticized by opponents of Immigration Reform, they remain a viable tool for the
use is resolving many compelling cases which judges— at least in the Seventh Circuit—
do not believe that they are either capable of or empowered to solve. Indeed, unless
Comprehensive Immigration Reform is enacted by Congress, it is likely that alternative
remedies will be continued to be employed in complicated cases.
Thus the Seventh Circuit both before and after 9/11 can be characterized as a
circuit inclined to deny asylum cases for Middle Eastern Applicants, with some rare
exceptions, usually involving Republican appointees who sought to grant asylum to
Christians. The lack of change in the Court’s behavior despite the events of 9/11 further
serve to illustrate that various factors have affected the Court’s decisions, including the
Attitudinal, Hierarchical, and Small Group Models along with Middle Eastern
characteristics and foreign policy considerations. These factors indicate that a circuit
court’s stance on asylum is not based on any one reason, but rather includes a number of

171
components, which comprise the asylum regime. This concept is further discussed in
Chapter Ten, “The Circuit Courts as Asylum Regimes.”

172
CHAPTER 6 ENDNOTES

1
Durgac v. Gonzales, 430 F.3d 849 (7
th
Cir. 2005)

2
Id.

3
Id. at 850-851.

4
Id. at 851.

5
Id. at 853.

6
Id. at 854.

7
See, for example, Ali Carkoglu, “The New Generation of Pro-Islamists in Turkey,” 160-181, and Gareth
Jenkins, “Symbols and Shadow Play, Military-JDP Relations, 2002-2004,” 185-206, in M. Hakan Yavuz,
ed., The Emergence of a New Turkey (Salt Lake City: University of Utah Press, 2006).

8
Philip Gordon and Omer Taspinar, Winning Turkey: How America, Europe, and Turkey Can Revive a
Fading Partnership (Washington, D.C. Brookings Institution Press, 2008).

9
Ahmed v. Ashcroft, 348 F.3d 611 (7
th
Cir. 2003)

10
Id. at 613-614.

11
Id. at 615.

12
Id. at 616.

13
Id. at 618-619.

14
Hor v. Gonzales, 421 F.3d 497, 500 (7th Cir. 2005)

15
Id. at 498.

16
Id. at 499.

17
Id. at 499-500.

18
Id. at 500.

19
“The 3 Judges who sided with Ryan,” Chicago Sun Times, October 26, 2007,
http://www.suntimes.com/news/georgeryantrial/621863,CST-NWS-judges26.article.

20
Alsagladi v. Gonzales, 450 F.3d 700 (7
th
Cir. 2006)

21
Id. at 701.

22
Id.

23
Id.

173

24
Margos v Gonzales, 443 F.3d 593 (7
th
Cir. 2006)

25
Id. at 595.

26
Id. at 595.

27
Id. at 596.

28
Id. at 597.

29
Id. at 599, citing Ciorba v. Ashcroft, 323 F.3d 539, 545 (7th Cir. 2003) and Tamas-Mercea v. Reno, 222
F.3d 47, 424 (7th Cir. 2000).

30
Id. at 598.

31
Id. at 599-600.

32
Dandan v. Ashcroft, 339 F.3d 567, 570-571 (7
th
Cir. 2003)

33
Id. at 571.

34
Id. at 571.

35
Id. at 571. Dandan filed a motion to reconsider, which included a claim that INS had violated his right
to due process for taking more than six years to adjudicate his asylum claim, and a motion to reopen based
on changed country conditions. Both motions were denied by the BIA and Dandan appealed them to the
BIA which consolidated them along with dismissal of his asylum appeal.

36
Id. at 572.

37
Id. at 573-574.

38
Id. at 575. The Court also dismissed Dandan’s appeals from the denial of his motion to reconsider,
finding that there was no violation of his right to due process and a denial of the motion to reopen, finding
that the new evidence did not comprise a compelling case that the situation in Lebanon was different than
at the time of his hearing.

39
Interview with Judge Three, August 6, 2010.

40
See A.J. Abraham, Lebanon in Modern Times (New York: University Press of America, 2008).

41
Boctor v. Gonzales, 474 F.3d 488 (7
th
Cir. 2007)

42
Id. See also Posner’s comments that Immigration Judges rely too much on the State Department
Country report in his 2008 address to the Chicago Bar Association.
http://www.law.com/jsp/law/LawArticleFriendly.jsp?id=900005561504.

43
Id. at 90.

44
Id.

45
Id. at 490.

174

46
Id. at 491. The Court held that Boctor waived his CAT claim, which was not raised on appeal to the
BIA.

47
Id.

48
Id. at 491-492.

49
Samuel P. Huntington, The Clash of Civilizations (New York: Simon and Schuster, 1998).

50
Interview with Judge Three.

51
Youkhana v. Gonzales, 460 F.3d 927 (7
th
Cir. 2006)

52
Id. at 929-930.

53
Id. at 930.

54
Id. at 930.

55
Id. at 931.

56
Id. at 931-932.

57
Youkhana also filed a motion to reopen including additional documentation of the situation of Assyrian
Christians in Iraq, which was denied. Though he raised the issue in the petition for review, the Court
decline to review it because he did not file a separate petition for review of the denial of the motion to
reopen.

58
Id. at 931-932.

59
932.

60
Chakir v. Gonzales, 466 F.3d 563 (7
th
Cir. 2004)

61
Id. at 565.

62
Id. at 565.

63
Id. at 566-567. The Immigration Judge found Chakir’s conversion to Christianity to be exception to the
one-year bar on asylum.

64
Id. at 566.

65
Id. at 566-568.

66
Id. at 568.

67
Id. at 569-570.

68
International Religious Freedom Act of 1998, H.R. 2431 P.L. 105-292

69
Gordon, “Christians in Court,” 77.

175

70
Id.

71
Jamal-Daoud v. Gonzales, 403 F.3d 918 (7
th
Cir. 2005)

72
Id. at 920.

73
Id. at 921.

74
Id. at 921-922.

75
Ramsameachire v. Aschroft, 357 F.3d 169 (2
nd
Cir. 2004)

76
Id. at 923.

77
Id. at 924.

78
Yadegar-Sargis v. INS, 297 F.3d 596, 599-601 (7th Cir. 2002)

79
Id. at 601-602.

80
Id., at 602 citing Begzatowski v. INS, 278 F.3d 665, 669 (7
th
Cir. 2002)

81
Id. at 604.

82
Id. at 606.

83
The most likely form of action would have been for the former INS to place Sargis in deferred action
status, thereby indefinitely postponing her deportation.

84
Undated Draft Memorandum form Alejandro N. Mayorkas, Director, U.S. Citizenship and Immigration
Services, regarding “Administrative Alternatives to Comprehensive Immigration Reform,” 1; Susan
Carroll, “Feds Moving to Dismiss some Deportation Cases,” Houston Chronicle, August 24, 2010,
http://www.chron.com/disp/story.mpl/metorpolitan/7169978.html. For criticism of the policy, see
“Grassroots Groups Urge Obama Against End-Run Amnesty,” PR Newswire, August 23, 2010,
http://www.prnewswire.comnews-releases/grassroots-groups-urge-obama-against-end run

85
Id. at 2.

176
CHAPTER 7.
THE NINTH CIRCUIT: BEFORE SEPTEMBER 11, 2001

A. Introduction
While the U.S. Court of Appeals for the Seventh Circuit can be characterized as a
court inclined to deny the asylum cases of Middle Eastern applicants both before and
after 9/11, its sister circuit covering the western part of the United States must be
characterized as a circuit inclined to grant cases. The Court’s reputation for politically
liberal decisions that press the boundaries of asylum is not unknown. Arguments over
splitting the Ninth Circuit even took on a partisan tone during the 1990s, as the Ninth
became the Court conservatives dislike the most.
1

The liberal reputation of the court not withstanding, an examination of all the
published asylum cases dealing with Middle Eastern applicants in the years before the
World Trade Center bombings reveals that some of the Court’s most interesting opinions
were authored by the prominent conservative Judge J. Clifford Wallace, a Nixon
appointee.
2
Wallace, whom David Law’s research has shown was among the judges least
likely to vote to grant asylum, articulately enunciated why asylum should not be granted
to various applicants.
3
Wallace’s work, like that of Judge Pregerson, left an imprint on
asylum jurisprudence far beyond the mere holding of a given case. Keeping in mind the
political tensions that have arisen in the Ninth Circuit, this chapter reviews all the cases
according to the appropriate protected ground, and offers a theory on the type of regime
that comprised the Ninth Circuit’s rulings on asylum in the six-year period prior to 9/11.

177
B. Nationality
The issue of asylum based on nationality and in the context of the Arab-Israeli
conflict arose in Khourassany v. INS, (9
th
Cir. 2000).
4
There, the Ninth Circuit found an
Israeli Muslim’s testimony regarding what he had suffered in Israel to be credible, but
nevertheless denied asylum. Hamoudi Khourassany testified that although he had been a
successful businessman, he left Israel due to harassment at the hands of the Israeli
internal security organization, Shabak. Khourassany noted that on numerous occasions
between 1980 and 1987, he had been questioned regarding his activities, and that the
Shabak had attempted to link capital he had used to purchase a business to both the
Palestine Liberation Organization and the Altahreer Organization. The Shabak also shut
down a restaurant he had owned on land leased from the government. Though
Khourassany sought a court order reopening the restaurant, a judge ordered that it remain
closed based on a confidential letter presented by the police. Khourassany was later told
by the Shabak that they would reopen the restaurant if he reported on his family and
friends.
5

While the Immigration Judge found Khourassany generally credible, he found
that what Khourassany had undergone did not constitute persecution. The BIA upheld
that decision, as did the U.S. Court of Appeals, which stated that:
his contention that conditions in Israel are otherwise “extremely volatile” and that
the Israeli government and other radical groups have used “brutal and torturous”
tactics against Palestinians is simply too general to show that he is at a “particular
risk of persecution.”
6

The Court did remand the case to allow Khourassany to apply for a then new form of
relief, withholding of removal under the Convention Against Torture, but this decision

178
revolved around a technical legal issue rather than the merits of any actual claim. Judge
Wallace, in denying asylum, was joined by two Democrats, Judges Pregerson and Sidney
Thomas, in a decision that at first glance seems to demonstrate the inherent difficulties of
relying on the Attitudinal Model to predict the outcome of a case. However, it must also
be noted that the particular concatenation of judges in Khourassany presents other issues
that are not readily available from the simple facts of the case. I have noted in my
discussions of the Seventh Circuit both before and after 9/11 that conservative
Republican appointees defy the Attitudinal Model in that they often vote to grant asylum
when hearing the case of Middle Eastern Christians. In a similar way, Judge Pregerson,
who moved from the Jewish neighborhood in the Boyle Heights section of Los Angeles
to the Marine Corps and ultimately to the U.S. Court of Appeals, is possibly less likely to
chastise Israel than other Democratic appointees with otherwise similar political views.
Thus, the fact that Pregerson voted with Wallace in this situation is not necessarily
surprising, especially since the case was remanded on other grounds (meaning that
Khourasanny was not being forced to leave the country anyway).

C. Political Opinion
In Chebchoub v. INS, (9
th
Cir. 2001), the Court dealt with the case of a Moroccan
man who claimed persecution at the hands of his government. Chebchoub’s difficulties
began in 1982 when he participated in a protest that the police erroneously believed was
organized by the Muslim Brotherhood. In testimony Chebchoub claimed he was arrested

179
and beaten for participating in the demonstration, though in his asylum application he
claimed the he was “thrashed” but avoided arrest.
7

Chebchoub also claimed that his brother Mustafa was a senior officer in a
socialist opposition group advocating democratic change in Morocco, known as
“Movement Forward.” Because of their interest in Mustafa, the secret police regularly
visited and harassed Chebchoub and his family, and on several occasions ransacked the
house and threatened to beat the family. On some 15 to 20 occasions, they were arrested
and taken hostage, during which Chebchoub was interrogated and physically and
psychologically tortured. During the last arrest, the police interrogated and tortured
Chebchoub, his father, and another brother, threatening to hold them unless Mustafa
surrendered. However, after two weeks he was arrested, and they were released.
Mustafa was tortured and imprisoned and eventually expelled from Morocco, receiving
asylum in France
8

Chebchoub testified that he was continuously arrested and beaten even after
Mustafa had left Morocco, and that while he later was nominated for election as an
officer in both the Muslim Brotherhood and “Movement Forward,” he ultimately
withdrew from both parties.
9
Chebchoub subsequently started a construction company,
but the business struggled because he was unable to obtain government contracts. When
Chebchoub investigated this problem, he was advised that it was due to his membership
in “Movement Foreword,” and was beaten. He then decided to leave Morocco, though
ever after he left, his wife reported that the police visited their home every couple of
months, and on occasion interrogated her about Chebchoub at the police station.
10

180
Chebchoub applied for relief from deportation claiming persecution on the basis
of political opinion, imputed political opinion, and membership in a particular social
group. The Immigration judge denied asylum, finding that Chebchoub’s testimony was
so inconsistent that it must have been fraudulent. The BIA conducted a de novo review,
meaning it looked at the whole case, and found that Chebchoub failed to meet his burden
of proof by not supplying 1) an affidavit from his brother, 2) evidence of his construction
business, and 3) affidavits from individuals in the United States who could corroborate
that he was associated with the “Movement Forward.” The Court of Appeals, composed
of Judge Wallace, along with Democratic appointee Judge Schroeder, and Judge Tallman,
a Republican appointed by a Democrat, found that the first and third items satisfied
criteria it had previously set forth in case law, and denied the petition for review, stating
that substantial evidence supported the BIA’s determination.
11
The case seems to be best
described by the Hierarchical Model, as a mixed panel chose precedent and substantial
evidence as its rationale for denying the case. On the other hand, one wonders if the
same result would have occurred if Judge Wallace had not been on the panel, given his
strong disapproval of asylum grants.
The Court dealt with another political opinion case in Zahedi v. INS, (9
th
Cir.
2000).
12
Here, the Court reviewed the claim of an Iranian who was involved in the
translation and distribution of a Farsi version of Salman Rushdie’s novel The Satanic
Verses. Zahedi, an independent business owner, learned about The Satanic Verses and
became interested in the book because of the uproar about it Iran and the fatwa issued by
the late Ayatollah Khomeini, which condemned Rushdie to death. In the winter of 1996,

181
Zahedi purchased the book in Turkey and brought it back to Iran, where he presented a
friend named Moshen with a joint venture proposal whereby Moshen would translate the
book and Zahedi would distribute it. As soon as Moshen completed a Farsi version of a
chapter, Zahedi distributed it to people he knew were critical of the government, who
passed them on to others. The two swore not to reveal the other’s name, if one was
caught. Though Zahedi estimated that he had given away approximately 50 copies of the
book’s first four chapters, the project was cut short when the security forces arrested
Moshen. Zahedi, perceiving the grave danger, obtained a visa to Canada and left Teheran
on April 14, 1996. Moshen died in detention, though the details did not become clear for
some time.
13

On the very day Zahedi fled Teheran, the Iranian authorities attempted to serve a
court summons on him. When they found he was not home, they returned repeatedly to
serve the summons at his mother’s home. When Zahedi did not heed the summons, a
notice was published in the official government paper requiring Zahedi to appear in court
or face a verdict by default.
14

In her oral decision on the case, the Immigration Judge found Zahedi’s testimony
incredible, based on evasive, general, and inconsistent testimony. The IJ noted that while
he might face criminal charges when he returned to Iran, this circumstance was a matter
for the Iranian government to decide, but not a basis for asylum. On appeal the BIA
adopted and affirmed the Immigration Judge’s decision.
15

Judge Betty Fletcher, writing the opinion for the U.S. Court of Appeals, saw
Zahedi’s case in a very different manner, and noted that Zahedi had presented an:

182
unusually broad range of documentary evidence and that his background material
attested to the fact that individuals involved with the publication, translation or
even possession of The Satanic Verses in Iran, were subject to arrest, torture
and execution by the state.

Judge Fletcher, who was joined by Judges Hall, a Republican appointee, and Tashima, a
Democratic appointee, noted, “Testimonial vagueness and inconsistency are not reasons
that bear a legitimate nexus to the rejection of documents concerning a foreign
government’s pursuit of an alien for engaging in political activity.”
16
She wrote, “When
placed alongside the background materials demonstrating that individuals accused of this
same ‘“crime”’—translating or distributing The Satanic Verses have been tortured and
executed, the documents have a ring of truth.” The case was remanded not only for the
exercise of the Attorney’s General discretion with regard to the asylum claim but also for
a grant of withholding of deportation.
17
The decision supports the Attitudinal Model in
that a panel including two Democratic appointees voted to grant asylum. The fact that
Judge Hall did not dissent may also support the Small Group theory of decision making,
in that the minority member of the panel did not dissent from the majority position.
Another case involving political opinion was issued by the Ninth Circuit, less than
half a year before the catastrophic events of 9/11, in Al-Harbi v. INS, (9
th
Cir. 2001).
18

The case involved Naseem Salman al-Harbi, who was brought by American forces from
northern Iraq to the U.S. as part of an American evacuation of Iraqi insurgents hostile to
Saddam Hussein. Al-Harbi, who was drafted by the Iraqi army in 1988, deserted in 1990
prior to the invasion of Kuwait. In 1992, following an amnesty for deserters, Al-Harbi
rejoined the military and, during an interrogation, signed a document acknowledging that
he would be executed if he opposed Saddam Hussein or again deserted.
19
On October

183
15, 1995, Saddam Hussein ran as the only candidate in the presidential election and Al-
Harbi and two friends clandestinely distributed flyers that protested the event. These
activities were discovered by the Iraqi secret service and Al-Harbi’s friends were
arrested. Al-Harbi fled to Irbil in northern Iraq, where he joined the Iraqi National
Congress, an organization seeking to replace Saddam Hussein’s regime with a democratic
government. Al-Harbi served in Irbil as an INC guard from October 1995 until August
1996, when he and another INC member fled to northern Iraq and were evacuated by the
U.S. military to Turkey and then airlifted to Guam.
20

At Guam an asylum application was prepared for Al-Harbi, which stated that he
had worked with the Dawa Party and participated in the assassination of two Iraqi
security officers. Al-Harbi was subsequently interviewed by an INS asylum officer and
an FBI agent and then transferred to San Francisco, where the INS referred his case to an
Immigration Judge. The referral notice stated that evidence indicated that Al-Harbi had
participated in the genocide of others.
21

At his hearing Al-Harbi testified that he had neither been a Dawa Party member
nor a participant in the assassinations, and explained the discrepancies based on
translation difficulties. However, both the asylum officer and FBI agent who had
interviewed Al-Harbi testified that he did not appear to be having translation problems
and that he had told them he had been in the Dawa Party and had participated in the
killings. Al-Harbi subsequently submitted a new declaration that recanted portions of his
testimony, and explained that he had been advised by an Iraqi on Guam that he needed to
say he had killed someone from Saddam Hussein’s government. Al-Harbi testified

184
consistently with the new declaration. Despite extensive evidence in the record,
including an explicit threat in an Iraqi publication noting that the evacuees would be
treated as traitors and possibly executed upon their return to Iraq, the IJ denied the case
based on an adverse credibility, noting that Al-Harbi had failed to prove by a
preponderance of the evidence that he did not participate in the persecution of others. Al-
Harbi appealed and filed a motion to remand and reopen to consider additional evidence
corroborating his membership in the INC. The BIA affirmed the IJ in a brief order
without addressing Al-Harbi’s alleged persecution of others.
22

The U.S. Court of Appeals upheld the BIA’s denial based on past persecution on
the grounds of both adverse credibility and that any persecution was on account of Al-
Harbi’s initial desertion and not because of his political activity or beliefs. However, the
Court found the fact that Al-Harbi could not show past persecution did not necessarily
defeat his claims for asylum or withholding of removal. The panel— composed of
Democratic appointees, Judges Berzon and Tashima, and Republican appointee,
Kleinfeld— stated that it could not rely on Al-Harbi’s testimony because the IJ and BIA,
with substantial basis in the record, found his testimony unworthy of credence. However,
documentary evidence in the record also indicated that all individuals who were
evacuated to Guam at the same time as Al-Harbi had a subjective fear of persecution.
The Court found that, based on the evidence in the record, no reasonable person could
conclude other than that Al-Harbi would likely be persecuted upon his return to Iraq on
account of an imputed political opinion due to his involvement in the American airlift.
23

The Court thus reversed the BIA with instructions that Al-Harbi be granted withholding

185
of removal and that the Attorney General exercise his discretion whether Al-Harbi should
be granted asylum.
24

The case could arguably fit both the Attitudinal and Small Group Models. It fits
the Attitudinal Model because two Democrat appointees voted to grant asylum, and the
Small Group Model, in that Judge Kleinfeld, though a conservative, went along with the
majority. There is another aspect to the decision that should be examined. The case is
one of the exceedingly rare instances in asylum jurisprudence when an asylum applicant
has been found not credible but still granted asylum. Though it is true that the evidence
in the case indicated that anyone evacuated to Guam would be persecuted upon his/her
return to Iraq, it does seem odd that despite allegations that Al Harbi was himself a
persecutor, the court still decided to grant the case. The explanation to this contradiction
clearly lies in foreign policy considerations: by enshrining in doctrine the idea that
individuals who were involved with the American airlift from Iraq would have a
subjective fear of persecution, the Court created an impetus for other would-be dissidents
to aid the United States, knowing that they would be rewarded through asylum for their
efforts.

D. Religion
The U.S. Court of Appeals for the Ninth Circuit only issued one decision
involving religion in the pre-9/11 era, but the case, Bandari v. INS, (9
th
Cir. 2000),
presented some unique issues.
25
The case centered around Andaranik Bandari, an
Armenian Christian who embraced his Muslim girlfriend, Afsaneh, in the street. Police

186
officers who had observed this act handcuffed Bandari for breaking the law against
public displays of affection, but when they discovered that Bandari was Christian and
Afsaneh, Muslim, their behavior suddenly changed. He was called a “dirty Armenian”
and hit so hard he fell to the ground where he was beaten and kicked all over. He was
taken to the police station and whipped with a rubber hose and thrown into isolation. For
14 days he was pressured to confess to raping Afsaneh. Bandari did not confess and the
beatings were so severe that at several points he lost consciousness. On the fifth day
Bandari was taken to court and informed by a judge that he had violated the Ayatollah’s
edict against interfaith relationships. Bandari was ordered to convert to Islam or be
punished, and when he refused to convert, he was told this punishment would be stoning
by death. However, because of his youth, his sentence was reduced to 75 lashes and one
year in prison. He was released after his father paid a bribe to a government official and
he subsequently spent three weeks in bed from his injuries. A few weeks later while
walking outside he was recognized by two of the police officers who had beat him, and
he was called a rapist of a Muslim girl and a bastard Armenian. Bandari fled Iran the
next day and went by foot to Turkey, where he learned that he had been charged with
raping Afsaneh.
26

Bandari subsequently went to Germany, where he attended college, and arrived in
the United States on August 29, 1994, ultimately applying for asylum. At a merits
hearing, the Immigration judge failed to find him credible for a number of reasons: 1) his
application stated he was sentenced to 75 lashes, whereas he testified that he had been
beaten with a rubber hose for 10 to 20 minutes before he was detained; 2) he stated that

187
he was whipped on the street 75 times but asserted on cross-examination that he was
beaten in the police station; 3) he failed to include in his application the fact that he was
beaten with a rubber hose 75 times, 4) his application stated that his family spent a sum
of money for an influential Muslim, but he testified that his grandfather paid a sum of
money to an official to secure his release; 5) the fact that the Respondent was beaten for
20 minutes with a rubber hose and did not bleed; and 6) the Court did not believe that the
German government would allow Bandari to have attended college on a tourist visa.
27

The Court held in the alternative that Bandari failed to establish persecution on account
of a protected ground. The IJ reasoned that any man who was caught openly kissing a
woman in Tehran would have been subjected to the same type of treatment as Bandari
and thus concluded that his was a case of “prosecution and not persecution.”
28

The BIA affirmed the IJ’s denial, deferring to the IJ’s adverse credibility finding.
The Board also held that the evidence, even if credited, indicated that Bandari had been
prosecuted for violating a law forbidding men and women from being together in
public.
29

The Ninth Circuit reversed every one of the credibility findings in a detailed
decision. It noted that, 1) the IJ failed to state the significance of the inconsistency of the
dates; 2) minor inconsistencies in identifying the location of a person’s persecution, in
light of otherwise consistent testimony, could not form the basis of a adverse credibility
finding;
30
3) an IJ’s subjective view of what a persecuted person would include in his
asylum application had no place in an adverse credibility determination; 4) there was no
inconsistency between Bandari’s statement that his grandfather paid a bribe and the

188
asylum application; 5) the IJ’s personal views about Bandari’s bleeding could not be
substituted for objective and substantial evidence; and 6) the IJ’s belief regarding the
German government’s policies amounted to nothing more than her own conjecture and
speculation.
31

Once it reversed the adverse credibility finding, the Court reversed the BIA’s
alternative finding, noting that the initial police stop “may have been mere law
enforcement, but the subsequent beating they inflicted were clearly based on Bandari’s
religion.” The Court found Bandari had suffered past persecution, that he had a well-
founded fear of persecution, and that he was entitled to withholding of deportation.
32

The panel, composed of Democratic appointees, Judges Ferguson and Hug, and
Judge Restani, a Republican appointee on the Court of International Trade, also conforms
to the Small Group Model in that Judge Restani, a judge from a different court and
different party than the majority, did not challenge their views. The case is also of great
importance because it extends the idea of religious persecution from merely persecution
for practicing one’s religion, to harm that has been suffered for engaging in an interfaith
relationship. Karen Musalo has noted that some adjudicators have initially denied
asylum in such situations because they consider interfaith relationships to be private
matters that do not qualify an applicant for relief on account of religion. She has
similarly noted that when a prohibition in the law exists that prohibits some part of the
relationship, adjudicators have viewed the claims as prosecution rather than persecution,
as did the Immigration Judge here. Still, it must be noted that some adjudicators on the
affirmative level were granting similar claims even before the Bandari decision was

189
issued. Notably, in the late 1990s, I successfully secured asylum for an Iranian woman
who had been similarly arrested and lashed for a public display of affection.
Nevertheless, the willingness of the Ninth Circuit to grant asylum to the applicant in this
situation represented a major of extension of asylum law in the United States.
33

E. Membership in a Particular Social Group
If the Ninth Circuit extended the bounds of asylum law in Bandari, it declined to
do so for another Iranian in Fisher v. INS, 79 F.3d 955, (9
th
Cir. 1996). There, Judge
Wallace, writing for the full en banc Court, reversed a prior published decision by a
three-judge panel.
34
The case involved Saideh Fisher and her son Kian Housseini
Lavasani, Iranian citizens who entered the U.S. in 1984, and who applied for asylum after
being placed in deportation proceedings.
35

At her merits hearing Fisher testified that three events prompted her to leave Iran.
The first was her detention and questioning by government officials because of her
attendance at a party at the home of a male friend, whom she had seen in a bathing suit.
Fisher was held at the “Comite,” which the Court noted was probably a police station, for
several hours. Her name and address were recorded but she was released. The second
incident occurred when four officials stopped her on the street and at gunpoint ordered
her into their car. She was told that she was dressed improperly because her hair was
hanging out of her chador, and was warned not to appear on the street like that again.
The third incident occurred a short time later when officials came to her father’s home to
search for political dissidents. Fisher stated that the search was not a “normal”

190
occurrence, and she believed the officials were looking for an associate of her imprisoned
brother-in-law.
In court Fisher testified that the three events left her so traumatized that she
became ill, missed several months of work, and ultimately left the country. She also
noted that she did not believe in the way the government treated people, the way of life it
imposed, or the covering of the face. She stated that she assumed she would be in a
graver situation if she returned to Iran, but did not state whether she would comply with
government’s requirements upon her return.
36

The Immigration Judge found Fisher credible but denied the asylum and
withholding claims on the grounds that she did not have a well-founded fear or a clear
probability of persecution. Fisher appealed to the BIA, which independently reviewed
the record and affirmed the IJ’s finding. The Board held that enforcement of Iranian laws
regarding the mixing of men and woman and clothing restrictions did not rise to a level of
persecution, and that Fisher had failed to present sufficient evidence demonstrating how
the government’s actions specifically related to her. A panel of the U.S. Court of
Appeals, composed of Judges Schroeder, Pregerson and Nelson, all Democratic
appointees, issued a decision vacating the Board’s decision, but the full court decided to
rehear the case.
37

Writing for the new majority, Judge Wallace noted that Fisher’s assertion that the
government will prosecute her for violating conduct and dress rules did not in and of
itself amount to persecution. He found that this fear established only that she faced a
possibility of persecution for an act deemed criminal in Iran and that applies to all

191
women, citing the Court’s precedent in Abedini v. INS (9
th
Cir. 1992).
38
Judge Wallace
noted that Fisher did not prove that the Iranian regulations had been selectively enforced
against her, nor that she received very disproportionate punishment; nor had she
established that the regulations, as applied to her, were “especially unconscionable” or
were merely a pretext for her persecution, citing the Court’s prior precedent, Alonzo v.
INS, (9
th
Cir. 1990).
39
The full Court thus found that the denial of asylum was supported
by substantial evidence.
40

Notably, the case was also marked by a concurrence by Judge Canby, joined by
Judge Thomson, and a dissent by Judge Noonan, joined by Judge Fletcher. Canby
expressed concern that the majority decision could without briefing or argument be
misinterpreted as foreclosing the possibility that persecution of women on account of
their gender presents a ground of asylum.
41

Canby noted that:
[the] implication that laws targeting women are no different from laws generally
applicable to everyone must be dictum, but we should not express a view on the
subject until it is briefed and argued to us in a case that turns on the point.
42

Judge Noonan’s long dissent noted that the majority:
has the view that if in the United States a law imposed a religiously-inspired dress
code on all women under penalty of imprisonment the law would not be evidence
of persecution of a particular social group. If only there is a law, if only the law is
general enough, half of the population may be subjected to discrimination and
subject to incarceration for disobedience to the discriminatory regulation. We are
not very far from The Handmaid's Tale when seven judges of this court are
capable of expressing such a view.
43

The case in its panel and en banc decisions reveals some interesting things about the
Court that would not be readily apparent from quantitative data. While the initial

192
decision was decided by a panel of all Democratic appointees,
44
the dissent to the en banc
decision, which was authored by arch-conservative Judge Noonan, was in fierce
disagreement with Nixon appointee Judge Wallace, also known as a strong conservative.
The disagreement in Fisher was clearly ideological, yet the split between two such judges
underscores the inability of the Attitudinal Model to predict the voting of judges in all
circumstances, and illustrates why at least in the context of political asylum cases,
attitudinal perspectives can at times be misleading. Moreover, another dimension to
Judge Wallace’s decision may have come into play: the fact that Fisher’s ex-husband had
accused her of paying him to marry her. Though a negative inference toward the asylum
case is not supposed to be drawn from what appear to have been unsubstantiated
allegations, the judges certainly would not have given Fisher the benefit of the doubt as
law enforcement minded conservatives seeking to remove all aliens who have been
involved in fraud.

F. The Ninth Circuit on the Eve of September 11, 2001
When looking at the body of cases that emerged in the years prior to the World
Trade Center bombings, one can clearly see that although the U.S. Court of Appeals for
the Ninth Circuit was neither a monolithic institution nor one that reversed every case, it
did take the cases of Middle Eastern asylum applicants seriously, and its panels did not
hesitate to reverse the lower courts in published opinions, when they believed that such
results were necessary.

193
Though the Court did not create as many doctrines as its sister, the Seventh
Circuit, during this time period it nevertheless did develop several of importance. For
example, in Al-Harbi v. INS, the Court set forth a doctrine that all Iraqis who had been
evacuated from Northern Iraq to Guam were presumed to face persecution by Saddam
Hussein’s government. This doctrine, as I have mentioned, served U.S. foreign policy
interests by letting other Iraqis who might potentially help U.S forces in the future know
that they would have the possibility of receiving asylum for their actions. Another
ground-breaking doctrine occurred in Bandari v. INS, where the Court extended the
possibility of asylum for religious persecution to an interfaith couple. By extending the
category of religious persecution, the Court allowed the possibility of asylum for a larger
class of persons seeking relief.
Cases like Al Harbi and Bandari offer insight into the Ninth Circuit’s overall
tendency to grant cases at a higher rate than other circuits. However, given this high
grant rate, the real issue that needs to be explored regarding the Court is whether any
common patterns can be discerned from the denials in the pre-9/11 era. I have discussed
the various explanatory factors behind the grants and denials in the individual cases.
However, one pattern that emerges is that Judge J. Clifford Wallace played a key role in
all of the Ninth Circuit published denials prior to 9/11. In Fisher he wrote the majority
opinion for the en banc court, reversing an earlier decision to grant by a three-judge
panel. In Khourasanny he authored the opinion denying asylum and Judges Pregerson
and Thomas actually sided with him. In Chebchoub he also authored the opinion that
denied asylum to a Morrocan applicant on what might seem to a different panel

194
questionable grounds. David Law’s research characterizes Judge Wallace as one of the
judges least likely to grant asylum of all Ninth Circuit judges during the period that he
studied asylum cases in the court. However, Law’s statistic does not tell us the impact of
Judge Wallace’s reasoning on the decisions of the panels.
45

Never-the-less, Judge Wallace’s involvement was not only a key part of all the
denials that occurred prior to 9/11, but also one of the reasons that the Ninth Circuit’s
approval rate prior to 9/11 was only 50%. This result may be further supported by the
fact that Judge Wallace did not serve on a panel in any of the published cases in the post-
9/11 period. Thus, if we were to attempt to define the Ninth Circuit approach or regime
regarding Middle Eastern asylum cases on the eve of 9/11, we would define the Court as
one inclined to grant asylum with the exception of those cases in which the articulate
conservative voice of Judge Wallace made it more difficult to do so.

195
CHAPTER 7 ENDNOTES

1
David W. Neubauer and Stephen S. Meinhold, Judicial Process, Law, Courts and Politics in the United
States (Belmont, CA: Thompson Wadsworth, 2007), 71.

2
Wallace is also an internationally recognized expert on judicial administration. See Amelia Hansen, “The
Missionary, Federal Judge J. Clifford Wallace Travels the World Promoting the Rule of Law,” California
Lawyer, August 2009, http://www.callawyer.com/story.cfm?pubdt=NaN&eid+903327&evid=1

3
David Law, “Strategic Judicial Lawmaking: Ideology, Publication, and Asylum Law in the Ninth
Circuit,” University of Cincinnati Law Review 73 (2005): 817-866.

4
Khourassany v. INS, 208 F.3d 1096, (9
th
Cir. 2000)

5
Id. at 1098.

6
Id. at 1101. The case is also known for the Court’s precedent determination that a denial of a motion to
reopen for relief under the Convention Against Torture is to be considered its own final order for removal,
and the court stayed the issuance of the mandate in the case to allow the filing of motion to reopen with the
BIA.

7
Chebchoub v. INS, 257 F.3d 1038, 1040 (9
th
Cir. 2001)

8
Id. at 1041.

9
Id. at 1041.

10
Id. at 1041; Zahedi v. INS, 222 F.3d 1157 (9
th
Cir. 2000)

11
Id. at 1043-45.

12
Zahedi v. INS, 222 F.3d 1157 (9
th
Cir. 2000)

13
Id. at 160-1161.

14
Id. at 1161-1162.

15
Id. at 1162.

16
Id. at 1165.

17
Id. at 1163, 1165-1166, 1168.

18
Al-Harbi v. INS, 242 F.3d 881 (9
th
Cir. 2001)

19
Id. at 885.

20
Id. at 885.

21
Id. at 885

22
Id. at 887

196

23
Id. at 891-892

24
Id. at 894

25
Bandari v. INS, 227 F.3d 1160 (9
th
Cir. 2000)

26
Id. at 1163-1164.

27
Id. at1165.

28
Id. at 1164-1165.

29
Id. at 1165.

30
Id. at 1166, citing Maini v. INS, 212 F.3d 117 (9
th
Cir. 2000)

31
Id. at 1167, citing Shah v. INS, 220 F.3d 1062, 1066-67 (9
th
Cir. 2000)

32
Id. at 1168.

33
Karen Musalo, “Claims for Protection Based on Religion,” 215.

34
Fisher v. INS, 79 F.3d 955 (9
th
Cir. 1996)

35
Id. at 958-959. Fisher had been admitted as the fiancée of a U.S. citizen but did not marry him. Instead
she married one Charles Fisher a U.S. citizen from whom she was divorced in 1987. Before that divorce,
Fisher filed an immigrant petition for his wife, which he subsequently withdrew. In an affidavit to the INS,
Fisher noted that he had been paid to marry Fisher. The INS thus denied Fisher’s application for permanent
residence status and began deportation proceedings, where Fisher filed for asylum and withholding of
deportation.

36
Id. at 959-960.

37
Id. at 960.

38
Id. at 962, Abedini v. INS, 971 F.2d 1988 (9
th
Cir. 1992)

39
Id. at 962, citing Alonzo v. INS, 915 F.2d 546, 548 (9
th
Cir. 1990)

40
Id. at 964. The en banc Court that heard the case was composed of Judges Wallace, Fletcher, Canby,
Hall, Brenetti, Noonan, Jr. Thompson, O' Scannlain, Trott, Fernandez, and Rymer. Judge Wallace wrote
the opinion, a Judge Canby a concurrence, and Judge Noonan a dissent.

41
Fisher v. INS, Canby dissenting, at 966.

42
Id.

43
Fisher v. INS, Noonan dissenting at 969.

44
Fisher v. INS, 37 F.3d 1371 (9
th
Cir. 1994)

197

45
Law at 858-860.

198
CHAPTER 8.
THE U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
AFTER SEPTEMBER 11, 2001

We know such things much better than the IJ and the BIA, so we’re going to find
the facts ourselves. But, isn’t this what we got slammed for just last term? Well,
never mind. The government can’t bother the Supremes every time we go over
the top, so it’s a fair bet that if we keep marching to our own drummer we’ll
mostly get away with it. Being the circuit with more asylum cases that all others
combined,…gives us molto institutional leverage.
--Jahed v. INS, Kozinski, dissenting
1

A. Introduction

As we have seen, the U.S. Court of Appeals for the Ninth Circuit granted relief in
three of the six published decisions it issued in the six-year period prior to September 11,
2001. This reversal rate is high under any circumstances, and one that supports both the
view of many defense attorneys that the immigration court system was flawed, and the
view of many conservatives that the Ninth Circuit was not in line with the other appellate
courts. In light of the considerable anti-Middle Eastern sentiment present in the United
States following the World Trade Center bombings, the last development one would have
expected to see was an increase in the number of decisions granting relief to asylum
applicants from the Middle Eastern asylum. Yet, in the six-year period following the
events of September 11, 2001, the Court granted relief in six of its eight published
decisions, a stance that is in line with court’s overall liberal reputation and a very real
factor in Congress’s passing the Real ID Act in 2005.
2
This Act was seen as an attempt
to reign in the court in asylum cases, particularly regarding its use of the “imputed

199
political opinion doctrine,” and its decisions on credibility issues.
3
This chapter looks in
detail at the publicized cases issued by the Court after 9/11 and divides into the categories
of Race/Nationality, Religion, Political Opinion, and Membership in a Particular Social
Group, paying particular attention to the unique aspects of the Ninth Circuit. In
conclusion I discuss the type of asylum regime that is represented by these cases, and
some theories as to why it is so.

B. Race, Ethnicity, and Nationality
If cases based on race, ethnicity, or nationality in any circuit were few and far
between before 9/11, that pattern continued after the World Trade Center bombings. The
only post-9/11 case studied here that could be properly placed in this category dealt with
the issue of stateless Palestinians from Kuwait, in El Himri v. Ashcroft, (9
th
Cir. 2004).
4

The Petitioner, Haifa El-Himri, was born to Palestinian parents who had fled to Kuwait
after the 1948 Arab-Israeli war. El Himri, who was married to another stateless
Palestinian, had given birth to a son, Musab, before she came to the United States in the
wake of the Iraqi invasion of Kuwait. She traveled on a Jordanian passport that, while
allowing her to travel, did not give her nationality or residence rights.
5
The essence of El
Himri’s claim was that Kuwait had engaged in a systemic effort to decrease the non-
Kuwaiti population after the Gulf War, and that Palestinians were targeted for their
perceived sympathies with Iraq. Through forced expulsions, discrimination, and extreme
persecution, Kuwait decreased its Palestinian population from a pre-war 350,000 to a

200
2004 estimate of 35,000. El Himri further testified that, as a Palestinian woman, she
would have had a high risk of rape were she to return to Kuwait.
6

While the Immigration Judge who heard her case found her credible, he also
determined that it was time barred, because she had not filed for asylum within one year
of entry. He did allow her son to file for asylum, but denied all forms of relief and
ordered them removed to Jordan. The BIA affirmed the denial and the El Himris
appealed to the U.S. Court of Appeals for the Ninth Circuit, which in a decision by a
panel of three Democratic appointees, Judges Tashima, Paez, and Hug, who authored the
opinion, cited the Sixth Circuit’s finding that after the Gulf War, Palestinians who
remained in Kuwait were “denied the right to work, go to school, or even obtain drinking
water,
7
and thus concluded that Musab qualified for asylum:
8

The El Himris have carried their burden of showing they are members of a
persecuted minority. Even if the El Himris were fortunate enough to avoid
violent persecution upon their return to Kuwait, they would not be able to avoid
the State-sponsored economic discrimination that has been enacted against
Palestinians living in Kuwait since the end of the Gulf War.

The Court also found that Jordan had been improperly designated as a country of removal
pursuant to INA section 1231 (b)(2)(E)(vii), which allows removal to a country whose
government would accept the alien, because the INS had not provided any evidence that
Jordan would accept them.
9
In this case, while the Attitudinal Model can be used to
explain the all Democratic panel’s grant of asylum, analysis should go further. Indeed,
Judge Hug, a Jimmy Carter appointee, authored the opinion, which is in line with the
former President’s support for the Palestinian cause and actually anticipates Carter’s
book Peace Not Apartheid.
10
The decision is of interest because it underscores the

201
Court’s willingness to forge new boundaries in asylum law, such as breaking with what
some perceived as the Bush Administration’s bias towards Israel, by recognizing the
claims of stateless Palestinians. The willingness to break new ground—whether on
foreign policy or legal grounds— is also seen in a number of other post-9/11 cases.

C. Political Opinion
The Ninth Circuit in the post-9/11 era clearly thought political opinion was an
area in need of clarification. Indeed, the first of the post-9/11 Ninth Circuit cases, Al-
Saher v. INS, (9
th
Cir. 2001),
11
(argued on March 9, 2001 but actually issued on October
23, 2001), analyzed a claim primarily based on political opinion, though it had religious
overtones that are now familiar to American audiences. In Al-Saher, the Court dealt
with an Iraqi who had been arrested in 1997 for misrepresenting at work that he was a
Sunni from Baghdad rather than a Shiite from Al-Bashra. Al-Saher was detained and
beaten, and interrogated for a month until his father paid a half million dinars to
someone in Saddam Hussein’s office. After returning to work, he was instructed to build
a fence somewhere near Hussein’s home, but when he inquired where this was, he was
arrested, beaten more severely, and burned with cigarettes. In April 1998, he was again
arrested after stating that the poor go hungry while the elites ate well, and detained five
or six days until he escaped.
After his arrival in the United States, Al-Saher applied for asylum, and his case
was denied by an Immigration Judge. He appealed to the BIA, which accepted his
testimony as credible, but found that the harm he suffered was not on account of one of

202
the five protected grounds.
12
Al-Sahar appealed to the Ninth Circuit, which found that
while Al-Sahar’s statement regarding the distribution of food resulted in the government
officials imputing an anti-government political opinion to him, he was not persecuted for
this reason and the reasons he was tortured were not among the protected reasons.
13
The
Panel, comprised of Democratic appointees Judges Fletcher and Hug and Democratic
District Court Judge King, did, however, find that Al-Saher would likely be tortured and
remanded to the BIA for an order of Withholding of Removal.
14
The case is of interest
for several reasons, not the least of which is that the panel denied asylum, but granted
withholding of removal. If we look purely at the asylum grant, the case also goes against
the Attitudinal Model, as the all Democratic panel voted against asylum, and reinforces
the Small Group Model, as Judge King voted with the majority. Yet the case may also
indicate an uneasiness on the part of the Court to send someone back to Saddam
Hussein’s Iraq in the aftermath of the World Trade Center bombings, and it presents a
stark contrast to the Seventh Circuit approach to such situations. It seems reasonable to
suggest that had the Seventh Circuit heard this case, that Court would have expressed its
concern for the plight of persons such as Al-Saher, but would not have taken the step of
granting him withholding of removal. Rather it would have offered dicta to the effect
that some persons harmed for the reasons Al Saher was harmed might in the future
qualify for asylum.
The Sudan was the focus of two published decisions concerning political opinion,
which arose out of a single case, Taha v. Ashcroft, (Taha I) and Taha v. Ashcroft, (Taha
II) (9
th
Cir 2004).
15
In Taha I, the Court denied the appeal of Farah Mudathir Farah Taha,

203
a member of the Umma Party and an active opponent of various Sudanese military
dictatorships. In a declaration written in support of his asylum application, Taha claimed
that he was fired from the Department of Transportation for opposing the regime in 1991,
and arrested for similar reasons in 1994, though he did not allege that he was physically
harmed.
16
Before the Immigration Court, however, Taha claimed that he had been beaten
by government police officers in March 1983, and that after being detained in 1985, was
forced to sign confessions. He also claimed that in 1989 government agents forced him
to sit on a small bottle for seven hours following his refusal to sign incriminating
statements, prompting heavy bleeding that required corrective bowel surgery. Finally, he
claimed that when he was arrested in 1994 he was forced to walk through broken glass,
beaten, stabbed with a bayonet, and forced to sit on broken glass after he refused to sign a
confession.
17

The Immigration Judge denied his claim for asylum, finding his testimony
incredible, and the BIA affirmed. Taha then appealed to the U.S. Court of Appeals for
the Ninth Circuit, challenging the credibility determinations and alternatively arguing that
the BIA and Immigration Judge violated his right to due process by failing to afford him
a meaningful opportunity to address the inconsistencies between his testimony and
asylum application. While Judge William W. Schwarzer, Senior District judge writing
for the Court, noted that the Immigration Judge may have had some preconceived notions
regarding Taha and his claim before Taha testified, and that he had directed several
inappropriate comments to Taha and his attorney, he nonetheless found that this

204
impropriety did not rise to a due process violation, and that substantial evidence upheld
the credibility determination.
18

Judge Kozinski, however, filed a vehement dissent, noting that Taha’s asylum
application had been prepared by a friend who, while a competent writer, may not have
had any understanding of immigration law to the extent that he would have known which
facts would have been most helpful to Taha’s claim. He also noted that some details of
Taha’s torture may have been omitted from his asylum application because of their
“painful and intimate nature.”
19

Taha filed a petition for rehearing and the opinion and dissent were withdrawn
and a new opinion issued, finding that the BIA had exaggerated the significance of the
“discrepancies” between Taha’s asylum application and his testimony, and that the
adverse credibility determination was not supported by substantial evidence. The Court
thus remanded the case to the BIA.
20
The case presents an unusual situation because
Judge Kozinski chose to dissent from the majority decision of a panel composed of two
other Republican appointees, Judge Beezer and Schwarzer, a Senior District Judge. The
fact that Schwarzer was not a Circuit Court judge may have led to the decision of the
panel to reverse itself, leading credence to the Small Group Model and, perhaps because
of the Kozinski dissent, also supports the idea of an Alpha Judge who is able to persuade
less talented colleagues to agree with him. This point seems particularly important
because Taha did not file a petition for rehearing en banc, requesting that the full Ninth
Circuit rehear the case, but rather only requested a rehearing by the very same panel of
judges that had made the original decision. Thus, in order for the panel to reach a

205
different decision, Judge Kozinski had to do an extremely effective job of persuading his
panel members that they were wrong on the facts. The decision in its ultimate grant is
also significant because it enshrines in precedent the idea that a court may actually be
wrong regarding its take on the contradictions in a case.
Jahed v. INS, (9
th
Cir. 2004), dealt with an asylum applicant, Alirez Rabie Jahed,
whose claim was based on the grounds that 1) he had been targeted for persecution by an
Iranian Revolutionary Guard (Pasdar), and 2) he feared severe consequences from the
Iranian government should he be required to return to Iran. Jahed claimed that past
persecution and fear of future persecution were due to his involvement with the rival
political group, Mojahedin. Jahed noted in his application that in October 1990 one of
the Pasdars recognized him and told him that if he did not pay 2,000,000 toomans, he
would report Jahed to the authorities. Jahed knew that a friend had been similarly
blackmailed and that when he did not pay had been imprisoned with his family and had
not been heard from.
21

The State Department Country Report of August 1997 noted that known or
suspected members of the Mojahedin faced long prison terms or execution if caught, and
that the group’s leaders in exile have been targeted by the regime for kidnapping and
assassination.
22
The Immigration Judge, however, denied Jahed’s application for asylum
and withholding of removal, concluding that although Jahed was credible, he had
established only that he had been a victim of attempted extortion. The Immigration
Judge rationalized that the Pasdaran appeared motivated by money, and not by the
Jahed’s political opinion, and that he was not acting on behalf of the government.
23

206
Jahed appealed to the BIA and also filed a motion to reopen based on ineffective
assistance of counsel, which was considered as a motion to remand. The BIA dismissed
his appeal and the motion to remand was denied, and the Jahed appealed to the U.S.
Court of Appeals.
24

The Court, in a two-to-one decision, reversed. The majority, including
Republican appointed Judge Trott and Democratic appointed Judge Betty Fletcher
noted:
25

The IJ and BIA failed to recognize that the soldier who committed extortion was
part of the totalitarian government to which the Petitioner had been opposed when
he was active in Mojahedin. The soldier was not a civilian simply taking
advantage of fellow civilian’s vulnerability, but a corrupt member of the of the
government’s revolutionary guard charged with internal security whose
government the Petitioner opposed. Moreover, the IJ utterly failed to realized
that although the soldier himself did not personally threaten harm, he represented
that it would be done by the government by which he was employed, and that the
government would do so because of Petitioner’s political opposition. This record
compels the conclusion that Jahed’s fear of the government created by the
unscrupulous soldier was objectively reasonable.

Judge Kozinski wrote a cynical dissent, noting that, “our court seems bent on denying the
BIA the deference of a reviewing court towards an administrative agency.” Though he
found the pasdar or religious policeman’s conduct reprehensible, he stated that it did not
amount to persecution under the asylum statute, concluding that:
26

If blackmailing someone on grounds of political opinion or imputed political
opinion is a basis for asylum, the same would have to be true of blackmail on any
of the other grounds specified by the asylum statute. Thus, if someone in a
Muslim country is blackmailed for having failed to wear a proper face covering or
for drinking alcohol, the blackmail automatically becomes persecution “on
account of” religion for purposes of asylum even if the blackmailer is
interested only in money. This vastly and unjustifiably expands
the ground for asylum beyond those contemplated by Congress.

207
Thus, again, a panel of the Ninth Circuit expanded asylum jurisprudence to cover
a wider class of persons, even over the dissent of Judge Kozinski, who— as we saw in
Taha— has formidable enough persuasive skills to compel a panel to reverse itself. The
decision does not conform to the Attitudinal Model and actually defies the Hierarchical
Model if we accept Judge Kozinski’s comment that the Court can do what it wants
because the government cannot always ask the Supreme Court to reverse. Moreover, the
decision to grant asylum to a member of Mojahadin can also be seen as an attempt to
influence the State Department to change its policy of labeling the group a Foreign
Terrorist Organization. Indeed, some writers, like Ali Jafarzadeh, have argued the State
Department’s policy is both wrong and a hindrance to efforts to develop indigenous
opposition to the Iranian regime.
27
By granting asylum to a Mojahadin member, the
Court expressed a policy preference that went against a powerful government
component.
28

In Padash v. INS, (9
th
Cir. 2004), the Court dealt with the case of Ali Padash, who
applied for asylum from both India and Iran, while also requesting relief in the from of
adjustment of his status to permanent resident. Padash’s claim from Iran was that if he
were returned to that country he would be forced to join the military, facing possible
death. Padash testified that two cousins died while serving in the military. While the
Immigration Judge found Padash credible, he denied asylum to both India and Iran as
well as adjustment of status.
29
Judge Stephen Reinhardt, along with Judge Trott and
Judge Siler, a Sixth Circuit Judge sitting by designation, affirmed the BIA’s denial of
asylum and noted with regard to his claim to asylum from Iran that Padash had failed to

208
establish that the military’s effort to recruit him was harm on account of a protected
ground. He further noted that Padash had not established that he would be singled out for
persecution by military officials or forced into military service.
30
The Court, however,
did opt to reverse the BIA’s decision that Padash was ineligible to adjust his status.
31
The
decision presents the relatively rare scenario of Judge Reinhardt denying asylum to an
applicant facing some possible harm upon his return to Iran. While it ostensibly
conflicts with the observation of Judge Four in Chapter Ten, which suggests that a liberal
judge’s posture on an asylum case is predictable, the decision can also be possibly
explained by the theory that he strategically voted with the majority, because the
applicant had other relief available which would have allowed him to remain in the
United States.
32
In other words there was no harm to the applicant in choosing to vote to
deny asylum in this situation.
The discretionary denial of asylum to an applicant who was found eligible for the
higher withholding of removal arose before the court in Gulla v. Gonzales, (9
th
Cir.
2007).
33
Bassam Bibo Gulla was an Iraqi Catholic and Chaldean whose family had been
subject to discrimination and abuse by the government. Gulla’s father was imprisoned by
the Ba’ath Party on the grounds that he was a traitor who had relations with opposition
Kurds, and the family was placed on a blacklist.
34
In August 1988 Gulla was drafted,
stationed far from home, and required to serve longer than usual. He claimed that this
treatment was due to his refusal to join the Ba’ath Party, to his religion, and to the
blacklisting of his family. During his last term of service, he was detained, imprisoned,
tortured, and beaten by his superior officers. Gulla, who believed that he would be killed

209
by his superiors, deserted, though he turned himself in after amnesty was announced.
However, when the government learned that two of his brothers had fled Iraq, Gulla was
so severely beaten that he lost consciousness, and suffered continual dizziness and
headaches. Gulla was not discharged until 1994.
35

In November 1998 a local politician came to the house in which Gulla was living
with his wife, Sorob, and told them they were wanted at the police station. They went to
the station and were separated. Gulla was held for five days, and beaten and tortured; the
pregnant Sorob was held for one day, during which she had to fight off a sexual assault
and miscarried.
36

This event was not the end of Gulla’s troubles in Iraq. On July 2, 2000, while
working in an agricultural field, Gulla was attacked by a man who questioned him about
his farm activities. Gulla hit back and was later taken to a police station. There, the man
accused Gulla of insulting him, Saddam Hussein, the Ba’ath Party, and the government.
The police denied Gulla’s offer to bring witnesses in his defense, and he was transferred
to a jail where he was interrogated and beaten daily. On July 27th, his brother bribed a
police official and Gulla was released and smuggled to Kurdish, where he was able to
escape to Turkey.
37
His wife met him there and, using false documents, they made their
way to Greece and then Mexico, where they went to the U.S. border and were taken into
custody and placed in removal proceedings.
38

At a hearing in Immigration Court, the Immigration Judge found Gulla credible,
but denied him asylum on discretionary grounds, finding it especially significant that
Gulla paid a smuggler and used fraudulent travel documents to reach the U.S. The

210
Immigration Judge did grant withholding of removal. While the BIA dismissed the
appeal, Harry Pregerson, writing for the majority of the U.S. Court of Appeals, found that
the use of false travel documents to escape Iraq was not an appropriate reason to deny
asylum and that the Immigration Judge abused his discretion in failing to balance the
negative factors against the positive ones, such as the documented persecution and
beatings, or the applicants’ health concerns and ties to family members in the U.S..
39

The decision, however, prompted a dissent by Judge Fernandez, who argued that
the majority decision picked apart the agency opinion, “while purporting to apply an
abuse of discretion standard.” He further noted that strategy can make it seem that the
Court was deferring when it was not actually doing so. “It is not appropriate. In fact,
Congress expressed its disdain for that approach when it amended the Immigration and
Nationality Act to blur some of the more obvious maneuvers.”
40
Fitting the case into a
particular model is also challenging; Judge Siler, a Republican appointee normally sitting
in the Sixth Circuit, sided with Democratic appointee Harry Pregerson over Judge
Fernandez, a Republican. This result might be explained by Pregerson’s status as an
Alpha or particularly prominent judge, or by the specifically Middle Eastern nature of the
case, or that Gulla was a member of the persecuted church, and some Republican judges
are more inclined to favor such grants. In any event, the case is yet another example of
the Ninth Circuit’s willingness to test the law and to extend asylum protection to a broad
category of applicants, even after the enactment of the Real ID Act.

211
D. Religion
Religion was also an area in which the Ninth Circuit in the post-9/11 era
extended asylum law. In Baballah v. Ashcroft, (9
th
Cir. 2003), the Court considered the
case of an Israeli Muslim of mixed Jewish-Muslim parentage who claimed persecution at
the hands of the Israeli marines, the equivalent of the U.S. Coast Guard.
41

Abrahim Baballah’s parents were the only Jew and Muslim to marry in his
hometown of Aka, Israel, located on the Mediterranean coast. Baballah claimed he
suffered many instances of discrimination when seeking work. Although he had studied
to become an accountant, he was denied work when his background was discovered.
Baballah was called a “goy,” which means “non-Jew” in Hebrew with derogatory
connotations in Arabic, meaning “dirty,” “bastard,” or “born from nowhere.”
42
Unable to
obtain employment as an accountant, Baballah then trained to be a lifeguard and diver,
but was turned away from employment and called “goy.” Baballah then went to work for
his family as a fisherman for ten years, during which he was the victim of continuous
threats and acts of violence by the Israeli Marines. They caused his boat to rock and fill
with water, shot bullets in the air over his boat, and threw eggs at him and his crew. They
turned six-inch water hoses on Baballah’s boat and, on one occasion, while he was
fishing with his brother, tied the brother to a pole and sprayed him with pressurized water
in freezing weather. Baballah’s brother was accused of assault, arrested, and imprisoned
for more than a year; as a result, he suffered a mental impairment and became dependent
on the family for support.
43

212
The events made it impossible for Baballah to earn a living. When the Marines
saw Balballah catching a large amount of fish, they destroyed his nets, forcing him to
spend a day fixing them. Baballah also claimed that the Israeli government had harassed
members of his family and that his father’s land and livestock were confiscated because
his father made his mother a Muslim. According to Balballah, one brother was forced to
pass as a Jew in order to escape persecution while another was denied a chance to
participate in the Olympics because he refused to convert to Judaism.
44

At a hearing before an Immigration Judge, Baballah was found credible though
the Immigration Judge stated the events did not rise to a level of persecution, and the BIA
affirmed the decision. The Court of Appeals, however, distinguishing its earlier decision
in Khoroussany, found that Baballah had suffered past persecution at the hands of the
Israeli marines and that the hostile encounters created a situation whereby he was unable
to make a living. The Court noted the cumulative impact of all these issues, writing,
“Taken together, the threats and violent assaults against Baballah and his business cannot
be dismissed as mere discriminatory harassment.”
45
The Court thus rejected the
Immigration Judge’s argument that the Baballa’s confrontation with the Marines was no
different than what others had experienced due to severe hostility and serious tensions
between Jews and Arabs in the Middle East, noting that Baballah was singled out in
specific instances for abuse. The Court specially stated that the use of the slur “goy”
“amply establishes the connection between the act of persecution and Baballah’s
ethnicity and religion.”
46
The Panel, composed of all Democratic appointees, Judges
Tashima, Paez, and Thomas, thus found that Baballah had suffered past persecution and

213
qualified for asylum on the basis of a presumption of a well-founded fear of future
persecution and that he qualified for withholding of removal as well.
47
The decision
conforms to the Attitudinal Model in that an all Democratic panel voted to granted
asylum, though it is of interest that the panel included Judge Thomas, one of the judges
who had decided the Khourassany case, denying asylum to a similar applicant. While the
Panel felt compelled to explain the difference in voting by distinguishing the facts, the
different panel composition could also have been a factor in the decision. The decision
again shows the willingness of the Court to stretch the boundaries of asylum law – in this
case by going against Bush Administration policy, which in 2003 was firmly in support
of Israel. In granting asylum to Baballah, the Court indicated that it was not beholden to
any interests aside from its own views.
The Court’s approach to expanding asylum did not, however, help a Coptic
Christian couple, Fouad Mansour and Soheir Ewada, who sought asylum in Mansour v.
Ashcroft, (9
th
Cir. 2004).
48
Mansour testified in Immigration Court to daily mental and,
at times, physical persecution as child, including being hit by teachers. He stated that he
feared persecution upon his return to Egypt for having spent time in the West, and that
Coptics were treated “as second class citizens or worse.” He stated that he had been
treated differently when people discovered he was Christian, that his brother’s neighbors
were against him, and that a Muslim storeowner was taking all his brother’s business.
49

Soheir testified that because of her Coptic faith she had been singled out and treated
differently since her childhood. She had been hit or slapped with a leather swash

214
numerous times, and on one occasion hit and removed from class because she refused to
participate in Muslim prayers.
50

She also noted that she feared that if the family returned to Egypt, her American
born children—due to mental and physical abuse—would be unable to have normal lives,
or would be killed.
51
To illustrate the seriousness of their fears, the couple testified about
the death of Ewada’s cousin, a big man with tattoos of the “cross” and Virgin Mary on
his chest and hands, who felt a need to speak out as a Coptic Christian. He was killed
and buried by authorities in a Muslim cemetery, despite the fact that they knew he was
Christian.
52

The Immigration Judge determined that the Mansour’s had not established
eligibility for asylum or withholding of removal, and noted that he was troubled by
inconsistencies in the record. The BIA, however, affirmed without opinion. In a
decision written by Judge Beezer, a Republican appointee, the Ninth Circuit panel, which
also included Judge Tallman and Judge Pregerson, found that substantial evidence
supported the Immigration Judge’s conclusion that Mansour had not suffered past
persecution and that the evidence did not compel it to conclude that the discrimination
rose to a level of persecution, noting the similarities to the decision in Ghaly v. INS, (9
th

Cir. 1995).
53

Like Jahed, the Mansour decision prompted a dissent, this time by Judge Harry
Pregerson, whose dissent is perhaps the most extensive treatment of the problem of
Coptic Christians in American Judicial History. Pregerson argued that Coptic Christians
are a “Significantly Disfavored Group” in Egypt, writing that they are the largest

215
Christian community in the Middle East, comprise only 8 to 10% of the Egyptian
population, and have been frequent targets of violence and discrimination in Egyptian
history.
54
He further held that, “notwithstanding President Mubarak’s efforts,
discrimination and violence against remains persistent today,” citing a Freedom House
Report from June 1999 detailing the mass arrest and torture of approximately 1000
Egyptian Copts in 1998 alone. He thus concluded:
55

I part ways with the majority in as much as I believe that the harms suffered by
Petitioners transcend mere “discrimination” and rise to the level
of persecution – in particular, because they occurred in the context of widespread
discrimination against Coptic Christians and because Petitioners are member of a
“disfavored groups” in Egypt.

Pregerson also found that the Mansours could derivatively claim relief from removal
because of their well-founded fear that their children would persecuted if they were
forced to return to Egypt, and that their claim of future persecution was strengthened by
the fact that targets of the future persecution were their own children.
56

The decision conforms to both the Attitudinal and Hierarchical Models. The
attitudinal forces are the Republican appointees’ votes to deny and the Democrat
appointee Pregerson’s dissent. The Hierarchical Model is in play because substantial
evidence was used to support the denial. Nevertheless, Pregerson’s dissent is ground-
breaking for both its scope as well as for publicizing an issue that had long been ignored
by many asylum adjudicators. Indeed, in an article I wrote back in 2001 published in
Middle East Quarterly, I examine the difficulty Copts have winning asylum cases,
particularly in providing proof that they are persecuted; I also include a discussion of
alternative sources for corroborating claims.
57
Yet despite greater recognition of the

216
problems of persecuted Middle Eastern Christians by adjudicators, Coptic publications
continued to report a pattern of persecution, including the demolition of an historical
monastery,
58
widespread discrimination, and violence directed at Coptic churches.
Though Pregerson could not persuade the other judges to join with him, his dissent has, at
least in the scope of asylum jurisprudence, provided an argument that other Copts could
use in future claims, as well as a novel basis for parents claiming asylum based on harm
to their children.

E. Membership in a Particular Social Group
The last category considered in this review of published Ninth Circuit cases after
9/11 concerns membership in a particular social group, and how the sole case that fits in
this category expanded the boundaries of asylum law. Indeed, in Karouni v Gonzales, 399
F.3d 1163 (9
th
Cir. 2005), the Court considered the claims of Nasser Mustapha Karouni, a
Lebanese man who requested asylum in light of his fear of returning to Lebanon as a
Shiite homosexual suffering from AIDS.
59

Karouni grew up in southern Lebanon in the Tyre province, which was largely
controlled by Hezbollah. In his asylum application, Karouni stated he had always been
gay, and had been ostracized from his family. He noted that, in 1984, Ramsey Khaleil, a
cousin who was also gay, had been shot in the anus apparently by Hezbollah because of
his homosexuality and, though he survived, two years later was shot to death again,
apparently by Hezbollah.
60

217
Karouni had experienced anti-gay sentiment himself. In the fall of 1984,
two men who identified themselves as members of the Amal Militia interrogated and
attempted to arrest him for having a homosexual relationship with a man named
Mahmoud. An armed neighbor interrupted the encounter and prevented Karouni’s arrest,
but Mahmoud was arrested and beaten, and Karouni never saw him again. Later, he
heard that Mahmoud had repented to authorities.
61

In 1987 after Khaleil’s murder, Karouni fled Lebanon, though he returned to the
country in 1992 to visit his father who was dying of cancer. During his 1992 trip he
attended some dinner parties, and after he returned to the United States he learned that at
least three of his friends who attended the parties had been arrested, detained, beaten,
and/or murdered because they were homosexual. Karouni believed that he had been
outed by one of the men who was arrested.
62

Karouni also claimed that there was no one in Lebanon from whom he could seek
treatment for AIDS, and that he feared persecution for this reason as well. Finally, he
testified that because of his family’s prominence he would be unable to live in anonymity
if he were removed to Lebanon. His father was an international businessman who had
nightly meetings with the Lebanese Cabinet, while his great-uncle, Adel Sserian, was the
head of the Lebanese parliament that had signed Lebanon’s independence documents.
63

The Immigration Judge found that while Karouni had presented evidence to show
individuals are prosecuted for homosexual conduct in Lebanon, he held that Karounni
had not established past persecution and did not demonstrate a well-founded fear of
future persecution!
64

218
The BIA summarily affirmed the Immigration Judge’s decision and Karouni
appealed. However, the U.S. Court of Appeals took issue with the Immigration Judge’s
decision. To begin with the Court noted that, “to the extent that our case-law as been
unclear, we affirm that all homosexuals are members of a ‘particular social group.’”
65

The Court acknowledged the Attorney General’s argument that Karouni’s fear was not on
account of his status as a homosexual, which was not prohibited, but rather due to his fear
of committing prohibited homosexual acts. The Court, however, found that if Hezbollah
already believed that Karouni had engaged in such acts, it did not matter whether he
engaged in them in the future. Judge Pregerson wrote that that there was “no appreciable
difference between an individual, such as Karouni, being persecuted for being a
homosexual and being persecuted for engaging in homosexual acts,” and that no matter
how the Attorney General characterized it, the persecution Karouni feared was on
account of his membership in the particular social group of homosexuals.
66
The Court
further held that in light of evidence that Muslim militiamen regularly used their firearms
to sexually assault and torment suspected homosexuals, the shooting of Khalil in the anus
was “essentially res ipsa loquitor evidence.”
67

The Court thus found that Hezbollah militants and certain factions of the
Lebanese and local government are a credible threat to homosexuals and that based on
past contact with other homosexuals Karouni was at particular risk of persecution. The
Court also noted that his family’s position, and his affliction by AIDS, would make it
difficult for him to avoid would-be persecutors if he returned to Lebanon. Judges
Goodwin and Tallman joined Judge Pregerson in reversing the BIA’s decision that

219
Karouni did not have a well-founded fear of persecution, and remanded for a
determination on the issue of withholding of removal.
68
The decision does not fit the
Attitudinal Model in that Goodwin and Tallman were Republicans voting to grant
asylum, although Tallman as a Republican appointed by a Democrat could be considered
a swing vote. The case could also be explained by the Alpha Judge model in light of
Harry Pregerson’s vociferous decision supporting asylum for a homosexual. Either way,
the Court again broke new ground in asylum law— though, as Paul O’Dwyer has noted,
the Karouni decision was not enough to influence the Eighth Circuit to grant asylum to a
homosexual man from Zimbabwe, in Kimumwe v. Gonzales, (8
th
Cir. 2005).
69

F. Extending Asylum; The Ninth Circuit After 9/11
During the six-year period after September 11, 2001, the U.S. Court of Appeals
for the Ninth Circuit not only retained its prior stance, but actually increased the
percentage of Middle Eastern asylum cases it granted, while creating some new and
important doctrines. Yet while the Court went from a 50% grant rate prior to 9/11 to a
67% percent grant rate afterwards, the pure numbers do not reveal the whole story. As I
discussed in Chapter Seven, the Ninth Circuit before 9/11 was inclined to grant the
asylum cases of Middle Easterners, with one notable exception: Judge J. Clifford
Wallace. Indeed, Judge Wallace authored all three published dissents in the pre-9/11
period, including the en banc denial in Fisher v. INS. In the post-9/11 period, Judge
Wallace did not serve on any of the panels that decided the cases of Middle Eastern
asylum applicants, though several denials were issued by the Court. The reason for this,

220
however, lies with the unique facts of the cases. Indeed, two of the denials, Al-Saher v.
INS, and Padesh v. INS, were issued to applicants with other relief available. In the case
of Al-Saher, relief came in the form of withholding of removal, meaning that he would
not be sent back to Iraq. In Padesh, relief was adjustment of status, meaning that Padesh
would receive permanent residency, a higher immigration status than asylum. Moreover,
Mansour v. Ashcroft, the only actual full denial among the post-9/11 cases, contains a
vigorous and creative dissent by Judge Pregerson that essentially blazes a path for future
challenges to the majority decision. Thus, there is no denial in the post-9/11 period that
does not offer something for the asylum applicant, a pattern that is very different from the
Seventh Circuit approach of denying cases while expressing sympathy for the applicant.
The three unique denials considered alongside the grants thus establish a Ninth
Circuit Stance or “Asylum Regime” that was not only inclined to grant cases but that also
used the published decision to extend the boundaries of asylum law to persons it believed
were worthy of relief. In El Himri v. INS, the Court granted asylum to stateless
Palestinians, in contrast to Bush Administration policy, and further extended its
independent stance toward the Arab-Israeli conflict in Baballah, where it granted asylum
to a Muslim Israeli. Similarly, in Jahded v. INS, the Court opposed State Department
policy on the Mojahadin, and stretched the limits of asylum law by issuing a grant to a
person who was extorted because of his political views. In Karouni v. Gonzales, the
Court also extended the limits of asylum law in its definitive recognition of homosexuals
as members of a particular social group.

221
Two other grants should be considered together. In Taha v. INS, the Court
reversed itself in light of the dissent by Republican appointee Judge Kozinski, enshrining
in precedent the idea that omissions from an asylum applicant may not be fatal to a grant.
The holding is ironic because the Ninth Circuit’s credibility reversals by so-called activist
judges prompted the enactment of the Real ID ACT and its new credibility standards.
70

Tom Keck has noted that until recent years, legal scholars did not read
the works of political scientists, though the legal academy has now witnessed a huge
increase of interest in such scholarship.
71
In a similar way, during the years that the
Ninth Circuit was creating the body of cases studied here, it is unlikely that many defense
or government attorneys were aware that social science methods could be used to
understand the cases.
72
For example, the idea of evaluating the Ninth Circuit’s overall
grant rate in all published and unpublished cases— as was undertaken in 2005 by
Professor David Law— would not have been in the minds of either those litigating the
cases, or policymakers attempting to curtail the judicial decisions through legislation.
However, the published decisions were readily available and read by many. Though
none of the post-9/11 Middle Eastern asylum cases was specifically cited in the
legislative history of the Real ID Act as impetus for the legislation, other cases with
similar types of credibility results were.
73
The resulting legislation then codified new
standards for credibility, which stated that considering the totality of circumstances, a
trier of fact could base a credibility determination on:
74

the demeanor, candor, or responsiveness 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 circumstances under which the statements

222
were made), the internal consistency of each such statement, the consistency of
such statements with other evidence of record (including the reports of the
Department of State on country conditions), and any inaccuracies or falsehoods in
such statements…

The new law was clearly meant to curtail the Ninth Circuit’s reversals of credibility
determinations by the Immigration Judges and the Board of Immigration Appeals. The
American Immigration Law Foundation noted in an early review of the impact of the
legislation that, “for attorneys practicing outside of the Ninth Circuit, REAL ID should
represent an enactment of existing case law.”
75
For attorneys practicing in the Ninth
Circuit, the new law meant a new set of challenges for asylum applicants.
76

Nevertheless, the legislation has not stopped the Court from taking activist positions, at
least as far as some are concerned. In Gulla v. Gonzales, the Court even after the
enactment of Real ID, reversed an Immigration Judge’s credibility finding, with Judge
Fernandez criticing the majority for engaging in the same type of judicial activism that
Real ID had sought to curtail.
Ultimately, then, the Ninth Circuit both pre and post-9/11, was a Court inclined
to grant asylum and stretch the boundaries of asylum law based on factors including the
Attitudinal Model, the Hierarchical Model, the Small Group Model, the spectrum of the
Alpha Judge, foreign policy considerations or opinions, and the specifically Middle
Eastern case characteristics of the cases.

223
CHAPTER 8 ENDNOTES

1
Jahed v. INS, 356 F.3d 991 (9
th
Cir. 2004), Kozinski dissenting.

2
Real ID ACT, Pub. L. No. 109-13, 119 Stat. 231 (May 11, 2005)

3
James Feroli, “Credibility Burden of Proof, and Corroboration Under the Real ID Act,” Immigration
Briefings, No. 09-06 • June 2009, West Lawdesk.

4
El Himri v. Ashcroft, 378 F.3d 932 (9
th
Cir. 2004)

5
Id. at 934.

6
Id. at 934-935.

7
Id. at 937-938 citing Ouda v. INS, 324 F.3d 445, 448 (6
th
Cir. 2003)

8
Id. at 937.

9
Id. at 939.

10
Jimmy Carter, Peace Not Apartheid (New York: Simon and Schuster, 2006).

11
Al-Saher v. INS, 268 F.3d 1143 (9
th
Cir. 2001)

12
Al-Saher’s allegations of his treatment in Iraq during this time period seems accurate. See Charles Tripp,
A History of Iraq (Cambridge: Cambridge University Press, 2005), 264-278.

13
Al-Saher v. INS, at 1144-1146.

14
Id. at 1148.

15
Taha v. Ashcroft, 362 F.3d 623 (9
th
Cir. 2004) revrs’d Taha v. Ashcroft, 389 F.3d. 800 (9
th
Cir 2004)

16
Id. at 625-626.

17
Id. at 626.

18
Id. at 627-629.

19
Kozinski dissenting at 631-632.

20
389 F.3d 800-802 (9
th
Cir. 2004). The Court also found the BIA failed to independently evaluate Taha’s
Torture Claim and remanded for this as well.

21
Jahed, 993-994.

22
994.

23
996.

24
996.

224

25
1000.

26
Kozinski dissent, 1002-1004.

27
Ali Jafarzadeh, The Iran Threat (New York: Palgrave Macmillan, 2007), 236-237.

28
See also the discussion of credibility determinations by Ninth Circuit Judges in Anna O. Law, The
Immigration Battle in American Courts (Cambridge: Cambridge University Press, 2010), 127-129.

29
Padash v. INS, 358 F.3d 1161, 1164 (9
th
Cir. 2004)

30
Id. at 1166-11167.

31
Id. at 1174.

32
Former Central Intelligence Agent Robert Baer in his film The Cult of the Suicide Bomber (New York:
Disinformation Co, 2005), argues that the origin of the suicide bomber comes from the “Shahidin” or
youthful martyrs sent by the Iranians to engage in suicide attacks against the Iraqis in the Iran-Iraq war. It is
not clear precisely what documentary evidence was presented to the Court in Jahed, however, one could
possibly see Judge Reinhardt accepting the argument that such draftees were members of a particular social
group.

33
Gulla v. Gonzales, 498 F.3d 911 (9
th
Cir. 2007)

34
Id. at 913.

35
Id. at 913.

36
Id. at 914.

37
Id. at 914.

38
Id. at 914.

39
Id. at 916-918.

40
Id. at 920 (Fernandez dissenting).

41
Baballah v. Ashcroft, 335 F.3d 981 (9
th
Cir. 2003)

42
Id. at 984.

43
Id. at 985.

44
Id. at 986. This statement raises questions for students of comparative religion and or Middle Eastern
politics. Baballah’s brother could not have been pressured to convert to Judaism because as the son of a
Jewish mother, he was already Jewish under Jewish law. What is a more likely construction of the facts is
that Baballah’s brother was pressured to assert his Jewish religion.

45
Id. at 990.

225

46
Id. at 991.

47
990-991.

48
Mansour v. Ashcroft, 390 F.3d 667 (9
th
Cir. 2004)

49
670-671.

50
670.

51
Id. at 670.

52
Id. at 671. The family was able to exhume the body and bury him in a Christian cemetery after they
learned his fate.

53
670-673, citing Ghaly v. INS, 58 F.3d 1421 (9
th
Cir. 1995). The Court declined to review a denial of
voluntary departure due to lack of jurisdiction.

54
Pregerson dissent, at 675.

55
676-677.

56
682.

57
Louis A. Gordon, “Christians in Court,” pp. 787-788.

58
“Thugs of the Egyptian regime prepare to attack a historic Coptic Monastery,” The Copts, Christians of
Egypt 7.81 (April 2006): 2; “Dozens Hold Protest Outside Tut Exhibit, Coptic Christians take aim at bias in
Egypt,” The Copts, Christians of Egypt 7.83 (June 2006): 3.

59
Karouni v Gonzales, 399 F.3d 1163, 1166 (9
th
Cir. 2005). The Karouni case was symptomatic of the
growing aversion to homosexuality in a number of Middle Eastern countries due to the rise of Islamist
power. See, Kassem, Egyptian Politics, 176.

60
Id. at1168.

61
Id. at 1168.

62
Id. at 1168.

63
Id. at 1169.

64
Id. at 1169.

65
1172.

66
Id. at 1173.

67
1174.

68
1178-79.

226

69
Paul O’Dwyer, “A Well-Founded Fear of Having My Sexual Orientation Asylum Claim Heard in the
Wrong Court,” New York Law School Law Review 52 (2007-2008): 202, 205-206; Kimumwe v. Gonzales,
431 F.3d 319 (8
th
Cir. 2006)

70
See Interview with Judge Four, Chapter Ten, and Feroli, p. 1.

71
Thomas M. Keck, “Party Politics or Judicial Independence? The Regime Politics Literature Hits the Law
Schools,” Law and Social Inquiry 32,2 (Spring 2007): 511-544, 512.

72
I, for one, was not.

73
See Feroli, p.1.

74
INA Section 208(b)(1)(B)(i).

75
AILF Legal Action Center and Anwen Hughes, “Real Faces, Real people, Navigating the Real ID Act,
“Immigration Law Today (July/August): 12-20, at p. 17.

76
See Scott Rempell, “Credibility Assessments and the REAL ID Act’s Amendments to Immigration
Law,” Texas International Law Journal 44: 185-232.

227
CHAPTER 9.
INTERVIEWS WITH ATTORNEYS AND JUDGES

A. Introduction
To supplement the cases studies set forth in the previous chapters, I conducted
interviews and queried 12 attorneys and four judges regarding their views on Middle
Eastern asylum cases before and after 9/11. The interviewees were advised that the main
focus of my study was on the circuit courts, but that I was also interested in their views of
bias towards Middle Eastern asylum applicants at other levels of the Immigration system.
Though not every question was appropriate for every interviewee, the ten major questions
are set forth as follows:
1. Do you think that the composition of a panel can make the difference in the
result of a circuit court case?

2. Do you think there was a difference in how Middle Eastern Asylum cases
were decided after 911 as opposed to that time?

3. Have you noticed bias against Middle Easterners in the Immigration system?

4. Have you noticed bias against Middle Easterners in the Immigration Court?

5. Have you noticed bias against Middle Easterners at the Circuit Court level?

6. If you noticed bias, in what ways did it manifest itself?

7. Have you noticed bias towards immigrants of a particular country?

8. Did you see this before September 11, 2001?

9. Do you think that a judge’s knowledge of particular country conditions affects
the outcome of the case?

10. How would you account for differences in the attitudes of different entities in
the Immigration System (if such differences were observed)?

228
The interviews were conducted in person, by telephone, and via email. In addition
to gathering the responses set forth below, I contacted two attorneys who did not feel they
could adequately answer the posed questions despite extensive backgrounds in
immigration law. The interviews are striking in that while they largely corroborate the
information obtained from the in-depth case studies, they also provoked some unexpected
responses, particularly with regard to questions concerning bias. In addition, some
interviewees volunteered information that was beyond the scope of my questions, but of
great interest for the study.

B. Attorneys
Some attorneys who agreed to be interviewed provided important answers but
were somewhat ambiguous in their opinions. For example, Attorney One, a certified
specialist in Immigration Law who has been practicing since 1979 and has litigated many
complex cases before the Ninth Circuit, stated that, “there has been a change in the last
three years in general, but less willingness to consider rights of immigrants.” While the
attorney felt that there had been a policy change, he did not think that this change had
specifically affected the Ninth Circuit, but that 9/11 had exacerbated the immigration
debate.
1

Attorney Two, also a long-time certified specialist in Immigration Law, was
vehement when asked whether he thought there was a difference in how Middle Eastern
Asylum cases were decided after 9/11, as opposed to before that time. He noted, “there is
a built in prejudice against anyone from the Middle East, including Israelis because of
their appearance and speech.” While this attorney also maintained that he had not

229
specifically seen this bias play out in the Ninth Circuit, he noted that a judge’s personal
knowledge of the case could affect the outcome, “even though they are not supposed to
use their personal knowledge to decide cases.”
2

Attorney Three, practicing in San Antonio, Texas, also felt that a judge’s
knowledge of particular country conditions can affect the outcome of a case, but
interestingly did not venture an opinion as to whether there was any difference in the
posture of the circuit courts toward such immigrants after 9/11. This attorney further
denied ever seeing specific bias against Middle Easterners in the Courtroom.
3

Attorney Four, who is involved with the American Immigration Lawyers’
Association, felt that the composition of a panel “absolutely” affected the results of the
case. He noted, “there are cases that I have won that would have fared worse with a
different panel. The inverse is also true.”
4
When asked whether he thought a judge’s
knowledge of particular country conditions affect the outcome of a case, he answered:
5

Yes…I do. This works both ways, i.e, a more liberal judge that knows what is
going on in a country is more likely to be able to support an objective fear
finding. However, a tougher judge could use their personal opinions to mask what
is really happening. I also feel however, that the Immigration Judges are careful
not to expose their “personal knowledge” in their decisions. Fortunately, there is
case law that holds that generalized statements regarding improvements are
afforded much less weight once past harm has been established.

When asked if he ever noticed specific bias towards Middle Easterners in the Courtroom,
he responded:
6

I actually have not noticed this in Court. I notice this more before USCIS. There
are several middle eastern cases that I have felt have been subjected to higher
scrutiny because of their origin. Fortunately, however, I have not been shy about
bringing it to the officer’s attention and have effectively called them on it. For
example, I once had an interview on a mother son I-130 case. After I suggested
that he was calling him in because of origin, officer asked mom 2 questions
and approved I-130.

230
Attorney Five has practiced immigration law exclusively since the early 1990s
and has engaged in numerous oral arguments at the U.S. Court of Appeals for the Ninth
Circuit. He believed that both the composition of a panel of judges and the judges’
knowledge of the Middle East have an effect on the decisions of the court, but he did not
feel that there was a difference in the way the circuit courts decided cases after 9/11. He
noted to this author:
7

I don’t per se think there was a difference. I do think that conditions in certain
countries changed after 9/11, and the use of expert witnesses might have made a
difference in explaining the changes to various judges, and ultimately what type
of record went up to the Court of Appeals. For example some Iraqi cases
which would have been granted during the Hussein era, were denied in the post
9/11 era after the American invasion of Iraq, not because of a change in the
court’s attitude but because of a change in the conditions or a least the perceived
conditions in Iraq.

On the other hand, Attorney Six, a prominent First Amendment Lawyer who
helped establish First Amendment freedoms and has argued before many circuit courts,
offered the following insight, noting that before 9/11 everything was religious rights,
which were in fact centered around the Christian right. He stated that the Bush
Administration was advocating for faith-based initiatives, which was used as a spear in
foreign policy, but that effort became conflicted with 9/11 and the political developments
in its aftermath. He felt that 9/11 was a watershed moment, but that when Shias, Hamas,
Hezbollah, and Iran started winning elections and capturing public opinion, there was a
change in public policy and court posture.
8

Attorney Seven has practiced immigration law for over 20 years and has litigated
a number of cases at the U.S. Court of Appeals for the Ninth Circuit. When asked
whether he thought that the composition of a panel can make the difference in the result

231
of a Circuit Court case, he responded that there is a big difference in the way judges
approach cases. He felt that some judges are more politically liberal than others.
Interestingly, when asked whether he felt there was a difference in how Middle Eastern
Asylum cases were decided after 9/11 as opposed to before that time, he responded that
his gut feeling was that soon after 9/11 the court might have been more conservative.
However, as time has passed, he felt that they have been similar to the judiciary in other
countries, and more consistent regardless of the country of persecution.
9

Attorney Seven noted that while he had seen bias against Middle Easterners with
USCIS, he had not seen so much of it in the courts. He noted that he had seen bias
toward male Lebanese immigrants with USCIS,, particularly when a marriage case was
involved. When asked whether he thought that a judge’s knowledge of particular country
conditions affects the outcome of the case, he responded, “Yes. I think the circuit judges
are more knowledgeable.” He stated that the Immigration Judges depend on and put too
much emphasis on the country reports. On the other hand, he felt that Circuit judges
share more resources as far as researching, or simply spent more time reading country
reports. He emphasized that they generally have many more clerks at the agency so the
better level of knowledge found on the Circuit level was not totally the agency’s fault,
though he did feel that intelligence and education accounted for differences between
USCIS and the courts. He stated, “I think a lot the officers at CIS are not as intelligent at
the Immigration Judges or the circuit court judges.”
An interview conducted with a practicing immigration attorney in Florida
(Attorney Eight) revealed other interesting trends.
10
When asked whether he had noticed
bias toward immigrants of a given country, he stated that he had seen particular bias

232
towards Haitians, who comprise a large percentage of asylum applicants in Florida. He
stated, “I know one judge who if someone is from there, it’s pretty much a losing case.”
11

While the comment does not directly concern the Middle East, it underscores the
possibility of entrenched bias in the Immigration Court system. Equally important are
Attorney Eight’s responses to questions about whether a judge’s knowledge of particular
country conditions affects the outcome of the case. He noted that he had seen
assumptions made in the courtroom and that, “with obscure countries judges make
assumptions.”
Attorney Number Eight also accounted for differences in the attitudes of various
entities in the Immigration System. He noted that USCIS officers are harsher on the
Middle Easterners, and that he saw more requests for evidence from Middle Eastern or
Pakistani clients on adjustment of status cases, or those where applicants obtained
permanent resident status through a relative or employment. He noted that he had had a
case in which an American lady had married a Pakistani man and converted to Islam, and
USCIS gave them a difficult time. “I have seen it more with USCIS; they have more
intense scrutiny when dealing with Muslims or Middle Easterners.”
Other insights were provided in an interview with an attorney and professor of
Immigration Law who has litigated extensively before the U.S. Court of Appeals for the
Ninth Circuit (Attorney Nine). When asked whether he thought that the composition of a
panel could make the difference in the results of a Circuit Court case, he noted that panel
makeup certainly dictates whether one has a successful petition for review before the
Court of Appeals. He stated that he and many other attorneys check who is on the panel
before the case is argued to get an idea of what they are up against. He stated that if you

233
had a 9
th
Circuit panel with certain judges, “you are gone. There is nothing you can do to
win a case.”
When asked whether he thought there was a difference in how Middle Eastern
Asylum cases were decided after 9/11 as opposed to before that time, he answered, yes.
He noted that in the first Supreme Court case decided after 9/11, Demore v Kim (2003),
12

the Court made a note that this case was the first one after national security concerns had
been raised. He stated, “So, certainly I have seen a difference, probably a negative
difference in the circuit courts and in the immigration courts.” He also noted that prior to
9/11, he had started a hotly contested Bangladeshi asylum case. The next hearing was
after 9/11, and he thought it strange that the issue of terrorism came up because it had not
been raised for the previous three years. In the decision the Immigration Judge labeled
his client a terrorist and that designation all of sudden that became the focus of the case.
13

Attorney Nine denied that he saw different treatment for Middle Easterners prior
to 9/11, but confirmed that had seen it after 9/11. However, he also stated that people of
Middle Eastern descent had always had a stigma of terrorism on them in the Immigration
system, though other groups such as Mexicans and Chinese were also the victims of bias.
He stated that the cases of Mexican and Chinese immigrants were not seen as special, and
did not get the benefit of the doubt because there are so many people requesting the same
type of relief, such as cancellation for removal for Mexicans or asylum for Chinese.
He also noted that in light of the passage of the Real ID Act in 2005, people no
longer were given the benefit of the doubt. He stated that testimony was no longer
enough and that attorneys now had to document everything with evidence.

234
When asked whether he thought a judge’s knowledge of particular country’s
conditions affects the outcome of the case, he answered yes, but that a lack of knowledge
also affects the outcome of the case. He stated that there were times when he was
presenting a case and he wished that the judge would take a trip to the country of
persecution and see the violent conditions that corroborated what his client was saying.
He asserted that the State Department Country Reports were not enough to base a
decision on, and “were not like being in a country where you run the risk of losing your
life.”
14

Attorney Ten, a long-time immigration attorney who had served in the U.S.
military, noted that he believed that Judges bring their experiences from previous asylum
cases with the same country or similar claim to other cases.
15
When asked whether he
thought that the composition of a panel made a difference in outcome of Ninth Circuit
cases, he stated “Absolutely,” and that if you are pro-Immigrant and you get specific
Democratic appointees, you are likely to have a positive outcome. He also noted a
concurrence among many attorneys that there was bias against immigrants from the
Philippines, India, and China, insofar as fraud is presumed.
Attorney Eleven has practiced immigration law for many years and argued cases
at the Ninth Circuit. When asked whether she thought that the composition of a panel
can make the difference in the result of a circuit court case, she answered, “One million
percent,” and noted that different panels have different ways of analyzing cases. She
noted that she had seen bias against Middle Easterners in the Immigration system, in the
sense that it takes longer to do the background clearances that are required before a case
can be granted. She stated that a lot of officers feared completing such cases even if they

235
did not believe there was “anything weird in a in a case.” She believed that they did not
want to take responsibility for such cases. She denied personally seeing bias against
Middle Easterners in the Immigration Court, but noted that the situation was the same
regarding clearances. However, she stated that her Syrian Christian clients had fared
better than her Central American clients. Finally, she felt that a judge’s knowledge— or
belief that he/she had knowledge— of particular country conditions affected the outcome
of the case.
16

Attorney Twelve has practiced Immigration Law for 15 years and successfully
argued a number of cases before the Ninth Circuit. She had also served as a clerk to one
of the judges on the Court. When asked whether she felt that panel composition made a
difference in the outcome of a case, she noted that from her experience, liberals try to
grant cases, and that some even have an agenda to find a way to grant cases. She felt that
judges try to have decisions reflect their agendas, but cautioned that there were three
judges on a panel, and that one judge can influence but not necessarily persuade other
judges to follow his or her path. She recalled one case she argued at the Ninth Circuit
where she had not done such a great job below, but because the judge who heard her case
had an agenda, he granted it. She further stated that she had seen no bias against Middle
Easterners per se, though she did not argue many such cases, but distantly recalled one
immigration judge noting that he was biased against Armenians.
17

C. Judges
One interesting insight into the adjudication of cases involving Middle Eastern
applicants was shared by a former Immigration Judge (Judge One) who noted that during

236
the 1990s, while serving as an alternative member of the Board of Immigration Appeals,
he had heard the appeal of a Middle Easterner who had married a U.S. citizen after
having been ordered deported for a failing to appear at a deportation hearing. The former
judge stated that he and another panel member voted for reopening a case in light of the
applicant’s lack of a criminal record, and the fact that he was married with small children.
However, he noted that the third judge, who was of Middle Eastern descent himself, did
not want to reopen, though in general he was very liberal, indicating perhaps that he held
knowledge of Middle Eastern culture the other judges did not. Judge One felt that
different panels went different ways because the panel members came from very different
backgrounds. Judge One, who had spent his entire career in the Federal government,
disagreed that there was bias against Middle Easterners because of an inherent pro-Israel
posture among U.S. government workers towards Israel. He stated that, on the contrary,
the State Department had always had an anti-Israel bias.
19

An interview conducted with another former Immigration Judge and prosecutor
(Judge Two) offered other insights into the circuit courts and into bias towards Middle
Easterners. He said that one judge had told him that the Ninth Circuit judges were proud
of him for getting past the politics in a well-publicized case he had decided in favor of
Middle Eastern applicants, but that even if he had wanted to go the other way in that case,
the government would have screwed it up. He stated that there was an attitude from
him:
20

that— at least post 9/11- that judges weren’t willing to be as up front and in your
face in Middle Eastern and other cases. … No judge criticized me but there was a
perception among the Ninth Circuit judges that I was heroic for what I did, but
there was nothing heroic about it.

237
When asked about the role of cultural differences in the asylum process, Judge
Two noted:
21

When circuit panels become most upset with the way the government has handled
cases it has been because of what I call demeanor issues. Circuit Court judges will
get distressed if in the record, the Immigration Judge or trial attorney seem to
regard certain cultural issues as an indicator of credibility-if an individual is more
reticent to give up facts or doesn’t speak in line, or women are not forthcoming
and they don’t get asylum from EOIR. In Article III review, particularly the
Ninth and Seventh Circuits will reverse on those grounds…. when culture issues
arise in the 9
th
Circuit cases they autopsy the case and don’t just review it.

With regard to whether he thought there was a change in the posture of the circuit courts
post 9/11, he noted:
22

Panels are now more conservative though this is not a function of post 9/11
hostility to certain groups. It’s on the part of judges who believe they should not
be activists- I don’t see in my experience that the 9
th
Circuit has become even
hostile to certain cases or to certain defense argument because of post 9/11 issues.

Judge Two further stated that conservatism on the circuit courts was due to the
appointments of President George W. Bush, people he labeled “very bright, very decent,
but more and more conservative.” He noted that the Department of Homeland Security
itself had post-9/11 issues, stating that in “every case I see in the post 9/11 era where a
background check is taking longer than it should, it’s a Middle Eastern or Muslim
case.”
23
He detailed a case he had while on the bench:
24

I had a Middle Eastern—a Kuwaiti case—with that issue. When Kuwait was
liberated the Kuwaiti government was expelling all Palestinians. This gentleman
had a great asylum case as an expelled Palestinian and in the middle of the case he
joined the U.S. army. The army people, State and DOD cleared him and he
volunteered for interpreter duties in Iraq. But DHS wouldn’t clear him. I called
the Army and the officer said he’s clean and believe me we checked him and
finally with the help of the DHS attorney, I finally got them to finish the
background check- and he was clean as a whistle. That happens only since 9/11.

238
When asked about the Seventh Circuit Judge Two noted:
25

I think the Seventh Circuit is going the other way. Judge Posner who is an
intellectual giant of the Circuit has sort of led the charge for there to be more
critical Immigration Judge assessments, because he doesn’t think they are
thorough enough. But I see no evidence that they have a post 9/11 hostility to
Middle Eastern groups. I think certain elements of DHS have changed and some
judges were initially hostile after 9/11, but their attitudes are more systemic than
against just Middle Easterners.

Judge Three, a former member of the Board of Immigration Appeals, offered
unique insights concerning the workings of appellate panels, especially the Board.
26

When asked whether she thought that the composition of a panel can make the difference
in the result of a Circuit Court or Board case, she replied affirmatively. She noted that on
any bench were there are different judges who interpret things like language differently,
and who are more likely to be more creative, or what some would call “more activist.”
She noted that if there is someone on a panel with a particularly strong belief, who wants
to exert some energy, he/she may bear some influence on co-panel members. She also
noted that it can definitely make a difference if is someone on a panel who is really
interested in going home at five o’clock. She added that someone who is lazy can make a
difference, and that if someone on the panel has particular ambitions, they can intrude on
the person’s professional judgment. She thought that this dynamic was less so in federal
court, but that such judges could still could have aspirations for higher court
appointments or to be chief judge in a circuit.
Judge Three denied seeing a “freshman effect,” noting that she had never been
before a new judge at the Board, but that everybody feels more comfortable after having
some time to get acclimated. When asked whether judges at the BIA are able to step
beyond their political preferences, she answered, “Sometimes.” She stated that some

239
judges are very resonate about following the law even if they disagree with it; they feel
like there is no choice but to uphold it. She said that people can go beyond their
preferences—indeed, the law may require them to go beyond them.
When queried whether she thought there was a difference in how Middle Eastern
asylum cases were decided after 9/11 as opposed to before that time, she similarly
replied, “Yes and no, sort of yes.”
27
She stated that cases coming before the Board for
decision after 9/11 had actually been heard by judges before the World Trade Center
bombings. She noted that after 9/11, there was a little more consciousness that an asylum
applicant could be someone who was a security threat to the U.S. She stated that she did
not think that this belief was absolute before 9/11, though there was consciousness of
whether they were they terrorists because they are from the Middle East. After 9/11,
however, there was a lot of awareness of the FBI picking people up. She stated that if
someone was looking at a case from somewhere in the Middle East and the claim had
gaps, there probably was a more stringent standard applied. If there was a slight problem
with a case, that problem was more likely to be seized upon by the Board. She stated that
she did not know if this scrutiny went on at the circuit level, but imagined that it might
have.
Judge Three also noted a bias against Middle Easterners in the Immigration
system, which went back to way before 9/11. She recalled that when working as an
attorney, she noted a period of time when there were many complaints that the marriage
petitions of people from the Middle East were being disproportionately pulled out of line,
as though fraud were involved. She noted was that there was more suspicion about the
veracity of applicants.

240
When asked whether she noticed bias against Middle Easterners in the
Immigration Court, she stated that she did not think it was strictly based on a Middle
Eastern background. She recalled a period when she represented many Lebanese
Christians who feared persecution by Lebanese Muslims. She noted that she represented
a mixed couple that couldn’t live in one neighborhood because it was Christian, or
another because it was Muslim. She stated that she thought that in such cases that the
western view would be to support the Christians.
Judge Three noted that she had also represented many Libyan students who had a
lot of success because of prejudice against Qadaffi. She stated:
28

I won a lot of asylum cases because of a propensity to think of him as a bad guy.
In a way it was a favoritism to them. When the Shah came and you were part of
the Shah’s leadership group, and officially after the hostage crisis the people who
were the beneficiaries were Iranians. Essentially it was all premised on a very
phobic view of Arabs and Middle Easterners. All the winning claims
were that this is a westernized person and they are associated with the
west. There was always an implicit thing about being associated with the West.

She also noted that this bias was also true for women. She stated that Middle Eastern
Women get stoned to death for being unfaithful, or for having an education, or for
refusing to wear the hidjab and adopting western or U.S. values, looks, dress, standards,
and culture. She stated that western adjudicators view some Middle Eastern practices as
barbaric—like FGM or forced marriages. She felt that such cultural differences make
them appealing to judges, aside from the fact that they involve human rights violations.
However, Judge Three also stated that the fact that decision makers are more
willing to approve such cases was a form of prejudice against Middle Easterners. She
noted that if Catholics took such actions, people would not be so upset. She stated that if
Contras in Nicaragua killed people because of communism, such an event was not

241
considered as much of a problem. Yet, she felt that people have a problem with Middle
Easterners who engaged in the same type of behavior.
When the question was posed to Judge Three as to whether she had noticed bias
against Middle Easterners at the Circuit Court level, she responded, “No, I can’t say that I
have. I am sure that it’s there though.”
29

However, she felt that a judge’s knowledge of particular country conditions
affects the outcome of the case, stating that when a judge had an expert before him and
was impressed by what the expert had to say, that attitude carried over into other cases.
She felt that personal experience made a difference. She noted a specific problem some
judges had after having traveled to a country where they had not noticed any problems.
She felt that this position was a very narrow way of looking at things, for example, “I was
in Tangiers and that never happened to me.”
30
She noted that in another case, the
judge— who was on the east coast—did not believe that when the applicant landed in a
European city, she started talking to a stranger, who helped her. He thought it sounded it
odd that she would talk to a stranger and he would help her. She stated that “it was
amazing to us at the time to realize that because he could not imagine doing it himself, he
found it implausible.”
31
She stated that she thinks that happens a lot. The more different,
the more likely it is that the judge feels that it is very foreign, and will draw broad
conclusions based on a list of personal experiences.
32

When asked how she would account for differences in the attitudes of different
entities in the Immigration System, she noted that at least in the immigration context
government attorneys who went into the government as prosecutors, and who mostly
represented white men, had a circumscribed perspective. She felt that the majority of

242
people at the BIA thought like government attorneys, had very little exposure and, as a
result, didn’t negotiate well with diversity, though that case maybe a little different now.
In a telling observation, she stated that when she was at the Board there were very few
people of color and her colleague was the first Mexican American to ever be on the BIA
despite the fact that Mexican cases are about 50% of those that are handled in EOIR.
Judge Three also volunteered that Middle Eastern cases were more complicated
because of Zionism. She stated that she thought that the general opposition or general
reason that there is a bias against Middle Easterners is because of attacks on Israel. She
stated that most government workers agree with a government position that has been
supportive of Israel, though maybe not to everybody’s satisfaction. She thus felt that
when you have a Middle Eastern person before you and they want to kill all Israelis or all
Jews, or whatever, they are going to be seen as the other by most people in the
government.
She also stated that the Lebanese are an exception to the bias in the sense that
there is a large Christian community in Lebanon, which is seen as more civilized. She
cited an unpublished case by Attorney General John Ashcroft, one of the only certified
cases
33
that was not published, where he granted a later motion to reopen by Lebanese
Christians, which normally would have been denied, but he granted relief based on
changed circumstances years later—because they fought side-by-side with the Marines as
an ally. Judge Three felt that this action was part of an attitude on the part of the
Department of Justice, which was also in the agency – and maybe at other levels in the
government.
34
Finally, she concluded that bias indeed existed before 9/11, and was

243
rooted in U.S policy in support of Israel and the Israeli position, but that 9/11 made
people more scared.
Judge Four
35
presented a stark contrast to Judge Three. When asked whether he
thought the composition of a panel could make the difference in the result of a Circuit
Court case, in accordance with other interviews, he answered “Absolutely.” He stated
that it was seen pre-9/11, after 9/11, and now. Judge Four stated that the circuit courts
reverse their precedents or make meaningless distinctions because of panels. He noted
that when you had three of the same type of liberal judge on a panel:
it doesn’t matter what the facts are. The odds are that the alien will prevail as
they are more result oriented than law based. If you see three conservatives on
the panel, its more likely you will get something close to precedent or what the
law says. Composition of the panel at least in this circuit, is extremely telling.

Judge Four voiced an interesting observation when asked whether he thought
there was a difference in how Middle Eastern Asylum cases were decided after 9/11, as
opposed to before that time. He replied that on the circuit level he didn’t really see a
major swing because those cases had been in the system anywhere from three to six
years, so changes such as Real ID, which changed the evidentiary rules on asylum cases,
didn’t come into effect until 2005.
36
In his opinion, Real ID cases would have been the
major mood swing or bellwether, but that would not have gone into effect until after
2005. Judge Four seemed to recall some circuits applying Real ID Act law to cases that
started before then, and that in the Ninth Circuit, a lot of discussion took place about
when to apply it and to what extent. Judge Four also reminded the interviewer that the
Real ID Act was enacted as a way to reign in the Ninth Circuit.
37

244
When asked about bias on the Immigration Court level, Judge Four noted a
heightened level of scrutiny by DHS prosecutors, noting that they were saying the Real
ID Act applies. However, when the Act didn’t apply to cases, some government counsel
tried to enforce the spirit of the imprint of the Act, whether it was appropriate or not. He
called this a lack of training, over-zealousness, or just confusion. He also noted that post-
9/11 newspaper reports were frequently sent to the forensic laboratory for overseas
investigations to make sure that they were not reprints manufactured to include the
person’s name. He stated that there was an increased level of determining whether
documents offered in support of asylum cases—primarily for Middle Easterners, though
it went up for everybody. He also added that certain countries seem to produce the same
types of asylum claims, and that he thought that judges on all levels need to be aware that
similar claims may reflect country conditions, rather than well-rehearsed attempts to get
relief.
38

Finally, when asked whether he thought a judge’s knowledge of particular country
conditions affects the outcome of the case, Judge Four noted that it was one thing to read
a country report and to have never traveled overseas, but that it was another thing to read
a country report on a country that one had visited. He was very candid in stating that
there are reports on countries that he had no interest in, and that while he didn’t think it
would prejudice him, his personal knowledge— including what he read or saw on tv—
had to be brought into the case. He noted that it was incumbent on a judge to identify
what is going on in the decision. “You hear every judge saying they relied on the country
report,”
39
he noted, recalling that one judge, now retired, said he read the country reports

245
and his personal observation was that the country reports are worthless. Judge Four
noted, “We used to get to hear those cases over.”
40

D. Analysis
One of the most striking observations to come out of the above series of
interviews is the sense of frustration on both sides regarding panel composition. While
many interviewees felt that panel composition has an effect on the outcome of a circuit
court case, their interpretations differed as to what constituted an appropriate panel. For
example, Attorney Nine was vehement when stating that a panel composed of certain
Republican appointees would lead to an automatic loss. Along these lines, Attorney Ten
noted that a panel including certain Democratic appointees would lead to a more
favorable result for the alien. However, Judge Four, while agreeing that panel
composition can determine the outcome of a case, said that a panel composed of three
similar minded very liberal judges would not look at the facts but rather at what they
wanted the result to be. Thus, while all agreed on the importance of the panel, strong
disagreement emerged over how cases should be decided.
One important aspect that came out of the interview with Judge Three was some
of the factors that prompt a panel to reach a decision, including the astounding idea that a
judge might reach a decision because he or she would want to leave by a certain time.
Though I was aware of the concept of such timing in the context of Immigration Court
hearings, as an attorney I had never considered that such factors would be a basis for
consideration among appellate judges. Yet here was a former member of the BIA stating
that a judge’s desire to get home on time could make a difference in an appeal, and it is a

246
factor that I have not encountered in the literature on judicial behavior at the appellate
level. More in line with the Small Group Theory of adjudication discussed in previous
chapters is the observation by Judge Three that a judge with a particular belief or
aspiration could have an effect on how the panel reaches its decision.
The question of whether the circuit courts changed in light of 9/11 prompted
similarly consistent answers. Most of the interviewees who ventured an answer felt that
there was no change in circuit court behavior in light of 9/11. Only Attorney Seven and
Judge Three expressed sentiments that there was change after 9/11. However, Attorney
Seven qualified his answer in that while he believed that there was change immediately
after 9/11, he did not believe that such bias was present after that event. Judge Three
imagined that there was change on the circuit court level, but did not actually know
whether such a change had occurred. Judge Four, on the other hand, felt that there was
no change because of 9/11. However, he said that any change that would have happened
would have been after the Real ID Act of 2005, and that such cases have only recently
made it into the pipeline of cases in the circuit courts. Judge Four’s comments about
Real ID are also consistent with comments from Attorney Nine, who felt that Real ID had
made litigating asylum cases in the Immigration Court more difficult, as well as the
research by as Jennifer Holmes and Linda Keith who cited the Real ID as having a strong
effect on asylum litigation.
41
Still, Judge Four’s comment that Real ID was enacted as a
way to rein in the Ninth Circuit is crucial because it supports the idea that a court’s
judicial decisions on immigration can influence immigration policy, even if it is in an
unexpected or undesired way. I have already noted that both the number and percentage
of asylum grants by the Ninth Circuit both before and after 9/11 exceeded that of any

247
other circuit that issued more than two precedents. I have also discussed that the large
number of Ninth Circuit reversals of administrative denials of asylum were an impetus to
the enactment of Real ID. Judge Four’s statement, however, is evidence of an
Immigration Judge’s awareness of this policy, particularly when considered in light of his
statement that a more conservative panel would issue a decision closer to what the law
was. Interestingly, the idea that change would come only after the implementation of
Real ID seems to go hand-in-hand with Judge Two’s comment that change in Ninth
Circuit decision making was not due to 9/11, but rather to President George W. Bush’s
appointment of conservative judges who were against the idea of judicial activism.
While these two judges see changes occurring for different reasons, the impetus for the
change, the curtailment of so-called activist judges, is the same.
The issue of a judge’s knowledge of country conditions as a factor in
adjudications also raised some common answers. On this issue, Judges Three and Four
were consistent, as they both felt that a judge’s experience or lack of experience in a
particular country was not a reason to deny a case. Attorney Nine similarly noted that a
judge’s knowledge of country conditions could affect a case. One interesting pattern that
emerged from the interviews is the contention by Attorneys Seven and Eight, and by
Judge Three, of bias in the adjudication of non-asylum immigration cases, particularly in
the form of a presumption of fraud on the part of the adjudicating officers. Indeed, one
area that most of the interviewees seemed to agree on is the idea that 9/11 created a bias
against Middle Easterners at the USCIS level.
Judge Three raised several issues that were not cited by other interviewees,
though they are discussed in some of the literature on political asylum, or have a basis in

248
case law. These include the idea of the Middle Easterner as an exotic foreigner, the idea
of the Middle Eastern woman as subject to special treatment, and the specter of Zionism
as a factor in asylum adjudication. Judge Three felt that granting asylum to certain
Middle Eastern women because they had been subjected to practices viewed by
Westerners as barbaric constituted a kind of bias. While Judge Three did not use the term
“Orientalism” as defined by Edward Said,
42
or expand upon in the asylum context by
Susan Musarrat Akarm, her thinking is parallel to the idea that Orientals or Middle
Easterners are treated a certain way by Westerners who perceive them as different.
43

Equally important is that Judge Three’s comments on the way women have been granted
asylum seem to verify the asylum regime propounded by the lesser known but important
scholar Connie Oxford. Indeed, both Judge Three and Oxford see a regime of white
men granting asylum to the victims of what they perceive as barbaric Middle Eastern
practices. Judge Three’s comments on Zionism—as having an effect on bias toward
Middle Easterners, could be relevant with regard to the composition of panels that have
denied asylum to Palestinians. However, it may be harder to extend support for Israel to
the larger body of Middle Eastern asylum cases, which are usually based on claims with
no connection to the Arab-Israeli conflict. Moreover, as Judge One implies, imputing
pro-Israel sentiments to all government attorneys is hard, given that the State Department
has not been pro-Israel.
In sum, when looking at a variety of opinions across the spectrum of asylum law,
a consensus emerges that panel composition can make a difference in circuit court

249
adjudications, but that there was little if any change in the circuit courts in light of 9/11.
On the other hand, on the USCIS level there appears to be a bias, which worsened after
9/11.

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CHAPTER 9 ENDNOTES

1
Interview with Attorney One, August 11, 2010. Pursuant to the Institutional Review Board, the names of
the interviewees remain anonymous.

2
Interview with Attorney Two, August 11, 2010.

3
Attorney Three email to Louis Gordon, August 11, 2010.

4
Attorney Four email to Louis Gordon, August 11, 2010.

5
Id.

6
Id.

7
Interview with Attorney Five, July 30, 2010.

8
Interview with Attorney Six, August 27, 2010.

9
Interview with Attorney Seven, August 2, 2010.

10
Interview with Attorney Eight, August 2, 2010.

11
Id.

12
Demore v. Kim, 538 U.S. 510 (2003)

13
Immigration court cases can drag on for years because they are heard in morning or afternoon session
and then rescheduled for an available date that can be months or ever years away.

14
Id.

15
Email from Attorney Ten to Louis Gordon, August 9, 2010.

16
Interview with Attorney Eleven, August 12, 2010.

17
Interview with Attorney Twelve, August 19, 2010.

19
Interview with Judge One, August 11, 2010.

20
Interview with Judge Two, October 7, 2010.

21
Id.

22
Id.

23
Id.

24
Id.

25
Id.

26
Interview with Judge Three, August 5, 2010.

251

27
Id.

28
Id.

29
Id.

30
Id.

31
Id.

32
Id.

33
Pursuant to 8 C.F.R. § 1003.1(h)(1)(i)(2004), the Attorney General can direct the Board to refer to him
for decision, any case he directs.

34
The unpublished decision, Matter of Marshi, A26 980 386 (A.G. Feb. 13, 2004), is discussed in
“Attorney General Overturns Board to Grant Asylum in Nonprecedent Ruling,” Interpreter Release 81.13
(March 29, 2004).

35
Interview with Judge Four, August 5, 2010.

36
Real ID ACT, Pub. L. No. 109-13, 119 Stat. 231 (May 11, 2005).

37
Interview with Judge Four.

38
Id.

39
Id.

40
Id.

41
Holmes and Keith, “Does the Fear of Terrorists Trump the Fear of Persecution in Asylum Outcomes in
the Post-September 11 Era?” 1.

42
Edward Said, Orientalism (New York: Vintage, 1979).

43
Susan Musarrat Akram, “Orientalism Revisited in Asylum and Refugee Claims,” International Journal of
Refugee Law 12. 1 (2000): 1.

252
CHAPTER 10.

THE CIRCUIT COURTS AS ASYLUM REGIMES

A. Introduction

As noted in Chapter Four, “Results of the Study,” the cases indicate that none of
the Circuit Courts viewed in the context of this study changed direction in light of the
events of September 11, 2001. While some interviewees expressed their beliefs that the
Courts did change in light of 9/11, others claimed that they had seen no change. Looking
at the published Circuit Court cases, however, it is clear that the two circuits that decided
more than five published cases both before and after 9/11, the Seventh and the Ninth,
both maintained the same posture towards asylum cases. The Seventh Circuit maintained
its position as a Court inclined to deny asylum, while the Ninth Circuit maintained its
position as a Court inclined to grant asylum.
What may be equally striking, however, is that no one accepted theory of judicial
behavior—Hierarchical Model, the Attitudinal Model, the Small Group Model, or foreign
policy considerations— can clearly explain why the courts voted as they did on all of the
individual cases. Rather, as we have seen in the case-by-case analyses of the Seventh and
Ninth Circuits, the decisions issued by these courts are often explained by one or more of
the models, as well as other factors unique to the cases.
Thus, the question that begs to be answered is whether we can construct a
framework to explain how courts decides asylum cases or, more precisely, why one court
takes a specific approach such as granting asylum cases, while another court takes an
approach denying them. The framework for the asylum regime that is suggested here is

253
composed of various determinants including Hierarchical, Attitudinal, or Small Group
Model factors, as well as a number of other factors, some unique to asylum cases. These
include the idea of an “Alpha Judge” who is so vociferous about an issue that he or she
can compel other panel members to vote in accordance with his or her preferences. Both
a number of cases, as well as the interview with Judge Three, a former member of the
Board of Immigration Appeals, suggest that a strong-minded judge can affect the
outcome of a case. In addition, a number of interviews with attorneys suggest that panel
composition itself can affect the outcome of a case. Also included in the framework is
the Reverse Hierarchical Model of cases, or appellate decisions that are influenced by
lower court precedent. In the context of Immigration and other Administrative agency
cases, such lower court agency decisions are binding on the Circuit Courts. At the same
time, asylum cases are also often decided based on foreign policy considerations and
specific country based characteristics, which in this study are specifically Middle Eastern
characteristics.

B. Regime Theory
Political scientists generally use the term regime in connection with institutional
forms, and the concept of a jurisprudential regime, at least as far as the Supreme Court
goes, is not new.
Howard Gillman notes that “Regime Politics” is defined by the different ways in
which governing coalitions advance their political agendas and organize their power
within institutions. He notes that because courts have the authority to make policy,

254
members of the governing coalitions have an interest in influencing their ideological and
political stances, or what he refers to as their “decision making bias.”
1
This approach is
primarily done in the United State by the president and senate, which add their political
and ideological criteria to concerns regarding a judge’s professional abilities. Thus
regime politics ensure that judges will have preferences and agendas that are generally in
conformity with those of other power holders.
2

Some scholars studying U.S. constitutional history have both explicitly and
implicitly applied regime theory to explain the Supreme Court’s decisions.
3
Mark J.
Richards and Herbert M. Kritzer have noted that jurisprudential regimes structure
Supreme Court decisions by setting forth which case factors are relevant to decision
making, and by balancing the level of scrutiny the judges use in evaluating the factors in
a particular case.
4
According to Richards and Kritzer the judges then apply regimes to
subsequent relevant cases and after a new regime is created, the case factors are expected
to matter to the judges in a different way than they did before the previously decided
cases.
5
Specifically, they understand jurisprudential regimes as referring to a key
precedent or set of connected precedents that order the way the Supreme Court justices
evaluate essential elements of cases in arriving at decisions in a particular area of the
law.
6

Kritzer and Richards’ theory that key legal precedents lead to changes in how
judges vote has been criticized by Jeffrey Lax and Kelly Rader, who note that the
standard Chow test of coefficient change, used in some of Kritzer and Richards’ research
design, is too overconfident in finding that a change occurs in voting across cases before

255
and after a precedent.
7
While they note that statistical significance is not sufficient to
draw conclusions about research, they disagree with Kritzer and Richards about the
extent to which it should be a necessary part of jurisprudential regimes’ research design.
8

Howard Gillman views the Kritzer and Richards concept as a way that judges
transform their identities and ideologies into a preferred legal analysis, which includes
concepts, rules, doctrines, tests, and precedents. The regime then establishes an operating
procedure to analyze specific kinds of claims. The jurisprudential regimes are related to
regime polices because they are designed to influence decision making in a preferred
manner and, when judges from a new coalition view the tests and approaches they have
inherited from an old coalition as incompatible with their new priorities and values, they
discard the old ones and adopt new ones.
9
Gillman further sees the jurisprudential
regimes as connected to regime politics because political part leaders evaluate the fitness
of a candidate for a judicial position based on how they believe the potential judge will
treat precedents associated with a particular regime.
10

Kevin Scott has observed that jurisprudential regimes can cause changes in the
behavior of the judges by changing what facts are relevant to the decisions made by the
justices. He notes that the finding that case facts affects the behavior of justices supports
both legal and attitudinal decision making. In essence if the weight the justices give to
case facts changes in response to developments in Supreme Court policy, the regime
would appear to have an affect on the judges’ behaviors. Thus, according to Scott,
jurisprudential regimes theory argues that the justices will weigh the components of a
case in a different ways after a regime has been established.
11

256
While the Supreme Court’s approach to deciding particular types of cases has
been the subject of the majority of studies on jurisprudential regimes, it makes sense that
Circuit Courts would also develop regimes that determine how they decide cases. Such
regimes would cover a number of areas of law including asylum and could vary in
approach from circuit to circuit. While it has not previously been applied to asylum law
in the Circuit Courts, Regime Theory has been employed as a method to explain asylum
determinations on the administrative level by the sociologist Connie Oxford.
12
In her
seminal study, Oxford draws on sociological, postcolonial, and subaltern feminist
theories to provide a conceptual framework for explaining how victimization and
protectionism are rooted in assumptions about gendered harm. She argues that a gender
regime of asylum practices is found in institutional positions including asylum officers,
immigration judges, attorney, interpreters, and service providers, who often fashion the
narrative of asylum seekers to better meet the preference of those adjudicating the asylum
claims.
13
Of particular interest is Oxford’s field research, which she argues shows that
those who have been granted asylum on the basis of female genital mutilation did not
necessarily leave their countries because of persecution on this ground. Rather, upon their
arrival in the United States immigration attorneys and service providers instructed them
that such experiences would help them gain asylum.
14
Oxford’s theory is essentially
supported by the observations expressed by Judge Three in her interview with me.
15
She
stated that the cultural difference that created a practice like Female Genital Mutilation or
forced marriages created an atmosphere within which western adjudicators viewed some
Middle Eastern practices as barbaric, and the fact that some decision makers were more

257
willing to approve such cases was just a form of prejudice.
16
What is striking about Judge
Three’s observations is that she arrives at some of the same conclusions as Oxford but
based on her own legal and judicial experiences. While Judge Three did not call the
practice of adjudicators granting exotic cases an “asylum regime,” her thinking very
much validates Oxford’s research and indicates that the various components of the
asylum process actually creates a regime that is influential and affects the outcome of
cases.

C. Components of the Regime Model of Asylum Determinants in the Circuit Courts
As noted above, the Regime Model of Asylum Determinants in the Circuit Courts
set forth in this chapter includes hierarchical, attitudinal, and small model elements, but
also adds other elements that are specific to asylum law and essential to understanding
how Circuit Courts reach decision in asylum cases.
1. The Hierarchical Model
The Hierarchical Model, in its basic form, argues that courts are influenced by
directives from higher courts, and it follows that according to this model Circuit Courts
would be influenced by the Supreme Court.
17
In the immigration context, substantial
evidence is a crucial component of the hierarchical model. Substantial Evidence
basically allows a Circuit Court to uphold a decision of the Board of Immigration
Appeals if a reasonable fact finder could have concluded that the decision by the Board
or immigration judge was accurate. In other words unless the evidence compels a
conclusion contrary to an Immigration Judge or BIA finding, a Circuit Court must uphold

258
the decision pursuant to the Supreme Courts directive in INS v. Elias-Zacarias, (S.Ct.
1992).
18
This standard is cited by numerous courts across the circuits to deny cases, thus
affirming the Hierarchical Model’s validity in asylum cases.
We can see the forces behind this model at work in cases such as Kishtow v. INS,
(7
th
Cir. 1995), where substantial evidence was used to to uphold the denial of asylum to
an Iraqi Assyrian Christian, Chebchoulb v. INS, (9
th
Cir. 2001); where a mixed panel
used that doctrine as rationale for denying a Moroccan applicant’s claim based on
imputed political opinion, in Mansour v. Ashcroft, (7
th
Cir. 2000); where an all
Republican panel used substantial evidence to support the denial of asylum to an Iraqi
army deserter; and in Mansour v. INS, (9
th
2004), where a Republican dominated panel
denied asylum to a Coptic Christian over the vigorous dissent Democratic appointee
Judge Harry Pregerson.
19

Other Supreme Court directives can theoretically be used to direct the Circuit
Courts to decide cases, though in actuality they are rare because the Court does not rule
on very many asylum cases.
20
Still, one of the most fascinating questions that arises
when considering the Hierarchical Model is how the Circuit Courts can move in different
directions if they are influenced by one single body of Supreme Court law. Indeed, the
model cannot explain why no real change is found in either the decisions of the Seventh
or Ninth Circuits after the events of September 11, 2001, even though they move in
different directions. The answer to this question is essentially that while precedent is a
factor in Circuit Court decisions, it is not the only factor. Indeed, as David Shapiro
argues, precedent shapes strategic behavior by judges and other adjudicators because a

259
significant number of those who decide cases consider precedent to be a key factor in
deciding a case.
21
But precedent can also be understood in different ways, and the
application of a precedent in one circuit may not necessarily be the same application in
other circuits.
22

2. The Reverse Hierarchical Model
A corollary aspect of the Hierarchical Model that has not been addressed in social
science literature but is relevant to all immigration cases heard in the Circuit Courts, and
is thus propounded here, is the concept of reverse hierarchy or the effect of the lower BIA
precedents on the individual circuits. All circuit courts are bound by BIA precedents,
often tempered by previous Circuit Court decisions. This phenomenon is different from a
Circuit Court reversal of a District Court because the agencies in administrative
proceedings are presumed to possess professional knowledge about the cases brought
before them, and are thus given special deference. While it is not new, the idea has been
given sharper teeth by the Supreme Court’s decision in National Cable & Telecomm.
Ass’n v. Brand X Internet Servs., (S.Ct. 2005).
23
Brand X basically negates Circuit Court
precedent on a particular issue, if the BIA has never issued its own precedent on that very
issue. In other words the idea is that the Board has first crack at the statutory
construction of issues, and the Court must disregard its own precedent in favor of the
Board’s precedent. None of the published cases analyzed in this study is solely
attributable to the inverse Hierarchical Model, though several cases cite Board precedent
as authority for the decision. Nevertheless, as cases decided after Brand X begin to reach

260
the Courts, the Reverse Hierarchical Model will likely be an increasingly important factor
in explaining judicial behavior of the Circuit Courts.
24

3. The Attitudinal Model
The Attitudinal Model generally holds that that judges vote according to
ideology, namely conservative judges votes in favor of conservative decisions, and liberal
judges vote in favor of liberal issues. In the immigration context, this notion may
generally translate as conservative judges more often than not voting to deny asylum and
liberal judges more often than not voting to grant asylum. Certainly in David Law’s study
of the Ninth Circuit, liberal judges such as Carter appointee Judge Reinhardt grant
asylum at the highest rates, whereas conservative Judges such as Judge Wallace grant
asylum at the lowest rates. In its most sophisticated form, the Attitudinal Model looks to
the ideology of the senators from the state that has nominated a particular judge in order
to make as accurate a measurement of the judge’s ideology as possible. Howard Gillman
argues that decision making on appellate courts is influenced by a judge’s ideology and
political identity but this effect does not mean that judges are “free-floating policy
makers, or that constitutional law is simply a reflection of the governing elite’s
preferences.”
25

While it clearly affects judges’ views in many cases, ideology cannot explain all
or even a majority of cases in the Middle Eastern context for a very different reason than
what is usually offered in critiques of the Attitudinal Model. That is the lack of
consensus within a given type of ideology regarding specific foreign policy
considerations on the Middle East. For example attitudes towards the Arab-Israeli

261
conflict and the asylum applications that might flow from it, are not easily measured by a
determination of the appointing party, or even by the level of conservatism or liberalism
within that party.
In other words the simplification of a party’s position on a given issue is fraught
with complications. Along these lines, the Republican presidency of George H.W. Bush,
which included James Baker as Secretary of State, would be considered less sympathetic
to Israel than the classic old left Democrat of the Michael Dukakis mold whom Bush
defeated. At the same time, George W. Bush would be considered more sympathetic
toward Israel than President Obama.
26

The same type of difficulty exists with regard to Christian asylum applicants.
Republicans could be said to be skeptical of all asylum applications, but some are
vehemently pro-Christian even if— like Mike Huckabee— they are economic populists.
On Iraq some Republicans may be more or less inclined to grant asylum to the enemies of
America whereas some Democrats may be less inclined to grant asylum based on foreign
policy grounds. Thus the concept of ideological voting that underlies the Attitudinal
Model must be viewed with caution when predicting voting in Middle Eastern asylum
cases.
For example, the Attitudinal Model simply cannot explain a number of cases
discussed in this study. In Dandan v. Ashcroft, (7
th
Cir. 2003), an all Democratic panel’s
denial of asylum to a Lebanese Christian in a case where the Seventh Circuit stated it had
to “quantify suffering” indicates the inability of the Attitudinal Model to predict the
court’s voting. Nor does voting go in only one direction. In Youkhana v. Gonzales, (7
th

262
Cir. 2006), a majority Republican panel arguably went against the Attitudinal Model
when granting asylum to an Assyrian Christian. The model is similarly challenged by the
decision of an all Republican panel’s vote to grant asylum in Boctor v. Gonzales, (7
th
Cir.
2007).
Cases arising within the Ninth Circuit present similar scenarios. Fisher v. INS,
(9
th
1996), was marked by debate between two conservative stalwarts, Judges Wallace
and Noonan, whereas in Kourassany v. INS, (9
th
Cir. 2000), we see Judge Wallace on the
same side as Judges Pregerson and Thomas—belying the Attitudinal Model or at least
providing a reason to configure it to better reflect different shades of ideology.
Still, a number of cases in this study are best explained by the Attitudinal Model.
In Chakir v. Gonzales (7
th
2004), the denial of asylum by an all Republican panel
supported the Attitudinal Model; in Jamal Daoud v. Gonzales, (7
th
Cir. 2005), an Iraqi
Christian was denied asylum by a majority Republican panel, while in Yadegar-Sragis v.
INS, (7
th
Cir. 2002), a Republican panel—while expressing sympathy—denied asylum to
an Iranian Christian woman, in a decision that can be viewed as attitudinal.
Some cases that resulted in grants are also fairly well explained by the Attitudinal
Model, such as El Himri v. Ashcroft, (9
th
Cir. 2004), where an all Democratic panel
granted asylum to a stateless Palestinian. We can see that some cases that are
hierarchical are also classified as attitudinal, such as Mansour v. Ashcroft, where an all
Republican appointed panel found that it had no choice but to accept the BIA’s adverse
credibility determination and upheld the BIA’s ruling on asylum, based on substantial

263
evidence.
27
While it can thus be explained by both the Attitudinal and Hierarchical
models, the decision does not discredit the validity of either approach to the case.
Rather, in line with Howard Gillman’s thinking, the attitudinal affect can be said to
proceed on a continuum. As the credibility issues in a case become stronger, the
ideological opposition to a grant becomes less relevant.
4. Small Group Model

The Small Group Model has been demonstrated to work for District Judges sitting
on panels with Circuit Court judges, new judges, and minority party judges sitting on a
panel of judges composed of members of the opposite party. The underlying theory here
is that the judges seek to be cordial so they may reach a decision based on consensus.
The model of course can explain some decisions within the context of the Circuit Courts
in asylum cases, but it cannot explain all the decisions because only a portion of cases
involve new judges, or those from other courts. Minority judges faced with members of
the opposite party present the same problem we saw in the Attitudinal Model; there is, at
times, a poor correlation between party and ideological disposition towards the issues
involved in Middle Eastern asylum cases.
Still, in a number of cases, the Small Group Model is the best explanation for how
the courts have decided particular cases. For example in Zahedi v. INS, (9
th
Cir. 2000),
the lone Republican member on the panel did not challenge the majority decision to grant
asylum to a distributor of the Satanic Verses. Similarly, in Bandari v. INS, (9
th
Cir.
2000), the minority Republican judge and member of the Court of International Trade did
not challenge the decision of the majority Democratic appointees to grant. In Al-Saher v.

264
INS, (9
th
Cir. 2001), an Iraqi dissident was denied asylum by the Court, which still
remanded for withholding of removal, and the lone District Court judge went along with
the decision.
Padash v. INS, (9
th
Cir. 2004), is also easily explained by the Small Group
Model, as Judge Stephen Reinhardt may have strategically chosen to vote to deny asylum
to an applicant who was eligible for other relief. Moreover, in Taha v. Ashcroft, (9
th
Cir.
2004), a case where the Court actually reversed itself, the fact that Judge Schwarzer was
not a Circuit Court judge may in fact have led to that panel’s decision to reverse itself,
leading credence to the Small Group Model. The reason for this is that, as a District
Court judge, Schwarzer would never hear asylum cases, and it is unlikely he would have
had asylum experience prior to his appointment.
28
Thus, his deference to the other judges
with more knowledge of asylum is not unlikely, particularly if, as in Taha, that judge is a
persuasive figure like Judge Kozinski.
5. Alpha Judge
Another issue that seems to be related to the small group model is the deference
of the majority of judges to the will of an “Alpha Judge” or star of the court. Some
judges, based on intellectual acumen, moral position, and oratorical abilities, clearly
stand out from the pack. The presence of such a judge on a panel (i.e., but not only,
Kozinski, Noonan, Pregerson, Reinhardt, Wallace, Wood, Easterbrook, or Posner) would
sway the decision in a certain direction. An example of this dynamic is Gulla v.
Gonzales, (9
th
Cir. 2007), where Judge Siler sided with Democratic appointee Judge
Pregerson over fellow Republican appointee, Judge Fernandez. Similarly, while the

265
decision in Taha v. Ashcroft, (9
th
Cir. 2004), may be explained as an example of Small
Group Model, it can also serve as an example of the influence of an Alpha Judge. Indeed,
Judge Kozinski’s vigorous dissent clearly pushed the other judges to change their
perspective, and may— as noted above— have been a strong primary influence on Judge
Schwarzer’s willingness to change his position.
6. Foreign Policy Considerations
Foreign and other policy considerations that can be directly tied to a specific
political ideology are properly part of the analysis set forth in the section on the
Attitudinal Model. Nevertheless, evolving U.S. policy in international relations may
effect the voting of judges in certain cases separate and apart from purely political
ideology. Such policy considerations are often manifested in Court created doctrines that
are influenced by existing jurisprudence on the “Separation of Powers Doctrine.” For
example, in Kishtow v. INS, (7
th
Cir. 1995), the Court, in denying asylum to an Iraqi
Assyrian Christian, held that immigration policy is to be formulated by Congress and
“that body has enacted restrictive asylum eligibility requirements.” The idea of following
doctrine seems to have been paramount in a decision that could have also gone the other
way.
This type of doctrine upholding deference to Congressional policy considerations
is found in a number of other cases. In Mousa v. INS, (7
th
Cir. 2000), the Court upheld
the right of a Palestinian Jordanian who had engaged in actions against Israel to apply for
asylum, while still denying the case, noting that it did not “believe that that Congress
intended to restrict asylum and withholding to only those who had taken no part in armed

266
conflict.” The published decision, which made law on an issue apart from the ultimate
decision in the case, is a primary reason why a close reading of published cases is
essential to a full understanding of how the Court arrives at a decision.
Decisions in cases such as Ahmed v. Ashcroft, (7
th
Cir. 2003), where the Seventh
Circuit found there was no per se rule against past persecution for dangers during police
service; Sharif v. INS, (7
th
Cir. 1996), where that Court found that “living in accord with
Iran’s conservative social mores,” is not equivalent to persecution per se; and Youhkana
v. Gonzales, (7th Cir. 2006), where it held that the Ba’ath Party’s removal did not
necessarily mean that country conditions in Iraq had improved for Assyrian Christians,
may all be attributed to Foreign Policy Considerations. At the same time, the Ninth
Circuit, in a number of cases, has specifically expressed its interest in influencing foreign
policy away from official U.S. positions. Examples of this shift are Baballah v. Ashcroft,
(9
th
Cir. 2003), where the Court granted asylum to an Israeli Muslim, and El Himri v.
Ashcroft, (9
th
Cir. 2004), where it granted asylum to stateless Palestinians who had
resided in Kuwait.
7. Specifically Middle Eastern Characteristics
This study employed a typology to separate, categorize, and better understand the
various issues that comprise Middle Eastern asylum cases. Thus, the cases have been
divided into four primary categories, Race/Ethnicity/Nationality, Religion, Political
Opinion, and Membership in a Particular Social Group. Scholars employing an
“Orientalist” critique have noted that Western writers often view the Middle East as an
exotic place, thus imposing personal judgments on the region’s native cultures.
29
The

267
idea of “Orientalism” has been extended to asylum cases by scholars such as Susan
Akram, as well as by members of the bar, such as Judge Three.
30
Undoubtedly such
specifically Middle Eastern characteristics, along with cultural misperceptions, arise in
both the presentation of the cases and the judiciary’s understanding of their facts.
Along these lines, we must then consider the education of the judges on the
Middle East. Law school curriculum is usually devoid of courses teaching Middle
Eastern culture, so the knowledge judges would need to understand the regions
adequately would probably have to come from undergraduate courses, additional
graduate work, and/or some intercultural experience. While we may consider Circuit
Court judges to be highly educated, we cannot necessarily consider them highly educated
on the Middle East. Thus they are at times subject to making decisions based on faulty
information. A clear example of the lack of country specific education by the judiciary
occurred in a case this author argued before a Social Security Administration judge on
behalf of an Iraqi Jewish woman. The Judge, who was in general very educated, and
who did grant the relief requested, was, however, taken aback when he heard that the
woman’s best language was Judeo-Arabic. He had never heard of the language despite
the fact that hundreds of thousands of Middle Eastern Jews speak this language as their
native tongue. An analysis based on insufficient education can thus be flawed. Indeed,
limited or inaccurate knowledge of Middle Eastern culture appears to have played a role
in a number of cases considered in this study. In Margos v. Gonzales, (7
th
Circ. 2006), a
panel composed of all Republican appointees denied asylum to an Iraqi ostensibly
because her claim of a well-founded fear of persecution as an Assyrian Christian had not

268
been raised before the courts below. Yet, the Seventh Circuit also noted that even if it
had had jurisdiction, it would deny the claim because Assyrians were better off under
Hussein, a factual determination that reveals the limits of the judiciary’s knowledge of
the Middle East; while Hussein may have not tolerated factional strife per se, repression
of Christians was still prevalent.
Similarly, in Alsagladi v. Gonzales, (7
th
Cir. 2006), the Court upheld an
Immigration Judge’s inaccurate speculation on how the Court system worked in Yemen,
in what appeared to be an effort to punish an applicant with a background similar to the
mastermind of the World Trade Center bombings, Osama Bin Laden. The case is best
categorized by Middle Eastern characteristics because the decision is based on a lack of
understanding of the conditions in Yemen. Baballah v. Ashcroft, (9
th
Cir. 2003), also
involved an element of Middle Eastern characteristics, as the Court mischaracterized
Hebrew slang in an effort to grant the case. While, as previously discussed, the decision
could be viewed as an attempt to influence foreign policy against complete support for
Israel, it could also be understood as a failure to understand specifically cultural
characteristics.
8. More than One Issue
A number of cases analyzed in this study can be explained by more than one
theory of judicial behavior, and it is often impossible to determine which, if any, theory is
most likely to explain the court’s actions. For example, in Al-Harbi v. INS, (9
th
Cir.
2001), the panel, composed of two Democrats, granted an Iraqi dissident asylum. While
the panel’s decision could be explained by the Attitudinal Model in that Democrats vote

269
to grant and Republican appointees vote to deny, the decision could just as easily be
attributed to the Small Group Model, in which the minority member goes along with the
majority.
An example of just how complicated the classification of a particular decision can
be is found in Gulla v. Gonzales, (9
th
Cir. 2007), where the Court reversed a BIA decision
to deny asylum to Christian Coptics. As we have seen, Judge Siler, a Republican
appointee normally sitting in the Sixth Circuit, sided with democratic appointee Harry
Pregerson, over Judge Fernandez, a Republican. This decision might be explained by
Pregerson’s status as an Alpha— or particularly prominent— judge, or by the specifically
Middle Eastern nature of the case, or by the spectrum of Coptic Christians in Egypt,
which, as we have seen, some Republican judges are more inclined to favor.
9. The Wild Card Model; No Apparent Explanation
The last explanatory theory of judicial behavior in the Circuit Courts dealing with
asylum cases is what I refer to here as “The Wild Card Model,” because it encompasses
cases for which there is no apparent or adequate explanation for the court’s decision.
Such cases include Najafi v. INS, (7
th
Cir. 1997), where a panel of all Republican
appointees remanded an Iranian case on the issue of religious persecution, while denying
asylum on all other issues. Similarly, in Durgac v. Gonzales, (7
th
Cir. 2005), a panel that
included two Republican appointees chose to grant asylum to a Kurd in an arguably close
case, with no apparent reason other than perhaps to publicize a little known issue.

270
D. Conclusion: The Asylum Regime, A Formidable Framework
As we have seen, no one model or theory can explain the decisions of the majority
of published Circuit Court decisions— the decisions that comprise a large body of
Immigration Law. Rather, all of the models and theories—including some introduced
here—play a part in or explain how the courts arrive at their decisions.
Indeed, the results set forth in this study are explained by a Regime Theory,
which postulates that each circuit creates its own asylum regime comprised of similar
elements, thus setting the tone for the circuit. The Regime Theory incorporates elements
found in other models of judicial behavior along with particular aspects of the Middle
Eastern asylum cases themselves. The elements include higher court precedents
explained by the Hierarchical Model, most importantly the rule of substantial evidence
set forth by the Supreme Court. It also includes the Reverse Hierarchical Model, which
states that Circuit Courts are constrained in some cases by precedents issued by the Board
of Immigration Appeals. In addition, the Regime Theory includes the ideological
preferences of the judges, which are explained by the Attitudinal Model, along with
foreign policy considerations, which may not always be the same thing. Further, the
Regime Theory includes the Small Group Model, which explains how district or other
minority judges sitting on panels may effect decisions. The Regime Theory may also
include what this author considers a corollary aspect of the Small Group Model, the
effect of an intellectually charismatic or powerful judge, known as an “Alpha Judge,” on
the other judges comprising a panel. Finally, the Regime Theory includes the interaction
of the individual courts with the Middle Eastern cases themselves.

271
Thus, when we understand the Circuit Court as an “Asylum Regime,” we can
understand that the individual elements discussed above combine to create a particular
slant, i.e., regime for a particular court, and specifically why the Ninth Circuit
continuously moves in one direction toward granting cases, and the Seventh Circuit
moves in another, toward denying them.
The asylum regime is important to researchers for several reasons. First it is
evidence that in yet another area of law, various components join to create a regime or
posture of the court toward deciding different cases. Howard Gillman makes the point
that the debate about enumerated constitutional rights arose out of specific features of the
post-New Deal jurisprudence regime, which was different than the pre-New Deal
regime.
31
While the cases analyzed in this study do not indicate that new regimes have
been formed specifically because of the events of 9/11, interviews reveal the distinct
possibility that regime change may be occurring. Attorney Nine and Judges Two and
Three all believe that there has been a change to some degree in the posture of the
circuits, though they are not in agreement as to the reasons for the change. Attorney Nine
and Judge Two see 9/11 as causing a change, while Judge Two believes that it is simply
due to the appointment of more conservative judges.
However, regardless of whether regime change is occurring at this time, the cases
and interviews reveal the existence of different asylum regimes in different circuits,
which, while connected to ideology and the Attitudinal Model, are comprised of many
more factors. In the Seventh Circuit we see an asylum regime inclined to deny cases
based on an assortment of factors. Similarly, in the Ninth Circuit, we see an asylum

272
regime inclined to grant cases. But, as we saw in the in-depth analyses of the two circuits,
there is much more to the cases than just pure voting. The Seventh Circuit, while
denying cases, often sought to soften the blow by setting forth a doctrine that would
allow some other applicants in the future to receive asylum on similar grounds. The
Court, more often than not, ensured that its decision was line with American foreign
policy. The Ninth Circuit, on the other hand, sought to grant asylum in Middle Eastern
cases that stretched the boundaries of asylum law and, on a number of occasions, chose to
issue decisions at odds with U.S. foreign policy. Moreover, as we have seen, the regime
concept allows us to better understand how certain public policies may evolve from
judicial decisions. The current administrative amnesty strongly resembles the suggestion
that the Seventh Circuit made while denying cases. At the same time, the Ninth Circuit’s
posture on credibility issues was a major impetus for the enactment of the Real ID Act.
Thus, by defining asylum regimes, we can also understand how policy evolves.
The asylum regime concept, when applied to a defined set of cases, can also
clarify a Court’s approach to specific legal issues or claims by certain groups of asylum
applicants, and this is a very important application to asylum litigation. For example,
attorneys faced with Middle Eastern asylum cases would not consider doing legal
research on a region. Rather, their research would primarily take the form of case analysis
and reviewing the development of doctrine over a range of cases, primarily focusing on
the law and the facts of the case. While these are essential parts of legal research, the
knowledge that a court functions as an asylum regime provides an additional set of tools
that the litigator can use to evaluate the strength of a case.

273
CHAPTER 10 ENDNOTES

1
Howard Gillman, “Regime Politics, Jurisprudential Regimes, and Unenumerated Rights,” Journal of
Constitutional Law 9.1: 107-108. Gillman places on great emphasis on the “point of departure” for the
empirical study of law and courts as Robert A. Dahl’s “Decision-Making in a Democracy: The Supreme
Court as a National Policy-Maker,” Journal of Public Law 279 (1957): 279-95 and Martin Shapiro,
“Political Jurisprudence,” Kentucky Law Journal 52 (1963-64): 294, 296.

2
Id. at 108.

3
Mark J. Richards and Herbert M. Kritzer, “Jurisprudential Regimes in Supreme Court Decision Making,”
American Political Science Review 96. 2 (June 2002): 305-320.

4
Kritzer, 307-308.

5
Id. at 305-306.

6
Id. at 308.

7
Jeffrey R. Lax and Kelly T. Rader, “The Three Prongs of a Jurisprudential Regimes Test: A Response to
Kritzer and Richards,” The Journal of Politics 72.2 (April 2010): 289.

8
Id. at 291.

9
Gillman, 114.

10
Id. at 114-115.

11
Kevin M. Scott, “Reconsidering the Impact of Jurisprudential Regimes,” Social Science Quarterly 87.2
(June 2006): 380-381.

12
Connie Gayle Oxford, “Gender-Based Persecution in Asylum Law and Policy in the United States,”
Doctoral Dissertation, University of Pittsburgh, 2006.

13
Id. at 143-144.

14
Id. at 155.

15
Interview with Judge Three. See also Sonia Riera-Penney, “Cautionary Tales, U.S. Immigration and the
Fauziya Kaddindja Case: Toward a Theory of Cultural Romanticism,” Doctoral Dissertation, University of
Southern California, 2002.

16
Interview with Judge Three, August 5, 2010.

17
Among the best studies employing the Hierarchical Model is David B. Klein, Making Law in the United
States Courts of Appeals (Cambridge: Cambridge University Press, 2002).

18
INS v. Elias-Zacarias, 502 U.S. 478, 481 & n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)

19
Some of these decisions conform to both the Hierarchical and Attitudinal Models.

274

20
For a recent Supreme Court case affirming the principle that motions to reopen to reapply for asylum
based on changed country conditions, see Kucana v. Holder, 130 S.Ct. 827 (2010).

21
David L. Shapiro, “The Role of Precedent in Constitutional Adjudication: An Introspection,” Texas Law
Review 86.5 (April 2008): 940.

22
A very good example of this in the immigration context is the circuit split that has occurred after the
Supreme Court’s decision in INS v. St. Cyr, 121 S.Ct. 2271, 533 U.S. 289, 150 L.Ed.2d 347, (U.S. 2001),
restoring 212(c) hearings to persons who pled guilty to crimes prior to the enactment of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009.
Some courts have held that the hearings that weigh the severity of a person’s crime against his equities
apply to those who went to jury trial, while other circuits hold it does not.

23
National Cable & Telecomm. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005)

24
The time frame for the filing of an asylum case until its final decision by a Circuit Court in Los Angeles,
is approximately five years, but often takes much longer. Thus, many cases denied by the BIA after 2005,
which rely on Board precedent, remain pending at the Circuit Court level.

25
Gillman, 108.

26
The argument needs to be considered in context. Both Baker and Obama had close American Jewish
advisors with ties to Israel. Aaron David Miller has written about his role in the Arab-Israeli negotiations,
and Rahm Emanuel is currently serving the Obama administration.

27
Id. at 905-906.

28
The only Immigration Judge now sitting as a District Court is Judge is Judge Marilyn Patel in the
Northern District of California.

29
See Edward W. Said, Orientalism (New York: Vintage, 1979).

30
Susan Akram, “Orientalism Revisited in Asylum and Refugee claims,” International Journal of Refugee
Law12 (2000): 7-10; Interview with Judge Three.

31
Gillman, 115.

277

CHAPTER 11.

CONCLUSION

This study analyzed published circuit court decisions on asylum in the six-year
periods before and after September 11, 2001, in an effort to consider whether the World
Trade Center bombings prompted a change in circuit court behavior. It also offers a
framework, the “Asylum Regime,” which allows for a greater understanding of the
factors which come together to create a circuit court’s posture towards asylum cases.
Chapter One, “Introduction,” presented the phenomenon of asylum as the
mechanism through which an oppressed person may petition the United States
government for refuge from his or her tormentors. It also notes that asylum has prompted
much contemporary political discussion and public debate on illegal immigration.
While many hotspots throughout the world have produced applicants for asylum
in the United States, perhaps no area has been the source of as much fear and controversy
as the Middle East; no doubt the events of September 11, 2001 further complicated the
issues. Immigrant advocates have feared that the new environment has led to a decrease
in the number of asylum grants. But have such fears actually lead to any changes in
judicial policy on asylum, particularly at the appellate level where most of the cutting
edge case law is made? Did the Circuit Courts of Appeal modify their actions in light of
such fears, or did the events of September 11, 2001 produce no such change?
The first chapter discusses the selection of “published decisions” as the preferred
form of cases to study for those seeking to understand Middle Eastern asylum cases. To

278
begin with, published decisions create many of the actual rules of law, which are
followed by the Board of Immigration Appeals and the Immigration Courts. Second, the
published decisions often set forth either actual policy or reasons or a rationale as to why
a certain policy should be followed by the judiciary.
Chapter One also sets forth the three hypotheses employed in this study. The
primary hypothesis (H-1) is that favorable rulings by the Circuit Courts in Middle Eastern
asylum cases in the aftermath of the events decreased along with the implementation of
more tightened national security. The alternative hypothesis (H-2) is that while there was
a change in posture towards Middle Easterners at some levels in the immigration system
in the years following 9/11, no change occurred in the circuit courts. The third
hypothesis (H-3) is that each individual circuit court retained the same posture it had
prior to September 11, 2001. Finally, Chapter One reveals the results of the study,
affirming the second hypothesis, and includes a statistical breakdown of how the courts
voted during the different time periods.
Chapter Two, “Studying Asylum Cases; An Analytical Framework,” looks at the
basic structure of the asylum process and then proceeds to detail the various methods that
have been used to measure and study asylum cases in the United States. Someone
applying for asylum in the United States must show that they have been persecuted in the
past, or have a “well-founded fear” of future persecution on the basis of their race,
religion, membership in a particular social group, ethnicity, or political opinion. The
second chapter also reviews primary studies on asylum, judicial behavior, and approaches
to the study of circuit courts.

279
Chapter Three, “A Typology of Middle Eastern Asylum Cases,” sets forth a
typology of the tapestry of cultures and ethnicities found in the 23 Middle Eastern
countries included in this study, and places them within the protected categories set forth
under the Immigration and Nationality Act: race, nationality, religion, political opinion,
and membership in a particular social group.
Asylum in its early American forms was often based on political opinion. In the
context of the Middle East, political opinions span a wide range of issues, beyond the
obvious dissatisfaction with a dictatorial regime. Applicants have opposed the
revolutionary government in Iran, the coercive policies of Saddam Hussein, the coercion
of the Egyptian government, and a whole host of other political issues. Of particular
importance in understanding the context of political opinions in many Arab countries is
the relationship between Islam and politics. In a related way, attempting to understand
the Middle East without considering the role of religion is futile. The Middle East is
more than just place the place of origin for the Sunni and Shiite branches of Islam,
Judaism, and Christianity. Within the geographical boundaries of the region, hundreds of
indigenous sects of all these and other religions have developed their theologies and
doctrines, and asylum claims based on religion have played out in unique ways.
Chapter Three also notes that to be granted asylum based on membership in a
particular Social Group an applicant must 1) identify the particular social group, 2)
establish that he is or she a member of the group, and 3) show that because of the
membership, he or she would be persecuted or has a well-founded fear of future
persecution. Middle Eastern women have, in various contexts, been found to comprise a

280
particular social group, prompting asylum applications based on female circumcision,
forced marriage, honor killings, domestic violence, and other issues. Persecution on the
basis of Sexual Orientation can also be considered persecution on account of membership
in a Social Group.
The Fourth Chapter, “The Current Study,” discusses the criteria upon which cases
were selected and the surprising results of the study. Indeed, no major change occurred
in any circuit on asylum during the period in question. Thus, the Seventh Circuit, as a
whole, leans toward denial as a matter of public policy and, when faced with a serious
national crisis such as the World Trade Center bombings, continues in same direction in
an even stronger way than it had before 9/11. The Ninth Circuit, conversely, recorded a
slight increase in grants of cases after the very same national crisis. The First Circuit,
from its few published cases in the pre-2001 period expanded into a regime inclined
toward denial, while the Eighth Circuit, which published no cases in the pre-2001 period,
emerged as a middle-of-the-road regime, taking a middle position between the Seventh
and Ninth circuits. The idea is then suggested that we can understand the Circuit Courts
as institutions that have developed a body of jurisprudence and approach to asylum cases,
and that we can characterize them as asylum “regimes” acting as singular bodies in their
overall approach to asylum cases.
Chapter Five, “The Seventh Circuit before September 11, 2001,” presents an in-
depth analysis of each published case in that circuit during the six-year period before
9/11, and notes the influence of Judge Richard Posner, whose intellectually rigorous
methods of analyzing and deciding cases has left its mark on the circuit, not the least in

281
the 1992 decision of Bastanipour v. I.N.S., (7
th
Cir. 1992),
1
where he wrote a seminal
decision reversing a BIA denial of asylum grounded in the theory that the Iranian
government might not discover that the respondent was an apostate Muslim and convert
to Christianity. The in-depth look, then, at the Seventh Circuit cases published in the six-
year period prior to the events of September 11, 2001, reveals that Court, in its denials,
often issued doctrines that left open the possibility of other similarly situated applicants
obtaining asylum in the future.
Chapter Six, “The U.S. Court of Appeals for the Seventh Circuit after September
11, 2001,” analyzed all the decisions published by the Seventh Circuit in the six-year
period after 9/11. The cases continue the Seventh Circuit’s posture as a Court or “Asylum
Regime” inclined to deny asylum, but also reveal the Court’s interest in finding
alternative resolutions for some applicants, a policy that may have influenced what some
observers perceive to be a current administrative amnesty, under Attorney General Eric
Holder.
Chapter Seven, “The U.S. Court of Appeals for the Ninth Circuit before
September 11, 2001,” looks at the decisions of the U.S Court of Appeals for the Ninth
Circuit during the six-year period prior to 9/11. Though the Court has in recent years has
come under criticism for its liberal opinions, in the years prior to the World Trade Center
bombings, some of the court’s most interesting opinions and denials of asylum in
precedent decisions were authored by the prominent conservative Judge J. Clifford
Wallace, who articulately enunciated why asylum should be denied in a number of
different cases.

282
Still, when looking at the entire body of published cases that emerged in the years
prior to the World Trade Center bombings, one can clearly see that while it was neither a
monolithic institution nor one that reversed every case, the U.S. Court of Appeals for the
Ninth Circuit did take the cases of Middle Eastern asylum applicants seriously, and its
panels did not hesitate to reverse in the published opinions when they believed that such
results were necessary.
Chapter Eight, “The U.S. Court of Appeals for the Ninth Circuit after September
11, 2001,” analyzed the 12 published decisions on Middle Eastern Asylum cases in the
six-year period following the events of September 11, 2001. The chapter notes the
numerous dissents that split the court in the years after 9/11, and that the Court retained
and actually increased its commitment to granting the cases of Middle Eastern asylum
applicants. The chapter suggests that that Ninth Circuit is an asylum regime inclined to
grant cases and challenge American foreign policy.
Chapter Nine, “Interviews with Attorneys and Judges,” includes interviews or
queries of twelve attorneys and four judges. Most of the interviewees felt that panel
composition had an effect on circuit court decision making, but there were differing
opinions as to the level of bias that occurred after 9/11. Among the most striking
differences were the observations of the judges. Judge One felt that there was no bias
toward Middle Easterners because of widespread support in the government for Israel;
Judge Three believed that support for Israel was an important factor in the bias against
Middle Easterners. Judges Two and Three felt that there had been no change in circuit
court posture after 9/11, but Judge Three felt that there had been.

283
Chapter Ten, “The Circuit Courts as Asylum Regimes,” reiterates the results of
the study that the basic direction of the courts remained the same after 9/11. Those
circuits, which denied more asylum cases than they granted before the World Trade
Center bombings, also did so afterwards. Similarly those courts that were inclined to
grant such cases before the World Trade Center bombings continued to do so afterwards.
What may be equally striking, however, is that no single accepted model of judicial
behavior—Hierarchical, Attitudinal or Small Group Model— can clearly explain why the
courts voted as they did in the individual cases.
In the alternative, a framework that explains how court decides asylum cases is
suggested here. Indeed, the results set forth in this study are best explained by a regime
theory, which postulates that each circuit creates its own “Asylum Regime” comprised of
similar elements/determinants that set the posture of the circuit. The regime incorporates
elements that are found in other models of judicial behavior along with the particular
aspects of the Middle Eastern asylum cases themselves. The elements include higher
court precedents explained by the Hierarchical Model, most importantly the rule of
substantial evidence set forth by the Supreme Court. It also includes Administrative
Agency precedents explained by the “Reverse Hierarchical Model.” In addition, the
regime includes the ideological preferences of the judges, which are explained by the
Attitudinal Model, along with Foreign Policy Considerations, which are not always the
same thing. Further the regime includes the Small Group Model, which explains how
district or other minority judges sitting on panels may affect decisions. The regime may
also include what this author considers a corollary aspect of judging: the effect of an

284
intellectually charismatic or powerful judge, known as an Alpha Judge, on the other
judges comprising a panel. Finally, the regime includes the interaction of the individual
courts with the Middle Eastern cases themselves.
While the results of the study may be surprising to those who are convinced that
bias against Middle Easterners effects all aspect of the asylum process, we see that the
published Circuit Court cases, which provide much of the actual law that sets the
standards for the Immigration Bar, do not reflect any change or bias in light to the events
of 9/11. This is clearly confirmed by the full studies of all published Seventh and Ninth
Circuit cases in the two six year periods before and after 9/11. Moreover, when we
understand the Circuit Courts as asylum regimes, we can understand that the individual
elements combine to create a particular slant, i.e. regime, for a particular court.
This slant or “Asylum Regime” may have a practical affect for attorneys actually
litigating asylum cases from the Middle East as well as other regions. The knowledge of
a court’s slant or view of specific factors comprising an “Asylum Regime,” can be
helpful to litigators preparing to argue cases before a particular circuit. Indeed, because it
is composed of many factors, it offers a more nuanced approach to predicting how a court
will rule, than merely looking at a judge’s overall grant rate.
Finally, the results of this study indicate that the American appellate judiciary is
independent enough that it has not been influenced by an event like the World Trade
Center Bombings in discernable ways in so far as asylum jurisprudence is concerned.
While the study has been undertaken in an American context, the concept of the “Asylum
Regime” is equally applicable to other countries whose legal systems are struggling with

285
a flood of asylum cases. Though the components of asylum regimes will necessarily vary
from country to country, once an “Asylum Regime” has been found to function in a
foreign court, researchers can further study whether specific events like 9/11 have had an
affect on asylum adjudication or the creation of new regimes. Anthony Good has
conducted an extensive anthropological study of the asylum courts in the United
Kingdom from early 1999 until the end of 2003, which provides a considerable amount
of information as to how the British asylum process is both similar to and different from
the American system which is the focus of this study.
1
Good notes that asylum applicants
who had lost their hearings before the British Immigration Appellate Authority (IAA)
generally had a further right of appeal to the Immigration Appeals Tribunal (IAT) and
could apply for judicial review before the Court of Appeal or House of Lords. Good
reveals however, that the Immigration Appeals Tribunal which appears comparable to the
American Board of Immigration Appeals, in its authority, contains lay members in
addition to trained legal professionals, a phenomenon which does not exist in the United
States. Moreover, judicial review does not seem as readily available in the United
Kingdom as in the American Circuit Courts.
2
Thus, the differences in the composition
and jurisdiction of British immigration tribunals and courts suggests an “Asylum
Regime” composed of different elements than the “Asylum Regimes” discussed in this
study. Never-the-less, such an “Asylum Regime” could be digested and analyzed just as
effectively in the United Kingdom or in other countries with similar systems, to provide
scholars and attorneys with the same type of information concerning what factors
influence a court’s reach decisions. Though the components of asylum regimes will

286
necessarily vary from country to country, once an “Asylum Regime” has been found to
function in a foreign court, researchers can further study whether specific events like 9/11
have had an affect on asylum adjudication or the creation of new regimes.

287

CHAPTER 11 ENDNOTES

1
Anthony Good, Anthropology and Expertise in the Asylum Courts (Routledge-Cavendish: Taylor &
Francis Group, 2007).

2
Id. 9-10, 119-121, 125.

288
BIBLIOGRAPHY
Cases
Abdel-Masieh v. U.S.I.N.S., 73 F.3dd 579 (5
th
Cir. 1996)
Abdulrahman v. Ashcroft, 300 F.3d 587 (3rd Cir. 2003)
Abedini v. INS, 971 F.2d 1988 (9
th
Cir. 1992)
Acewicz v. INS, 984 F.2d 1056, 1061 (9th Cir.1993)
Aguilera-Cota v. INS, 914 F.2d 1375, 1378 (9th Cir. 1990)
Aguirre v. Aguirre, 526 U.S. 415, 425 (S.Ct.1999)
Ahmadshah v. Ashcroft, 396 F.3d 917, 920 (8th Cir. 2005)
Ahmed v. Ashcroft, 348 F.3d 611 (7
th
Cir. 2003)
Al-Fara v. Gonzales, 404 F.3d 733 (3rd Cir. 2005)
Al khouri v. Ashcroft, 362 F.3d 461 (8
th
Cir. 2004)
Allabani v. Gonzales, 402 F.3d 668 (3rd Cir. 2005)
Alonzo v. INS, 915 F.2d 546, 548 (9
th
Cir. 1990)
Alsagladi v. Gonzales, 450 F.3d 700 (7
th
Cir. 2006)
Alsheweikh v. INS, 990 F.2d 1025, 1026 (8
th
Cir. 1993)
Al-Hamdan v. INS, 103 F.3d 128 (6
th
Cir. 1996)
Al-Harbi v. INS, 242 F.3d 881 (9
th
Cir. 2001)
Al-Saher v. INS, 268 F.3d 1143 (9
th
Cir. 2001)
Ananeh-Firempong v. INS, 766 F.2d 621, 626 (1
st
Cir. 1985)
Arar v. Ashcroft, 414 F.Supp. 2d 250, 283 (E.D.N.Y. 2006)
Awad v. Gonzales, 463 F.3d 73 (1st Cir. 2006)
Aziz v. Gonzales, 478 F.3d 854 (8th Cir. 2007)

289
Baballah v. Ashcroft, 335 F.3d 981 (9
th
Cir. 2003)
Bandari v. INS, 227 F.3d 1160 (9
th
Cir. 2000)
Bastinpour v. I.N.S., 980 F.2d 1129 (7th Cir. 1992)
Begzatowski v. INS, 278 F.3d 665, 669 (7
th
Cir. 2002)
Ben Hamida v. Gonzales, 438 F.3d 734 (6
th
Cir. 2006)
Berriari v. Gonzales, 468 F.3d 390 (6
th
Cir. 2006)
Boctor v. Gonzales, 474 F.3d 488 (7
th
Cir. 2007)
Chaib v. Ashcroft, 397 F.3d 1273 (10
th
Cir. 2005)
Chakir v. Gonzales, 466 F.3d 563 (7
th
Cir. 2004)
Chebchoub v. INS, 257 F.3d 1038, 1040 (9
th
Cir. 2001)
Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)
Ciorba v. Ashcroft, 323 F.3d 539, 545 (7th Cir. 2003)
Dandan v. Ashcroft, 339 F.3d 567, 570-571 (7
th
Cir. 2003)
Daneshvar v. Ashcroft, 355 F.3d 615 (6
th
Cir. 2004)
Debab v. v. INS, 163 F.3d 21 (1
st
Cir. 1998)
De Valle v. INS, 901 F.2d 787 (9th Cir. 1990)
Diab v. Gonzales, 397 F.3d 35 (1st Cir. 2005)
Doe v. Bush, 323 F.3d 133 (1
st
Cir. 2003)
Durgac v. Gonzales, 430 F.3d 849 (7
th
Cir. 2005)
Elayneh v. INS, 213 F.3d 488, 491 (9th Cir. 2000)
Elias v. INS, 108 F.3d 1376 (6
th
Cir. 1997)
El Himri v. Ashcroft, 378 F.3d 932 (9
th
Cir. 2004)
Elizour v. Ashcroft, 378 F.3d 1143 (10
th
Cir. 2004)

290
El Moraghy v. Ashcroft, 331 F.3d 195 (9
th
Cir. 2003)
El Nager v. INS, 93 F.2d 784 (9th Cir. 1991)
El Sheikh v. Ashcroft, 388 F.3d 643 (8th Cir. 2004)
Fatin v. INS, 12 F.3d 1233, 1240 (3
rd
Cir. 1993)
Fisher v. INS, 37 F.3d 1371 (9
th
Cir. 1994
Fisher v. INS, 79 F.3d 955 (9
th
Cir. 1996
Ghaly v. INS, 58 F.3d 142 (9th Cir. 1995)
Ghasemimehr v. INS, 7 F.3d 1389 (8
th
Cir. 1993)
Gonzales-Neyra v. INS, 122 F.3d 1293, 1296 (9th Cir.1997)
Grava v. INS, 205 F.3d 1177, 1181 (9
th
Cir. 2000)
Guadalupe Escobar, 24 I & N Dec. 231 (BIA 2007)
Gulla v. Gonzales, 498 F.3d 911 (9
th
Cir. 2007)
Gumbol v. INS, 815 F.2d 406 96
th
Cir. 1987)
Hakeem v. INS, 273 F.3d 812, 816 (9
th
Cir. 2001)
Haoud v. Ashcroft, 350 F.3d 201 (1
st
Cir. 2003)
Harbi v. INS, 242 F.3d 881 (9
th
Cir. 2001
Hasan v. Ashcroft, 397 F.3d 417 (6
th
Cir. 2005)
Hassan v. Gonzales, 403 F.3d 1429 (6th Cir. 2005)
Hor v. Gonzales, 400 F.3d 482, (7
th
Cir. 2005)
INS v. Cardoza-Fonseca, 480 U.S. 421, 440 (S.Ct. 1987)
INS v. Elias-Zacarias, 502 U.S. 478, 481 & n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)
INS v. St. Cyr, 121 S.Ct. 2271, 533 U.S. 289, 150 L.Ed.2d 347, (U.S. 2001)
In re Acosta, 19 I & N Dec. 211, 233-234 (1985)

291
In re A-N and R-M-N, Int. Dec. 3406 (BIA 1999)
In re G-A, 23 I & N Dec. 366 (BIA 2002)
In re Kasinga, 21 I. & N. Dec. 357, 361 (BIA 1996)
In re Mogharrabi, 19 I & N Dec. 439, 441 (1987)
In re S-A, 22 I. & N. Dec. 1328 (BIA 2000)
Jahed v. I.N.S., 356 F.3d 991 (9th Cir. 2004)
Jamal-Daoud v. Gonzales, 403 F.3d 918 (7
th
Cir. 2005)
Jarjiss v. Reno, 191 F.3d 452 (6
th
Cir. 1999)
Karouni v Gonzales, 399 F.3d 1163, 1166 (9
th
Cir. 2005)
Khalil v. Ashcroft, 337 F.3d 50 (1st Cir. 2003)
Kheireddine v. Gonzales, 427 F.3d 80 (1st Cir. 2005)
Khourassany v. INS, 208 F.3d 1096, (9
th
Cir. 2000)
Kimumwe v. Gonzales, 431 F.3d 319 (8th Cir. 2006)
Kishtow v. INS, 70 F.3d 1274 (7
th
Cir. 1995)
Li v. Ashcroft, 356 F.3d 1153, 1158 (9
th
Cir. 2004) (en banc)
Lolong v. Gonzales, 484 F.3d 1173, (1st Cir. 2002)
Madiouni v. INS, 314 F.3d 24 (9
th
Cir. 2001)
Majd v. Gonzales, 446 F.3d 590 (3rd Cir. 2006)
Maini v. INS, 212 F.3d 117 (9
th
Cir. 2000)
Makhoul v. Ashcroft, 387 F.3d 75 (1
st
Cir. 2004)
Malek v. I.N.S., 198 F.3d 1016 (7
th
Cir. 2000)
Mansour v. Ashcroft, 390 F.3d 667 (9
th
Cir. 2004)
Mansour v. I.N.S., 230 F.3d 902 (7th Cir. 2000)

292
Margos v. Gonzales, 443 F.3d 593 (7
th
Cir. 2006)
Matter of A-T, 24 I & N Dec. 617 (A.G. 2008)
Matter of A–T, 25 I & N Dec. 4 (BIA 2009)
Matter of G-A, 23 I & N Dec. 366 (BIA 2002)
Matter of Rodriguez-Majano, 19 I & N Dec. 811, 815-816 (BIA 1988)
Matter of Ramirez-Vargas, 24 I & N Dec. 5999 (BIA 2008)
Mediouni v. INS, 314 F.3d 24 (1
st
Cir. 2002)
Meguenne v. INS, 139 F.3d 25, 27(1
st
Cir. 1998)
Mekhoukh v. Ashcroft, 358 F.3d 118 (9
th
Cir. 2001)
Mekhael v. Mukasey, 509 F.3d 326, 327 (7
th
Cir. 2007)
Mikhael v. INS, 115 F.3d 299, 301 (5
th
Cir. 1997)
Molina-Estrada v. INS, 293 F.3d 1089, 1095 (9
th
Cir. 2002)
Mohammad v. Gonzales, 400 F.3d 785, 789 (9
th
Cir. 2005)
Morales v. Gonzales, 478 F.3d 972 (9
th
Cir. 2007)
Mostafa, v. Ashcroft, 395 F.3d 622 (6th Cir. 2005)
Motamedi v. INS, 713 F.2d 575 (10
th
Cir. 1983)
Mousa v. I.N.S., 223 F.3d 424 (7th Cir. 2000)
Najafi v. INS, 104 F.3d 943, 948 (7
th
Cir. 1997)
Najjar v. Ashcroft, 257 F.3d 1262 (11
th
Cir. 2001)
Namo v. Gonzales, 401 F.3d 668 (6
th
Cir. 2005)
National Cable & Telecomm. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005)
Ochoa v. Ashcroft, 406 F.3d 1166 (9th Cir. 2005)
Oforji v. Ashcroft, 354 F.3d 609, 615 (7
th
Cir. 2003)

293
Ouda v. INS, 324 F.3d 445, 448 (6
th
Cir. 2003)
Padash v. INS, 358 F.3d 1161, 1164 (9
th
Cir. 2004)
Pitcherskaia v. I.N.S., 118 F.3d 641 (9
th
Cir. 1997)
Ramsameachire v. Aschroft, 357 F.3d 169 (2
nd
Cir. 2004)
Safaie v. NS, 25 F.3d 636, 640 (8
th
Cir. 1994)
Sagermark v. INS, 767 F.2d 645, 650 (9th Cir.1985)
Sakhavat v. INS, 796 F.2d 1201, (9
th
Cir. 1986)
Sanchez-Trujillo v. INS, 801 F.2d 1571, 1576 (9
th
Cir. 1986)
Sangha v. INS, 103 F.3d 1482, 1487 (9th Cir.1997)
Shah v. INS, 220 F.3d 1062, 1066-67 (9
th
Cir. 2000)
Sharif v. INS,, 87 F.3d 932 (7th Circ. 1996)
Shehandeh Pey v. INS, 831 F.2d 184 (7
th
Cir. 1987)
Shoaira v. Ashcroft,, 377 F.3d 837 (8th Circ. 2004)
Sudomir v. McMahon, 767 F.2d 1456, 1464 (9
th
Cir. 1985)
Taha v. Ashcroft, 362 F.3d 623 (9
th
Cir. 2004) revrs’d Taha v. Ashcroft, 389 F.3d. 80
(9
th
Cir 2004)
Tamas-Mercea v. Reno, 222 F.3d 47, 424 (7th Cir. 2000)
Tawm v. Ashcroft, 363 F.3d 740 (8th Cir. 2004)
Toufighi v. Mukasey, 538 F.3d 988 (9
th
Cir. 2008)
Yacoub v. INS, 999 F.2d 1296 (8th Cir. 1993)
Yadegar-Sargis v. INS, 297 F.3d 596, 599-601 (7th Cir. 2002)
Youkhana v. Gonzales, 460 F.3d 927 (7
th
Cir. 2006)
Zahedi v. INS, 222 F.3d 1157 (9
th
Cir. 2000)

294
Zarouite v. Gonzales, 424 F.3d 60 (1st Cir. 2005)
Zhu v. Mukasey, 2008 DJDAR (August 4, 2008)

295
Statutes, Articles, Regulations
Statutes
Section 101(a), Immigration & Nationality Act
Section 101(a)(42) (a) of the Immigration and Nationality Act
8 U.S.C. section 1101(a)(42)(b)
INA section 1231 (b)(2)(E)(vii)
INA Section 208(a)(2)(A)
INA Section 208(a)(2)(B)
8 U.S.C. 1252(d)(1)
8 U.S.C. 12254
International Religious Freedom Act of 1998, H.R. 2431 P.L. 105-292
The Real ID Act
Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No.
104-208, 110 Stat. 3009

Regulations
8 C.F.R. section 3.1(d)(3)
8 C.F.R. section 1003.1(d)(3)
67 Fed. Reg. At 54,902, 888-89

296
Interviews and Correspondence
Interview with Attorney One, August 11, 2010
Interview with Attorney Two, August 11, 2010
Interview with Attorney Two, August 11, 2010
Attorney Three email to Louis A. Gordon, August 12, 2010
Attorney Four email to Louis A. Gordon, August 13, 2010
Interview with Attorney Five, July 30, 2010
Interview with Attorney Six, August 27, 2010
Interview with Attorney Seven, August 2, 2010
Interview with Attorney Eight, August 2, 2010
Interview with Attorney Nine, August 9, 2010
Email from Attorney Ten to Louis A. Gordon, August 9, 2010
Interview with Attorney Eleven, August 12, 2010
Interview with Attorney Twelve, August 19, 2010
Interview with Judge One, August 11, 2010
Interview with Judge Two, October 7, 2010
Interview with Judge Three, August 5, 2010
Interview with Judge Four August 5, 2010

297
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311
APPENDIX A

TABLE OF ALL PUBLISHED CIRCUIT COURT CASES, 1995-2001

(September 11, 1995-September 11, 2001)

Case Name Circuit Year Country Decision Basis for
Persecution
Debabu v. INS 1st 1998 Algeria Deny Islam
Meguenine v.
INS
1st 1998 Algeria Deny Healthworker
Abdel-Masieh v.
INS
5th 1996 Sudan Grant Christian
Mikael v. INS 5th 1997 Lebanon Grant Christian/Anti Syrian
Al-Hamdan v.
INS
6th 1996 Jordan Deny Pro-Democracy
Jarjiss v. Reno 6th 1999 Iraq Deny Pro Kurd Family/anti-
war
Elias v. INS 6th 1997 Iraq Deny Anti-Baath
Sharif v. INS 7th 1996 Iran Deny Pro Western
Kishtow v. INS 7th 1997 Iraq Deny Anti-Baath
Najafi v. INS 7th 1997 Iran Grant Christian
Malek v. INS 7th 2000 Lebanon Deny Christian
Mansour v. INS 7th 2000 Iraq Deny Army Deserter
Mousa v. INS 7th 2000 Jordan Deny Palestinian/PLO
Fisher v. INS 9
th
1996 Iran Deny Western Dress
Bandari v. INS 9th 2000 Iran Grant Armenian
Zahedi v. INS 9
th
2000 Iran Grant Anti-Regime
Khourassany v.
INS
9
th
2000 Israel Deny Palestinian
Al Harbi v. INS 9th 2001 Iraq Grant Evacuee to US
Chebchoub v.
INS
9th 2001 Morocco Deny Imputed Political
Opinion
Najjar v. INS 11th 2001 UAE Saudi
Arabia

Deny Palestinian

312
APPENDIX B

TABLE OF ALL PUBLISHED CIRCUIT COURT CASES, 2001-2007

(September 11, 2001- September 11, 2007)

Case Name Circuit Year Country Decision Basis for
Persecution
Mediouni v. INS 1st 2002 Algeria Deny Son of Colonial
Policeman
Haoud v. Ashcroft 1st 2003 Algeria Grant Imputed Opinion
Albathani v. INS 1st 2003 Lebanon Deny Christian/anti-
Hezbollah
Khalil v. Ashcroft 1st 2003 Egypt Deny Christian
El Moraghy v.
Ashcroft
1st 2003 Egypt Deny Christian
Makhoul v. Ashcroft 1st 2004 Lebanon Deny Anti-Syrian
Mekoukh v. Ashcroft 1st 2004 Algeria Deny Berber
Kheireddine v.
Gonzales
1st 2005 Lebanon Deny Southern Lebanese
Army
Diab v. Gonzales 1st 2005 Egypt Deny Christian
Zarouite v. Gonzales 1st 2005 Morocco Grant Forced to move
To Sahara
Awad v. Gonzales 1st 2006 Egypt Deny Christian
Abdulrahman v.
Ashcroft
3rd 2003 Sudan Deny Student Activist
Allabani v. Gonzales 3rd 2005 N.
Yemen
Deny Political Opinion
Al-Fara v. Gonzales 3rd 2005 Israel/
Gaza
Deny Palestinian
Majd v. Gonzales 3rd 2006 Israel Deny Palestinian
Ouda v. INS 6
th
2003 Kuwait Grant Palestinian
Daneshvar v. Ashcroft 6
th
2004 Iran Deny Mujahedin-e Khalq
(MEK)
Hasan v. Ashcroft 6
th
2005 Iraq Deny Anti-Saddam
Hassan v. Gonzales 6th 2005 Lebanon Deny Refused to join
Sabri Al Bamma
Allabani v. Gonzales 6th 2005 Yemen Deny Political Opinion
Namo v. Gonzales 6th 2005 Iraq Deny Opposition to
Government
Ben Hamida v.
Gonzales
6th 2005 Tunisia Deny Imputed Political
Opinion (Islamic)
Beeri v. Gonzales 6th 2006 Lebanon Deny Interfaith Marriage
Yadegar-Sarkis v.
Gonzales
7th 2002 Iran Deny Social Group of
Christian Woman
Dandan v. Ashcroft 7th 2003 Lebanon Deny Christian
Ahmad v. Ashcroft 7th 2003 Algeria Deny Fears Militants
Durgac v. Gonzales 7th 2005 Turkey Grant Kurdish

313
Table, Appendix B, Continued
Jamoul-Daoud v.
Gonzales 2005
7th 2005 Iraq Deny Christian
Hor v. Gonzales,
2005
7th 2005 Algeria Deny FLN MEMBER
Youkhana v.
Gonzales, 200
7th 2006 Iraq Grant Christian
Chakir v. Gonzales
2006
7th 2006 Morocco Deny Christian
Margos v. Gonzales
2006
7th 2006 Iraq Deny Political Opinion
Alsagladi v. Gonzales
200
7th 2006 Yemen Deny Socialist
Boctor v. Gonzales 7th 2007 Egypt Grant Christian
Tawm v. Ashcroft 8th 2004 Lebanon Deny Christian

El-Sheikh v. Ashcroft
8th 2004 Sudan Grant Student Protestor
Al-Khouri v. Ashcroft 8th 2004 Lebanon Grant Christian/Anti-
Hezbollah/Syria
Aziz v. Gonzales 8th 2007 Iraq Deny Anti-Saddam
Shoaira v. Ashcroft 8th 2004 Egypt Deny Muslim
Baballah v. Ashcroft 9th 2003 Israel Granted Muslim
Himri v. Ashcroft 9th 2004 Kuwait Granted Palestinian
Taha v. Ashcroft 9th 2004 Sudan Granted Umma Party
Mansour v. Ashcroft 9th 2004 Egypt Deny Christian
Padash v. INS 9th 2004 Iran Deny Military
Conscription
Jahed v. Ashcroft 9th 2004 Iran Grant Political Opinion
Karouni v. Gonzales 9th 2005 Lebanon Grant Homosexual
Gulla v. Gonzales 9th 2007 Egypt Grant Christian
Al-Saher v. INS 9th 2001 Iraq Grant Political Opinion
Chaib v. Ashcroft 10th 2005 Algeria Grant Refusal to Help
Radical Group
Elzour v. Ashcroft 10th 2004 Syria Grant Imputed Political
Opinion (Islamic)

314
APPENDIX C
TABLE OF JUDGES SITTING ON PANELS IN THE
U.S. COURT OF APPEALS FOR THE SEVENTH CIRCUIT

Name of Judge Appointing President Political Party
Bauer, William Gerald Ford Republican
Coffey, John Ronald Reagan Republican
Cudahy, Richard Jimmy Carter Democrat
Cummings, Walter Lyndon Johnson Democrat
Easterbrook, Frank Ronald Reagan Republican
Eschbach, Jesse Ronald Reagan Republican
Evans, Terence William Clinton Democrat
Flaum, Joel Ronald Reagan Republican
Kanne, Michael Ronald Reagan Republican
Manion, Daniel Ronald Reagan Republican
Posner, Richard Ronald Reagan Republican
Ripple, Kenneth Ronald Reagan Republican
Rovner, Ilana George H. W. Bush Republican
Sykes, Diane George W. Bush Republican
Williams, Ann William Clinton Democrat
Wood, Diane William Clinton Democrat

315
APPENDIX D
TABLE OF JUDGES SITTING ON PANELS IN THE U.S.
COURT OF APPEALS FOR THE NINTH CIRCUIT

Name of Judge Appointing President Political Party
Beezer, Robert Ronald Reagan Republican
Brunetti, Melvin Ronald Reagan Republican
Canby, William Jimmy Carter Democrat
Ferguson, Warren Jimmy Carter Democrat
Fernandez, Ferdinand George H.W. Bush Republican
Fletcher, Betty William Clinton Democrat
Goodwin, Alfred Richard Nixon Republican
Hall, Cynthia Ronald Reagan Republican
Hawkins, Michael William Clinton Democrat
Hug, Proctor Jimmy Carter Republican
Kozinski, Alex Ronald Reagan Republican
King, Samuel
1
Richard Nixon Republican
Noonan, John Ronald Reagan Republican
Paez, Richard William Clinton Democrat
Pregerson, Harry Jimmy Carter Democrat
Reinhardt, Stephen Jimmy Carter Democrat
Restani, Janet
2
Ronald Reagan Republican
Schroeder, Mary Jimmy Carter Democrat
Schwarzer, William
3
Gerald Ford Republican
Siler, Eugene
4
George H.W. Bush Republican
Tallman, Richard William Clinton Rep appointed by
Dem
Tashima, A. Wallace William Clinton Democrat
Thomas, Sidney William Clinton Democrat
Trott, Stephen Ronald Reagan Republican
Wallace, J. Clifford Richard Nixon Republican

1
Regularly sits on the District Court of Hawaii
2
Regularly sits on the U.S. Court of International Trade
3
Served as a Judge on the District Court for the Northern District of California
4
Regularly sits on the Sixth Circuit

316
APPENDIX E

SELECTED DOCTRINES SET FORTH IN CIRCUIT COURT CASES, 1995-2007

First Circuit

Meguenne v. INS, 1998

It is entirely reasonable for people to fear harm if they are required to return to Algeria
during the current conflict, but Congress has not chosen to open the door to this country
on such a basis.

Debabu v. INS, 1998

The horrors of Algeria’s civil war are real and not to be minimized. This is reason to be
sympathetic to Debab’ plight as well as to the plight of other Algerian citizens. The
limits on Congress’s willingness to grant asylum are also real, and these
judgments are committed to Congress.

Seventh Circuit

Kishtow v. INS, 1995

Without a doubt Iraq can be a dangerous place to live…Nonetheless, immigration policy
is to be formulated by Congress and that body has enacted restrictive asylum eligibility
requirements.

Sharif v. INS, 1996

Although few ‘pro-western’ persons would relish the idea of living in accord with Iran’s
conservative social mores, living in accord with conservative social mores is not
equivalent to persecution per se.

Mousa v. INS, 1997

Were we to hold that practices such as attacking military bases, destroying property, or
forcible recruiting constitute persecution, member of armed groups throughout the world
would be barred from seeking haven in this country… We do not believe that Congress
intended to restrict asylum and withholding to only those who had taken no part in armed
conflict.

Najafi v, INS, 1997

We are not as concerned with heart of the convert, but rather require some bonafide
indication of apostasy which would matter to the Iranian authorities.

317
Margos v. Gonzales, 2002

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 further his own ends).

Yadegar-Sargis v. INS, 2002

In as much as the difficulties that she probably will endure are age-related, the INS must
bear significant responsibility for the situation. To the extent that there exist further steps
that may permit this applicant to avoid these difficulties, it is, we respectfully suggest, the
responsibility of immigration officials to give them very serious consideration.

Ahmed v. Ashcroft, 2003

“to the extent the BIA was suggesting that there is a per se rule against finding past
persecution for dangers encountered during service as a police officer, we think that it
may have gone too far,”

Dandan v. Ashcroft, 2003

While it is distasteful to have to quantify suffering for the purposes of determining
asylum eligibility, that is our task.

Chakir v. Gonzales, 2004

It is expected the IJ to act with the “patience and decorum befitting a person privileged”
with his position, in all future proceedings.

Youkhana v. Gonzales, 2006

The Ba’ath Party’s removal did not necessarily mean that country conditions in Iraq had
improved for Assyrian Christians,

Al Sagladi v. Gonzales, 2006

Aliens who take the easy but dishonest path when a more honorable if more difficult one
is open cannot insist on administrative lenity.

318

Ninth Circuit

Zahedi v. INS, 2000

The purpose of the submitted State Department Country Reports was not to corroborate
specific acts of persecution, but rather to provide information regarding the context
within which the alleged persecution occurred, in order to intelligently evaluate the
petitioner’s credibility.

Bandari v. INS, 2000

An IJ’s subjective view of what a persecuted person would include in his asylum
application had no place in an adverse credibility determination;

Al Harbi v. INS, 2001

No reasonable person could conclude other than that Al-Harbi would likely be persecuted
upon his return to Iraq on account of an imputed political opinion due to his involvement
in the American airlift.

Jahed v. INS, 2004

The soldier was not a civilian simply taking advantage of fellow civilian’s vulnerability,
but a corrupt member of the of the government’s revolutionary guard charged with
internal security whose government the Petitioner opposed.

Karouni v. Gonzales, 2005

There was “no appreciable difference between an individual, such as Karouni, being
persecuted for being a homosexual and being persecuted for engaging in Homosexual
acts,” and that no matter how the Attorney General characterized it, the persecution
Karouni fear qualified as on account of his membership in the particular social group of
homosexuals.

Tenth Circuit

Chaib v. Ashcroft, 2005

The realities of Algerian society differed greatly from ours where one is innocent until
proven guilty.

Asset Metadata

Creator Gordon, Louis (author)

Core Title The impact of 9/11 on the judicial treatment of Middle Eastern asylum applicants in the U.S. courts

Contributor Electronically uploaded by the author (provenance)

School College of Letters, Arts and Sciences

Degree Doctor of Philosophy

Degree Program Political Science

Publication Date 11/29/2012

Publisher University of Southern California (original), University of Southern California. Libraries (digital)

Tag immigration,Middle East,OAI-PMH Harvest,political asylum,U.S. courts

Place Name USA (countries)

Language English

Advisor Dekmejian, Richard (committee chair), Munck, Gerardo (committee member), Renteln, Alison Dundes (committee member)

Creator Email lag@usc.edu,lougordon@aol.com

Permanent Link (DOI) https://doi.org/10.25549/usctheses-m3566

Unique identifier UC1402413

Identifier etd-Gordon-4206 (filename),usctheses-m40 (legacy collection record id),usctheses-c127-607744 (legacy record id),usctheses-m3566 (legacy record id)

Legacy Identifier etd-Gordon-4206-0.pdf

Dmrecord 607744

Document Type Dissertation

Rights Gordon, Louis

Type texts

Source University of Southern California (contributing entity), University of Southern California Dissertations and Theses (collection)

Repository Name Libraries, University of Southern California

Repository Location Los Angeles, California

Repository Email uscdl@usc.edu

Abstract (if available)

Abstract The goals of this study are to better understand decision making in Middle Eastern asylum cases, and to determine whether the September 11, 2001 attacks on the World Trade Center had an affect on the adjudication of these cases. To this end, I analyze published circuit court decisions on Middle Eastern Asylum cases as well as the comments of attorneys and judges working in the field of Immigration Law. I review all published circuit court cases in the six year period prior to 9/11 and all published cases in the six year period after that date. I include an in-depth analysis of each decision in two key circuit courts, the Seventh and Ninth, during that time frame. The Seventh Circuit has been chosen because it is highly dominated by Republican appointees, and the Ninth Circuit has been chosen both because of its liberal reputation and because it has decided more asylum cases than any other circuit. The study provides primary qualitative but also basic quantitative evidence concerning the effect of the event on asylum cases decided by the circuit courts, along with new information on the types of cases included in the published decisions and the legal analyses used to support them.