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Case Name:
Case Number: Date Filed: 
98-70828 03/09/01 



Petitioner,                                           No. 98-70828

v.                                                    INS No.
SERVICE,                                              OPINION

On Petition for Review of an Order of the
Board of Immigration Appeals

Argued and Submitted
June 16, 2000--San Francisco, California

Filed March 9, 2001

Before: Andrew J. Kleinfeld, A. Wallace Tashima and
Marsha S. Berzon, Circuit Judges.

Opinion by Judge Berzon

Philip Atkins-Pattenson, John D. Pernick, Jonathan P. Hersey,
Sheppard, Mullin, Richter & Hampton, San Francisco, Cali-
fornia, for the petitioner.

Terri J. Scadron, Office of Immigration Litigation, Civil Divi-
sion, United States Department of Justice, Washington D.C.,
for the respondent.

BERZON, Circuit Judge:

In 1996 Naseem Salman Al-Harbi ("Petitioner") was
brought by American forces to United States territory from
northern Iraq, a refuge of Iraqi insurgents hostile to the reign
of Saddam Hussein, as part of a massive evacuation effort led
by United States government agencies. He wishes to remain
here. We are charged with deciding whether he may.


A. Al-Harbi's Testimony

Al-Harbi, a twenty-nine-year-old Shia'a Muslim and a citi-
zen of Iraq, testified as follows at his hearing before the
Immigration Judge ("IJ"):1

In 1988, Al-Harbi was drafted by the Iraqi army. He
deserted in 1990, prior to Iraq's invasion of Kuwait, and went
to work for his uncle because his army wages were insuffi-
cient to support his family. In 1992, Petitioner rejoined the
military after Hussein declared an amnesty for deserters.
1 There was also extensive independent documentary evidence, summa-
rized below.

Upon reporting for duty, he and other deserters were taken to
a police station. At the station, the police handcuffed and beat
Al-Harbi while interrogating him about his activities during
his desertion. After the interrogation Al-Harbi signed a docu-
ment acknowledging that he would be executed if he opposed
Hussein's regime or again deserted the military. He then
rejoined his former unit in the army.

On October 15, 1995, Iraq held a presidential election in
which Hussein was the only candidate. Al-Harbi and two
friends secretly distributed flyers protesting what they deemed
to be a sham election. The Iraqi secret service discovered
what they were doing, however, and arrested Al-Harbi's two
cohorts. After his friends were arrested, Al-Harbi fled to Irbil,
located in northern Iraq, to avoid execution for opposing the
government. In Irbil, he joined the Iraqi National Congress
("INC"), a political organization that seeks to replace Hussein
and his government with a democratic regime. The INC
assigned Al-Harbi the alias Zaman Sahib Hassan, and he
served in Irbil as an INC guard from October 1995 until Hus-
sein's forces invaded Irbil in August of 1996.

In the midst of the invasion, Al-Harbi and other INC mem-
bers fled to Masif Salahiddin, a mountainous area in Kurdish
northern Iraq, where they hid for fifteen days. From there,
they were evacuated under Red Cross protection to Zakho, a
town near the border of Iraq and Turkey. Al-Harbi and the
other INC members remained in Zakho for forty-five days.
Thereafter, U.S. military personnel evacuated them to Anjar-
lik, Turkey, and then airlifted them to Andersen Air Force
Base in Guam.

When he arrived in Guam, Al-Harbi was interviewed by
someone he took to be a member of the United States mili-
tary, Raad Alkhakany. Alkhakany, who was fluent in Arabic,
Petitioner's native language, prepared Petitioner's application
for asylum and withholding of removal during the interview,
using an INS Form I-589. In the application, Al-Harbi indi-

cated that he worked with the Dawa political party, another
group opposed to Hussein's regime, from 1988 to 1992, and
for the INC from 1993 to 1996. The application also indicated
that Al-Harbi had personally participated in the assassination
of two Iraqi security officers while associated with the Dawa

Following his interviews in Guam with INS Asylum Offi-
cers and FBI agents, Al-Harbi was transferred to San Fran-
cisco, where the INS's Asylum Office referred his case to an
IJ. The INS referral notice states that the INS did not grant his
asylum claim because the "evidence indicate[d ] [Petitioner]
participated in the persecution of others."2

Al-Harbi's exclusion hearing, in which he was represented
by counsel and testified through an Arabic translator, began
on August 5, 1997. At the hearing, Petitioner made claims for
asylum and withholding of removal on the basis of political
opinion and religion.

Al-Harbi initially testified that he had not been a member
of the Dawa party and had not participated in the killings
described in his asylum application. To explain the inconsis-
tency between his I-589 form and his testimony, Al-Harbi
insisted that he had told the officials who interviewed him in
Guam only that during the 1992 interrogation incident the
police had accused him of Dawa party membership and of the
two shootings. Al-Harbi testified that he and the interpreters
had difficulty understanding one another and that no one ever
read his asylum application back to him in Arabic. Petitioner
denied ever telling any U.S. official that he was in fact in the
Dawa party or that he had killed anyone. He did admit,
2 If the evidence in the record shows that an asylum applicant "partici-
pated in the persecution of any person on account of race, religion, nation-
ality, membership in a particular social group, or political opinion," the
applicant is not eligible for asylum. See 8 U.S.C. S 1101(a)(42); 8 C.F.R.
S 208.13(c)(2)(i)(E) (1996).

though, that, although he told the INS Asylum Officer that he
had been arrested in 1995, he was in fact arrested in 1992.
Petitioner repeatedly attributed the apparent misunderstand-
ings surrounding these facts to difficulties he had in commu-
nicating with interpreters in Guam. Moreover, he maintained
that the reason his I-589 form did not mention his protest of
the 1995 presidential election was that Alkhakany had never
asked him about such activities when he was filling out the

Paul Pierrot, an INS Asylum Officer, and John Peterson, an
FBI agent, both of whom had interviewed Petitioner in Guam,
each testified that Petitioner did not appear to be having trans-
lation problems during the interviews, and that Petitioner had
clearly told them that he had been in the Dawa party and that
he had participated in the killings. After Pierrot and Peterson
testified, the hearing was continued to a third day.

On the third day of the hearing, Al-Harbi submitted another
declaration, dated September 22, 1997, in which he recanted
certain portions of his earlier testimony. In the declaration
Petitioner stated that he had "concocted the story about killing
two security guards in 1988," and that he wished to "tell the
Judge what really happened in Iraq and explain why[he had]
not told the truth . . . ." He confessed that:

      [i]n the first days after arriving on Guam, an Iraqi
      who I trusted who had been in INC in Erbil [sic]
      with me advised me that he knew about Immigration
      matters and advised me that I had to convince the
      United States authorities that I was vehemently
      opposed to Saddam Hussein, so it would not be
      enough for me to describe my political work with the
      INC, but instead I needed to tell them I had killed
      someone from Saddam Hussein's government. That
      was why I told that story to the officials on Guam.
      Then, when I got to Bakersfield, I found out that
      another Iraqi, Rasheed Al-Alwani, (file A76 201

      4770) had made up a similar lie, for similar reasons,
      and similar advice given, and he and I discussed our
      predicament. . . . We thought it would really look
      phoney if we both told the same reasons for why we
      had lied, so I decided to say I had been misunder-
      stood in Guam by the officials on Guam due to the
      inaccurate interpreters. . . . When I turned myself in
      to the military in 1992, I was mistreated and detained
      --that is true--but I was not accused of any mur-
      ders. . . . I believe my life and freedom are in danger
      if I return to Iraq. I have never killed anyone in my
      life and have never committed a crime.

Petitioner testified consistently with his new declaration on
the third day of his hearing, and also retracted one other part
of his earlier testimony. Petitioner had previously testified
that at the end of the Gulf War, in March of 1991, a group of
Iraqis opposed to Hussein's regime led an uprising
("Intifada") in Babyl Alhelia, the town where Petitioner lived
after his first desertion from the army. The military shelled
Babyl and other neighboring towns to put down the Intifada,
and a number of the participants fled to Saudi Arabia. In the
first day of his exclusion hearing (and in his July 30, 1997
declaration), Petitioner had claimed that he had participated in
the Intifada by distributing and posting flyers critical of Hus-
sein's government and political party (the Ba'ath Party). Dur-
ing the third hearing day, however, Petitioner admitted that he
had "made up" his involvement in the Intifada.

B. Other Evidence

The record contains, in addition to Al-Harbi's testimony, a
great deal of documentary evidence. Included among this evi-
dence are two identification cards, one bearing Al-Harbi's
photograph but a different name and attesting to his involve-
ment in the Iraqi Broadcasting Corporation, and the other a
Red Cross card bearing the same likeness and Al-Harbi's
name and personal information. There is, in addition, exten-

sive documentary information from newspapers, INC reports,
State Department letters and other sources verifying that Hus-
sein's forces invaded Irbil; that 100 INC members were exe-
cuted; that INC members fled to Masif Salahiddin and then to
Zakho; and that INC members and other Iraqi dissidents were
evacuated from Zakho to Turkey and thence to Guam, as part
of an American operation intended to rescue Iraqi dissidents,
including INC members, after the invasion of Irbil. There is
also documentary material asserting that the INC has been
funded by the American government through the CIA.
Finally, there are documentary sources, including an explicit
threat in an Iraqi publication, indicating that the evacuees, if
returned to Iraq, would be treated as traitors and, quite possi-
bly, executed.3

C. INS Decisions

In a written decision issued on September 26, 1997, the IJ
found Petitioner ineligible for asylum and withholding of
removal. The IJ entered an adverse credibility determination
against Petitioner, finding that his "testimony is not worthy of
credence in that he repeatedly changed his testimony at his
convenience and only after confrontation with credible evi-
dence elicited from government witnesses and documents."
She concluded that:

      Applicant has not credibly established that he was a
      member of the INC, that he experienced past perse-
      cution based upon any of the protected bases, nor
      that he would be subject to future persecution based
      upon any of the protected bases. Further, Applicant
      has failed to meet his burden of proving by a prepon-
      derance of the evidence that he did not participate in
      the persecution of any person on account of race,
3 The documentary evidence is discussed in greater detail below. See
infra, Part II.B.

      religion, nationality, membership in a particular
      social group, or political opinion.

Petitioner appealed to the Board of Immigration Appeals
("BIA"), and filed a motion to remand and reopen his exclu-
sion proceeding to consider additional evidence corroborating
his membership in the INC. The Board affirmed the IJ in a
brief order, holding that Petitioner had failed to establish
either past persecution or a well-founded fear of persecution
on account of one of the five grounds enumerated in section
101(a)(42) of the Immigration and Nationality Act. The BIA
adopted the IJ's decision, affirmed "based upon and for the
reasons set forth therein," and denied Petitioner's motion to
remand because of the IJ's adverse credibility finding. The
Board did not address the IJ's finding with respect to Petition-
er's alleged persecution of others.4 This petition for review
followed. We affirm in part, reverse in part, and remand.


Where the BIA expressly adopts the IJ's findings and rea-
soning, as it did in this case, we review the decision of the IJ
as if it were that of the Board. Alaelua v. INS , 45 F.3d 1379,
1381-82 (9th Cir. 1995). The substantial evidence standard of
review governs adverse credibility findings, Singh-Kaur v.
INS, 183 F.3d 1147, 1149 (9th Cir. 1999), and all other factual
findings. Sangha v. INS, 103 F.3d 1482, 1487 (9th Cir. 1997);
Prasad v. INS, 101 F.3d 614, 616-17 (9th Cir. 1996). Under
the substantial evidence standard, this Court must uphold the
IJ's findings and conclusions if they are supported by "rea-
sonable, substantial and probative evidence in the record."
INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992). To prevail,
Petitioner must demonstrate that no reasonable factfinder
could conclude that he is ineligible for relief from removal.
Fisher v. INS, 79 F.3d 955, 961 (9th Cir. 1996) (en banc).
4 In this Court, the INS has affirmatively waived the application of the
persecution of others bar. Accordingly, we do not consider it here.


I. Background

[1] The Attorney General has discretion to grant asylum to
"refugees." 8 U.S.C. S1158(a); INS v. Cardoza-Fonseca, 480
U.S. 421, 428 n.5 (1987). A "refugee" is defined as someone
who is unwilling to return to his country of origin "because
of persecution or a well-founded fear of persecution on
account of race, religion, nationality, membership in a partic-
ular social group, or political opinion." 8 U.S.C.
S 1101(a)(42)(A). Thus, an alien may establish eligibility for
asylum based upon either past persecution or a well-founded
fear of persecution. See Velarde v. INS, 140 F.3d 1305, 1309
(9th Cir. 1998). A well-founded fear of persecution must be
both "subjectively genuine" and "objectively reasonable." Id.

The objective component requires credible, direct and spe-
cific evidence of a well-founded fear. See id.  A well-founded
fear does not, however, require proof that persecution is more
likely than not, see Cardoza-Fonseca, 480 U.S. at 431; even
a ten percent chance of persecution may establish a well-
founded fear. See id. at 440; Velarde , 140 F.3d at 1310; Mon-
tecino v. INS, 915 F.2d 518, 520 (9th Cir. 1990). "[S]o long
as an objective situation is established by the evidence, it need
not be shown that the situation will probably result in persecu-
tion, but it is enough that persecution is a reasonable possibili-
ty." Cardoza-Fonseca, 480 U.S. at 440.

[2] To give rise to refugee status, persecution must be "on
account of" one of the five statutorily-specified grounds. An
alien may demonstrate that persecution was or would be on
account of such a ground through inferences drawn from facts
in evidence. See id. Persecution need not be solely on account
of a protected ground, however, so long as it is motivated at
least in part by one of those grounds.5  See Singh v. Ilchert, 63
5 Although Petitioner originally pressed his claims on the basis of both
political opinion and religion, he has abandoned the latter ground in this

F.3d 1501, 1509 (9th Cir. 1995). And a petitioner may estab-
lish a well-founded fear of persecution on account of a politi-
cal opinion imputed to him by his persecutors, whether or not
he actually holds that opinion. See Vera-Valera v. INS, 147
F.3d 1036, 1038 (9th Cir. 1998).

[3] Unlike asylum, withholding of removal is not discre-
tionary. See Barazza Rivera v. INS, 913 F.2d 1443, 1449 (9th
Cir. 1990). The Attorney General is not permitted to deport an
alien to a country where his "life or freedom would be threat-
ened" on account of one of the same protected grounds that
apply under the asylum statute. 8 U.S.C. S 1253(h). To qual-
ify for withholding of removal, an alien must demonstrate that
"it is more likely than not that he would be subject to persecu-
tion on one of the specified grounds." INS v. Stevic, 467 U.S.
407, 429-30 (1984). This "clear probability" standard, id. at
424; 8 C.F.R. S 208.16(b), for withholding of removal is more
stringent than the well-founded fear standard governing asy-
lum. See Cardoza-Fonseca, 480 U.S. at 449-50. Accordingly,
an alien who qualifies for a withholding of removal is neces-
sarily eligible for a grant of asylum. See Vera-Valera, 147
F.3d at 1039; Mendoza-Perez v. INS, 902 F.2d 760, 763 (9th
Cir. 1990).

II. Petitioner's Claims

A. Past Persecution

[4] Petitioner claims that he was persecuted on two occa-
sions: first, during the 1992 interrogation, and second, when
Hussein's forces invaded Irbil in August of 1996. Based on
her adverse credibility finding, the IJ found that Petitioner
failed to demonstrate that he was persecuted on either of these
occasions. We affirm this aspect of the agency's ruling.

[5] We have construed the term persecution to mean "the
infliction of suffering or harm upon those who differ (in race,
religion or political opinion) in a way regarded as offensive."

Singh v. INS, 134 F.3d 962, 967 (9th Cir. 1998). With respect
to Petitioner's claim of past persecution based on the alleged
1992 police interrogation, apart from Petitioner's testimony
and I-589 form, there is no evidence that the interrogation
took place at all. Thus, the adverse credibility determination
is fatal to this claim. Moreover, Petitioner's testimony does
not establish any link between his alleged interrogation and
beating and his actual or imputed political opinion. Although
Al-Harbi originally claimed that he was beaten because of his
involvement in the Babyl Intifada, in his exclusion hearing he
ultimately disavowed any participation in that event. So, even
were we to assume that the interrogation took place as
described, it appears that any persecution was on account of
his initial desertion from the military, not because of political
activity or beliefs. Punishment on account of desertion gener-
ally does not support refugee status, unless it can be shown
that such punishment is based on political opinion or another
statutorily-protected ground. See Barazza Rivera , 913 F.2d at

[6] Petitioner's claim of past persecution arising from the
Irbil invasion also fails because it depends entirely upon his
own discredited testimony. We assume, though we need not
decide, that Iraq's well-documented shelling of Irbil, forcing
INC members stationed there to flee to Masif Salahiddin, con-
stituted persecution.7 Cf. Desir v. Ilchert, 840 F.2d 723, 726-
6 There is no evidence in the record to suggest that petitioner's first
desertion was on account of his political beliefs. Thus, we need not con-
sider whether, under Rodriguez-Roman v. INS, 98 F.3d 416 (9th Cir.
1996), discussed infra, punishment inflicted for desertion would constitute
persecution on the basis of Petitioner's political beliefs.
7 See AR 628 (Greg McDonald, Clinton Says U.S. Doing All `We Can
Do'; CIA-backed Operatives Seek American Aid to Get Out of Iraq, Hous-
ton Chron., Sept. 10, 1996, at A14) (discussing attack on Irbil); AR 632
(Human Rights Watch World Report 1997: Events of 1996, at 289)
(describing executions of INC members after invasion of Irbil); AR 635
(Terry Atlas, U.S. Moves to Rescue Kurdish Outcasts, Tensions with Iraq
Continue to Simmer, Chicago Tribune, Sept. 13, 1996).

27 (9th Cir. 1998). Likewise, we assume, for purposes of
decision, that the Iraqi military invaded Irbil because of the
INC's anti-Hussein, pro-democratic sentiments.8 But the only
evidence we have in the record that Petitioner was in fact
among those shelled in Irbil comes from his testimony, which
the IJ found to be not credible. Because we must defer to the
IJ's adverse credibility finding -- a finding that is amply sup-
ported by Al-Harbi's propensity to change his story regarding
incidents of past persecution -- we affirm the IJ's conclusion
that Petitioner did not establish that he suffered past persecu-
tion on account of political opinion.

B. Well-Founded Fear of Persecution

That Al-Harbi cannot show that he was persecuted in the
past does not, however, necessarily defeat his application for
asylum or withholding of removal. Rather, proof of a well-
founded fear of future persecution if returned to Iraq will suf-
fice. See Velarde, 140 F.3d at 1309. Al-Harbi maintains that
if he is returned to Iraq, the Iraqi government will infer from
his involvement in the American-led airlift a dissident or trai-
torous political opinion and will persecute him for that reason.
We agree that the record admits of no other reasonable con-

[7] To establish a likelihood of persecution on account of
an imputed political opinion, an applicant must show that his
alleged persecutors have imputed or would impute a political
opinion to him, "rightly or in error," and have persecuted or
would persecute him for that opinion. Sangha, 103 F.3d at
8 See AR 624 (US Completes Evacuation of Iraqi Dissidents Into Tur-
key, Agence France Presse, Oct. 20, 1996) (discussing Hussein's crack-
down on INC "traitors"); AR 611 (statement of Madeleine Albright, then-
U.S. Permanent Representative to the United Nations, before the Senate
Subcommittee on Near Eastern and South Asian Affairs (Aug. 3, 1995))
(noting United States government's belief that the INC is "dedicated to a
democratically based government in Iraq").

1489-90.9 As noted above, a well-founded fear of persecution
has both subjective and objective elements of proof.

As to the subjective component, Al-Harbi testified that he
feared execution in the event of his return to Iraq. We cannot
rely on his testimony as establishing the subjective element,
however, because the IJ and the BIA, with substantial basis in
the record, found that the "applicant's testimony is not worthy
of credence."

[8] There was, however, documentary evidence in the
record that all individuals who were evacuated to Guam at the
same time as Al-Harbi genuinely entertained a subjective fear
of persecution. See AR 613 (INC Welcomes U.S. Evacuation
of 600 Dissidents, COMPASS Newswire (London), Oct. 24,
1996) (quoting State Department spokesman Nicholas Burns
as saying, "[the October evacuees] are united in one respect
. . . . They all oppose the regime of Saddam Hussein--so
much so, and their activities were such, that they all feared
persecution or the risk of serious harm to themselves or their
9 While Sangha used the past tense ("actually imputed"), it is clear that
a sufficient likelihood that prospective persecutors will impute a political
opinion to the applicant, rightly or in error, and persecute the applicant for
that opinion, also establishes a well-founded fear of persecution. Sangha
relies on Ramirez Rivas v. INS, 899 F.2d 864 (9th Cir. 1990), in which
there was no proof that the persecutors had in fact imputed an opinion to
the petitioner, but in which the court nevertheless "considered it likely that
the persecutors [would] attribute the political views of others to the [peti-
tioner]." Sangha, 103 F.3d at 1489 (citing Ramirez-Rivas, 899 F.2d at 865-
66). Moreover, a requirement that the imputation and persecution already
have occurred would be at odds with the expressly disjunctive statutory
phrasing of the definition of "refugee" in 8 U.S.C. S 1101, which requires
an applicant to establish "persecution or  a well-founded fear of persecu-
tion on account of . . . political opinion." Id. S 1101(a)(42)(A) (emphasis
added). Similarly, the statutory basis for withholding of removal does not
require a showing of past persecution on account of political opinion. A
petitioner instead has to show, as stated, that "it is more likely than not
that he would be subject to persecution on one of the specified grounds."
Stevic, 467 U.S. at 429-30 (1984).

families should they have stayed in Iraq") (emphasis added).
Moreover, there is a great deal of evidence in the record, dis-
cussed below, that Petitioner is in fact likely to be subject to
persecution, indeed is likely to be executed, should he return
to Iraq. Most people are sensible enough to harbor a genuine
fear of persecution if the actual likelihood of persecution is
high. Because the strong evidence as to the objective compo-
nent of a "well-founded fear of persecution" claim is therefore
relevant in establishing Petitioner's subjective fear, "[t]o the
extent that any question exists with respect to the genuineness
of petitioner's fear, it is answered by our decision regarding
the objective component." Aguilera-Cota v. INS, 914 F.2d
1375, 1378 (9th Cir. 1990).

The principal question, then, is whether there is sufficient
likelihood that Petitioner would be persecuted for political
beliefs that his persecutors would impute to him that any fear
of persecution he harbors is "well-founded." Petitioner must
offer credible, direct, and specific evidence to show that his
fear is objectively reasonable. See Velarde, 140 F.3d at 1309.

In light of the adverse credibility finding, we consider Peti-
tioner's testimony on this issue only to point the way to areas
of inquiry, and look for support only to the documentary
material in the record. That material includes both documents
specifically pertaining to the circumstances of Al-Harbi's
journey to the United States and extensive background mate-
rial concerning the Iraqi opposition and the circumstances of
the American-led evacuation of opposition members from
northern Iraq.

[9] The former kind of evidence -- documentary evidence
pertaining to the asylum applicant himself and to the events
in which he was involved -- can independently establish facts
essential to the objective element of an asylum claim. Zahedi
v. INS, 222 F.3d 1157, 1163 (9th Cir. 2000); Aguilera-Cota,
914 F.2d at 1379; Blanco-Comarribas v. INS, 830 F.2d 1039,
1042-43 (9th Cir. 1987). Background materials -- here, prin-

cipally newspaper accounts of the events in northern Iraq and
the airlift of Iraqi dissidents, as well as some State Depart-
ment documents -- can corroborate the specific documentary
material and inform an understanding of its significance.
Zahedi, 222 F.3d at 1163; Duarte de Guinac v. INS, 179 F.3d
1156, 1162 (9th Cir. 1999).

[10] First, substantial documentary evidence supports Al-
Harbi's claim that he would be associated by the Iraqi regime
with the American airlift of Iraqi dissidents to Guam, and
assumed to be a dissident for that reason. It is undisputed that
Petitioner left Iraq as part of an evacuation of INC members
and other Iraqi dissidents,10 that he made it through a check-
point at the Turkish border through which only individuals
whose names were on a list provided by INC headquarters in
London were supposed to be allowed, see AR 624 (U.S. Com-
pletes Evacuation of Iraqi Dissidents Into Turkey , Agence
France Presse, Oct. 20, 1996), and that he was then evacuated
on the October airlift to Guam. Otherwise, as far as the record
shows, Petitioner would not have been in the Guam holding
area in October and November, 1996, as his asylum applica-
tion and the INS and FBI interview forms show that he was.

The INS conceded at oral argument that, of the three differ-
ent airlifts from Iraq in the fall of 1996, the October one was
expressly for INC members. See also AR 613 (INC Welcomes
U.S. Evacuation of 600 Dissidents, COMPASS Newswire
(London), Oct. 24, 1996) (quoting State Department spokes-
man Nicholas Burns as saying, "[the October evacuees] are
united in one respect . . . . They all oppose the regime of Sad-
dam Hussein -- so much so, and their activities were such,
10 Al-Harbi contends that the documentary evidence in the record estab-
lishes that he is a member of the INC. While the record contains some
documentary evidence supporting that conclusion, we need not decide
whether that evidence compels the conclusion that Al-Harbi was in fact an
INC member, because we conclude that he is entitled to withholding of
removal on other grounds.

that they all feared persecution or the risk of serious harm to
themselves or their families should they have stayed in Iraq");
AR 624 (US Completes Evacuation of Iraqi Dissidents into
Turkey, Agence France Presse, Oct. 20, 1996) (noting that the
October airlift of "Iraqi dissidents" involved "mainly mem-
bers of the [INC]"); AR 615-16 (Patrick Worsnip, U.S. to
Evacuate Thousands More from Northern Iraq, Reuters News
Service, Nov. 25, 1996) (reporting that October evacuation
consisted of "600 Iraqi opposition figures"); AR 647 (Steven
Lee Myers, U.S. to Help Free Refugees in Iraq , N.Y. Times,
Sept. 13, 1996, at A1) (describing U.S. promise to evacuate
INC members reaching the Turkish border).

Based on all these circumstances, even the representatives
of the United States who processed Al-Harbi's initial asylum
application assumed that Al-Harbi was an INC member, or
was, at least, a dissident opposed to the Iraqi regime.11 There
is every reason to expect that the Iraqi government would so
assume as well.

[11] Indeed, the record establishes, through numerous news
stories detailing the events leading up to the evacuation,
American support for the INC, and the United States' prom-
ises of political asylum to the evacuees, that the connection
between the INC, the United States, and the 1996 evacuation
was widely reported. So the Iraqi government would have
good reason to impute to the evacuees a dissident political
opinion and a connection with the United States. See, e.g., AR
605-06 (Kelly Couturier, U.S.-Linked Iraqis to be Evacuated;
Resistance Members to Be Flown to Guam, Wash. Post, Oct.
19, 1996, at A21); AR 591 (Jonathan C. Randal, 200 Saddam
Foes with CIA Links Fear for Lives, Wash. Post, Sept. 9,
1996, at A1); AR 595 (R. Jeffrey Smith & David B. Ottaway,
11 The agents recommended denying Al-Harbi's application for asylum,
not because of any doubt that he was an Iraqi dissident, but solely on the
basis of the "persecution of others" bar, a ground which, as noted above,
the government has abandoned here.

Anti-Saddam Operation Cost CIA $100 Million, Wash. Post,
Sept. 15, 1996, at A1); AR 609 (Letter from Clarisa Ben-
como, Research Associate, Iraq and the Gulf, Human Rights
Watch, to Lynn Marcus, Director, University of Arizona Col-
lege of Law Immigration Law Clinic 2 (Mar. 4, 1997)); AR
611 (statement of Madeleine Albright, then-U.S. Permanent
Representative to the United Nations, before the Senate Sub-
committee on Near Eastern and South Asian Affairs (Aug. 3,
1995)) ("[W]e do support an Iraqi opposition which is the
Iraqi National Congress. We support them politically and dip-
lomatically. We believe they are dedicated to a democratically
based government in Iraq . . . ."); AR 643 (Sid Balman, Jr.,
Turkey Opens Borders for Dissidents, U.P.I. News Service,
Sept. 11, 1996) (describing agreement between U.S. and Tur-
key to evacuate 2,500 "Iraqi dissidents . . . who oppose Sad-
dam," "who are fleeing to escape retribution from his forces,"
all of whom "[t]he [Clinton] administration said . . . would
receive political asylum in the United States if necessary");
AR 646 (Steven Lee Myers, U.S. to Help Free Refugees in
Iraq, N.Y. Times, Sept. 13, 1996, at A1) (reporting "Clinton
Administration [statement] today that the United States would
help evacuate more than 2,000 refugees who had worked with
its military and relief operations in northern Iraq and grant
many of them asylum").

[12] Second, there was no challenge to the substantial evi-
dence in the record confirming the likely treatment upon
deportation to Iraq of any individual associated with the
Guam airlift. The record contains detailed and extensive sup-
port, entirely independent of Al-Harbi's own testimony, dem-
onstrating that if Petitioner were returned to Iraq years after
participating in the American airlift of Iraqi dissidents to
Guam, he would likely be punished as a traitor.

Documentary evidence in the record demonstrates that Iraqi
law permits the death penalty in cases of espionage, which is
defined broadly to include "unauthorized contact with for-
eigners." AR 609 (Letter from Clarisa Bencomo, Research

Associate, Iraq and the Gulf, Human Rights Watch, to Lynn
Marcus, Director, University of Arizona College of Law
Immigration Law Clinic 2 (Mar. 4, 1997)). The IJ also had
before her evidence that Iraq punishes treason with death, and
that after the evacuation, Hussein branded the evacuees as
traitors. See AR 548 (Letter of William M. Bartlett, Director,
Office of Asylum Affairs, U.S. Department of State Bureau
of Democracy, Human Rights and Labor, to Jeffrey Weiss,
Director, Immigration and Naturalization Service Central
Asylum Office, at 2 (Sept. 24, 1996)) ("[A]n Iraqi govern-
ment decree of 1991 labels as `traitors' any Iraqi citizen who
collaborates with the multinational forces. Conviction as a
traitor would almost certainly bring the death penalty."); AR
625 (U.S. Completes Evacuation of Iraqi Dissidents into Tur-
key, Agence France Presse, Oct. 20, 1996); AR 608 (Letter
from Clarisa Bencomo, Research Associate, Iraq and the
Gulf, Human Rights Watch, to Lynn Marcus, Director, Uni-
versity of Arizona College of Law Immigration Law Clinic 2
(Mar. 4, 1997)).

Third, there is direct confirmation in the record that Iraq
may well regard all the evacuees as traitors, and persecute
them. A column in the Iraqi newspaper Babil that Petitioner
submitted to the IJ paints a frightening portrait of how those
airlifted from Turkey would be punished for treason if
returned to their homeland:

      It has become known that a number of contemptible
      traitors in the North of our precious homeland, under
      the anomalous circumstances being experienced by
      this cherished part of the glorious towering Iraq of
      civilizations, as a result of foreign intervention, have
      fallen prey to treason through being used by the
      American Central Intelligence Agency. It is also
      known that American Intelligence moved the con-
      temptible traitors whom they used, to the island of
      Guam in the Atlantic [sic] Ocean. Some were then
      taken to specific locations in the United States with-

      out allowing them to move about or travel. . . . . The
      removal of the traitors, the agents of the American
      Central Intelligence Agency, was not carried out in
      order to protect them as claimed by American Intelli-
      gence sources. Rather, it was done to preserve their
      secrets . . . . It is laughable that . . . there is now a
      possibility of being deported from the United States,
      accused of constituting a threat to American national
      security . . . . The curse of treason is upon them, and
      will continue to hound them in this life and the next;
      they will suffer every kind of anguish, causing them
      to curse the hour in which they became involved in
      betraying their people and their homeland.

AR 573-76 (Hamseed Sa'eed, "The Curse of Treason, " Babil,
May 15, 1997).

[13] The short of the matter is that, as a letter from the State
Department that was before the IJ unambiguously states: "It
is [the Bureau's] belief that the Iraqi individuals on Guam
would be at great risk were they to return to their homes in
Northern Iraq or anywhere else in Iraq." AR 548 (Letter of
William M. Bartlett, Director, Office of Asylum Affairs, U.S.
Department of State Bureau of Democracy, Human Rights
and Labor, to Jeffrey Weiss, Director, Immigration and Natu-
ralization Service Central Asylum Office, at 2 (Sept. 24,
1996)) (emphasis added). Based on the evidence in the record,
no reasonable person could conclude other than that Petitioner
would likely be persecuted upon return to Iraq based on politi-
cal opinions that would be imputed to anyone involved in the
American airlift.

The INS insists that any punishment Al-Harbi might endure
upon his return to Iraq would be on account of his impermis-
sible emigration from Iraq, and therefore not on the basis of
imputed political opinion. We have explicitly recognized,
however, that in certain circumstances, departure from one's
country in violation of laws forbidding such departure may

trigger persecution based on imputed political opinion. See
Rodriguez-Roman, 98 F.3d at 429.12  The unique circum-
stances of this case make Al-Harbi's claim for relief signifi-
cantly more compelling than that of the petitioner in
Rodriguez-Roman. Rodriguez-Roman jumped ship and made
his way unassisted to the United States. Al-Harbi left Iraq as
part of a U.S. operation to save Iraqis opposed to Hussein's
regime. Given that the BIA did not adopt the IJ's finding on
the persecution-of-others bar, it would truly be a cruel twist
of fate for U.S. officials to bring Al-Harbi here only to send
him back to Iraq with the taint of having been on the Guam
airlift, to face the likely possibility of torture and/or execution
for his involvement in the U.S.-led operation.

[14] There is, in short, substantial, non-testimonial, evi-
dence in the record of the significant danger that Petitioner
and others involved in the American airlift would face if
deported to Iraq, evidence from which no reasonable person
could conclude otherwise. Thus, Petitioner has established his
entitlement to withholding of removal, and a fortiori, his eli-
gibility for asylum. See Vera-Valera, 147 F.3d at 1039;
Mendoza-Perez, 902 F.2d at 763.


Because the evidence in the record compels the conclusion
that Petitioner is entitled to the relief he seeks, we GRANT
12 Although Rodriguez-Roman concerned a statutory prohibition on ille-
gal departure, the court did not limit the ambit of its holding to statutes,
nor would such a limitation be consistent with the principles underlying
that case. An asylum applicant may be deemed a refugee if he would be
"subject to severe penalties for his illegal departure or unauthorized stay
abroad." Id. at 426 (citing Office of United Nations High Commissioner
for Refugees, Handbook on Procedures and Criteria for Determining Ref-
ugee Status, P 61, at 16). This is true whether the penalties find their origin
in a public law, an edict, or an unwritten practice, so long as the persecutor
"views persons who . . . leave as disloyal and subversive." Rodriguez-
Roman, 98 F.3d at 430.

the petition for review, REVERSE the decision of the BIA,
and REMAND with instructions that Al-Harbi be granted
withholding of removal and that the Attorney General exer-
cise his discretion on whether Al-Harbi should be granted


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