Adel Nagi El Moraghy v. John Ashcroft

Adel Nagi El Moraghy, the Petitioner, is a Coptic Christian Egyptian national, who sought asylum based on grounds of religious persecution. The First Circuit Court of Appeals ruled that the Board of Immigration Appeals (BIA) affirmed the denial of asylum using its relatively new summary affirmance procedure and it should not have done so. The court held that they could not uphold the immigration judge’s decision because the immigration judge misused State Department country reports and failed to address the issue of past persecution. However, the court made no decision as to the relief that the petitioner sought.

Regardless of the recent changes in immigration law, the court held that country condition reports are still relevant as to credibility, whether or not they specifically name the applicant. Here, the court held that the immigration judge misused the report. The immigration judge improperly imposed a requirement that the country condition reports refer specifically to the petitioner or his family members.

On the issue of failure to address past persecution, the court said “the absence of reasoned discussion of past persecution undercut any meaningful review of the immigration judge’s fear of future persecution finding, because we do not know whether El Moraghy should have had the benefit of the regulatory presumption of fear of persecution based on prior events.” While it may be that the judge found El Moraghy to not be credible, he did not make such a finding, nor explain the basis in evidence for such a finding, both of which are basic errors. The court refused to consider El Moraghy’s withholding of removal claim or his CAT claim, both of which require that petitioner meet a higher burden of proof.

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Ghafour Asemani v. The Islamic of Republic Iran

Ghafour Asemani filed a complaint in the District Court of the District of Columbia against the Islamic Republic of Iran, the Ayatollah Khamenei, and several agencies of the Government of Iran, alleging he was tortured and falsely detained by defendants in July 2000. During the proceedings, Asemani claimed that he was a “national of the United States” at the time he suffered the injuries of which he complains and that he was a victim of “torture” for purposes of the Foreign Sovereign Immunities Act (FSIA). Suit under the “torture” provision of the FSIA is available only when the victim was a “national of the United States (as that term is defined in section 101 (a)(22) of the Immigration and Nationality Act) when the act up on which the claim is based occurred.” To meet this requirement, the party must either be a citizen of the Untied States, or, if not a citizen, owe permanent allegiance to the United States.

Asemani, who was born in Iran to Iranian parents, was not a U.S. citizen. However, he lived in the United States since 1984 and became a permanent citizen in 1994. Asemani previously applied for citizenship, but his application was denied as premature in 1997.  Then, in 1998, he filed an oath of allegiance to the United States. He then pursued his application for citizenship through an interview with an Immigration and Naturalization officer in July 1999.  Therefore, the court held that under the current interpretation of the term “national,” the plaintiff demonstrated his permanent allegiance to the United States sufficient to constitute him as a “national” within the meaning of the FSIA. In making this decision, the court looked at recent cases that suggest a person may become a “national” of the United States by applying for citizenship.

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In the Matter of Octavia

Octavia, a pseudonym for a woman who still lives under a threat of death, filed for asylum to the United States after receiving several beatings by her husband in Guatemala.  The immigration judge granted asylum, concluding that Octavia was part of a “clearly definable social group,” which he identified as “women in Guatemalan society who resist male domination by living independently and self-sufficiently.”  The judge cited a number of failures by Guatemalan authorities to assist Octavia’s several attempts to protect herself and her children. INS attorneys argued that recently adopted laws had provided more protection for women. But based on U.S. government reports, “violence against women remains a problem in Guatemala.”