In the

United States Court of Appeals

For the Seventh Circuit

No. 10-2899

SAAD SARHAN and SARA ISSA MOHAMAD DISI,

Petitioners,

v.

ERIC H. HOLDER, JR., Attorney General

of the United States,

Respondent.

Petitions for Review from an Order

of the Board of Immigration Appeals.

Nos. A 076 766 381, A 076 766 390 

ARGUED APRIL 13, 2011—DECIDED SEPTEMBER 2, 2011

Before POSNER, WOOD, and TINDER, Circuit Judges.

WOOD, Circuit Judge. This petition presents the

question whether a woman who will fall victim to an

“honor killing” at the hands of a family member is

entitled to relief either under the Convention Against

Torture (CAT) or under the procedure known as “withholding of removal.” For the latter, she must prove
2 No. 10-2899

that she is a member of a “particular social group”

within the meaning of the Immigration and Nationality

Act (INA), 8 U.S.C. § 1231(b)(3). We hold that she

has successfully established that she is. In addition,

for purposes of both the CAT and withholding, we find

that the decision of the Board of Immigration Appeals

(the Board) finding that she has not shown a clear probability that she will be killed on account of her membership in that social group if she is returned to Jordan is

not supported by substantial evidence. The Board failed

to consider significant evidence that she presented that

supports a finding that the Jordanian government is

currently unable or unwilling to protect her. The relief

requested by her husband, who is the other petitioner,

is an issue that the Board of Immigration Appeals

must reconsider in the first instance. We grant the petitions for review and remand to the Board for further

proceedings consistent with this opinion.

I

Saad and Sara Sarhan, a married couple who are

citizens of Jordan, received visitor visas and came to the

United States with their two children in the 1990s. (Sara

also goes by Sara Issa Mohamad Disi; we refer to her as

Disi in the interest of keeping the parties straight.) Shortly

after they arrived, Disi gave birth to a third child. The

Sarhans’ new daughter had kidney problems, and so

the family stayed in the United States beyond the expiration of the parents’ visas to ensure that the child

received the care she needed. They settled in Chicago, and

eventually the couple had two more children.
No. 10-2899 3

Nuha Sarhan is Sarhan and Disi’s sister-in-law (she

is married to Sarhan’s brother). There is a history of

animosity between Nuha and her in-laws. Disi is convinced that it was Nuha who triggered the current proceedings by revealing to the immigration officials that

Disi and Sarhan were in the United States illegally.

Before Nuha did that, however, she started a rumor

that Disi had committed adultery. Nuha told this story

to her mother, who took the news to Amman, Jordan,

and there informed Disi’s family—including Disi’s

brother, Besem Disi—that Disi had been unfaithful and

had dishonored the family. Disi first heard about these

false accusations in 2003, when Sarhan’s parents visited

the United States and told her that these rumors were

swirling in Jordan. Neither Sarhan nor the rest of his

family believe that anything Nuha has said is true,

but Disi’s brother Besem is convinced that Disi has committed adultery and has ruined the family’s reputation.

Sarhan’s parents told Disi during their visit that

Besem planned to kill her when she returned to Jordan

in order to restore the family’s honor. 

“Honor killings” (an oxymoron if we ever heard one)

happen “when a family feels that their female relative

has tarnished their reputation by what they loosely

term ‘immoral behavior.’ The person chosen by the

family to carry out the murder (usually male: a

brother, father, cousin, paternal uncle or husband)

brutally ends their female relative’s life to cleanse the

family of the ‘shame’ she brought upon them.”

RANA HUSSEINI, MURDER IN THE NAME OF HONOUR xi

(2009). See generally Islamic ‘Honor’ Killings in Jordan,
4 No. 10-2899

http://www.youtube.com/watch?v=iVRvQtGTv-s (CNN report available on YouTube). Such killings are commonplace around the world and typically happen in

countries where the moral code tightly restricts the behavior of women; government offers little protection

for the victims; and killers receive light punishment,

if charges are not dropped altogether.

Besem has long been obsessed with family honor, as

defined by religious and social norms in Jordan, and

he cannot be deterred from murdering his sister in response to the rumors Nuha started. Besem’s persistence

is perplexing given the evidence that Nuha has manufactured scandals similar to this one in the past.

Before sullying Disi’s name, Nuha once accused

Sarhan’s mother (her own mother-in-law) of infidelity;

this slur caused Sarhan’s father to attempt an

honor killing against his wife. Thankfully, Sarhan and

his brothers intervened to save their mother’s life, and

the family later discovered that Nuha had made the

whole thing up. Nonetheless, Besem is resolute, because

he apparently believes that the rumors alone have

harmed his reputation in the community enough to

warrant killing Disi—the truth no longer matters. In

2006, Besem visited Disi in Chicago and told her that

he planned to murder her when she returned to Jordan.

In the proceedings in the Immigration Court, Disi

testified that Besem said, “[W]hen you come back to

Jordan, I’m going to kill you. Here [in the United States],

I can’t do, because there is a penalty for this, but in Jordan,

nobody can do for another killing.” Sarhan and his father

have corroborated the sincerity of Besem’s threat.
No. 10-2899 5

 The Sarhans appeared in Immigration Court on

January 17, 2006, and conceded that they were removable because they had overstayed their visas.

They filed applications for asylum and withholding of

removal and requested relief under the CAT based

on Besem’s death threat. (More formally, the CAT

is the United Nations Convention against Torture

and Other Cruel, Inhuman or Degrading Treatment or

Punishment, New York, December 10, 1984. See

http://untreaty.un.org/cod/avl/ha/catcidtp/catcidtp.html.

By virtue of Pub. L. No. 105-277, 112 Stat. 2681-821, it is

part of U.S. law.) Sarhan and the Sarhans’ two children

who are not U.S. citizens are listed as beneficiaries on Disi’s

application. After hearing testimony that included the

details we have just recounted, Immigration Judge Zerbe

(the IJ) denied all relief (except for voluntary departure,

which is not relevant here) and ordered the Sarhans

removed to Jordan. The IJ denied the Sarhans’ application

for asylum as untimely because it had been filed more than

a year after they arrived in the United States. In the IJ’s

view, they had not shown changed circumstances or

any other acceptable reason for the delay. See 8 U.S.C.

§ 1158(a)(2)(B) & (D). With respect to withholding of

removal, the IJ denied relief for a number of reasons: while

Judge Zerbe found that the petitioners had testified

credibly about Besem’s plans to kill Disi, he concluded

that this was not enough to demonstrate that Besem

posed a continuing threat to Disi; he also ruled that

Disi was not a member of a particular social group and

that, even if she was, she had not shown that Besem

intended to kill her on account of her membership in
6 No. 10-2899

that group. After reviewing evidence about honor

killings in Jordan, the IJ drew the conclusion that

Jordan would protect Disi even if Besem did pose a

threat. Finally, if all other reasons to deny relief failed,

the IJ added that he saw no reason that Disi could not

relocate to avoid the threat once she arrived in Jordan.

The IJ denied relief under the CAT for similar reasons.

The Board affirmed in a two-page opinion, and the

Sarhans filed these petitions.

II

The Sarhans have focused on the Board’s denial of

withholding of removal in their petitions for review.

As they recognize, we lack jurisdiction to review

its conclusion that their application for asylum was

untimely and not excused by extraordinary circumstances. Restrepo v. Holder, 610 F.3d 962, 964 (7th Cir.

2010). Although they have not made any points

particular to the CAT in the brief before this court, the

Board ruled on the merits of the CAT claim, and the government has conceded that both the withholding claim

and the CAT claim are before this court. Brief for

United States at 10 n.4. Our discussion below applies for

the most part to both theories, but they differ in some

important respects, as we note.

Before proceeding, it is helpful to clarify what decision

we are reviewing and what standards apply. The parties

dispute whether we should review the Board’s opinion

alone or the IJ’s decision as supplemented by the Board.
No. 10-2899 7

The government argues for the latter approach, and we

agree with its position. The Board did not supply an

opinion independent of the IJ’s decision in this case, e.g.,

Liu v. Ashcroft, 380 F.3d 307, 311 (7th Cir. 2004); nor did

it expressly adopt the IJ’s analysis in its entirety, e.g., Pop

v. INS, 270 F.3d 527, 529 (7th Cir. 2001). Instead, the

Board agreed with the IJ and supplemented his opinion

with additional observations of its own. When this happens, we review the IJ’s decision wherever the Board

has not supplanted it with its own rationale; where the

Board has spoken, we review its opinion. Mema v. Gonzales,

474 F.3d 412, 416 (7th Cir. 2007). The agency’s factual

findings related to the petitioners’ claims must be supported by substantial evidence. Feto v. Gonzales, 433

F.3d 907, 910-11 (7th Cir. 2006). We review its legal conclusions de novo, Ahmed v. Ashcroft, 348 F.3d 611,

615 (7th Cir. 2003). Finally, our review is constrained by

the agency’s reasoning: we may uphold its conclusion only on a basis that was articulated by the agency

itself. Moab v. Gonzales, 500 F.3d 656, 659 (7th Cir. 2007).

III

A

Withholding of removal is mandatory under the INA

if an applicant establishes that it is more likely than

not that she would be persecuted in the country of

removal “because of [her] race, religion, nationality,

membership in a particular social group, or political

opinion.” 8 U.S.C. § 1231(b)(3); see also Benitez Ramos v.
8 No. 10-2899

Holder, 589 F.3d 426, 430-31 (7th Cir. 2009). The requirements for obtaining relief under the CAT are also

stringent, but they differ in some respects from those

for withholding. “To obtain protection under CAT, one

must show that ‘it is more likely than not that one would

be tortured if removed to the proposed country of removal.’ ” Toure v. Holder, 624 F.3d 422, 429 (7th Cir. 2010)

(quoting from Rashiah v. Ashcroft, 388 F.3d 1126, 1131

(7th Cir. 2004)). “Torture” for these purposes is defined as:

any act by which severe pain or suffering, whether

physical or mental, is intentionally inflicted on a

person for such purposes as obtaining from him or

her or a third person information or a confession,

punishing him or her for an act he or she or a third

person has committed or is suspected of having committed, or intimidating or coercing him or her or a

third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent

or acquiescence of a public official or other person

acting in an official capacity. 

8 C.F.R. § 208.18. Unlike the remedy of withholding of

removal, relief under the CAT is not conditioned on

proof that the alien has been persecuted because of one

of the five grounds listed in the INA. On the other hand,

the need to prove “torture,” as so defined, sets a high

bar for relief. Relief under both the CAT and the withholding provisions requires the applicant to prove that

it is “more likely than not” that the adverse consequences

will occur if she is returned to the country in question.
No. 10-2899 9

Focusing first on withholding of removal, the IJ rejected

Disi’s argument that she was a member of a social group

for purposes of the statute. The Board agreed with the

IJ. Defended by the government, the Board described

Disi’s social group as Muslim women falsely accused of

adultery. This is not accurate. As the petitioners point

out in their briefs, the truth or falsity of the accusations

against the woman who is targeted for an honor killing

makes no difference. Nor need a woman’s transgression

rise to the level of adultery as the term is understood in

the United States. See BLACK’S LAW DICTIONARY (9th

ed. 2009) (defining adultery as “[v]oluntary sexual intercourse between a married person and someone other

than the person’s spouse”). In Jordan, cause for an

honor killing may arise where a woman commits such

a “sin” as going for a walk with a man who is not her

husband or relative. The social group that Disi and

Sarhan propose includes all Jordanian women who, in

accordance with social and religious norms in Jordan,

are accused of being immoral criminals and, as a consequence, face the prospect of being killed without any

protection from the Jordanian government.

We have acknowledged that the terms “race, religion,

nationality,” “particular social group,” and “political

opinion” are not necessarily self-defining and, consequently, that the Board’s understanding of them is

entitled to Chevron deference. Chen v. Holder, 607 F.3d

511, 512 (7th Cir. 2010); 18 U.S.C. § 1231(b)(3); see also

Chevron U.S.A. v. Natural Res. Def. Council, 467 U.S. 837

(1984). Only official pronouncements of the Board

are entitled to this treatment, however. If the Board
10 No. 10-2899

has spoken through a non-precedential decision that

does not rely on binding Board precedent, its interpretation is not one that receives Chevron deference. Arobelidze

v. Holder, 2011 WL 3132459 at *6 (7th Cir. July 27, 2011)

(en banc). In addition, Chevron does not apply to

factual findings; they are reviewed instead under the

“substantial evidence” standard. Vahora v. Holder, 626

F.3d 907, 910 (7th Cir. 2010). Under the “substantial

evidence” standard, we will uphold the Board’s determination only if it is “supported by reasonable, substantial, and probative evidence on the record considered as

a whole.” Id., quoting Raghunathan v. Holder, 604 F.3d

371, 376 (7th Cir. 2010). We may overturn the Board’s

decision “only if the record compels a contrary result.”

Brucaj v. Ashcroft, 381 F.3d 602, 606 (7th Cir. 2004).

The Act does not define “particular social group,” “but

the Board has defined it as a group whose members

share ‘common characteristics that members of the

group either cannot change, or should not be required

to change because such characteristics are fundamental

to their individual identities.’ ” Gatimi v. Holder, 578

F.3d 611, 614 (7th Cir. 2009) (Gatimi I) (quoting In re

Kasinga, 21 I. & N. Dec. 357, 365-66 (BIA 1996), and citing

In re Acosta, 19 I. & N. Dec. 211, 233-34 (BIA 1985)).

The Board has suggested that a key characteristic of

a “particular social group” is its social visibility. E.g.,

In re S-E-G-, 24 I. & N. Dec. 579, 582-86 (BIA 2008). In

this case, the Board relied on social visibility to decide

against Disi’s proposed group. This court decided in

Gatimi I, however (after the IJ ruled) that the social visibility criterion “makes no sense,” and we rejected it as
No. 10-2899 11

inconsistent with the Board’s and our own past cases.

578 F.3d at 615-16. “Women who have not yet undergone female genital mutilation in tribes that practice it,”

we wrote, “do not look different from anyone else.” Id.

at 615. So, too, when it comes to women whose behavior

leads them to be threatened with honor killings: except

at the moment when they are talking to a strange man,

or expressing affection in an “impermissible” way, they

are indistinguishable from all other women before

they are murdered by their families.

The Board also reasoned that the members of Disi’s

proposed group have nothing in common except “a

shared experience with other members of Jordanian

society who have been targeted for honor killings.” This

conclusion is based on a misapplication of the Board’s

legal standard to the facts before it. We realize that the

agency “has a legitimate interest in resisting efforts to

classify people who are targets of persecution as

members of a particular social group when they have

little or nothing in common beyond being targets.”

Gatimi I, 578 F.3d at 616. That is why people who are

persecuted solely because they have cooperated with

police or people who are debtors to the same creditor are

not considered to be part of a defined social group. Id.

(referring to Scatambuli v. Holder, 558 F.3d 53 (1st Cir.

2009), Castillo-Arias v. U.S. Att’y Gen., 446 F.3d 1190 (11th

Cir. 2006), and Cruz-Funez v. Gonzales, 406 F.3d 1187, 1191-

92 (10th Cir. 2005)). The social group in this case, however, does not suffer from that flaw. It is a function of

a pre-existing moral code in Jordanian society, just as

the dress code for “modest” women that helped to
12 No. 10-2899

define a social group in Yadegar-Sargis v. INS, 297 F.3d

596 (7th Cir. 2002). Social stigma causes the violence.

Society as a whole brands women who flout its norms

as outcasts, and it delegates to family members the task

of meting out the appropriate punishment—in this

case, death. The Board’s factual finding to the contrary

is not supported by substantial evidence. (To the extent

that this Board decision may have added to the Board’s

existing standards, we note that it is not entitled to

Chevron deference because it is a non-precedential opinion. 8 CFR § 1003.1(g) (2011); BIA, Practice Manual,

1.4(d), 4.6(d) (2004). Arobelidze, 2011 WL 3132459 at *6.)

Disi’s proposed social group is consistent with others

we have found in analogous circumstances. Sepulveda v.

Gonzales, 464 F.3d 770, 771-72 (7th Cir. 2006), holds that

former subordinates of the attorney general of Colombia

who had information about insurgents plaguing that

nation are members of a social group. That opinion

also contains a useful list of other qualifying examples,

including “the educated, landowning class of cattle

farmers targeted by Colombian rebels; . . . parents of

Burmese student dissidents; and children who escaped

after being enslaved from Ugandan guerillas who had

enslaved them.” Id. (citations omitted). Gatimi I

recognized as a social group the former members of a

violent criminal faction in Kenya called the Mungiki,

578 F.3d at 615; and Benitez Ramos concluded that former

gang members who face persecution after quitting are

members of a particular social group, 589 F.3d at 429-

30. Women facing honor killings in Jordan are no less

cohesive than these groups and no more able to
No. 10-2899 13

shed the stigmatizing characteristics that render them

victims. Consider how similar women in Disi’s position

are to the social groups recognized in Agbor v. Gonzales,

487 F.3d 499, 502 (7th Cir. 2007) (women who fear they

will be victims of female genital mutilation), In re

Kasinga, 21 I. & N. Dec. 357 (BIA 1996) (same), YadegarSargis, 297 F.3d at 603 (Christian women in Iran who

do not wish to adhere to the Islamic female dress code),

Lin v. Ashcroft, 385 F.3d 748, 752 (7th Cir. 2004) (Chinese

women who face forced sterilization), and Bi Xia Qu

v. Holder, 618 F.3d 602, 607-08 (6th Cir. 2010) (women

who are sold or forced into marriage and involuntary

servitude). We conclude that Disi is a member of the

particular social group of women in Jordan who have

(allegedly) flouted repressive moral norms, and thus

who face a high risk of honor killing.

To the extent that Disi is proceeding under the CAT, as

we mentioned earlier, she does not need to show that

she belonged to a particular social group. For that

claim, one can skip down immediately to parts III.C. and

IV of this opinion; those sections address the issues that

are common to her withholding claim and her CAT claim.

B

Addressing Disi’s withholding claim, we conclude

that she has met her burden of demonstrating a clear

probability that, if returned to Jordan, she would be

persecuted on account of her membership in the social

group she has identified. The IJ, the Board, and the Attorney General all take the position that if Besem did
14 No. 10-2899

kill Disi, his action would reflect only a personal

dispute, not anything based on her membership in a

broader social group. If that were an accurate description of the situation, the government would be correct

that relief is unavailable. See, e.g., Grava v. INS, 205

F.3d 1177, 1181 n.3 (9th Cir. 2000) (“Purely personal

retribution is, of course, not persecution on account [of

a protected ground].”). The IJ concluded, “[Besem]

intends to harm the respondent, not because of [her]

affiliation with other women accused of adultery, but

rather, because he believes she has engaged in conduct

that would bring dishonor to the family.” This was

evident, the IJ thought, because there was no indication

“that Besem is actively seeking out other women

accused of adultery.” The Board and the government’s

briefs repeat this position almost verbatim, including

the argument that Besem’s dispute must be personal

because he is not threatening death to other women.

Perhaps there is superficial appeal to this argument,

but its force dissipates quickly when we examine it more

carefully. There is no personal dispute between Disi and

her brother. He has not vowed to kill her because of a

quarrel about whether she or Besem should inherit a

parcel of land, or because she did a bad job running

his store, or because she broke Besem’s favorite toy

as a child. She faces death because of a widely-held

social norm in Jordan—a norm that imposes behavioral

obligations on her and permits Besem to enforce them

in the most drastic way. The dispute between Disi and

Besem is simply a piece of a complex cultural construct

that entitles male members of families dishonored by
No. 10-2899 15

perceived bad acts of female relatives to kill those

women. The man who does the killing may have a

personal motivation in the sense that he is angry that

his sister has dishonored the family, or he may regret

the need to take such an irrevocable step. Either way,

he is killing her because society has deemed that this

is a permissible—maybe in some eyes the only—correct

course of action and the government has withdrawn

its protection from the victims. The very fact that these

are called “honor killings” demonstrates that they are

killings with broader social significance.

This helps to explain why the fact that Besem does not

have either a duty or (we assume) the inclination to kill

women from other families is immaterial. The social

code that Besem follows has anointed him (or another

of Disi’s male relatives) as the person with the right to

kill the woman who dishonored his family; it has not

given him the role of killing women who dishonor other

men’s families. In the same way, in a society that

practices female genital mutilation, each family is responsible for carrying out the operation on its own

girls. But the families are not taking this step to make

a personal statement. They do it because their society

tells them that they are harboring an outcast and their

own social standing will suffer if they do nothing. The

fact that Besem has not killed others says nothing

about whether his persecution of Disi will be on account

of her membership in a particular social group. Imagine

the neo-Nazi who burns down the house of an AfricanAmerican family. We would never say that this was a

personal dispute because the neo-Nazi did not burn
16 No. 10-2899

down all of the houses belonging to African-Americans

in the town. The situation here is analogous. If Besem

killed Disi it would be on account of her membership in

the particular social group to which she has been assigned.

C

That leaves the question—relevant both to withholding

and the CAT—whether it is probable that Besem actually

will kill Disi if she returns to Jordan. After hearing Disi’s

and Sarhan’s testimony on that issue, the IJ wrote, “In

regards to the details of the threat made by Besem, and

the respondents’ testimony about the manner and circumstances of the threat and the fear they experienced

after it was made, the Court finds that the testimony

was credible.” The Board said nothing about that credibility finding. When he issued his decision, the IJ listed

as a reason for denying relief that he did not think that

Disi faced a continuing threat from Besem. The IJ’s

opinion says that its “limited credibility judgment does

not extend to the respondents’ speculation that [Disi]

will be assassinated in an honor killing on her return to

Jordan or that the Jordanian government is unable or

unwilling to protect her.” Perhaps this means that the IJ

thought that Disi and Sarhan genuinely believed that

Besem would kill Disi, but that their belief was unreasonable. But that is not what he said. We cannot

reconcile the judge’s willingness to believe the evidence

that Besem has sworn to carry out this murder with his

later dismissal of that threat as entirely speculative.

In all these cases, the prospect of harm occurring in

the future is an inference based on facts in the record. The
No. 10-2899 17

IJ accepted the evidence in the record showing that

Besem made these explicit threats. This included not

only Disi’s and Sarhan’s credible account of the danger

posed by Besem, but also evidence that Besem had been

abusive to Disi in the past and the letter from Sarhan’s

father that recounted Besem’s plan to kill Disi. There is

literally no evidence on the other side of the balance in

this record—nothing to cast doubt on Disi’s testimony,

and nothing to indicate that Besem has forgiven or forgotten Disi’s alleged dishonorable act. Without such evidence, the record overwhelmingly supports the proposition that it is more likely than not that Besem will

either severely harm or murder her if she is returned

to Jordan. Cf. Shtaro v. Gonzales, 435 F.3d 711, 715 (7th

Cir. 2006).

IV

This brings us to the role of the Jordanian government. “Persecution is something a government does,

either directly or by abetting (and thus becoming responsible for) private discrimination by throwing in its

lot with the deeds or by providing protection so

ineffectual that it becomes a sensible inference that the

government sponsors the misconduct.” Hor v. Gonzales,

400 F.3d 482, 485 (7th Cir. 2005); see also Balogun v.

Ashcroft, 374 F.3d 492, 499 n.8 (7th Cir. 2004). Disi contends that the government of Jordan cannot and will

not do anything to protect her, but the agency rejected this argument. After reviewing the evidence of

the Jordanian government’s treatment of honor crimes, we
18 No. 10-2899

conclude that the record permits no conclusion other

than that the government is ineffective when it comes

to providing protection to women whose behavior

places them in the group who are threatened with

honor killings. We note that this showing satisfies both

the standards for finding governmental action for

purposes of withholding and also those under the CAT,

which requires that the “pain or suffering” must be

“inflicted by or at the instigation of or with the consent

or acquiescence of a public official or other person

acting in an official capacity.” 8 C.F.R. § 208.18 (emphasis added).

A

The Board had before it a substantial amount of information about honor killings in Jordan, including the

State Department’s 2007 Country Report on Human

Rights Practices for Jordan, http://www.state.gov/g/

drl/rls/hrrpt/2007/100598.htm, an Amnesty International

publication, “Legalized Murder: Killing for ‘Honor’ ” (see

Agency Record at 437), a Human Rights Watch publication called, “Honoring the Killers,” (see Agency Record

at 514), a law journal article, Valerie Plant, Honor Killings

and the Asylum Gender Gap, 15 J. TRANSNAT’L L. & POL’Y

109 (2005), and various other newspaper accounts and

affidavits about the problem of honor killings.

According to the State Department’s 2007 report, during

that year there were “17 reported instances of honor

crimes that resulted in the death of the victim, although

activists reported that additional unreported cases likely
No. 10-2899 19

occurred. A November [2007] UN Development Fund

for Women study stated that 25 percent of honor crime

victims in the country were killed merely because

they were suspected of involvement in an illicit relationship.” U.S. Dep’t of State, Country Report on Human

Rights Practices for Jordan (2007). At oral argument,

the government called our attention to the fact that

this amounts to 17 honor killings during a one-year

period in a country with a population of 6 million. Apparently it meant to suggest that the low number of

honor killings means it is not much of a problem. We

do not see the logic; a common (though not inevitable)

feature of persecution is that the victims come from

minority populations. That there are few publicly

recorded instances of killings within a particular social

group does not mean that the U.S. government is free

to remove someone who has experienced a direct and

credible threat of such a killing. Nor does it address

the twin problems of underreporting and measures

short of killing (such as mutilation) that take place. Compare the mutilation described by John Wendle, The

Aisha Bibi Case: Her Father Wants to Petition the Taliban

for Justice, TIME, July 14, 2011 (woman whose ears and

nose were sliced off for failing to adhere to Shari’a law).

We find similarly unconvincing the unadorned fact

that all 17 honor crimes committed during 2007 were

prosecuted. Prosecution at times is an empty gesture.

The sentences given out in Jordan for honor crimes

show that prosecutions of honor crimes result in little

more than a slap on the wrist. The State Department put

it this way: “While the defendants are almost always
20 No. 10-2899

universally found guilty, defendants often received

token sentences, with the charges often reduced from

premeditated murder to manslaughter. Many men convicted of an honor crime received minimal prison sentences, usually no more than six months.” U.S. Dep’t of

State, Country Report on Human Rights Practices for

Jordan (2007). A six-month sentence for this kind of

premeditated murder, when all other murders are punished much more severely, sends a strong social message of toleration for the practice.

Such lenient sentences are made possible by a legal

framework that favors those who commit honor killings.

The Board had information about the Jordanian legal

regime before it, but it did not discuss the legal

framework in either of its decisions. Article 340 of the

Jordanian penal code provides a legal justification for

honor crimes. Efforts to repeal that provision have

failed repeatedly in the elected lower house of Jordan’s

Parliament. Moreover, those who commit honor killings

often invoke article 98 of the code, which reduces

penalties when the crime is committed in a “fit of fury.”

According to one report that the agency considered:

If the extenuating excuse is established for a crime

punishable by death, such as premeditated murder,

article 98 provides that the penalty be reduced to

a minimum of one year in prison. For other felonies,

it is reducible to a minimum of six months and a

maximum of two years. Moreover, courts may

further halve the sentence if the victim’s family

“waives” its right to file a complaint of the crime.
No. 10-2899 21

In murders for “honor,” given the family’s complicity

in the crime, the family nearly always “waives” the

right to file a complaint. Thus, “honor” killers may

receive sentences of six months—and often do. If a

killer has served that much time awaiting trial, the

sentence may be commuted to time served and he

may walk away a free man.

Though gender-neutral in language, article 98 in

practice is applied to benefit only men. 

Human Rights Watch, Honoring the Killers (Agency

Record at 532). This legal regime and the minimal punishments that result mean that the Jordanian government

at best does almost nothing and at worst promotes

the practice of honor killings.

The only protection that Jordan offers to those who

would otherwise become victims is voluntary imprisonment; a woman who fears that she is in danger may

turn herself in to a prison where she can be kept in custody. Jordanian authorities “regularly place[] potential

victims of honor crimes in involuntary protective

custody . . . where some have remained for up to 20 years.”

U.S. Dep’t of State, Country Report on Human Rights

Practices for Jordan (2007). At the end of 2007, at least

15 women were in protective custody. This practice

strikes us as being much closer to persecution than to

protection from harm—the victim must choose

between death and an indefinite prison term (indeed,

a term longer by an order of magnitude than the one

faced by her persecutor). In this connection, it is

important to recall that the INA prohibits removal to a
22 No. 10-2899

country where “the alien’s life or freedom would be threatened” on account of a protected ground. 8 U.S.C. § 1231

(emphasis added).

Little seems to have changed in Jordan. The State Department’s report from 1999 explained that the law allowed for reduced punishments for honor crimes and

that law enforcement treatment of men accused of

honor crimes “reflects widespread unwillingness to

recognize the abuse involved or take action against

the problem.” U.S. Dep’t of State, Country Reports on

Human Rights Practices for Jordan (1999), http://www.

state.gov/g/drl/rls/hrrpt/1999/418.htm. In that year there

were at least 16 honor killings in Jordan; the police imprisoned women to protect them; and the Jordanian

legislature rejected efforts to reform the penal code. Id.

Compare to these facts the report from 2009 (which

the agency did not consider but to which we may refer

in the course of reaching our decision, Agbor v. Gonzales,

487 F.3d 499, 503 (7th Cir. 2007)), which relates

that “[v]iolence and abuse against women continued,

including . . . numerous honor crimes” and that

“[a]uthorities prosecuted the 24 reported instances of

homicides related to honor crimes that occurred during

the year.” U.S. Dep’t of State, Country Report on

Human Rights Practices for Jordan (2009), http://www.

state.gov/g/drl/rls/hrrpt/2009/nea/136071.htm. The only

bright spot in this picture came from one newly

launched initiative: 

On July 28, [2009,] the chief judge of the criminal

courts announced the establishment of a special
No. 10-2899 23

criminal court tribunal to hear all honor crime cases.

In its first ruling on October 12, [2009,] the tribunal

issued a 15-year murder sentence . . . . This sentence marked the first time a lower court issued a

full murder sentence in an honor crime case without

granting some form of leniency.

Id. The report contrasts this long prison term to the

typical six-month sentences and then puts the reform

effort in context: “Despite the judicial efforts the government had no plan or program to change public

attitudes toward honor crimes or to deter future

killings, and it had made no legislative changes to

strengthen sentencing guidelines.” Id. This final statement represents the strongest condemnation that the

State Department has issued relating to the Jordanian

government’s effort to curb honor killings.

B

After reviewing these materials, the IJ decided that

“[t]he objective evidence of record does not establish

that the government of Jordan would be unable or unwilling to protect the respondent from future harm.” The

Board agreed, concluding that “the Jordanian government condemns the practice of honor killings.” We are

at a loss to understand how they came to this conclusion in light of the evidence we have just reviewed.

The IJ noted that honor crimes are punished much

less severely than other crimes (quite an understatement—the 2007 State Department report says that in
24 No. 10-2899

ordinary cases the maximum penalty for first-degree

murder is death, and the maximum penalty for seconddegree murder is 15 years in prison), but he added

that “various non-governmental organizations, with the

support of the current King and Queen, are trying to

reform the penal code.” (Emphasis added.) Attempted

reform, like a bill that fails to become law, does not

count as concrete government action. In fact, the

only concrete measure the agency could name that the

Jordanian government has taken was its offer to put

women in jail if they felt threatened. The agency said

with commendable understatement that this “is not an

attractive option for victims.” As we explained above,

it is not an option at all—it is direct persecution, in the

form of deprivation of an innocent person’s liberty, by

the government.

The agency ignored strong evidence of governmental

toleration of, or indifference to, honor crimes. Cf. Gatimi I,

578 F.3d at 617. Attempts to amend laws to help curb

violence against women are welcome steps, but they are

not evidence that the government of Jordan has the

power or the desire to protect a woman in Disi’s position.

Nor is there much evidence that efforts are coming

from within the Jordanian government—most reforms

seem to be proposed by non-governmental organizations.

Other cases recognize the problem of honor killings

and the government’s lackadaisical attitude. See Suradi

v. Holder, 2011 WL 2215548, at *2 (9th Cir. June 8, 2011)

(“The IJ’s finding that the Jordanian government does

not acquiesce in honor killings is not supported by substantial evidence.”). See also Abdelghani v. Holder, 309
No. 10-2899 25

F. App’x 19, 22 (7th Cir. Feb. 3, 2009); Yaylacicegi v. Gonzales, 175 F. App’x 33, 36 (7th Cir. Mar. 29, 2006). The Sixth

Circuit decided in Khalili v. Holder, 557 F.3d 429 (6th Cir.

2009), that a man fearing he might be killed because of

marital misconduct if he returned to Jordan was not

entitled to withholding of removal. The obvious difference between that case and this one is that the

petitioner in the Sixth Circuit was not a female, and

the problem we have identified is one that concerns

violence by men against women.

We conclude that the agency reached the wrong conclusion. The government of Jordan is complicit in the

harm that Disi will suffer at the hands of her brother.

V

We must address two remaining issues before we

conclude. The agency decided that even if the Sarhans

were otherwise entitled to relief, withholding of removal or protection under the CAT was not necessary

because they had not shown that they would be unable

to relocate to avoid Besem once they arrived in Jordan.

The IJ did not provide much reasoning to support this

conclusion, the Board did not mention relocation at all,

and the government’s brief does not address the issue.

This lack of reasoning is alone enough to justify remanding the issue to the agency. E.g., Ssali v. Gonzales,

424 F.3d 556, 564 (7th Cir. 2005). But there is a deeper

problem. “Relocating to another part of the country

does not mean living in hiding.” Agbor, 487 F.3d at 505.

The evidence indicates that Besem will be looking for
26 No. 10-2899

Disi specifically; in a country the size of Jordan, she

would have to live in hiding to avoid him. (Jordan is 34,495

square miles, see http://travel.nationalgeographic.com/

travel/countries/jordan-facts/, just a little bit larger than

the State of Maine, which is 33,128 square miles. See

http://www.theus50.com/area.php.)

Finally, the government urges that, even if we

conclude that further proceedings are warranted, we

should dismiss Sarhan’s derivative claim on the

ground that the Act does not provide benefits to an

alien’s family when the alien claims withholding of

removal or relief under the CAT. Neither the IJ nor

the Board appears to have considered whether Sarhan’s

case should be rejected on this ground, because they

chose instead to deny relief to both petitioners. That

means that the government’s alternative basis for

affirming the agency’s decision in part is not before

us. “The Supreme Court of the United States has admonished, in [SEC v. Chenery, 318 U.S. 80, 87-88 (1943)], that

we may not sanction an agency decision based upon

the post-hoc rationalizations of appellate counsel for the

agency’s decision.” Moab, 500 F.3d at 659.

In any event, it is not apparent to us at this juncture

that the government’s position is correct. While courts

have recognized that the provisions of the INA governing asylum explicitly permit derivative claims and

that those governing withholding of removal do not, e.g.,

Ali v. Ashcroft, 394 F.3d 780, 782 n.1 (9th Cir. 2005) (comparing 8 U.S.C. § 1158(b)(3) with 8 U.S.C. § 1231(b)(3)),

we see no reason to read into the Act’s silence a
No. 10-2899 27

hidden rule that bars derivative claims in all instances

where an alien seeks withholding of removal. Moreover,

Sarhan’s claim may not even be derivative: in some

instances persecution of one spouse can itself constitute

persecution of the other spouse. Kone v. Holder, 620

F.3d 760, 765 (7th Cir. 2010) (quoting Gatimi I, 578 F.3d

at 617 for the proposition that “[g]enital mutilation of

one’s wife, unless one happens to be a supporter of the

practice, is a way to punish one”). If Disi were compelled to return to Jordan because Sarhan was removed

(maybe for financial reasons, or simply to keep the

family together), perhaps the threat of Disi’s death

would be sufficient persecution of Sarhan to grant him

withholding as well. On remand, Sarhan will have the

opportunity to develop his own claims for relief apart

from those that are derivative of Disi’s. We recognize

that the Board may conclude that Sarhan is not eligible

for relief. If it does, however, it is always possible to

make a final appeal to the Attorney General for the

exercise of his humanitarian power in this painful situation. These questions are for the agency in the first instance; we do not resolve them here.

VI

The practice of honor killing is still widespread in

certain parts of the world. Along with female genital

mutilation, human trafficking and slavery, spousal rape,

and domestic battery, it is among the most severe

abuses that women face around the globe. Vital though

the enforcement of our immigration laws may be, it is

equally important to give full force to the features of
28 No. 10-2899

those laws that are designed to give shelter in the

United States to people who would experience extraordinary abuse if they were sent back to their home

country. The laws regarding asylum, withholding of

removal, and the United States’s international obligations under the CAT are no less important than the

laws establishing the general rules for immigration. The

Board’s decision in this case looked too narrowly at

the abhorrent practice of honor killing in Jordan. In so

doing, it failed to realize that women whose behavior

violates that society’s moral norms (and who thus may

suffer this consequence) form a coherent social group,

that the ensuing death normally at the hand of a family

member amounts to persecution on account of their

membership in that group, and that the government

continues to be unwilling or unable to stop this brutality.

In this case, Disi has shown that it is more likely than

not that she will be murdered by her brother if she is

returned to Jordan because she is part of this social

group. The Jordanian government can or will do

nothing to help her, and she cannot reasonably be

expected to relocate, because Besem will track her down

no matter where she is within Jordan. Sarhan’s case

and that of the children is more complex. What is clear

is that further proceedings are necessary before either

Disi or her family members can be removed. We therefore GRANT the petitions for review and REMAND the

cases to the agency for further proceedings consistent

with this opinion.

9-2-11