IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

___________________

No. 94-41155

___________________

MAMDOUH L. ABDEL-MASIEH,

Petitioner,

versus

UNITED STATES IMMIGRATION AND

NATURALIZATION SERVICE,

Respondent.

________________________________________________

Petition for Review of and Order of the Immigration

and Naturalization Service

________________________________________________

January 15, 1996

Before WISDOM, GARWOOD and JONES, Circuit Judges.

GARWOOD, Circuit Judge:

The Immigration and Naturalization Service (INS) initiated

deportation proceedings against Mamdouh Abdel-Masieh (Abdel) on

December 4, 1990. The immigration judge found Abdel to be

ineligible for asylum and for withholding of deportation under the

Immigration and Naturalization Act. The Board of Immigration

Appeals (BIA) affirmed the immigration judge’s deci sion and

dismissed Abdel’s appeal. Abdel brings this petition to review the

final order of deportation pursuant to 8 U.S.C. § 1105a(a). We

vacate the order of deportation and remand to the BIA.1 A bdel concedes that the difficulties for Christians can be

traced to 1983, when Sudan was governed by Chatrin Numary. Numary

initiated the application of Shari’a in Sudan, and Abdel testified

that Numary’s government and the current NIF government are closely

associated.

2 Facts and Proceedings Below

Petitioner Abdel is a thirty-two year old native and citizen

of Sudan. He was employed in Sudan as an aircraft mechanic and

engineer, an occupation which he has characterized as well-paying.

Abdel is a member of the Coptic faith, a Christian denomination

comprising a small fraction of the Christian minority residing in

the predominantly Muslim nation of Sudan. In the aggregate, ten

percent of Sudanese citizens are Christians. Prior to leaving

Sudan for the United States, Abdel resided in S udan most of his

life, leaving only for a two and one-half year period of study in

India from 1985 to 1987.

In June 1989, the democratically elected government of Sudan

was overthrown in a military coup and replaced by a military

government heavily influenced by the National Islamic Front (NIF).

The new government quickly instituted a drive to Islamicize Sudan,

replacing secular judges with Isl amic ones, and imposing the

Islamic Shari’a laws on all Sudanese people, Muslim and non-Muslim

alike. 1 The imposition of the S hari’a on non-Muslim Sudanese,

which provides for such harsh penalties as amputation, stoning, and

lashes, has raised a volatile issue in that nation, an issue which

is important in the civil war raging in the southe rn portion of

Sudan.2 A bdel noted the contrast between the capital sentence imposed

against his cousin and the minima l sentences received by five

members of an Islamic terrorist organization convicted of killing

seven people in an attack on a Khartoum hotel.

3 In August 1989, soon after the NIF governme nt seized power,

Abdel participated in a demonstration against the g overnment’s

efforts to apply the Shari’ a to all Sudanese citizens. From a

group of two hundred protesters, twenty-five to thirty were

arrested, including Abdel. During his three-hour detention, Abdel

was interrogated and beaten. Before releasing Abdel, the officials

recorded his name and other identifying information, but filed no

charges against him.

Then, in late December 1989 or early January 1990, one of

Abdel’s cousins was arrested and ultimately executed by the

government for allege dly carrying United States currency in an

airport. This cousin was the son of a Coptic priest who was a

leader in the Sudanese Coptic community. Trials of the sort

afforded to Abdel’s cousin were summarily c onducted by military

tribunals, and the accused were denied representation by counsel.

In January 1990, the funeral procession for Abdel’s cousin evolved

into a large demonstration against this perceived religious

persecution. 2 In an effort to prevent the funeral procession,

comprised of an estimated 10,000 protestors, from passing in front

of the United States embassy in Khartoum, security forces arrested

approximately 20 demonstrator s, including Abdel. He was again

detained for three hours, during which time he was interrogated and

beaten. After his release, Abdel was picked up again for an4

additional two hours. As was the case with his August 1989 arrest,

Abdel was not charged upon his release. He was able to return to

work after each of these episodes involving the police, and

ultimately left his employment voluntarily in February 1990.

On February 24, 1990, Abdel entered the United States as an

“M-1" nonimmigrant student pursuant to 8 U.S.C. § 1101(a)(15)(M).

He testified that he left Sudan for the United States for two

reasons: first, he sought to advance his education and obtain a

permit related to his aircraft engineering voca tion; second, he

hoped to escape his conflict with the government of Sudan. He

further testified that he was able to obtain his passport

renew al

—— on January 6, 1990

— — and visa only through the help of a

brother-in-law with American connections. It is clear that many

Sudanese in suspect classifications have great difficulty obtaining

passports and exit visas. Since his arrival in the United States,

Abdel has worked as a cash register attendant in a gas station.

Abdel points to several events which have occurred since his

departure from Sudan in support of his contention that he will face

persecution if he returns to that nation. He indicated in his

application for asylum that his mother, formerly a department

director of a textile factory, was fired because of her religious

beliefs. Abdel’s brother, who operates his own business, was

arrested, detaine d, and beaten by Sudanese security forces in an

effort to obtain information regarding Abdel. Abdel’s brother and

a co-worker have warned Abdel not to return to Sudan unde r any

circumstances. Abdel testified that he is on a “wanted list” at5

the Khartoum airport, although he concedes that he has never seen

this list and does not explain how he knows he is on it.

Additionally, individuals assumed by Abdel to be government agents

have on several occasions made inquiries at his former place of

employment regarding his whereabouts and the duration of his stay

in the United States. Finally, Abdel has indicated that his

family’s telephon e conversations and mail have been monitored, a

practice which the United States Department o f State has

characterized as pervasive in Sudan.

Abd el’s student visa expired on March 26, 1990, and

deportation proceedings were commenced against him on November 26,

1990. Abdel conceded deportability in these proceedings, and the

immigration judge denied his application for asylum or temporary

withholding of deportation. Pursuant to 8 U.S.C. § 1254(e), Abdel

was given two months to voluntarily depart the United States.

Abdel appealed this decision to the BIA, and the BIA dismissed

Abdel’s appeal on October 5, 1994. Abdel timely brought the

present petition before this Court to review the BIA’s final order

of deportation pursuant to 8 U.S.C. § 1105a(a).

Discussion

Abdel seeks asylum pursuant to 8 U.S.C. § 1158(a). This

section of the Immigrati on and Naturalization Act (INA) affords

asylum to aliens who are “refugees”, defined by the INA as:

“[A]ny person who is outside any country of such person’s

nationality

... who is unable or unwilling to return to,

and is unable or unwilling to avail himself or herself of

the protection of, that country because of persecution or

a well-founded fear of persecution on accou nt of race,

religion, nationality, membership in a particular social6

group, or political opinion ...” 8 U.S.C. §

1101(a)(42)(A).

We review the BIA’s factual determination that Abdel is not a

“refugee” within this definition, and therefore that Abdel is not

eligible for asylum nor for withholding of deportation, under the

substantial evidence standard. Ozdemir v. INS , 46 F.3d 6, 7 (5th

Cir. 1994)(citations omitted); Adebisi v. INS , 952 F.2d 910, 912

(5th Cir. 1992)(citations omitted). The errors or other failings

of the immigration judge’s opinion are considered only if they have

some impact on the BIA’s decision. 952 F.2d at 912.

I. Past Persecution

The BIA agreed with the immigration judge’s finding that

Abdel’s two arrests did not rise to the level of “persecution”

contemplated by the INA. After reviewing the facts surrounding

Abdel’s two arrests, the BIA cited three cases to support its

finding that these arrests did not constitute persecution.

However, in all three of these cases, the prisoners were not

mistreated during their respective detentions. S ee Zalega v. INS

,

916 F.2d 1257, 1260 (7th Cir. 1990)(Zalega, though a rrested and

interrogated five times, with detentions of up to thirty-six hours,

“was not mistreated while incarcerated”); Mendez-Efrain v. INS

, 813

F.2d 279, 283 (9th Cir. 1987)(four days’ detention; “There is no

i ndication that [Mendez] was tortured or molested while i n

detention”); Kubon v. INS

, 913 F.2d 386, 388 (7th Cir. 1990)(no

evidence that Kubon was mistreated during his five-day detention).

Additionally, in Zalega and Kubon

, the Seventh Circuit also relied

on the impr oving political situation in Poland to justify its3 S ee also Osaghae v. INS

, 942 F.2d 1160, 1 163 (7th Cir. 1991)

(persecution encompasses “punishment for political, religious, or

other reasons that our country does not recognize as legitimate”).

7 affirmance of the BIA’s denial of asylum in both cases. 913 F.2d

at 388; 916 F.2d at 1261 n.5. None of the evidence in the present

case suggests a similar “improvement” is on the horizon in Sudan.

On the other hand, in each of those cases the detention was for

substantially longer than here.

While the term “persecution” under the INA is by no means

well-defined, the BIA h as provided some insight into the working

parameters of this term:

“[T]he infliction of suffering or harm, under government

sanction, upo n persons who differ in a way regarded as

offensive ( e.g.

, race, religion, political opinion,

etc.) , in a manner condemned by civilized governments.

The harm or suffering need not be physical, but may take

other forms, such as the deliberate imposition of severe

economic disadvantage or the deprivation of liberty,

food, housing, employment or other essentials of life.”

Matter of Laipenieks

, 18 I&N Dec. 433, 456-457 (BIA

1983), rev’d on other grounds

, 750 F.2d 1427 (9th Cir.

1985). 3

In Laipenieks

, the BIA applied this interpretive language and

determined that:

“While punishment o f criminal conduct in itself is not

persecution, where that punishment entails such things as

severe beatings or being sent to a Nazi conce ntration

camp

—— i.e., is ‘excessive or arbitrary ’—— and is motivated

by one of the specified grounds, such punishm ent would

constitute persecution under the Act.” I d. at 459 n. 18.

Abdel asserts that he was twice arrested, twice detained, and

beaten on both occasions. As Abdel’s credibility has not been

impugned in these proceedings, his testimony may be sufficient to

sustain his burden of proof without corroboration. 8 C.F.R. §8

208.13(a). However, Abdel does not in his testimony characterize

the beatings he received as “severe”, nor does he demonstrate that

his detentions were “excessive or arbitrary”. He was never

detained overnight. Most importantly, Abdel fails to establish

that he was singled out and arrested on either occasion due to his

religious or poli tical affiliations. Abdel was twice arrested

while participati ng in large, public demonstrations. He has not

demonstrated that the treatment he received was different than that

which would have been received by any other participant in a public

disturbance in Khartoum. It seems plausible that Abdel may have

been arrested on both occasions simply because he was at the front

of the crowd. There is no evidence to the contrary. Each time he

was detained, the authorities wer e apparently unaware of his

identity. In short, it is by no means clear that Abdel’s

mistreatment was motivated by his “differ[ences] in a way regarded

as offensive (e.g., race, religion, political opinion, etc.).”

Thus, we cannot say that the BIA erred in finding that Ab del has

not suffered past persecution.

II. Well-Founded Fear of Future Persecution

In concluding that Abdel failed to demonstrate a well-founded

fear of future persecution, the BIA noted that:

“If the government was intere sted in persecuting the

respondent, they [sic] had ample opportunity when he was

in their [sic ] custody twice. Particularly the second

time the res pondent was in custody the government had

full information about who he was and what he had done.

Nevertheless, the government released him after a relatively short period of detention.”

The BI A has apparently taken the position that, since Abdel9

w as not

—— during his two episodes of detention and

beating

—— mistreated to such a degree tha t his experiences would

constitute “pe rsecution”, he should not fear persecution by the

Sudanese government in the future. Without more, this reasoning by

the BIA is unpersuasive. There is little reason to generally

suppose that a government’s past actions in this respect create an

“outer limit” on its future actions. In fact, the evidence in the

record suggests that the opposite is true in the present case;

since the time of Abdel’s second arrest, the Sudanese government

has become even more active in this context. Abdel’s mother, who

still had her job at the time of Abdel’s second arrest, was

subsequently fired due to her religious beliefs. Also after the

second arrest, Abdel’s brother was detained and beaten, not because

he participated in any civil protest, but because the Sudanese

security forces wanted additional information regarding Abdel. The

evidence further suggests that, while the government’s involvement

with Abdel in the past was reacti ve——reacting to public

demonstrations in which he participated

—— the Sudanese government has

now taken the initiative to locate Abdel for purposes as yet

unknown. In addition, it is clear that the Sudanese government can

be ruthless with regard to its own citizens. The United States

Department of State Country Reports on Human Rights Practices for

1991 ( February 1992) for Sudan indicate that the government h a s

likely perpetrated any number of he inous atrocities against its

citizenry. Twenty-five civilian residents of southern Sudan

disappeared in 1991, purportedly the result of military executions4 A nd, the asserted appearance of Abdel’s name on a wanted list at

the airport is not mentioned.

10 relating to the civil war in that region. I d. at 378.

Additionally, the State Department reports that persons suspected

of activity against the Sud anese government have been whipped,

clubbed, shocked with electricity, kicked in the ribs and kidneys,

bound for long periods, boiled, and psychologically tortured. I d.

Responding to the evidence brought forward by Abdel, the BIA

found that:

“The fact that unidentified people were asking questions

about the respondent at his former work place does not

show that the government may now be inclined to persecute

him upon his return to Sudan. He was supposed to return

to Sudan and his job there after a 3-month period of

study in the United States. He does not alleged that the

government has discovered any new facts about him which

might change their interest in him.”

This paragraph constitutes the BIA’s complete analysis of the

evidence introduced by Abdel pertaining to the developments which

hav e occurred in Sudan since Abdel’s departure to the United

States. We do not require the BIA to specifically address every

piece of evidence put before it, but, in the present case, the BIA

has failed to address much of Abdel’s key evidence in this respect.

The BIA makes no mention of Abdel’s testimony regarding the firing

of his mother or the beating and questioning of his brother. 4

As the BIA found that Abdel did not have a well-founded fear

of persecution, it is settled that we may not conclude that he did

unless the evidence is “such that a reasonable factfinder would

have to conclude that the requisite fear of persecution existed.”11

INS v. Elias-Zacarias

, 112 S.Ct. 812, 815 (1992). Nevertheless, we

generally also review the BIA’s decision “‘procedurally’ to ensure

that the complaining alien has received full and fair consideration

of all circumstances that give rise to his or her claims.” Z amoraGarcia v. INS

, 737 F.2d 488, 490 (5th Cir. 1984). While we do not

require that the BIA address evidentiary minutiae or write any

lengthy exegesis, Ramos v. INS

, 695 F.2d 181, 189 (5th Cir. 1983),

its decision must reflect meaningful consideration of the relevant

substantial evidence supp orting the alien’s claims. I d

. at 188.

See also Diaz-Resendez v. INS

, 960 F.2d 493, 495, 497-98 (5th Cir.

1992); Ganjour v. INS , 796 F.2d 832, 839 (5th Cir. 1986).

In a recent case involving an alien’s appeal of a BIA decision

denying his application for asylum, the Seventh Circuit recognized

the petitioner’s heavy burden on appeal in light of the Supreme

Court’s language in Elias-Zacarias

. S anon v. INS

, 52 F.3d 648, 651

(7th Cir. 1995). Also recognizing the fact-sensitive nature of

such cases, together with the general observation that ap pellate

judges are often not experts in immigration or foreign affairs, the

court noted its tendency to defer in such matters to the BIA.

Nevertheless, the court observed that it must “require some proof

that the Board has exercised its expertise in hearing a case.” I d.

After noting the BIA’s failure to adequately consider the situation

in Sanon’s country——Burkina Faso

—— as well as Sanon’s evidence that

his family was afraid to contact him, the court held that the BIA

should address these issues on remand. I d. at 651-52. I n the

present case, the BIA has likewise failed to expressly address the12

relevant conditions in Sudan and the experiences of Abdel’s family

members and co-workers since his departure for the United States.

In Sanon

, the Seventh Circuit held that, “Where an agency has

failed to comply with its responsibilities, we should insist on its

compliance rather than attempt to supplement its efforts.” I d. at

652. We find this approach to be appropriate in the present case.

In concluding that Abdel failed to make the requisite showing

that the Sudanese government had the ability to seek him out, the

BIA found that:

“The respondent lived in the capital city of Sudan. He

stated that he never lived in the southern part of the

country. He stated that the southern part of the country

is predominantly Christian. The respondent has the

burden of showing he could not live in southern Sudan.”

In support of its conclusion that A bdel had failed to make the

requisite showing in this regard, the BIA cited Matter of R-

,

Interim Decision 3195 (BIA 1992), for the proposition that,

“[A]n alien seeking to meet the definition of a refugee

must do more than show a well-founded fear of persecution

in a particular place or abode within a country——he must

show that the threat of persecuti on exists for him

country-wide.”

The BIA appears to have relied on the opinion of the

immigration judge, who stated that Ab del “could probably live in

safety in those sections of Sudan ... where Christians constitute

the majority of the particular community.”

We hold that the BIA erred in finding no reasonable likelihood

of persecution on the theory that Abdel could escape persecution by

living in southern Sudan where Christians were in the majority.

The immigration judge sua sponte reached the above conclusion——that5 I n his appeal of the immigration judge’s rul ing to the BIA,

Abdel introduced evidence that the concentration of Sudan’s

Christian citizens in the southern part of the country explained

why the civil war was raging in that region, also noting that the

United States Department o f State has characterized considerable

portions the southern region of Sudan as “largely unpopulated and

plagued by banditry”. C ountry Reports, supra, at 376. These

reports also observe that 4.5 million Sudanese have been displaced

by the civil war in that nation. I d. Even if we were to agree

that relocation to southern Sudan would free Abdel from persecution

at the hands of Sudanese security forces, it seems unreasonable to

expect him to make such a move under the present circumstances. In

addition, nothing of record suggests that Abdel would be able to

avoid flying back into Khartoum if he is deported; we suspect that

Abdel’s efforts to bypass Khartoum and travel directly to southern

Sudan would be difficult, if not impossible.

6 T he INS states twice in its brief to this Court that Abdel

conceded the probability that he could live safely in the southern

part of Sudan. This is inaccurate. The INS’s citations in support

of these statements are to the immigration judge’s findings, not to

any testimony given by Abdel.

13 Abdel could probably live in safety in southern Sudan

— — af ter the

deportation hearing was concluded; the INS had not previously

raised this issue and Abdel had no opportunity to address it during

the hearing. 5 Furthermore, there is no substantial evidence in the

record to support the BIA’s holding that Abdel failed to establish

a likelihood of persecution on a country-wide basis. Abdel brought

forward evidence that the NIF-domina ted military government has

consistently promoted an agenda for imposing the Isla mic Shari’a

laws on all Sudanese citizens, and that these efforts by the

government have markedly increased religious intolerance and

discrimination throughout Sudan. The INS has presented no evidence

which might suggest that the efforts or influence of the present

military government in Sudan are localized. 6

The Ninth Circuit recently addressed the issu e of whether a14

petitioner must prove that the persecution he faces is “c ountrywide” when the alleged “persecutor” is t he national government.

See Singh v. Moschora k

, 53 F.3d 1031 (9th Cir. 1995). The

petitioner in Sing h was a Sikh who had been persecuted by the

national Indi an army in his home state of Punjab. The Ninth

Circuit held that:

“[T]he district court remanded to the [BIA] to determine

if Singh can ‘live safely in another region of India’

distinct from his home. The district court apparently

believed that Singh would not qualify for asylum if his

persecution by India for political opinion was confined

to the Punjab. Such is not the law ... We have

recognized that where there was a danger of persecution

in a single village from guerillas who knew the

p etitioner, and no showing of such danger elsewhere in

the country, the petitioner failed to establish

eligibility for asylum. The [INS] argues by analogy that

these cases control this case. But where the persecution

is by the government of the nation no s uch distinction

may be taken

... It has never been thought that there are

safe places within a nation when it is the nation’s

g overnment that has engaged in the acts of punishing

opinion that have drive n the victim to leave the

country.” Id. at 1034 (citations omitted).

Without deciding whether we agree with the Ninth Circuit’s ultimate

reasoning and c onclusions in S ingh

, we recognize that the Ninth

Circuit properly allocated the parties’ respective burdens in such

a case. When a party seeking asylum demonstrates that a national

government is the “persecutor,” the burden should fall upon the INS

to show that this government’s persecutive actions are truly

limited to a clearly delineated and limited locality and situation,

so that the applicant for asylum therefore need not fear a

likelihood of persecution elsewhere in the nation. The INS made no

such showing in the present case. Moreover, that an alien (at

least one whose residence in a country was in that part of it under15

the government’s control) might be safe from persecution by the

national government in other areas of the nation (such as those

under rebellion) where the government’s writ does not run, does not

suffice to show that the alien lacks the requisite fear of

persecution.

Conclusion

For the foregoing reasons, the Board of Immigration’s order of

deportation is VACATED, and the c ase is REMANDED for

reconsideration consistent herewith.

VACATED and REMANDED