FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MAHA GEORGE MOUSA, 

Petitioner, No. 04-75998

v. Agency No. 

M A78-542-049 ICHAEL B. MUKASEY, Attorney

General, OPINION

Respondent. 

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued October 16, 2007

Submitted June 27, 2008

Pasadena, California

Filed June 27, 2008

Before: Harry Pregerson, Michael Daly Hawkins, and

Raymond C. Fisher, Circuit Judges.

Opinion by Judge Pregerson

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COUNSEL

Douglas D. Nelson, Alejandro O. Campillo, A.P.L.C., San

Diego, California, for the petitioner.

Sara Winslow, United States Attorney’s Office, San Francisco, California, for the respondent. 

OPINION

PREGERSON, Circuit Judge: 

Maha George Mousa (“Mousa”), a native and citizen of

Iraq, petitions for review of the Board of Immigration

7706 MOUSA v. MUKASEY
Appeals’ (“BIA”) order that denied her application for asylum

and withholding of removal.1 We have jurisdiction under 8

U.S.C. § 1252, and we grant Mousa’s petition.

BACKGROUND

Mousa is a Chaldean Christian who lived in Iraq before

fleeing to the United States in 2001. She testified at a hearing

before the IJ held on April 8, 2003, that she and her family

members suffered multiple incidents of abuse at the hands of

Ba’ath party officials. Specifically, she testified that for years

she had been harassed and pressured to join the Ba’ath party,

and that she and her brother were imprisoned in a Ba’ath

party compound for forty-seven days because they resisted

joining the party. She also testified that she was raped during

her imprisonment. 

The IJ did not find Mousa credible. The IJ also held that,

even if Mousa were credible, the fall of Saddam Hussein

would change circumstances in Iraq to such an extent that

Mousa would no longer have a well-founded fear of future

persecution. The BIA adopted the IJ’s decision in its entirety,

citing to Matter of Burbano, 20 I. & N. Dec. 872, 874 (BIA

1994). See Abebe v. Gonzales, 432 F.3d 1037, 1040 (9th Cir.

2005) (en banc) (explaining that “where the BIA cites its decision in Burbano and does not express disagreement with any

part of the IJ’s decision, the BIA adopts the IJ’s decision in

its entirety”). The BIA also added its own analysis of Mousa’s

claims. Accordingly, we review both the IJ’s and the BIA’s

decisions. Kataria v. INS, 232 F.3d 1107, 1112 (9th Cir.

2000). 

1Mousa concedes that she is not eligible for relief under the Convention

Against Torture. 

MOUSA v. MUKASEY 7707
DISCUSSION

I. Asylum Claim

A. Credibility Determination 

We first examine the record to determine whether substantial evidence supports the IJ’s adverse credibility determination. See Gui v. INS, 280 F.3d 1217, 1225 (9th Cir. 2002). The

IJ began his adverse credibility analysis by noting that he was

“in no way stating that [Mousa] ha[d] given [him] false testimony.” Instead, the IJ was concerned with certain discrepancies in Mousa’s testimony. After careful review, we conclude

that none of these purported discrepancies warranted an

adverse credibility finding. 

[1] First, the IJ could not reconcile Mousa’s years of resistance to joining the Ba’ath party with the Ba’ath party’s reputation for ruthless recruitment tactics. The IJ reasoned that a

young woman like Mousa would have had a difficult time

withstanding extreme pressure to join the Ba’ath party. We

have previously held, however, that a petitioner’s ability to

withstand severe persecution does not make it less likely that

such persecution occurred. See Gui, 280 F.3d at 1226-27

(“According to the IJ’s logic, any asylum seeker who manages to stay alive long enough to get to the United States and

file an application must not [have been] subject to repression,

since a truly repressive regime would have succeeded in killing the individual before she could leave.”). That Mousa

resisted joining the Ba’ath party does not mean she was not

pressured by the Ba’ath party. Moreover, the IJ conceded that

this discrepancy alone would not be enough to support an

adverse credibility determination. Accordingly, we hold that

the IJ’s speculation about Mousa’s ability to resist the Ba’ath

party’s pressure on her to join its ranks was not supported by

substantial evidence. See Shah v. INS, 220 F.3d 1062, 1071

(9th Cir. 2000) (“Speculation and conjecture cannot form the

basis of an adverse credibility finding. . . .”). 

7708 MOUSA v. MUKASEY
[2] We also reject the IJ’s and BIA’s primary reason for

finding Mousa incredible: Mousa’s failure to mention her rape

at an earlier stage in the immigration proceedings. We have

previously held that “the assumption that the timing of a victim’s disclosure of sexual assault is a bellwether of truth is

belied by the reality that there is often delayed reporting of

sexual abuse.” Paramasamy v. Ashcroft, 295 F.3d 1047,

1052-53 (9th Cir. 2002) (concluding that the failure to report

a sexual assault in two asylum interviews did not support an

adverse credibility finding); see also Kebede v. Ashcroft, 366

F.3d 808, 811 (9th Cir. 2004) (“A victim of sexual assault

does not irredeemably compromise his or her credibility by

failing to report the assault at the first opportunity.”). Many

victims of sexual assault feel so upset, embarrassed, humiliated, and ashamed about the assault that they do not tell anyone that it occurred. See, e.g., Paramasamy, 295 F.3d at 1053

n.3 (citing studies that analyze the extreme under-reporting of

sexual abuse). A woman who has suffered sexual abuse by

government officials in her home country may be especially

reluctant to reveal that abuse to government officials in this

country, even when such a revelation could help her asylum

application. See id. at 1053. This is especially true when the

woman is fleeing a country where reported rapes often go

uninvestigated, and where rape victims are sometimes murdered by members of their own families because they have

“dishonored” their families by being raped.2

[3] In this case, Mousa did not explicitly report that she was

2

See, e.g., European Council on Refugees & Exiles, Guidelines on the

Treatment of Iraqi Asylum Seekers and Refugees in Europe, 18 INT’L J.

REFUGEE L. 452, 458 (2006) (explaining that “[d]ue to the increasing influence of strong conservative, religious groups, the situation for women [in

Iraq] has worsened. There is evidence of physical force (murder, rape, kidnappings, domestic violence, ‘honour killings’)”); id. at 458 n.31 (“In the

case of northern Iraq it has also been reported that cases of honour killings

and other criminal offences against women are on the increase and not

investigated by the Kurdish authorities.”). We note that Mousa’s family is

from Alqosh, a small town in northern Iraq. 

MOUSA v. MUKASEY 7709
raped until she testified before the IJ. However, like the petitioner in Paramasamy, Mousa provided a compelling explanation for her failure to mention her rape at an earlier time in

the proceedings: her cultural reluctance to admit the fact that

it had occurred.3See id. (noting that “Paramasamy provided

a strong, unrebutted explanation for her reluctance to reveal

details — her cultural reluctance to tell male interviewers that

she had been violated.”). That Mousa, a Chaldean Christian

woman from Iraq, was not forthcoming with details about her

rape is hardly an irreconcilable problem with her asylum

application. 

[4] Moreover, Mousa did mention rape in her written asylum application. Mousa wrote that she feared being raped if

she returned to Iraq, and that Iraqi government officials routinely rape and torture women who are detained. Mousa also

submitted her brother’s asylum application in support of her

case. In his application, Mousa’s brother stated that the Ba’ath

party officials had touched Mousa “in inappropriate places.”

The IJ reasoned that Mousa’s willingness to discuss her general fear of rape did not “fit” with her reluctance to discuss

her own rape. To the contrary, her fear about being raped if

she returned to Iraq is consistent with having been sexually

abused herself.4

3On cross-examination, Mousa was asked why she wrote in her asylum

application that “the government officials routinely rape and torture

women who are detained” without mentioning her own rape. Mousa

replied, “This is a personal thing, I really didn’t want to mention it. I’m

forced now to talk about it. And, and through our family tradition this is

a big taboo.” She explained further that “this is a very shameful thing for

a woman. It’s a very personal thing, I didn’t want to speak of it at all.

They told us, you do not speak of this anymore, that’s why I didn’t say

anything.” When asked again why she mentioned rape generally but did

not talk about her own rape, Mousa replied, “I didn’t want the attorney,

I didn’t want the translator, I didn’t want anybody to know anything like

this about me. Throughout our C[h]aldean community I didn’t want anybody to know of it.” 

4The government did not offer any evidence to rebut Mousa’s cultural

reluctance to report her rape. 

7710 MOUSA v. MUKASEY
Both the IJ and the BIA also focused on a purported discrepancy between Mousa’s testimony and her brother’s testimony regarding her rape. During the hearing before the IJ,

Mousa explained that she had not wanted to tell anybody that

she had been sexually assaulted. Later in the hearing, her

brother testified that Mousa had eventually told him that she

had been raped. He also stated that he had communicated this

information to their attorney. 

After comparing these statements, the BIA concluded that

Mousa’s reluctance to discuss her rape with her attorney was

contradicted by her brother’s testimony. That Laith eventually

told the attorney that his sister had been raped, however, does

not conflict with Maha’s testimony that she herself did not

want the attorney to know about this incident. To reach its

contrary conclusion, the BIA must have assumed that Mousa

encouraged her brother to disclose the rape to the attorney.

There is, however, no evidence supporting this, and there is

no reason to assume that Mousa was lying when she testified

about her efforts to keep the rape from her attorney. 

It would also be improper for the IJ and the BIA to penalize

Mousa for her counsel’s failure to disclose the rape before the

hearing — either in Mousa’s written asylum application or in

her pre-hearing statement. To do so would rely on the unsupported assumption that Mousa’s counsel knew all the details

of her rape before preparing these documents. It also would

assume that Mousa had given her attorney permission to disclose the rape once he learned the details. At oral argument,

Mousa’s counsel explained that this was not the case. Because

Mousa understandably did not want anyone in the Chaldean

community to know the details of her rape, she told her attorney only that her persecutors had “abused me repeatedly with

their hands.” Her attorney included that statement in her asylum application, along with her brother’s application, which

reported that Mousa had confessed that “they touched her in

inappropriate places.” This was, as far as anyone knows, the

extent of the attorney’s knowledge. Under these circumMOUSA v. MUKASEY 7711
stances, we conclude that the IJ’s and BIA’s speculation about

how Mousa’s counsel should have handled her case is an

improper basis for denying her asylum claim. 

[5] We conclude that Mousa offered a credible explanation

for her reluctance to talk about her rape and we therefore hold

that her testimony about her rape could not support the IJ’s

and BIA’s adverse credibility finding. 

The IJ’s final reason for finding Mousa incredible was her

failure to explain the consequences of a leg infection she had

suffered while imprisoned. However, Mousa testified about

this leg infection only in passing. She was never asked to discuss the seriousness of the infection or how she had recovered

from it. Her failure to discuss the infection in detail cannot

support the IJ’s adverse credibility finding. See Bandari v.

INS, 227 F.3d 1160, 1167 (9th Cir. 2000) (“[T]he mere omission of details is insufficient to uphold an adverse credibility

determination.”). 

[6] Because each of the reasons supporting the adverse

credibility determination fails, we hold Mousa’s testimony to

be credible. See Kaur v. Ashcroft, 379 F.3d 876, 890 (9th Cir.

2004) (“[W]hen each of the IJ’s or BIA’s proffered reasons

for an adverse credibility finding fails, we must accept a petitioner’s testimony as credible.”). 

B. Changed Country Conditions 

[7] We now turn to the alternative holding that changed

country conditions — namely, the fall of Saddam Hussein and

the Ba’ath party — were a basis for denying Mousa’s application. This alternative holding assumed arguendo that Mousa

established past persecution. When the petitioner establishes

past persecution, the government bears the burden of establishing that changed country conditions have removed the

petitioner’s presumptive well-founded fear of future persecution. See 8 C.F.R. § 1208.13(b)(1)(ii). We review factual find7712 MOUSA v. MUKASEY
ings regarding changed country conditions for substantial

evidence, Lopez v. Ashcroft, 366 F.3d 799, 805 (9th Cir.

2004), and conclude that the government failed to meet its

burden. 

[8] Here, the government submitted a single Washington

Times article, titled “Strike targets Saddam,” as its evidence

of changed country conditions.5 Published on April 8, 2003 —

the date of Mousa’s hearing before the IJ — the article merely

described the coalition attacks on Iraqi intelligence headquarters in Baghdad. The article in no way suggested that Chaldean Christians would be safe from religious persecution in

Iraq as a result of the coalition’s efforts to remove Saddam

Hussein from power. Because the government’s evidence

hardly could have provided the IJ with the ability to determine

how any potential changes in Iraq would eliminate Mousa’s

well-founded fear of future persecution, we hold that the government failed to meet its burden on rebuttal. Accordingly, we

reverse the finding that changed country conditions have

removed Mousa’s well-founded fear of future persecution.

See Hanna v. Keisler, 506 F.3d 933, 938 (9th Cir. 2007)

(reversing a changed country conditions finding where the

“government did not make any showing whether [petitioner]

would likely fear religious persecution from others in a postSaddam Hussein Iraq”). 

5The IJ also refers to an unidentified “Department of State report” in

support of his assertion that “Christians have been permitted to pursue

their religion and that in Iraq the problems that exist is [sic] a function of

politics and not necessarily a difference between Christians and Muslims

in general.” Our review of the record reveals that the only State Department reports in evidence were submitted by Mousa, not the government.

Contrary to the IJ’s assertion, these reports consistently indicated that the

Iraqi government had engaged in significant abuses against the country’s

Chaldean Christian population. The reports do not support the IJ’s conclusion that political changes in Iraq would eliminate Mousa’s well-founded

fear of persecution. 

MOUSA v. MUKASEY 7713
II. Withholding of Removal

[9] Finally, the IJ and BIA denied Mousa’s claim for withholding of removal. As with asylum, a petitioner can generate

a presumption of eligibility for withholding of removal by

showing past persecution. 8 C.F.R. § 1208.16(b)(1)(i); see

Baballah v. Ashcroft, 367 F.3d 1067, 1079 (9th Cir. 2004).

This presumption may be rebutted only if the government

shows a fundamental change in circumstances or shows that

the applicant could reasonably relocate within the country of

that person’s nationality. 8 C.F.R. § 1208.16(b)(1). As discussed above, the government did not provide reliable evidence of a fundamental change in circumstances in Iraq.

Moreover, nothing in the record indicates that Mousa could

reasonably relocate within Iraq. Accordingly, we reverse the

denial of Mousa’s claim for withholding of removal and

remand for consideration of past persecution on the merits.

See Hanna, 506 F.3d at 940.

CONCLUSION

For the reasons stated above, we grant the petition for

review and remand Mousa’s asylum and withholding of

removal claims to the BIA to determine whether, accepting

her testimony as true, she has established past persecution and

is eligible for relief. See INS v. Ventura, 537 U.S. 12, 16

(2002) (per curiam) (holding that “a court of appeals should

remand a case to an agency for decision of a matter that statutes place primarily in agency hands”). 

PETITION GRANTED.

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