In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 04-1820

STEEVE SHAMOIL YOUKHANA,

Petitioner,

v.

ALBERTO R. GONZALES, Attorney General

of the United States,

Respondent.

____________

Petition for Review of an Order

of the Board of Immigration Appeals.

No. A78 542 148

____________

ARGUED NOVEMBER 28, 2005—DECIDED AUGUST 22, 2006

____________

Before KANNE, ROVNER, and WOOD, Circuit Judges.

WOOD, Circuit Judge. Steeve Shamoil Youkhana, an

Assyrian Christian, fled Iraq in 2001 and sought asylum

in the United States, claiming that he had been persecuted

by the ruling Ba’ath Party regime on the basis of his

religion, ethnicity, and political opinion. The Immigration

Judge (IJ) who considered Youkhana’s case found his

testimony generally credible, but failed altogether to

address Youkhana’s religious and ethnic persecution claims.

With respect only to his political opinion claim, the IJ

concluded that Youkhana had indeed been persecuted for

his refusal to join the Ba’ath Party. This past persecution,

however, was not enough to establish a basis for a well-
2 No. 04-1820

founded fear of future persecution, because the Ba’ath Party

had been removed from power by the 2003 U.S.-led invasion

of Iraq. The IJ thus denied Youkhana’s claim. The Board of

Immigration Appeals (BIA) summarily affirmed.

Although we see no legally supported reason to disagree

with the IJ’s resolution of Youkhana’s claim of persecution based on political opinion, we conclude that the BIA

erred by denying Youkhana’s religious and ethnic persecution claims without discussion. We therefore grant

Youkhana’s petition for review and remand so that the BIA

can address these claims.

I

Youkhana is an Assyrian Christian and a member of the

Chaldean Catholic Church. According to the State Department’s 2005 Country Report on Human Rights in Iraq,

followers of the Christian faith make up a small and

shrinking minority of the population in Iraq; 97 percent of

Iraqis are Muslim, and the number of Christians in Iraq

has decreased dramatically in recent years. In addition to

being identified as members of a minority religion, Assyrian

and Chaldean Christians are considered by other Iraqis to

constitute a distinct non-Arab ethnic minority.

In March 2002, Youkhana attempted to enter the United

States at a border crossing in San Ysidro, California, having

already unsuccessfully attempted to apply for asylum in the

United States from Mexico. Immigration officials stopped

him at the border; when he admitted that he did not possess

a valid visa, they issued him a Notice to Appear. In June

2002, Youkhana moved for and was granted a change of

venue for his immigration proceedings from San Diego to

Chicago. In July 2002, Youkhana filed for asylum.

The asylum hearing took place on May 28, 2003, two

months after the U.S.-led invasion of Iraq, but prior to the

capture of former Iraqi President Saddam Hussein. The
No. 04-1820 3

principal basis of Youkhana’s asylum claim consisted of

three incidents in which he was arrested and detained by

authorities in Iraq, allegedly because of his religion,

ethnicity, and political opinion. In addition to his own

testimony regarding these incidents, several aspects of

Youkhana’s claims were corroborated by the testimony

of his sister, Eilina Shamoil Youkhana, who is a legal

permanent resident of the United States.

Youkhana testified that he was first arrested in 1997

while in his final year of high school. In his written asylum

statement, he explained that he and two of his Assyrian

friends were approached by government officials and

accused of making derogatory comments about the Ba’ath

Party and Saddam Hussein. In his oral testimony,

Youkhana elaborated that the detention occurred because

he refused to join the Ba’ath Party and “because I was

Assyrian Christian, and they used to brand us as enemies

of the Ba’ath Party because we are Christians, and we go to

the church, and [ ] we have relations with parties opposing

the regime.” During 45 days in custody, Youkhana was

interrogated and beaten. Upon his release, he was required

to sign a statement that he would not participate in any

anti-government activities.

In 1999, while undertaking compulsory service in the

Iraqi army, Youkhana was arrested again, this time for

allegedly throwing dirt at a picture of Saddam Hussein.

While detained, Youkhana was beaten about the head until

he lost consciousness, leaving a scar behind his ear. Before

being released, Youkhana was required to sign another

statement, this one stating that he would be executed if he

ever again participated in anti-government activity.

Finally, in 2001, while still in the army, Youkhana was

arrested and accused of assisting the escape of an Assyrian

prisoner charged with illegally selling fuel in the north of

Iraq. Testifying in immigration court, Youkhana denied the
4 No. 04-1820

charge and explained that he was singled out for punishment only because the authorities “wanted to stick this

charge to me because I was Assyrian Christian, and

[ ] because I was not a member of the Ba’ath Party.” Again

he was badly beaten about the head. After two days he

managed to escape detention, at which point he decided to

leave Iraq.

The IJ questioned Youkhana and his sister at length

about the removal of the Ba’ath Party regime from power

and the relevance of this fact to Youkhana’s claim that he

would be persecuted if he returned to Iraq. Youkhana

testified that he remained at risk of persecution because

members of the Ba’ath Party remained active in Iraq. He

also explained that Assyrian Christians faced a new threat

of persecution from “Muslim radicals” who, Youkhana

testified, “brand us Christians as dirty infidels.” This latter

point was supported by several newspaper articles attached

to Youkhana’s asylum application. A typical article stated

that “Christians throughout Iraq are feeling intimidated”

and “[t]hey say they are being harassed and threatened by

members of Shiite Muslim groups who are grabbing power

and who appear eager to transform Iraq into an Islamic

republic.” Michael Slackman & Robin Dixon, Shiite Gains

Trouble Christians, THE DETROIT NEWS, May 11, 2003, at

5A.

In addition to his questions regarding country conditions in Iraq, the IJ made a number of unusual statements

suggesting that Youkhana had a duty to return to Iraq to

assist in the dismantling of the Ba’ath Party regime. The IJ

inquired, for example, whether Youkhana thought he “could

be of help to the U.S. forces in finding the bad, evil Ba’ath

Party people,” and stated that “[t]he government of Iraq

probably needs people like you.” Finally, in denying asylum

to Youkhana, the IJ dressed his decision in patriotic garb,

stating: “The government of Iraq, particularly the Ba’ath

Party, have been removed at great expense in terms of lives
No. 04-1820 5

of the coalition forces as well as the Iraqi people. To ignore

the effort that has gone into removing the Ba’ath Party

would be a significant injustice to all of those lives that

were lost in freeing Iraq from its persecutors.” The IJ also

denied Youkhana’s applications for withholding of removal

and relief under the Convention Against Torture. Regarding

the latter claim, the IJ reasoned that “[g]iven the fact that

there is no government of Iraq any longer, it cannot be

stated that the government of Iraq would persecute or treat

the respondent in a cruel or inhumane manner.”

Youkhana appealed the denial of his asylum application

to the BIA, contending that the IJ had failed to address

his religious and ethnic persecution claims at all, had “erred

in not considering that conditions in Iraq have changed for

the worst [sic] in Iraq for the Christians,” and “placed the

respondent in a most uncomfortable situation, in effect [ ]

requesting that he join the U.S. military in Iraq.” The BIA

affirmed without opinion pursuant to 8 C.F.R. §

1003.1(e)(4). After filing this petition for review, Youkhana

filed a motion to reopen with the BIA, attaching further

documentation of deteriorating conditions in Iraq for

Assyrian Christians. The BIA denied this motion as well.

Youkhana did not file a second petition for review challenging the denial of his motion to reopen.

II

In this petition for review, Youkhana contends that the

BIA erred by refusing to consider the religious and ethnic

persecution aspects of his asylum claim and denying his

request for relief under the Convention Against Torture. He

does not contest the BIA’s denial of his claims for relief

insofar as they rested on persecution based on his political opinion. Youkhana also argues that the BIA abused

its discretion by refusing to grant his motion to reopen.

We consider each of his claims in turn.
6 No. 04-1820

A

A petitioner seeking asylum carries the burden of proving

by a preponderance of the evidence that she suffered past

persecution or has a well-founded fear of future persecution

on account of her race, religion, nationality, membership in

a particular social group, or political opinion. Sosnovskaia

v. Gonzales, 421 F.3d 589, 593 (7th Cir. 2005). “An applicant

who has been found to have established [ ] past persecution

shall also be presumed to have a well-founded fear of

persecution on the basis of the original claim.” 8 C.F.R.

§ 208.13(b)(1). This presumption of future persecution can

be rebutted if the IJ finds by a preponderance of the

evidence that there has been “a fundamental change in

circumstances such that the applicant no longer has a wellfounded fear of persecution in the applicant’s country of

nationality.” 8 C.F.R. § 208.13(b)(1)(i)(A). An asylum

applicant can also prove a well-founded fear of future

persecution by showing “that he genuinely fears he will be

persecuted based on a protected ground if returned to his

native country, and that his fears are objectively reasonable.” Jamal-Daoud v. Gonzales, 403 F.3d 918, 922 (7th Cir.

2005).

In reviewing the denial of an asylum claim, “we assess

whether the BIA’s determination was supported by reasonable, substantial, and probative evidence on the record

considered as a whole, and reverse only if the evidence

compels a contrary conclusion.” Tapiero de Orejuela v.

Gonzales, 423 F.3d 666, 671 (7th Cir. 2005) (quotation

marks omitted). In cases such as this one, where the BIA

affirms an IJ’s decision without opinion, “the IJ’s decision

becomes that of the BIA for purposes of judicial review.”

Georgis v. Ashcroft, 328 F.3d 962, 966-67 (7th Cir. 2003).

The IJ credited Youkhana’s testimony that the three

detentions occurred. The IJ concluded, however, that the

final detention resulted from the prosecution of a criminal

matter and thus “was not ‘on account of’ any ground that is

protected by the [Immigration and Nationality] Act.”
No. 04-1820 7

Nevertheless, the IJ apparently believed that the 1997 and

1999 detentions constituted sufficient proof of Youkhana’s

past persecution based on political opinion to raise a

presumption of a well-founded fear of future persecution.

The IJ thus turned to the question of changed country

conditions in Iraq, concluding that the removal of the

Ba’ath Party regime rebutted the presumption of future

persecution. As he put it, “it is the assessment of this Judge

that the fundamental change in country conditions requires

that the respondent’s request for political asylum be denied.”

Although the government argues that the IJ also concluded that Youkhana had not been persecuted because

of his religion or ethnicity, we cannot locate any such

statement in the IJ’s decision. Similarly unavailing is the

government’s assertion that Youkhana manufactured his

claims of religious and ethnic persecution only after the fall

of the Ba’ath Party regime; in fact, Youkhana presented

these claims in his asylum application and pursued them

before the IJ and in his appeal to the BIA. Nor does the IJ’s

finding of changed country conditions dispose of Youkhana’s

religious and ethnic persecution arguments. The fact that

the Ba’ath Party has been removed from power does not

necessarily mean that conditions in Iraq have improved for

Assyrian Christians. See Margos v. Gonzales, 443 F.3d 593,

598 (7th Cir. 2006) (“Ironically, under [ ] Hussein’s iron fist,

Assyrian Christians and similar minorities were arguably

better off as their dictator did not tolerate factional strife

and civil unrest within ‘his’ country (unless it furthered his

own ends).”). Independent analysis of these claims by the IJ

was thus required.

Particularly striking is the failure of both the IJ and the

BIA to discuss the 2001 State Department Country Report

on Iraq (submitted by the government to the IJ), which

stated that the Ba’ath Party regime “engaged in various

abuses against the country’s [ ] Assyrian and Chaldean

Christians.” We have previously admonished the BIA
8 No. 04-1820

for ignoring a prior version of this same publication in

an asylum case involving an Assyrian Christian. See

Mansour v. INS, 230 F.3d 902, 907-08 (7th Cir. 2000)

(stating that the 1998 Country Report, which “suggest[ed]

that the Iraqi government has engaged in abuses against

the Assyrian Christians,” may be “an indication of gross,

flagrant, or mass violations of human rights in Iraq;

however, the BIA never addressed this evidence”). We

also take judicial notice that the State Department has

recently released its 2005 Country Report on Iraq, the first

such report published since the removal of the Ba’ath Party

regime in 2003. This publication states that while governing

law now provides for freedom of religious belief and practice, “[d]eficiencies in security force capabilities and in the

rule of law made it difficult for the justice system to

investigate or address violations of these rights,” noting

particularly the “harassment of Christians.” More generally,

it paints a picture of “[a] climate of extreme violence” in

which “[r]eports increased of killings by the government or

its agents” as well as by “common criminals, insurgents,

and terrorists . . . sometimes masking their identity in

police and army uniforms.” On remand, therefore, the BIA

must consider whether the Iraqi government has failed to

protect Assyrian Christians like Youkhana from persecution

by insurgent Ba’ath Party members or Muslim extremist

organizations, and if so, whether this constitutes a ground

for granting asylum (or some other form of relief from

removal) to Youkhana. See Galina v. INS, 213 F.3d 955,

958 (7th Cir. 2000) (persecution can be found where,

although “government authorities . . . did not actually

perpetrate or incite [ ] persecution, [they] condoned it or at

least demonstrated a complete helplessness to protect the

victims”).

In Margos we commented in dicta that the 2005 Country

Report on Iraq and similar general publications did not,

by themselves, provide a sufficient basis for proving a
No. 04-1820 9

pattern or practice of the persecution of Assyrian Christians, under circumstances in which the applicant had

failed to exhaust her administrative remedies. 443 F.3d at

598-99. It should go without saying that each case must be

assessed on its own record; nothing in Margos indicates that

uniquely in this area the BIA may not take the Country

Report into account as some evidence supporting a finding

of persecution. As the Supreme Court made clear in a case

analogous to this one, “well-established principles of

administrative law [ ] require [a] Court of Appeals to

remand [a] ‘changed circumstances’ question to the BIA.”

INS v. Ventura, 537 U.S. 12, 16 (2002) (per curiam). We

apply those same principles here, remanding to give the

BIA an opportunity to consider the relevance of changed

country conditions in Iraq to Youkhana’s claims of persecution based on his religion and ethnicity.

Since we are remanding Youkhana’s asylum claim, we

need not reach his argument that the BIA also erred by

denying his request for relief under the Convention Against

Torture (CAT). We note, however, the IJ’s mistake in

concluding that Youkhana was foreclosed from bringing a

CAT claim because there was “no government of Iraq

any longer.” For purposes of the Convention, torture is

defined broadly to include “pain or suffering . . . 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. § 1208.18(a)(1). Moreover, at least since

the conclusion of the initial phase of the U.S. action in Iraq,

various governing authorities have existed. As of May 16,

2003, Iraq was governed by the Coalition Provisional

Authority (CPA). See generally http:// www.cpa-iraq.org/. As

of June 28, 2004, the CPA transferred power to the Iraqi

Interim Government, which in turn handed the reins over

to the Iraqi Transitional Government on January 30, 2005;

since that time, in early 2006, the elected government of

Iraq has taken over. See generally World Factbook,
10 No. 04-1820

http://www.cia.gov/cia/publications/factbook/geos/iz.html.

For purposes of assessing Youkhana’s likely fate if he were

returned to Iraq, it is the last of those governments that is

the important one now. Even at the time the IJ had the

case, the CPA leaders probably qualified as “public officials

. . . acting in an official capacity” for purposes of the CAT.

The IJ therefore should have analyzed this claim for relief.

B

Youkhana also argues that the BIA abused its discretion by refusing to grant his motion to reopen, a motion he

filed after he had already submitted his petition for review

of the BIA’s merits decision to this court. The motion

contained a number of attachments supplementing the

documentation Youkhana had earlier provided the IJ regarding deteriorating conditions for Assyrian Christians

in Iraq. Youkhana argued that these attachments demonstrated that “Christian Assyrians are being targeted and

massacred in Iraq,” and that information regarding this

pattern and practice of abuse of Assyrian Christians was

not available at the time of the asylum hearing. The BIA

rejected the motion, explaining that it was untimely and

that Youkhana failed to satisfy the regulatory exception

that permits a late motion to reopen based on evidence of

changed country circumstances unavailable at the time of

the original asylum hearing. See 8 C.F.R. § 1003.2(c)(3)(ii).

In his brief to this court, Youkhana renews his argument

that the evidence he submitted of worsening conditions

in Iraq for Assyrian Christians was previously unavailable and therefore provided a proper basis for reopening.

We cannot reach the substance of Youkhana’s argument

because he never filed a separate petition for review of the

BIA’s denial of his motion to reopen. The requirement to file

separate petitions for review stems from two provisions of

the Immigration and Nationality Act (INA). The first
No. 04-1820 11

requires that a petition for review “must be filed not

later than 30 days after the date of the final order of removal.” 8 U.S.C. § 1252(b)(1). The second states that “any

review sought of a motion to reopen or reconsider the order

shall be consolidated with the review of the order.” 8 U.S.C.

§ 1252(b)(6). In reviewing nearly identical provisions in a

previous version of the INA, the Supreme Court observed

that “[a]ll would agree” that the latter provision “envisions

two petitions for review,” since it “requires for its operation

the existence of two separate final orders, the petitions for

review of which could be consolidated.” Stone v. INS, 514

U.S. 386, 395 (1995). The Court thus concluded that the

filing of a motion for reconsideration or reopening does not

toll the time for an alien to petition for review of a BIA

decision on the merits. Id.

This case presents the inverse situation: an alien who has

failed to file a petition for review of a motion to reopen after

having already filed a petition for review of the BIA’s

decision on the merits. Nevertheless, the same rule applies.

Youkhana was required to file a separate petition for review

if he wished us to consider the BIA’s denial of his motion to

reopen. Since he did not do so, we lack jurisdiction over this

aspect of his claim.

III

We therefore GRANT Youkhana’s petition for review of the

BIA’s denial of his asylum claim and REMAND this matter

to the BIA for further proceedings consistent with this

opinion. Youkhana’s challenge to the BIA’s denial of his

motion to reopen is DISMISSED.
12 No. 04-1820

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—8-22-06