In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 07-2702

JALAL ABU HAMDAN,

Petitioner,

v.

MICHAEL B. MUKASEY, Attorney General

of the United States,

Respondent.

____________

Petition for Review of an Order of the

Board of Immigration Appeals.

No. A95-925-237

____________

ARGUED APRIL 10, 2008—DECIDED JUNE 16, 2008

____________

Before FLAUM, KANNE, and EVANS, Circuit Judges.

KANNE, Circuit Judge. Jalal Abu Hamdan sought withholding of removal, 8 U.S.C. § 1231(b)(3)(A), and protection under the Convention Against Torture (CAT), 8

C.F.R. §§ 1208.16, 1208.18, claiming that he suffered past

persecution when he lived in the Israeli-occupied West

Bank from 1994 until 1997, and that he would likely be

persecuted if he returned there today. The immigration

judge (IJ) denied his requests for relief, a decision that

the Board of Immigration Appeals (BIA) upheld. Hamdan

petitions us to review the immigration courts’ decisions,
2 No. 07-2702

arguing that the IJ failed to address his claims of future

persecution. We agree with Hamdan, and grant his petition.

I. HISTORY

Hamdan is a “stateless” Palestinian—he was born in

the West Bank when the area was governed by Jordan,

but was not allowed to apply for Jordanian citizenship

because of his Palestinian identity. He entered the United

States in April 1997 on a student visa to attend the University of Illinois at Chicago. But after immigration authorities determined in 2003 that Hamdan had never, in

fact, attended UIC, they initiated removal proceedings

against him. See 8 U.S.C. § 1227(a)(1)(C)(I).

Hamdan appeared before the IJ and conceded

removability. However, he also filed an application for

asylum, withholding of removal, and CAT protection,

in which he claimed that the Israeli government and

Palestinian Authority persecuted him when he lived in

the West Bank. Hamdan also asserted that if he were to

return to the West Bank, it was likely that he would

be harmed by the Israeli government and Palestinian

militant groups because of his Palestinian identity and

imputed political beliefs. See id. § 1231(b)(3)(A) (“[T]he

Attorney General may not remove an alien to a country

if the Attorney General decides that the alien’s life or

freedom would be threatened in that country because

of the alien’s . . . nationality . . . or political opinion.”);

8 C.F.R. § 1208.16(b)(2) (stating that to successfully

obtain CAT protection, petitioner must show that it is

more likely than not that he will be tortured by foreign

government, or by its acquiescence, upon removal). In the
No. 07-2702 3

alternative, Hamdan sought leave to depart the United

States voluntarily. See 8 U.S.C. § 1229c(a)-(b).

At a subsequent hearing regarding his requests for

relief, Hamdan explained to the IJ the claims of persecution he presented in his application. Hamdan first stated

that he received his Master’s Degree in Archeology in

1994 from the University of Jordan. Shortly thereafter,

he was hired by the Israeli government’s Department of

Archeology as a supervisor of archeological excavations.

Most of the laborers at the excavation sites were Palestinian, and Hamdan’s good rapport and constant interaction

with his Israeli supervisors and coworkers—including

armed Israelis who were charged with providing

security to the excavation sites—along with the fact that

he “made good money,” fueled speculation among the

Palestinians that he was an Israeli spy.

Hamdan continued that, about two years after the Israeli

Department of Archeology hired him, Israel began transferring may aspects of civil governance in the West Bank to

the Palestinian Authority. As a part of this transfer,

Hamdan’s employer changed to the Palestinian-controlled

Department of Archeology. Nevertheless, Hamdan’s

Palestinian coworkers and superiors became increasingly

suspicious of him because of his past interactions with

Israeli officials. And even though Hamdan remained

“politically neutral” between the Israeli and Palestinian

causes and abstained from political activity, he sensed

that his neutrality angered several Palestinian political

and militant groups, and also bolstered the misconception that he was an Israeli collaborator.

Hamdan further explained that he left for the United

States after it became clear to him that his political neutrality prevented his advancement within the Palestinian
4 No. 07-2702

Department of Archeology; political patronage ran rampant throughout the department, but because Hamdan

shunned Palestinian political parties he lacked the requisite

connections to rise through the department’s ranks. Then,

about two years after he left the West Bank, the Second

Intifada—the violent Palestinian uprising against the

occupying Israeli presence—began. Hamdan’s family

in the West Bank informed him that, as a part of the

Israeli reaction to the uprising, their village was completely walled-off; Hamdan’s family also recounted

that armed Palestinian militant groups roamed the

streets at night, and that neither the Israeli government,

nor the Palestinian Authority, could control them. As a

further attempt to quell the violence, the Israeli government imposed severe restrictions on the employment of

Palestinians. As such, “there [are] no jobs for educated

people now,” as Hamdan explained. Even more, whatever archeologist jobs may exist would be based in

Ramullah, a city to which Hamdan would not be able

to travel because of the Israeli government’s restrictions.

To support his description of life in the West Bank during

the Second Intifada, Hamdan submitted to the IJ the U.S.

Department of State’s 2004 Country Report on Human

Rights Practices for Israel and the Occupied Territories. The

2004 Report recounted that the Israeli government responded to the uprising with military force; curfews; travel

restrictions; closures of schools, universities, businesses,

and places of worship; and the construction of a security barrier over 6,900 acres of privately owned land.

The 2004 Country Report also stated that Palestinian

militant groups killed, injured, or arbitrarily detained

Palestinians suspected of collaborating with Israel; in fact,

the report called the torture of suspected collaborators

“widespread.”
No. 07-2702 5

In all, Hamdan claimed that if he were forced to return to

the West Bank, he would suffer a substantial economic

hardship amounting to persecution because of the employment restrictions the Israeli government placed on

Palestinians. He also asserted that he would likely be

abducted, injured, or killed by Palestinian militant groups

because of their belief that he was politically affiliated

with the Israeli government. Hamdan accordingly asked

the IJ to grant him either withholding of removal or

protection under the CAT.

After Hamdan finished testifying, the IJ denied his

requests for relief from removal. The IJ first determined

that Hamdan failed to file his asylum petition within

the requisite one year of his entry into the United States,

and that the application’s untimeliness was not excused

by either extraordinary or changed circumstances. See

id. § 1158(a)(2)(B), (a)(2)(D); Hussain v. Keisler, 505 F.3d

779, 781-82 (7th Cir. 2007). The IJ then declared that,

although Hamdan’s testimony regarding his experiences

while living in the West Bank was entirely credible, he

failed to proffer any evidence showing that either the

Israeli government or Palestinian Authority persecuted

him.

The IJ continued that Hamdan also did not establish

that he would likely be persecuted upon his return to

the West Bank. As to Hamdan’s claim of future persecution at the hands of the Israeli government, the IJ eschewed

any discussion of Hamdan’s claim of economic persecution; instead, the IJ made the puzzling statement that,

although “[t]here is indication, in this case, that the

Israeli government would torture” Hamdan, it was

“improbable” that the government “would do so in the

future.” The IJ also stated that Hamdan failed to show that
6 No. 07-2702

Palestinian militant groups would likely harm him upon

his return. In so concluding, the IJ characterized Hamdan’s

claim not as one based on imputed political opinion, but

instead as one based solely on his political neutrality. As

the IJ saw it, Hamdan claimed that militant groups

would persecute him because he tried to remain neutral

between the Palestinian Authority and the Israeli government. But, the IJ concluded, Hamdan “never affirmatively

expressed his neutrality” to the militant groups themselves, and thus could not prove that the groups would

harm him because of his neutrality. The IJ did, however,

permit Hamdan to depart voluntarily.

Hamdan appealed the IJ’s decision to the BIA, arguing,

among other things, that the IJ erred by concluding that

he failed to establish that he would likely be persecuted

upon his return to the West Bank. In rejecting Hamdan’s

argument, the BIA merely “adopt[ed] and affirm[ed]” the

IJ’s determination “to the extent he found that [Hamdan]

failed to meet his burden of proof to establish eligibility

for relief from removal.” The BIA then dismissed

Hamdan’s appeal and entered a final order of removal.

II. ANALYSIS

In his petition, Hamdan does not challenge the IJ’s

determination that his asylum application was untimely;

he likewise does not claim that the IJ erred by concluding that he was not persecuted when he lived in the

West Bank. See Lin v. Ashcroft, 385 F.3d 748, 750 (7th Cir.

2004) (stating that petitioner abandoned arguments by

not raising them in opening brief). Instead, Hamdan

solely argues that the IJ erred by failing to address his

claims that (1) because of his Palestinian identity, the
No. 07-2702 7

1 In his petition, Hamdan describes his claim of future persecution at the hands of Palestinian militant groups as being based

on two separate grounds: (1) his imputed political allegiance

with the Israeli government; and (2) his membership in the

social group of Palestinians who were formerly employed by

Israelis and who may be seen as collaborators. See 8 U.S.C.

§ 1231(b)(3)(A) (“[T]he Attorney General may not remove an

alien to a country if the Attorney General decides that the

alien’s life or freedom would be threatened in that country

because of the alien’s . . . membership in a particular social

group, or political opinion.”). But Hamdan’s description

creates a distinction without difference: both grounds for

relief are premised on the same contention that militant groups

believe that Hamdan is an Israeli collaborator or spy. Thus,

Hamdan’s two grounds for relief are actually one: that he

would face persecution upon his return to the West Bank

because of his imputed political alliance with the Israeli government.

Israeli government will impose on him severe economic

hardship that amounts to persecution; and (2) Palestinian

militant groups will harm him because of their belief

that he is (at least) an Israeli collaborator or (at most) an

Israeli spy.1

 He therefore asks us to grant his petition and

remand his case so the IJ can assess his claims in the first

instance. See Salameda v. INS, 70 F.3d 447, 451-52 (7th

Cir. 1995); see also Binrashed v. Gonzales, 502 F.3d 666, 673-

75 (7th Cir. 2007); Tolosa v. Ashcroft, 384 F.3d 906, 910-11

(7th Cir. 2004).

The government contends, however, that we lack jurisdiction to address Hamdan’s arguments; according to the

government, Hamdan failed to exhaust “all administrative

remedies available” to him regarding his claims of future

persecution. 8 U.S.C. § 1252(d)(1). Specifically, the gov-
8 No. 07-2702

ernment asserts that Hamdan “failed to articulate any

argument” before the BIA regarding his claims of future

persecution based on his Palestinian identity or imputed

political opinion specifically. As the government sees it,

Hamdan instead argued only that the IJ failed to make “an

explicit credibility determination” regarding his claim

of future persecution. The government thus contends

that, because Hamdan failed to forward any “semblance

of an argument” that the IJ failed to address his specific

claims of future persecution, see Margos v. Gonzales, 443

F.3d 593, 598-599 (7th Cir. 2006), we lack the authority to

hear Hamdan’s case, see 8 U.S.C. § 1252(d)(1); Hamdan v.

Gonzales, 425 F.3d 1051, 1059 n.14 (7th Cir. 2005).

However, the record belies the government’s characterization of Hamdan’s submission to the BIA. Hamdan did,

in fact, challenge the IJ’s decision rejecting his claims of

future persecution for reasons other than the IJ’s credibility findings. Specifically, Hamdan argued that the IJ

erred by concluding that he “could not demonstrate that

he is ‘more likely than not’ to be persecuted and tortured.”

Hamdan also asserted that the IJ’s denial of relief was

inexplicable, particularly when the IJ made contradictory

findings; for instance, Hamdan pointed out that “[a]t one

point the IJ seems to agree that [he] would suffer persecution, yet finds that he would not be faced ‘with any more

risk than that of other inhabitants of the West Bank.’ ” And

although Hamdan’s submission to the BIA was not as

detailed or as thorough as his brief filed with this court,

it sufficiently put the BIA on notice that he sought to

challenge the IJ’s denial of his claims of future persecution.

See Kaganovich v. Gonzales, 470 F.3d 894, 897 (9th Cir. 2006)

(“Petitioner’s notice of appeal to the BIA asserted that the

‘Immigration Judge erred in disregarding that [Petitioner]
No. 07-2702 9

entered the United States as a refugee.’ That statement ‘was

sufficient to put the BIA on notice . . . and the agency had

an opportunity to pass on this issue.’ ” (quoting Zhang v.

Ashcroft, 388 F.3d 713, 721 (9th Cir. 2004))); Yan Lan Wu v.

Ashcroft, 393 F.3d 418, 422 (3d Cir. 2005) (“[S]o long as an

immigration petitioner makes some effort, however

insufficient, to place the Board on notice of a straightforward issue being raised on appeal, a petitioner is

deemed to have exhausted her administrative remedies.”).

We thus cannot say that Hamdan’s submission lacked the

“semblance of an argument” that is characteristic of an

unexhausted claim. See Margos, 443 F.3d at 599 (deeming

claim unexhausted when argument was based on extremely “broad generalities” that lacked explanation

either “through text or citation”).

With that said, we move to Hamdan’s contentions that

the IJ failed to address his claims of future persecution.

Although the BIA’s opinion in this case added very little

to the IJ’s decision, the IJ’s decision, as supplemented by

the BIA’s terse opinion, is our basis for review. See Brucaj v.

Ashcroft, 381 F.3d 602, 606 (7th Cir. 2004). By seeking

withholding of removal and CAT protection, Hamdan

bore the burden of pointing to evidence showing that it

is “more likely than not” that he will be persecuted because of his Palestinian identity or imputed political

opinion if he returns to the West Bank. See Shmyhelskyy

v. Gonzales, 477 F.3d 474, 482 (7th Cir. 2007); see also Ahmed

v. Ashcroft, 348 F.3d 611, 617 (7th Cir. 2003) (stating that

future persecution based on imputed political opinion is

basis for relief from removal); Borca v. INS, 77 F.3d 210,

216 (7th Cir. 1996) (stating that “substantial economic

disadvantage” that is “ ‘deliberately imposed’ as a form of

punishment” can constitute basis for relief from removal
10 No. 07-2702

(quoting Kovac v. INS, 407 F.2d 102, 107 (9th Cir. 1969))).

The IJ determined that Hamdan failed to shoulder this

burden, a conclusion to which we normally afford a

great amount of deference. See 8 U.S.C. § 1252(b)(4)(B)

(stating that immigration courts’ findings of fact are

“conclusive unless any reasonable adjudicator would be

compelled to conclude to the contrary”); Feto v. Gonzales,

433 F.3d 907, 911 (7th Cir. 2006) (stating that we affirm

immigration courts’ decisions so long as they are supported by “reasonable, substantial, and probative evidence” (internal quotation marks and citation omitted)).

But our “[d]eference is earned; it is not a birthright.” Kadia

v. Gonzales, 501 F.3d 817, 821 (7th Cir. 2007). And we

will not yield to the IJ’s conclusions if he failed to respond

to the arguments that Hamdan presented, see Salameda,

70 F.3d at 451-52, or based his conclusions on a misunderstanding of Hamdan’s claims for relief, see Iao v. Gonzales,

400 F.3d 530, 533 (7th Cir. 2005); Tolosa, 384 F.3d at 910-11;

see also Hengan v. INS, 79 F.3d 60, 63 (7th Cir. 1996) (vacating denial of relief from removal where IJ’s focus on

facts irrelevant to petitioner’s claim suggested that IJ

misunderstood arguments altogether).

Hamdan is correct that the IJ failed to examine his

claims of future persecution. The IJ did not address Hamdan’s contention that he would be economically persecuted by the Israeli government because of his

Palestinian identity. The IJ instead concluded—with little

explanation, at that—that it was “improbable” that the

Israeli government would “torture” Hamdan. But the IJ’s

conclusion is nonsensical; Hamdan never asserted that

the Israeli government would “torture” him, and the

conclusion that the Israelis would not torture Hamdan

contradicted the IJ’s earlier finding that there was, in fact,
No. 07-2702 11

an “indication” that the “Israeli government would

torture” him.

The IJ similarly failed to address Hamdan’s claim that

Palestinian militant groups would likely harm him upon

his return to the West Bank. When denying Hamdan’s

request for relief, the IJ merely concluded that Hamdan

failed to establish that he would be persecuted because

the militant groups were unaware of his self-declared

political neutrality. But in so concluding, the IJ misconstrued Hamdan’s claim. Hamdan never contended that

he would likely be persecuted because of his political

neutrality. Instead, he asserted that Palestinian militant

groups would persecute him because they imputed to him

a political affiliation with the Israeli government. Hamdan

even supported this assertion with evidence, such as his

testimony—which the IJ deemed credible—and the 2004

Country Report. As such, it makes little difference that

Hamdan, as the IJ put it, “never affirmatively expressed his

neutrality”; what does matter is how militant groups

perceived Hamdan’s political affiliation—regardless of

what he “affirmatively expressed”—and whether it was

likely that they would harm him because of that perception. See Nakibuka v. Gonzales, 421 F.3d 473, 478 (7th Cir.

2005); see also De Brenner v. Ashcroft, 388 F.3d 629, 635-36

(8th Cir. 2004) (stating that inquiry must focus on whether

persecutor, rightly or wrongly, attributes a political opinion to victim); Vasquez v. INS, 177 F.3d 62, 65 (1st Cir.

1999) (same); Sangha v. INS, 103 F.3d 1482, 1489 (9th Cir.

1997) (same). In other words, the IJ completely misunderstood Hamdan’s claim of future persecution based on

imputed political opinion, a mistake that caused the IJ both

to ignore Hamdan’s actual argument and to favor irrelevant facts when denying Hamdan’s request for relief. See
12 No. 07-2702

Tolosa, 384 F.3d at 910-11; see also Lian v. Ashcroft, 379 F.3d

457, 459 (7th Cir. 2004) (vacating and remanding claim for

relief from removal when “most of” IJ’s opinion was “taken

up with irrelevancies”).

All told, the IJ did not address Hamdan’s claims that,

upon his return to the West Bank, he would suffer economic persecution because of his Palestinian identity, and

that Palestinian militant groups would harm him because

of the political beliefs they imputed to him. See Hengan,

79 F.3d at 64 (“Agencies must respond to the arguments

made to them . . . .”). We express no opinion as to the

merits of Hamdan’s claims. We remand only to allow the

IJ the first opportunity to pass judgment on the claims

it previously ignored. See Salameda, 70 F.3d at 451-52; see

also Binrashed, 502 F.3d at 673; Durgac v. Gonzales, 430 F.3d

849, 851-52 (7th Cir. 2005) (“[P]etitions for review will

be granted when the court concludes that there is more

that must be done at the agency level . . . .”).

III. CONCLUSION

We GRANT Hamdan’s petition for review, VACATE the

BIA’s final order of removal, and REMAND this case to the

immigration courts for further proceedings.

USCA-02-C-0072—6-16-08