In the

United States Court of Appeals

For the Seventh Circuit

____________

Nos. 04-1275 & 04-2417

EHAB S. DAWOUD and AMANI Y. REFAAT,

Petitioners,

v.

ALBERTO R. GONZALES, Attorney General

of the United States,

Respondent.

____________

On Petitions for Review of a Decision of the

Board of Immigration Appeals.

Nos. A95 389 985 & A95 389 986

____________

ARGUED JUNE 1, 2005—DECIDED SEPTEMBER 19, 2005

____________

Before MANION, WOOD, and SYKES, Circuit Judges.

WOOD, Circuit Judge. Ehab Dawoud was detained and

beaten first by Islamic radicals and then by the state

security services after a video of his Christian wedding

aired on an Egyptian television station. Dawoud and his

wife, Amani Refaat, fled Egypt for the United States and

applied for asylum after overstaying their visitors’ visas,

claiming that they had been persecuted because of their

religion. The Immigration Judge (IJ) denied the application,

and the Board of Immigration Appeals (BIA) affirmed in a

separate opinion. Dawoud and Refaat filed a petition for

review in this court, but they then moved the Board to
2 Nos. 04-1275 & 04-2417

reconsider its decision and twice attempted to have the

proceedings reopened. Those motions were denied. They

now petition for review of these denials. We grant the

petition and remand to the Board for further proceedings.

I

Dawoud and Refaat are members of the Coptic Church,

an orthodox sect of Christianity native to Egypt to which

approximately 10% of the population adhere. Several

months after they were married, a friend with their permission sent a videotape of their wedding ceremony and

reception to a television program that showcases local

weddings. The record does not provide much detail about

the video, except that it depicted a Coptic ceremony, alcohol

consumption, and dancing by a woman who was not fully

veiled. A week after the video aired in July 2001, three

angry members of the terrorist group al-Gama’a alIslamiyya came to Dawoud’s home to confiscate the tape.

They did not identify themselves, but Dawoud recognized

them as Islamic fundamentalists from their traditional

dress, long beards, accusations that he was an “infidel,” and

threats of “blood shedding.” The terrorists blindfolded

Dawoud and took him to a building outside the city, where

he was kept chained and underfed for ten days; his captors

beat him for consorting with “infidels” and threatened that

his “blood would be sacrificed,” which they asserted was

“legal” in Egypt.

Dawoud was released and returned to his home, where,

he said, “I was tired from the beating and psychologically I

was sort of destroyed” for fear that the terrorists might

return. He chose not to bring the incident to the attention

of the authorities, because in Egypt, he claimed, reporting

Islamic militants to the government usually brings retribution. Dawoud did call a doctor friend who treated the

bruises on his arms and hands; this treatment is allegedly
Nos. 04-1275 & 04-2417 3

confirmed by a handwritten note in the record, but other

than the hospital letterhead, which is in English, the note

is in untranslated Arabic.

Two days after he returned home, Dawoud was confronted

by the “National Police of Egypt,” who went to his house

and said that a report had been filed against him for

“insult[ing] the Muslim religion.” He was taken to a police

building and placed in solitary confinement, where for three

days he was tortured by electrocution until he agreed to

sign a confession. Dawoud testified that the officers “would

have water running underneath me” and then would drop

something—presumably an electrical device—into the

water, shocking him. Eventually, Dawoud said, “I couldn’t

handle it anymore, so I decided to sign that confession so

they would ease off the pain.” He was then released and

told to stay in his hometown of Benimazar until he was

summoned for a hearing before the Emergency Court, a

tribunal frequently criticized by human rights groups,

which operates under Egypt’s Emergency Law and hears

cases that implicate national security. Rather than wait

around, Dawoud and his wife secured passports and visas

for the United States and fled the country.

The IJ denied Dawoud’s and Refaat’s asylum applications.

(Because Dawoud is the lead petitioner, we refer in the

remainder of this opinion to him alone.) The IJ’s opinion is

riddled with inappropriate and extraneous comments, such

as references to the IJ’s personal experiences with alcohol

in Egypt, commentary on the state of the tourism industry

there, and speculation about the attractiveness of the

United States to asylum-seekers in general. The IJ found

Dawoud not credible because of the “swiftness” with which

he obtained his passport and travel visa. The IJ also

pointed out that Dawoud failed to corroborate his narrative

with affidavits from relatives.

In a lengthy opinion, the BIA noted its disapproval of the

IJ’s “inappropriate remarks” and rejected the adverse
4 Nos. 04-1275 & 04-2417

credibility finding, stating that Dawoud’s “testimony was

credible in that it was internally consistent, consistent with

the written declarations, and not inherently improbable.”

The Board agreed with the IJ, however, that Dawoud’s

failure to provide corroborating evidence weighed against

him, noting that he did not submit a translated copy of the

handwritten medical note, “written or oral” evidence of a

summons to the Emergency Court, or affidavits from family

members to verify either the showing of the video or

Dawoud’s subsequent misfortunes. The Board also stated

that Dawoud’s narrative was at odds with the 2001 State

Department Country Report on Egypt, observing that

“[t]here is no references [sic] in the background information

to the national police pursuing the average Coptic Christian

. . . especially in collusion with an Islamic fundamentalist

organization.” The Board also stated that, according to the

report, the government’s treatment of Copts was improving.

Dawoud and his wife filed a joint motion for reconsideration and reopening. He contended that the decision should

be reconsidered because the BIA had erred in concluding

that the State Department Report “tended to undermine his

story.” He also claimed that because of the United States’s

close relationship to Egypt, the State Department underreported the government’s mistreatment of Copts. He

further argued that the case should be reopened because of

“new” evidence that conditions for Christians in Egypt had

deteriorated as a result of the American invasion of Iraq.

The Board denied these motions in an order in which it

concluded that Dawoud did not establish any errors in its

reading of the State Department Report, and that the war

in Iraq did not create a prima facie claim of future persecution. The Board also denied a subsequent motion to reopen

in which Dawoud sought to argue for the first time that he

had been prejudiced by ineffective assistance of counsel.
Nos. 04-1275 & 04-2417 5

II

Before proceeding to the merits, we must first determine

which of the BIA’s orders is before us in this petition. At

oral argument, the lawyer for the petitioners contended

that Dawoud had preserved his ability to challenge the

BIA’s merits denial of the asylum application by filing a

petition for review of that order. But as the government

observes, Dawoud’s brief on appeal is expressly limited to

challenging the denial of Dawoud’s motion for reconsideration and two motions to reopen. Dawoud has therefore

waived any arguments regarding the merits decision. See

United States v. Harris, 394 F.3d 543, 559 (7th Cir. 2005).

We accordingly limit our consideration of the petition to the

motions to reconsider and reopen.

A

Dawoud first challenges the denial of his motion for

reconsideration, arguing that the BIA misread the State

Department Report and other materials in the record when

it found that his account of persecution was inconsistent

with country conditions in Egypt. To succeed, a motion to

reconsider “shall state the reasons for the motion by

specifying the errors of fact or law in the prior Board

decision and shall be supported by pertinent authority.”

8 C.F.R. § 1003.2(b)(1). We review the denial of a motion to

reconsider for an abuse of discretion. Id. § 1003.2(a); see Ali

v. Ashcroft, 395 F.3d 722, 731 (7th Cir. 2005).

Although this is a deferential standard, it is not a meaningless one. We find that this is the rare case in which it is

met. First, the BIA’s finding that Dawoud’s narrative is

inconsistent with background information on Egypt is flatly

contradicted by the 2001 Country Report and reports in the

record from Freedom House, a 60-year-old, U.S.-based

human rights group. These materials describe numerous

instances in the past few years in which the Egyptian
6 Nos. 04-1275 & 04-2417

security services have assaulted, imprisoned, and otherwise

discriminated against Copts. For instance, police officers

rounded up and tortured some 1,000 Copts as part of a

murder investigation in 1998, and 21 Christians were killed

in an anti-Copt pogrom in 2000 while the authorities looked

on. In the latter case, 92 of 96 defendants were initially

acquitted of charges, and ultimately no one was punished

seriously except for a Copt, who was imprisoned for violating Article 98 of the penal code, which prohibits “insulting

a heavenly religion.” This is the same provision that

Dawoud was charged with violating. The Country Report

details many other instances of government agents using

Article 98 to imprison members of religious groups, including Christians, “whose practices deviate from mainstream

Islamic beliefs,” and notes that the authorities withhold

building permits to Christians, fail to investigate murders

and assaults of Copts, and harass Christian families

attempting to protect their daughters from forcible conversion to Islam.

In concluding that Dawoud’s tale is inconsistent with this

background information, the BIA focused on a few flowery

bromides in the Country Report about Egypt’s increased

concern over religious freedom. But by ignoring the report’s

lengthy discussion of repeated and flagrant governmental

abuses of Coptic Christians, the Board gives the impression

that it did not bother to read the Country Report in its

entirety. The report and other background information on

the whole is quite consistent with—and provides a plausible

backdrop for—Dawoud’s claim of persecution. The Board

abused its discretion by concluding otherwise. (We disregard for this purpose an affidavit from expert witness Paul

Marshall that Dawoud attempted to introduce with his

motion to reconsider and reopen. The BIA reasonably

concluded that the affidavit was not admissible “new”

evidence, because it dealt exclusively with events that

transpired before the BIA’s January 2004 merits decision
Nos. 04-1275 & 04-2417 7

and thus could have been introduced at the earlier hearing.

See 8 C.F.R. § 1003.2(c)(1); Simtion v. Ashcroft, 393 F.3d

733, 737 (7th Cir. 2004).)

The Board also erred by faulting Dawoud for claiming

that the security services “colluded” with terrorists in

persecuting him. This characterization of Dawoud’s application fails accurately to reflect his testimony. The record

shows that the police pursued Dawoud independently of the

terrorists after receiving a tip—quite possibly an anonymous one—about a possible Article 98 violation. Dawoud

never alleged that the two groups acted in concert.

B

The government argues that even if the BIA erred on the

background country information, Dawoud’s motion for

reconsideration was still properly denied because there

were “additional, independently sufficient, bases” for

denying the application for asylum—namely, Dawoud’s

failure to corroborate his claims. In other words, it argues

that any error regarding the background country conditions

was harmless. Dawoud has little to say in response, but we

reject this argument too.

This court has often held that a credible asylum applicant

(which, recall, the BIA found that Dawoud was) need not

provide corroborating evidence in order to meet his burden

of proof. In the past, the BIA has taken a more demanding

position. Under its so-called “corroboration rule,” even a

credible applicant must supply reasonably available

corroborating evidence if the IJ demands it. This position

stems from the Board’s interpretation of 8 C.F.R.

§ 208.13(a), which provides: “The testimony of the applicant, if credible, may be sufficient to sustain the burden

of proof without corroboration” (emphasis added). In In re

S-M-J-, 21 I. & N. Dec. 722, 725 (BIA 1997), the BIA read

this regulation to allow IJs to demand corroboration even
8 Nos. 04-1275 & 04-2417

from a credible applicant: “where it is reasonable to expect corroborating evidence for certain alleged facts pertaining to the specifics of an applicant’s claim, such evidence

should be provided.” See also In re M-D-, 21 I. & N. Dec.

1180, 1183-84 (BIA 1998). The agency’s interpretation of its

regulation is entitled to substantial deference. See Martin

v. Occupational Safety & Health Review Comm’n, 499 U.S.

144, 150-51 (1991); Paragon Health Network, Inc. v. Thompson, 251 F.3d 1141, 1146-47 (7th Cir. 2001).

Nevertheless, this court has often expressed concern

about the way that the BIA applies 8 C.F.R. § 208.13(a),

which on its face allows for the possibility of a credible

applicant’s establishing a right to asylum without any

corroboration. See Gontcharova v. Ashcroft, 384 F.3d 873,

877 (7th Cir. 2004). We have repeatedly rejected IJs’

decisions that a credible asylum applicant’s claim can be

rejected solely because she did not supply corroborating

evidence. See Zheng v. Gonzales, 409 F.3d 804, 810 (7th Cir.

2005); Lin v. Ashcroft, 385 F.3d 748, 756 (7th Cir. 2004);

Diallo v. Ashcroft, 381 F.3d 687, 695 (7th Cir. 2004); Ememe

v. Ashcroft, 358 F.3d 446, 453 (7th Cir. 2004); Uwase v.

Ashcroft, 349 F.3d 1039, 1045 (7th Cir. 2003). The regulation, in our view, cannot bear an interpretation that would

exclude all possibility of an applicant’s relying exclusively

on credible but uncorroborated testimony, so long as that

testimony is specific, detailed, and convincing. See Ahmed

v. Ashcroft, 348 F.3d 611, 618 (7th Cir. 2003); CarvajalMunoz v. INS, 743 F.2d 562, 574 (7th Cir. 1984).

The policy behind a rule permitting reliance solely on

credible testimony is simple. Many asylum applicants flee

their home countries under circumstances of great urgency.

Some are literally running for their lives and have to

abandon their families, friends, jobs, and material possessions without a word of explanation. They often

have nothing but the shirts on their backs when they arrive

in this country. To expect these individuals to stop and
Nos. 04-1275 & 04-2417 9

collect dossiers of paperwork before fleeing is both unrealistic and strikingly insensitive to the harrowing conditions

they face. See Balogun v. Ashcroft, 374 F.3d 492, 502 (7th

Cir. 2004). As we stated there:

No matter what form of corroboration is at issue, the

corroboration requirement should be employed reasonably. It is always possible to second-guess the petitioner

as to what evidence would be most cogent, and, consequently, there is a distinct danger that, in practice, the

corroboration requirement can slip into “could haveshould have” speculation about what evidence the

applicant could have brought in a text-book environment. The IJs need to take to heart the BIA’s blunt

admonition that corroboration should be required only

as to “material facts” and only when the corroborative

evidence is reasonably accessible.

Id. at 502-03.

The Ninth Circuit has taken a more categorical approach

against the BIA’s corroboration rule. In Ladha v. INS, 215

F.3d 889, 899 (9th Cir. 2000), it said that it “does not

require corroborative evidence . . . from applicants for

asylum and withholding of deportation who have testified

credibly” (citation and internal quotation marks omitted).

The Second, Third, Sixth, and Eighth Circuits have adopted

a position that accepts a requirement of corroboration even

when the applicant is credible on her own, essentially

finding the BIA’s interpretation of the regulation to be

reasonable and deserving of deference. See Dorosh v.

Ashcroft, 398 F.3d 379, 382-83 (6th Cir. 2004); El-Sheikh v.

Ashcroft, 388 F.3d 643, 647 (8th Cir. 2004); Abdulai v.

Ashcroft, 239 F.3d 542, 551 (3d Cir. 2001); Diallo v. INS,

232 F.3d 279, 285-86 (2d Cir. 2000). But even these courts

recognize that “supporting documentation must be provided

only if it is of the type that would normally be created or

available in the particular country and is accessible to the
10 Nos. 04-1275 & 04-2417

alien, such as through friends, relatives, or co-workers.”

Dorosh, 398 F.3d at 382-83 (internal quotation marks

omitted).

Looking toward the future, the difference in approaches

among the circuits with respect to the Board’s corroboration

rule will become a moot point. On May 11, 2005, the

President signed into law the REAL ID Act of 2005, Pub. L.

No. 109-13, 119 Stat. 231, which provides that an IJ may

require an otherwise credible applicant to provide corroborating evidence unless the applicant does not have the

evidence and cannot reasonably obtain it. Id. § 101(a)(3)

(amending 8 U.S.C. § 1158(b)(1)). This rule affects only new

asylum applicants (whose applications are filed after May

11, 2005), however, and so does not apply to Dawoud’s case.

Id. § 101(h)(2). Interestingly, even under the new rules

there will still be some applicants whose cases will turn

solely on their own testimony—those who neither have nor

can reasonably obtain corroborating evidence.

When the time comes and we have a fully briefed case

before us, we can decide how much difference, as a practical

matter, the REAL ID Act has made. It is possible that the

change is less than meets the eye, since even now there is

no dispute about the appropriateness of asking

for corroboration in the common situation when the IJ

has some doubt about an applicant’s credibility. Here, as

the BIA acknowledged, Dawoud provided credible, detailed,

and convincing testimony. Furthermore, this was not a case

where corroborating information was wholly lacking; as we

have noted above, the State Department Report taken as a

whole did corroborate Dawoud’s account. We find that the

BIA in these circumstances should not have rested its

decision on his failure to supply even more evidence.

Dawoud and his wife are entitled to have their applications

for asylum assessed on the basis of the record they presented.
Nos. 04-1275 & 04-2417 11

C

Dawoud makes one other argument on appeal. He contends that his second motion to reopen based on ineffective

assistance of counsel was improperly denied. But Dawoud

does not challenge the BIA’s basis for denying the motion—that he failed to raise the ineffectiveness argument in

his appeal to the BIA and thus did not exhaust his administrative remedies, see Mojsilovic v. INS, 156 F.3d 743, 748

(7th Cir. 1998). Instead, he simply rehashes the merits of

the issue. We see no basis for upsetting the BIA’s judgment

on this claim.

III

For the foregoing reasons, we GRANT the petition for

review and REMAND the case for further proceedings consistent with this opinion.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—9-19-05