Ghanem v. Attorney Gen. U.S.

14 F.4th 237

Adel Sultan Mohammed GHANEM, Petitioner

v.ATTORNEY GENERAL UNITED STATES of America, Respondent

No. 19-1475

United States Court of Appeals, Third Circuit.

Argued: March 16, 2021

Opinion Filed: September 22, 2021

Ian H. Gershengorn, William R. Weaver [ARGUED], Jenner & Block, 1099 New York Avenue, N.W., Suite 900, Washington, DC 20001, Samuel C. Kaplan, 1401 New York Avenue, N.W., Washington, DC 20005, Counsel for Petitioner

William P. Barr, Alison M. Igoe [ARGUED], Erik R. Quick, United States Department of Justice, Office of Immigration Litigation, P.O. Box 878, Ben Franklin Station, Washington, DC 20044, Counsel for Respondent

Before: KRAUSE, PHIPPS, and FUENTES, Circuit Judges.

KRAUSE, Circuit Judge.

Adel Ghanem, a former lawful permanent resident of the United States, seeks to avoid removal to Yemen, from which he fled to avoid persecution on account of political opinion. He pursues three forms of relief that were denied by the Immigration Judge (IJ) and the Board of Immigration Appeals (BIA): asylum under the Immigration and Nationality Act, 8 U.S.C. § 1158(a), withholding of removal under the Act, 8 U.S.C. § 1231(b)(3), and withholding of removal under the Convention Against Torture, 8 U.S.C. § 1252, 8 C.F.R. § 1208.16(c). Ghanem was kidnapped and tortured before being convicted and sentenced to ten years’ imprisonment for political opposition to the Houthi regime. We will therefore grant the petition for review and remand to the BIA.

I. Factual and Procedural Background ¹

Whether Ghanem succeeds on appeal depends on whether the IJ's findings, adopted by the BIA, are supported by substantial evidence. We therefore begin by surveying the record before the agency in detail.

A. Ghanem's Return to Yemen and Involvement in the Arab Spring

Born in Ba'adan, in Yemen's Ibb Province in 1986, Ghanem was admitted to the United States as a lawful permanent resident in 2003. In 2009, however, Ghanem returned to Yemen to get married, and in 2010, he settled with his wife in the city of Sana'a, where he opened a convenience store.

Within months, a series of pro-democracy uprisings—later known as the Arab Spring—swept across the region. These movements eventually reached Yemen, where activists and members of the general public alike called for the removal of President Ali Abdullah Saleh in favor of a new government that would institute political, social, and economic reforms. Ghanem was among these reformers, joining in a demonstration known as "Dignity Friday" and other peaceful protests calling for "freedom of speech, press, assembly, association and religion and movement." AR1035.

In part, the reforms succeeded: Saleh was eventually forced to step down, and Vice President Abd-Rabbu Mansour Hadi was elected president in a free and fair election. But with that success came civil discord and political reprisals from Saleh supporters. Armed groups continued to foment instability and violence, including a growing Houthi movement composed of members who practiced an "extremist" form of the Shia religion and ultimately allied themselves with the ousted president. AR1033–34. The Houthi rebels’ internal armed conflict with President Hadi's government forces injected a bitter sectarian struggle into Yemeni politics that has carried into the present, casting both the identity and capacity of Yemen's governing bodies in doubt in the eyes of the international community. As relevant for our purposes, Ghanem had opposed President Saleh at the outset of this struggle and continued to oppose the Houthis and their allies as the political landscape evolved.

It was in this context that, shortly after Hadi's election, Ghanem began noticing suspicious vehicles and people arriving at the building next to his convenience store. At that point, he sought assistance from his uncle-in-law, a well-known figure in the National Security Agency of Yemen who also was opposed to the Houthi rebels, and who instructed Ghanem to monitor the activity next door and to relay what he observed. As Ghanem continued to share information, his uncle-in-law warned him that he "should be careful because [Ghanem] was Sunni" and a potential political target given his open opposition to the Shia militants. AR1040.

B. Ghanem's Abuse and Kidnapping

Throughout this period, Ghanem's brothers-in-law periodically visited their sister and Ghanem at the couple's home in Sana'a. During one particular visit, before he became aware they had joined the Houthi rebels, Ghanem shared his political beliefs, lamenting how many people had been killed by the Houthis and describing them as "criminals" and "threats to the country." AR1038–39. Ghanem also recounted how he had participated with other protestors on Dignity Friday and how they "were going against the [ ]Shia[ ]." AR1035, 1039. As Ghanem later recalled, his brothers-in-law then asked a lot of questions, as if attempting to gather information, but they eventually left without incident.

Three days later, however, the brothers-in-law returned. This time, in no uncertain terms, they told Ghanem he "should stop talking and ... should stop encouraging people against the Shia Houthi." AR1039. In addition to telling him to stop criticizing the Houthis, they also demanded that he join them, but Ghanem refused, telling his brothers-in-law that he "cannot support extremists" and "cannot be with people who carry guns." AR414.

Incensed by his opposition, the Houthi rebels, by now prevalent throughout the city in which Ghanem resided, adopted more flagrant and violent measures to bring him to heel. First, they arrived at his home "with guns drawn," AR1039, and removed his family under the guise of taking them to see his sick mother-in-law. A few days later, Ghanem's "brother[s]-in-law and their cousins along with a few other individuals who were wearing masks pull[ed] up in a car" outside of his house. AR1040. They demanded that he divorce their sister because he was not a Shia Houthi member of the Al-Falahi tribe, and when he refused, "[t]hey started attacking and beating [him]." AR1040. A neighbor witnessed the assault and stepped in to stop it.

It was a temporary reprieve. Three weeks later, the Houthi brothers-in-law and their confederates returned, this time knocking Ghanem unconscious and kidnapping him. Ghanem awoke in a dark room, legs and hands bound by rope. Eventually his captors, whom Ghanem recognized as Houthis, entered the room and threatened that, "they knew who [Ghanem] was so if they asked [him] any question and [he] did not answer honestly they would kill [him]." AR1041. They told Ghanem that "they knew all of [Ghanem's] activities" and that he "should give them what they want" and shouldn't "blame anyone else for [his] faith." AR1041. They wanted "names"—they interrogated Ghanem about "who [he] was ... working for" and to whom he had given information. AR1041.

Over the next two weeks, his captors returned repeatedly and brutally tortured Ghanem, accusing him of being a spy. They beat him with shoes, spit in his face, hung him upside down, and subjected him to simulated drowning until he was "choking and gasping for breath." AR1041–42. They also forced Ghanem to drink their urine and tied a rubber band around his testicles. For two weeks, Ghanem remained bound without access to a bed or a bathroom, sleeping and relieving himself on the floor, and after each round of abuse, his torturers would ask Ghanem if he had "changed [his] mind" about "giving them information." AR1042. When the kidnappers eventually released him, Ghanem had to be taken to the intensive care unit of a local hospital where he was treated over the next two weeks for physical and mental suffering.

C. Ghanem's Efforts to Obtain Justice and Evade Harm

After being released, Ghanem attempted in vain to bring his torturers to justice. Although he brought kidnapping and torture charges against them with the help of an attorney, none of the defendants ever appeared in court. Three of Ghanem's neighbors did, however, appear as witnesses and testified that they observed his beating and kidnapping for his "criticism ... of [the] Al-Falahi Shia group ... and his refusal to join them." AR987. The Yemeni court ultimately found Ghanem's captors guilty based on this witness testimony. But as the government was unable bring them in, they were never punished and Ghanem was left without recourse for his emotional, physical, and legal injuries.

Instead, his efforts to obtain justice endangered him further: When his captors learned of the charges, they began to look for him, threatening to "kill [him] and not even [bother with] kidnap[ping]." AR1044. Upon his lawyer's advice, Ghanem fled to his hometown of Ba'adan to hide, but his abusers continued to pursue him. Houthi "members of the Al-Falahi tribe" mobilized by Ghanem's brothers-in-law "came and shot at the house in which he was staying," JA39–40, but Ghanem narrowly escaped.

After a mere two weeks in Ba'adan, Ghanem was forced to flee to Aden, and ultimately to Hadramout, where he hid with his uncle-in-law to avoid the Houthis and their allies as they continued to clash with government security forces and expand throughout Yemen. Ghanem left Yemen for Malaysia altogether in December 2012, and his uncle-in-law was attacked and killed the following year. He then travelled to South Korea, where he continued to express his anti-Houthi opinion and even publicly interacted with Yemeni government officials visiting the region.

D. Houthi Court Proceedings in Yemen

By July 2014, while Ghanem was seeking refuge abroad, the Houthis had gained control of the central government. With the political tables now turned, Ghanem's persecutors obtained a judgment against him in absentia from a Houthi-controlled court in West Sana'a, sentencing him to ten years in prison. According to the judgment, Ghanem was convicted of "incit[ing] against order and the regime and for anti-Shia sedition." AR979. The Houthi government also issued an arrest...