John S. Boctor v. Alberto R. Gonzales

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-2530
J OHN S. B OCTOR ,
Petitioner,
v.
A LBERTO R. G ONZALES ,
Respondent.
____________
Petition for Review of an order of the
Board of Immigration Appeals.
No. A78-637-924
____________
S UBMITTED J UNE 9, 2006—D ECIDED J ANUARY 24, 2007
____________
Before R IPPLE , M ANION , and S YKES , Circuit Judges.
S YKES , Circuit Judge. John (Yohanna) Boctor, a Coptic
Christian, petitioned for asylum and other immigration
relief based on death threats and assaults he suffered in
his native Egypt at the hands of Muslim extremists. Boctor
testified at his immigration hearing that he was repeat-
edly threatened with beheading and twice was violently
attacked and beaten for refusing to disclose the where-
abouts of a fellow Coptic Christian and his wife, a Muslim
woman who converted to Christianity upon the couple’s
marriage. An immigration judge (“IJ”) found Boctor
credible, but concluded that his attackers targeted him
for reasons unrelated to religion and therefore he had
not suffered religious persecution. The Bureau of Im-

-- 1 of 10 --

2 No. 05-2530
migration Appeals (“BIA”) affirmed, and Boctor petitioned
this court for review. Because the agency’s determination
that Boctor was not persecuted because of his religion is
not supported by substantial evidence, we grant the
petition for review.
I. Background
Boctor was born in Cairo, Egypt, and lived in the Egyp-
tian capital city all his life before coming to the United
States in 1999 at the age of twenty-six. After he overstayed
his visitor’s visa, the government initiated removal
proceedings against him, and he timely applied for asylum,
withholding of removal, and relief under the Convention
Against Torture (“CAT”). Boctor conceded removability
and an IJ heard the merits of Boctor’s claims at a hearing
at which Boctor was the only witness. The IJ accepted his
testimony as credible, so we summarize the relevant facts
based on that testimony.
Boctor is a member of the Coptic Orthodox Christian
Church and is readily identifiable as a Copt because of his
first name (John or Yohanna) and a crucifix tattoo on
his right wrist. He received the tattoo around the age of
four, as was customary for children in his Coptic commu-
nity in Egypt. Boctor’s friend and boss, Hanna Mousa, also
a Coptic Christian, married a Muslim woman, Gamila
Hussein, who converted to Christianity after the marriage.
Mousa told only a few of his Christian friends about his
marriage and his wife’s conversion because he feared
reprisals from fundamentalist Muslims who considered
conversion from Islam to be a capital offense under Islamic
law. Despite the attempt at secrecy, Gamila’s relatives
and Muslim extremists in the community learned of the
marriage and Gamila’s conversion, and the couple began
to receive death threats. They reported the threats to
Egyptian police, but received no assistance. The police

-- 2 of 10 --

No. 05-2530 3
refused to investigate and appeared complacent about the
death threats.
Boctor and three other friends then went to the police
on behalf of the Mousas, asking the authorities to inter-
vene to protect the couple and threatening to contact
international human rights organizations if the police did
nothing. Boctor’s efforts were unsuccessful, and the
Mousas then went into hiding at a location unknown to
Boctor. Shortly after Boctor’s complaint to the police, he
began receiving telephone threats from people who de-
manded to know the Mousas’ whereabouts and threatened
to cut his throat if he did not tell them. Boctor believed
the callers were part of the same group of Muslim ex-
tremists that had been menacing the Mousas. The death
threats soon escalated into physical violence. One night
on his way home from work, Boctor was attacked by three
men. His assailants called him an “infidel,” tore his
crucifix necklace from his neck, beat him, accused him of
“covering up for an infidel and a prostitute,” and told
him they would kill him if he made a report to any “human
rights committees.” Boctor said he recognized his three
attackers as Islamists by their manner of dress and
their long beards.
After this attack, Boctor moved to his uncle’s house, also
in Cairo, about fifteen minutes away from his own home.
His uncle’s residence did not provide the safe haven Boctor
hoped it would. The same group of Muslim extremists
tracked him down there, broke into the house and attacked
Boctor and his friends, beating them and demanding to
know where the Mousas were hiding. The attackers
called Boctor an “atheist” and an “infidel.” When Boctor
did not disclose the Mousas’ location, the assailants said
the next time he refused to talk they would kill him. About
a month after this second attack, Boctor left Egypt for the
United States.

-- 3 of 10 --

4 No. 05-2530
Boctor testified that he fears returning to Egypt because
“[s]omething is going to happen to me one of these days.
Could be the next day, could be a day after, could be a
month later, but they’re going to hit me, they’re going
to abuse me, they’re going to insult me . . . and they
might kill me.” The IJ asked Boctor who he meant by
“they,” and he answered, “They are the Islamist groups.”
Boctor did not report either of his attacks to the Egyptian
police because he believed they would not help him, just
as they failed to protect the Mousas. He testified that
based on his interactions with the Egyptian police, they
would “of course” acquiesce in the assaults and threats
because “the police are Muslims just like them [his attack-
ers].” Boctor believed the police would actually assist the
Muslim extremists by giving them information about him.
In addition to Boctor’s testimony, the record before the
IJ included the State Department’s February 2001 country
conditions report for Egypt. According to the report, about
6 million of Egypt’s 64 million citizens are Christians,
most of whom belong to the Coptic Orthodox Church. The
report noted that:
Neither the Constitution nor the Civil and Penal Codes
prohibit proselytizing or conversion. However, during
the past 2 decades, several dozen Christians who
were accused of proselytizing or who had converted
from Islam to Christianity have been harassed by
police or arrested on charges of violating Article 98(F)
of the Penal Code, which prohibits citizens from
ridiculing or insulting heavenly religions or inciting
sectarian strife.
B UREAU OF D EMOCRACY , H UMAN R IGHTS & L ABOR , U.S.
D EP ’ T OF S TATE , E GYPT : C OUNTRY R EPORTS ON H UMAN
R IGHTS P RACTICES 13 (Feb. 2001). The report also noted
occasional violent assaults on Christians by Islamic
extremist groups and a public complaint lodged by Coptic

-- 4 of 10 --

No. 05-2530 5
clergy about police “negligence” that led to “an increase
in the number of victims and an escalation of violence.”
Id. at 19-20.
Despite finding Boctor’s testimony credible, the IJ
concluded that his Islamic attackers were motivated not
by Boctor’s Christianity but by his refusal to inform them
of the Mousas’ whereabouts. This, the IJ concluded, was
not persecution “on account of” religion within the mean-
ing of the asylum statute, 8 U.S.C. § 1101(a)(42). The
IJ also found Boctor had not shown it would be unrea-
sonable to expect him to relocate safely within Egypt.
Accordingly, the IJ denied Boctor’s claims for asylum,
withholding of removal, and relief under the CAT. The
BIA affirmed in a brief per curiam order, finding no error
on the part of the IJ. Boctor petitioned this court for
review.
II. Discussion
Boctor waived his claim under the CAT by not raising
it during his appeal to the BIA, so we address only his
claims for asylum and statutory withholding of removal.
See 8 U.S.C. § 1252 (d)(1) (“A court may review a final
order of removal only if . . . the alien has exhausted all
administrative remedies available to the alien as of
right.”). We review the BIA’s determination that Boctor
was not persecuted because of his Christianity for sub-
stantial evidence. Jun Ying Wang v. Gonzales, 445 F.3d
993, 997 (7th Cir. 2006). Under the substantial evidence
standard we will reverse the BIA’s decision only if the
evidence presented at Boctor’s immigration hearing
compels a contrary conclusion. The BIA’s order was
essentially nothing more than an adoption of the IJ’s
decision and reasoning, so our review focuses directly
on the decision of the IJ. Id.

-- 5 of 10 --

6 No. 05-2530
In order to be eligible for asylum, an alien must establish
that he is unable or unwilling to return to his native
country “because of persecution or a well-founded fear
of persecution on account of race, religion, nationality,
membership in a particular social group, or political
opinion.” 8 U.S.C. § 1101(a)(42); 8 U.S.C. § 1158(b)(1). “An
applicant who demonstrates past persecution is entitled
to a rebuttable presumption of a well-founded fear of
future persecution.” Hanaj v. Gonzales, 446 F.3d 694, 698
(7th Cir. 2006). A well-founded fear of persecution must be
subjectively genuine and objectively reasonable; the
objective component requires that persecution is a “rea-
sonable possibility,” not that persecution is more likely
than not. Gjerazi v. Gonzales, 435 F.3d 800, 808 (7th Cir.
2006) (citing INS v. Cardoza-Fonseca, 480 U.S. 421, 430-32
(1987)). If an asylum applicant shows a well-founded
fear of persecution if returned to his native country, the
decision whether to grant asylum remains vested in the
discretion of the executive branch. 8 U.S.C. § 1158(b)(1)(A)
(“The Secretary of Homeland Security or the Attorney
General may grant asylum to an alien who has applied
for asylum . . . if the Secretary of Homeland Security or
the Attorney General determines that such alien is a
refugee.”) (emphasis added).
The essence of the IJ’s decision is contained in the
following passage from her oral order:
It appears that every instance of an encounter with the
Islamic fundamentalists was not because the funda-
mentalists were trying to persecute the respondent
on the basis of his faith or on the basis of his Coptic
Christianity, but rather they were trying to find from
him information that would lead them to the people
they really were interested in and that would be
Hanna and his wife. As deplorable as what it is that
occurred to [Boctor], and certainly it is not con-
doned by the Court, I do not believe that the fear that

-- 6 of 10 --

No. 05-2530 7
he has is over his faith or his membership in a par-
ticular social group, but really it is based on a purely
personal matter.
The IJ thus did not reject Boctor’s claim that he had
been persecuted by Islamic extremists; to the contrary, she
appears to have accepted that the death threats and
physical assaults he suffered amounted to persecution
within the meaning of the asylum statute. Instead, the IJ
held that Boctor had been subjected to this persecution
because of his “unfortunate link to his friend Hanna
Mousa and his wife, Gamila,” not because of his religion.
This conclusion completely ignores the factual context
in which the death threats and assaults occurred. Boctor’s
Islamic attackers were pursuing the Mousas in order to
carry out religious punishment for their intermarriage
and for Gamila’s subsequent conversion from Islam to
Christianity. Boctor was seen as protecting his
coreligionists and as a consequence was targeted for
violent retribution and possibly death.
The IJ’s decision remarkably omits any mention of the
substantial direct evidence linking the attackers’ motiva-
tion to Boctor’s religion. Boctor testified that his assailants
were Islamists for whom the issue of religious intermar-
riage and conversion from Islam was “an issue of religious
honor” that must be avenged. “To them,” he testified, “I am
supposed to be killed and my blood is supposed to be
shed in order to resolve the issue once and for all. I have
helped my friend and his wife. I have hid them and
supported them. We are all supposed to die in order for
the honor to be maintained in their religion.” He said his
attackers called him an “atheist” and an “infidel,” ripped
the crucifix necklace from his neck, and accused him of
protecting other “infidels.” These insults were obviously
aimed at Boctor’s Christian faith—or at least his lack of
adherence to Islam—and plainly established that these
were religiously motivated attacks.

-- 7 of 10 --

8 No. 05-2530
1 The IJ held that Boctor had not shown he could not safely
relocate within Egypt, but the burden of proof on this point
rests with the government where, as here, the alien has estab-
lished past persecution.
The IJ also concluded, without explanation, that the
State Department’s country conditions report made it
“unlikely that the persecution [Boctor] claims was on the
basis of his Christianity.” Aside from the dearth of rea-
soning on this point, the IJ’s assertion ignores information
in the report about acts of violence against Egyptian
Christians by Islamic extremists, complaints of complicity
on the part of the Egyptian police, and occasional police
harassment and arrest of Christians for proselytizing or
converting from Islam.
The IJ’s determination that Boctor was persecuted for
reasons unrelated to religion is not supported by substan-
tial evidence and must be reversed. Accepting (as the IJ
did) the credibility of Boctor’s testimony, the record
compels the conclusion that he was persecuted because of
his religion. INS v. Elias-Zacarias, 502 U.S. 476, 481 n.1
(1992); Jun Ying Wang, 445 F.3d at 997.
Boctor’s successful demonstration of past persecution
on account of his religion entitles him to a presumption
that he has a well-founded fear of further persecution if
he returns to Egypt. 8 C.F.R. § 208.13(b)(1); Gjerazi, 435
F.3d at 808. On remand the government will have the
opportunity to rebut that presumption by proving either “a
fundamental change in circumstances” in Egypt such that
Boctor no longer has a well-founded fear of religious
persecution, or that Boctor could avoid persecution by
relocating to another part of Egypt and that it would
be reasonable to expect him to do so. 8 C.F.R.
§ 208.13(b)(1)(i). The government bears the burden of
proof on both of these issues. 1 8 C.F.R. § 208.13(b)(1)(ii)
(“In cases in which an applicant has demonstrated past

-- 8 of 10 --

No. 05-2530 9
persecution[,] . . . the Service shall bear the burden of
establishing by a preponderance of the evidence” either a
fundamental change in circumstances or the reasonable-
ness of safe relocation.).
Unlike asylum, which is discretionary, withholding of
removal is a mandatory form of relief: “[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
race, religion, nationality, membership in a particular
social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A).
But along with the mandatory nature of this form of
immigration relief, withholding of removal carries a
more stringent burden of proof for aliens. They must
establish that their lives or freedom would more likely
than not be threatened in the country of removal.
Kobugabe v. Gonzales, 440 F.3d 900, 901 (7th Cir. 2006)
(citing INS v. Stevic, 467 U.S. 407 (1984)).
The IJ here concluded that because Boctor had not been
persecuted on account of religion, he likewise could not
meet the stricter standard of proof to establish his with-
holding of removal claim. The denial of withholding
was therefore premised entirely on the IJ’s initial deter-
mination that Boctor was not persecuted because of his
Christianity, which we have reversed as unsupported
by substantial evidence. Because he has shown past
religious persecution, on remand Boctor is entitled to a
presumption that his life or freedom would be threatened
if he returns to Egypt. 8 C.F.R. § 1208.16(b)(1)(i). The
government may rebut that presumption by showing by
a preponderance of the evidence a “fundamental change
in circumstances” in Egypt, or that Boctor could safely
relocate within Egypt and that it would be reasonable to
expect him to do so. 8 C.F.R. § 1208.16(b)(1)(ii).
For the foregoing reasons, we D ENY Boctor’s petition for
review with respect to his CAT claim. We G RANT the

-- 9 of 10 --

10 No. 05-2530
petition for review with respect to his claims for asylum
and withholding of removal and R EMAND to the BIA for
further proceedings.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-24-07

-- 10 of 10 --