Yordanos Muhur v. JOHN ASHCROFT , Attorney General of the United States

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-3597
Y ORDANOS M UHUR ,
Petitioner,
v.
J OHN A SHCROFT , Attorney General of the United States,
Respondent.
____________
On Petition to Review an Order of the
Board of Immigration Appeals.
____________
A RGUED D ECEMBER 3, 2003—DECIDED J ANUARY 20, 2004
____________
Before F LAUM , Chief Judge, and P OSNER and W ILLIAMS ,
Circuit Judges.
P OSNER , Circuit Judge. Yordanos Muhur asks us to set
aside the order that she be removed (deported) from this
country. The order followed the denial of her request for
asylum. She presented evidence intended to establish the
following facts. She was born to a Christian family in Eritrea
in 1974, at a time when it was a province of Ethiopia,
though of course it later became and remains an independ-
ent country. When she was about 17 she moved with her
family to Addis Ababa, the capital of Ethiopia. She became
a Jehovah’s Witness in 1992. Five years later she married a
Muslim Ethiopian who converted to the Jehovah’s Witness
faith to marry her, and they were married in the Kingdom
Hall (the name the Witnesses give to their house of worship)

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2 No. 02-3597
in Addis Ababa. Her husband’s family strongly disap-
proved of his marrying a Jehovah’s Witness.
He had business dealings in Saudi Arabia and moved
there with her shortly after their marriage. His being a
Jehovah’s Witness in Saudi Arabia was awkward—to say
the least, since under Islamic law it is a capital offense for a
Muslim to convert to another religion. So he resumed Islam
and browbeat his wife to abandon her faith and behave like
a Muslim wife. Instead of bowing to his wishes she came to
the United States on a visitor’s visa (her family had already
immigrated to this country) and once here applied for
asylum.
According to evidence that the immigration service has
not challenged, Eritrea persecutes Jehovah’s Witnesses. U.S.
Dept. of State, Bureau of Democracy, Human Rights
& Labor, Eritrea: International Religious Freedom Report 2002
(Oct. 7, 2002), http://www.state.gov/g/drl/rls/irf/2002/
13820.htm; International Religious Freedom Report: Jehovah’s
Witnesses—Eritrea (2003), http://www.jw-media.org/
r e g i o n / a f r i c a _ m i d d l e _ e a s t / e r i t r e a / e n g l i s h /
human_rights/e_eritrea_irf2003.htm; International Coalition
for Religious Freedom, Religious Freedom World Report (June
3 , 2 0 0 2 ) , h t t p : / / w w w . r e l i g i o u s f r e e d o m . c o m /
wrpt/africa/eritrea.htm. It is true that in Tesfu v. Ashcroft,
322 F.3d 477 (7th Cir. 2003), we upheld a contrary finding by
the Board of Immigration Appeals. But we based our ruling
on the evidence in that case, and Muhur is not bound by
findings of fact made in a case to which she was not a party.
The government does not argue that Tesfu controls the
outcome of this case—it doesn’t even cite Tesfu.
Ethiopia does not discriminate against Jehovah’s
Witnesses, and Muhur has Ethiopian citizenship. But in the
wake of its recent war with Eritrea, it continues to discrimi-

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No. 02-3597 3
nate against individuals of Eritrean ethnicity. U.S. Dept.
of State, Bureau of Democracy, Human Rights & Labor,
Country Reports on Human Rights Practices-2002: Ethiopia
(Mar. 31, 2003), http://www.state.gov/g/drl/rls/hrrpt/
2002/18203pf.htm; “Split by a Pointless War: Despite Peace,
Ethiopia’s Border with Eritrea Is Still Closed,” The Econo-
mist, Sept. 21, 2002, p. 45. So at any rate the immigration
judge noted in this case, as we’ll see, though the situation
may be improving. U.S. Dept. of State, Bureau of Democ-
racy, Human Rights & Labor, Ethiopia: Country Reports on
Human Rights Practices 2002, supra. Muhur is afraid that if
she is returned to Ethiopia she will quickly be deported to
Eritrea, where she would not be able to practice her religion
openly.
The immigration judge rejected Muhur’s claim and
ordered her removed to Ethiopia, or, if Ethiopia won’t take
her, to Eritrea, where he believes she would not be pers-
ecuted because she is not an “active” Jehovah’s Witness or,
as he put it elsewhere in his opinion, a “religious zealot.”
The Board of Immigration Appeals affirmed without opin-
ion.
The government defends the immigration judge’s decision
on the ground that he found that Muhur is not a Jehovah’s
Witness. If that were so and the finding were supported by
substantial evidence, her case for asylum would collapse,
because as near as we can make out she is complaining of
discrimination by Ethiopia against ethnic Eritreans only
insofar as it will result in her being sent back to Eritrea,
either because Ethiopia will not take her back or if it does
will promptly deport her to Eritrea. Nor has she shown that
such discrimination would amount to persecution. No
matter; all that is relevant is that the removal order is likely
to cause her to end up in Eritrea, which persecutes Jeho-
vah’s Witnesses.

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4 No. 02-3597
The immigration judge did not make a finding that
Muhur’s claim to be a Jehovah’s Witness is a fabrication,
although a note of skepticism sounds throughout his
opinion. He pointed out that an “asylum officer” of the
immigration service, who first interviewed Muhur, thought
she had fabricated her claim to be a Jehovah’s Witness
because she couldn’t answer the officer’s questions “con-
cerning the founder of the Jehovah’s Witness faith and the
days of religious celebration.” But the government acknow-
ledged at the hearing that the asylum officer’s opinion was
not evidence, because she did not testify or submit an
affidavit. The immigration judge concluded that Muhur was
not an “active, visible” adherent to the Jehovah’s Witness
faith, because she presented “very little documentary
evidence,” “only indicated that she prays with friends and
occasionally attends a particular prayer place,” and “pre-
sented no evidence from a leader of the Jehovah’s Witness
faith that was able to identify [her] as a member of the
faith.” She submitted an identification card that a friend had
obtained for her in Ethiopia indicating that she was a
Jehovah’s Witness, but the card “does not appear to be an
official church document.” And when the immigration
judge himself questioned her concerning her faith, she “did
not provide great detail.”
So he declined to find that Muhur is a Jehovah’s Witness,
but neither did he find that she is not. He found that
Ethiopia does not persecute Jehovah’s Witnesses but he did
not discuss the likelihood that the Ethiopian government
would allow Muhur to remain in Ethiopia, rather than
shipping her off to Eritrea, or that it would allow her to re-
turn to Ethiopia from the United States, even though he
acknowledged “that the Ethiopian authorities are arbitrarily
deporting native Eritreans.” If she were forced to return to
Eritrea, the immigration judge did not think that she would

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No. 02-3597 5
face a real danger of being persecuted because she “has
never been persecuted in the past. [She] has never had a
license revoked, has never been dismissed from a civil
service position, and has never been denied employment or
housing.” He seems to have forgotten that Muhur had left
Eritrea years before she became a Jehovah’s Witness. And to
think she might have held a civil service position in Eritrea
he must also have forgotten her age. Finally, because he did
“not believe that [Muhur] is an active, practicing member of
the Jehovah’s Witness faith,” he did not “believe that she
would come to the attention of the authorities in Eritrea, or
that she would attract undue notoriety to herself. [She]
certainly is not a religious zealot, and I do not believe that
she would unreasonably draw attention to herself or her
purported religion.”
One can question the weight that the asylum officer and
the immigration judge placed on ignorance of the details of
religious doctrine, absence of official church documents,
and lack of acquaintance with a church leader as evidence
that an individual is not a true believer. It is some evidence,
given the incentive of aliens who can remain in the United
States only if they are granted asylum to claim membership
in a persecuted group and swear falsely in support of the
claim. Yet how many Roman Catholics know who founded
the Catholic Church, or when, or have an identification card
issued by the Church, or are personally acquainted with a
Church “leader”? And although the Jehovah’s Witnesses are
not acephalous, the Catholic Church has a good deal more
structure; the Witnesses don’t even distinguish between
laity and clergy.
But the fatal flaw in the immigration judge’s opinion lies
elsewhere, not in the weight he accorded to the lack of
documentary proof of Muhur’s being a Jehovah’s Witness
but in the assumption—a clear error of law—that one is not

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6 No. 02-3597
entitled to claim asylum on the basis of religious persecu-
tion if (a big if, by the way, Najafi v. INS, 104 F.3d 943, 949
(7th Cir. 1997); Bastanipour v. INS, 980 F.2d 1129, 1132-33
(7th Cir. 1992)) one can escape the notice of the persecutors
by concealing one’s religion. Christians living in the Roman
Empire before Constantine made Christianity the empire’s
official religion faced little risk of being thrown to the lions
if they practiced their religion in secret; it doesn’t follow
that Rome did not persecute Christians, or that a Christian
who failed to conceal his faith would be acting “unreason-
ably.” (“I do not believe that she would unreasonably draw
attention to herself or her purported religion.”) One aim
of persecuting a religion is to drive its adherents under-
ground in the hope that their beliefs will not infect the
remaining population.
The immigration service may be overworked because
of additional duties placed on it in the aftermath of the
September 11, 2001, terrorist attacks on the United States.
But the service does not suggest that the kind of analytical
error that we have just identified is justified, or should be
excused, by a lack of resources. Such a suggestion would
invite the service to try to dilute judicial review by asking
for less money from Congress for adjudication, in the hope
that courts would be forgiving of errors precipitated by the
agency’s financial inability to hire the number of competent
adjudicative officers needed to handle the workload without
constantly committing errors.
To conclude, if Muhur is indeed a Jehovah’s Witness,
albeit not a fanatical one, she is entitled to asylum if the
denial of asylum will land her back in Eritrea, because she
has a well-founded fear of being persecuted by the Eritrean
authorities unless she abandons or successfully conceals her
religion. It’s not as if she wants to practice her religion in
secret. Compare Keo v. Ascroft, 341 F.3d 57, 60-61 (1st Cir.

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No. 02-3597 7
2003). In this country she prays with friends and occasion-
ally attends services at a Kingdom Hall; she could not do
that in Eritrea without courting persecution.
Whether Muhur is a Jehovah’s Witness remains undeter-
mined and is an issue to be resolved on remand free of the
confusion injected by the immigration judge’s analysis of
the issue. And since it is possible that Ethiopia will take
Muhur back and not deport her, in which event the issue of
religious persecution will drop out of the case because as we
said Ethiopia does not persecute Jehovah’s Witnesses and
Muhur has not shown that it will persecute her because of
her Eritrean ethnicity, the question where she will end up if
she is ordered removed to Ethopia will also be an issue on
remand if she is determined to be a Jehovah’s Witness.
The petition for review is granted, the order of the immi-
gration service is reversed, and the matter is remanded to
the service for further proceedings consistent with this
opinion. In view of the mishandling of Muhur’s claim by the
immigration judge, we urge that the case be assigned to a
different immigration judge. Bace v. Ashcroft, No. 02-3909,
2003 WL 22966238, at *8 (7th Cir. Dec. 18, 2003); Georgis v.
Ashcroft, 328 F.3d 962, 970 (7th Cir. 2003); Kerciku v. INS, 314
F.3d 913, 919 (7th Cir. 2003) (per curiam).
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-20-04

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