Law School Case Brief
Baballah v. Ashcroft - 367 F.3d 1067
To be eligible for a grant of asylum, an applicant must show that he is a refugee. A refugee is one who is unable or unwilling to avail himself or herself of the protection of his or her 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.
Abrahim Baballah is an Israeli Arab. Baballah's parents were the only Jew and Muslim to marry in his hometown of Aka, Israel, a town of approximately 11,000 people on the Mediterranean coast. As a result of their mixed marriage, Baballah suffered repeated instances of discrimination when seeking work as a young man. Over a ten-year period, Israeli Marines repeatedly threatened and attacked Baballah on account of his ethnicity and religion. Israeli Marines destroyed his fishing nets, made it difficult for him to earn a living, and imposed substantial fines. They assaulted Baballah, his crew, his brother, and his business. They shot bullets over the boat, sprayed highly pressurized water at the boat. These attacks were not simply threats and had the intention of making the alien fear the Marines would kill or seriously harm him. His brother's physical abuse and imprisonment was an extension of the threats and attacks. Baballah mortgaged his home to buy a $30,000 speedboat, with which he intended to earn a living by offering pleasure trips. Three months after he bought the boat, however, it was destroyed by fire in the middle of the night. Although Baballah was convinced that the Israeli Marines were behind the loss of his boat, there was no evidence regarding who was responsible for the blaze. Having lost his speedboat, Baballah was forced to return to fishing. To Baballah's misfortune, however, his fishing boat was destroyed by Israeli Marines when, after drifting into shallow waters, he accepted an offer of help from them.
Baballah and his family made a brief trip to the United States but returned to Israel when they received word that their home was going to be taken away. However, upon their return, Baballah realized that they could not stay in Israel because he could not work. Thus, the Baballahs returned to the United States. Baballah and his wife and child, argued for asylum and withholding of removal under 8 U.S.C.S. §§ 1101, 1158, 1253(h). The alien argued he was subject to persecution because he was the son of a mixed marriage between a Jew and a Muslim.
The immigration judge (IJ) found Baballah's testimony to be credible. She concluded, however, that neither alone nor cumulatively did the events described by Baballah rise to the level of persecution, stating that the evidence did not show that Baballah would be unable to support his family if required to return. The Board of Immigration Appeals (BIA) affirmed the denial of their application for asylum and the withholding of removal.
Were the Baballahs eligible for asylum?
Baballah has established that he suffered past persecution such that his life and livelihood were threatened on account of his ethnicity and religion, a presumption arises that he is entitled to withholding of removal.
To be eligible for a grant of asylum, Baballah must show that he is a refugee. A refugee is one who is "unable or unwilling to avail himself or herself of the protection of [his or her 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. “To establish a well-founded fear of persecution, the applicant must establish both a genuine subjective fear of persecution and an objective basis for that fear. As noted, the IJ found Baballah's testimony regarding his fear to be credible, thus establishing the subjective element of his claim. Baballah can meet the objective prong of this test by showing that he suffered persecution in the past "because 'an alien who establishes past persecution is presumed to have a well-founded fear of future persecution.
In order to show past persecution, Baballah must demonstrate 1) that his encounters with the Israeli Marines rise to the level of persecution; 2) that the persecution was on account of one or more of the five protected grounds; and 3) that the persecution was committed either by the government or by forces that the government was unable or unwilling to control. Uncontroverted and credible testimony is sufficient to establish that an asylum applicant was persecuted on account of ethnicity. In order for Baballah to meet the "on account of" prong, he only is required to provide some evidence that in persecuting him, the Israeli Marines were motivated by ethnicity, religion, or the fact that Baballah was the child of a religious and ethnic intermarriage. In the course of persecuting Baballah, the Israeli Marines called him "goy," a word that means non-Jew and that is derogatory to Arabs. The use of this slur amply establishes the connection between the acts of persecution and Baballah's ethnicity and religion. The persecution was coupled with explicit expressions of ethnic hatred. The Marines were governmental actors who were responsible for the attacks. There was no rebuttal evidence of changed conditions for Arab Israelis, and no argument that changed country conditions would eliminate the alien's fear of future persecution
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