## Facts

- Mudher Jassim Mohamed Al-Saher, an Iraqi national, entered the United States at Los Angeles International Airport without valid entry documents and was placed in removal proceedings.
- He served in the Iraqi military (1984–1992) and later worked as a civilian government employee assigned to the military.
- To avoid discrimination, he claimed to be a Sunni Muslim from Baghdad, though he was a Shiite Muslim from Al-Basra; a 1997 census form completed by his father disclosed his true identity.
- Iraqi authorities arrested and detained him in 1997 for misrepresenting his religion and birthplace; he testified he was repeatedly beaten while blindfolded and bound, including with what he believed was a thick electrical cable, and was released after his father paid a large bribe to officials.
- He was arrested a second time after questioning where to build a fence he was ordered to construct for the president; he testified he was beaten more severely and suffered cigarette burns before release after more than a week.
- In 1998 he was arrested a third time after a remark criticizing the unequal living conditions of the Iraqi elite; after about five days he escaped custody, fled Iraq, and traveled to the United States.
- He sought asylum, withholding of removal, and protection under the Convention Against Torture (CAT); the Immigration Judge denied relief and the BIA dismissed his appeal.

## Issues

1. Whether the record compelled a finding that Al-Saher suffered past persecution, or had a well-founded fear of future persecution, on account of a protected ground for asylum, and therefore qualified for withholding of removal.
2. Whether the BIA applied the correct legal standard for CAT relief, including the regulatory definition of “torture” and the requirement to show it is more likely than not the applicant would be tortured if removed.

## Decision

- The Ninth Circuit denied the petition for review as to asylum and withholding of removal.
- The court concluded the evidence did not compel a finding that Iraqi authorities harmed Al-Saher on account of religion or actual/imputed political opinion, rather than for perceived security offenses, insubordination, or disloyalty.
- The Ninth Circuit granted the petition in part and remanded the CAT claim.
- The court held the BIA treated “torture” too narrowly and did not adequately assess whether Al-Saher’s severe abuse by Iraqi officials met the regulatory definition or whether recurrence was more likely than not.

## Legal Principles

- Asylum requires persecution (or a well-founded fear) “on account of” a protected ground; serious harm alone is insufficient absent a nexus to race, religion, nationality, political opinion, or particular social group.
- Failure to satisfy the asylum standard generally precludes withholding of removal because withholding requires a higher probability of qualifying harm.
- Under CAT implementing regulations, “torture” is the intentional infliction of severe physical or mental pain or suffering by, or with the consent or acquiescence of, a public official acting in an official capacity.
- CAT protection requires proof that torture is more likely than not upon removal; past detention and severe state-inflicted abuse, combined with evidence of routine torture by state security forces, must be meaningfully weighed.

## Conclusion

The Ninth Circuit upheld the denial of asylum and withholding because the record did not compel a finding that Iraqi authorities targeted Al-Saher for a protected reason, but remanded for reconsideration of CAT protection because the BIA inadequately analyzed whether severe, intentional abuse by Iraqi officials constituted torture and whether future torture was more likely than not.


Al-Saher v. Immigr. & Naturalization Serv., 268 F.3d 1143 (9th Cir. 2001)