The decision is Sarhan v. Holder (Sept. 2, 2011). An excerpt:
This petition presents the question whether a woman who will fall victim to an “honor killing” at the hands of a family member is entitled to relief either under the Convention Against Torture (CAT) or under the procedure known as “withholding of removal.” For the latter, she must prove that she is a member of a “particular social group” within the meaning of the Immigration and Nationality Act (INA), 8 U.S.C. ยง 1231(b)(3). We hold that she has successfully established that she is. In addition, for purposes of both the CAT and withholding, we find that the decision of the Board of Immigration Appeals (the Board) finding that she has not shown a clear probability that she will be killed on account of her membership in that social group if she is returned to Jordan is not supported by substantial evidence. The Board failed to consider significant evidence that she presented that supports a finding that the Jordanian government is currently unable or unwilling to protect her….
Nuha Sarhan is Sarhan and Disi’s sister-in-law (she is married to Sarhan’s brother). [Sarhan and his wife Disi are the petitioners in this case. -EV] There is a history of animosity between Nuha and her in-laws…. [Nuha] started a rumor that Disi had committed adultery. Nuha told this story to her mother, who took the news to Amman, Jordan, and there informed Disi’s family — including Disi’s brother, Besem Disi — that Disi had been unfaithful and had dishonored the family. Disi first heard about these false accusations in 2003, when Sarhan’s parents visited the United States and told her that these rumors were swirling in Jordan. Neither Sarhan nor the rest of his family believe that anything Nuha has said is true, but Disi’s brother Besem is convinced that Disi has committed adultery and has ruined the family’s reputation. Sarhan’s parents told Disi during their visit that Besem planned to kill her when she returned to Jordan in order to restore the family’s honor….
Besem has long been obsessed with family honor, as defined by religious and social norms in Jordan, and he cannot be deterred from murdering his sister in response to the rumors Nuha started. Besem’s persistence is perplexing given the evidence that Nuha has manufactured scandals similar to this one in the past. Before sullying Disi’s name, Nuha once accused Sarhan’s mother (her own mother-in-law) of infidelity; this slur caused Sarhan’s father to attempt an honor killing against his wife. Thankfully, Sarhan and his brothers intervened to save their mother’s life, and the family later discovered that Nuha had made the whole thing up. Nonetheless, Besem is resolute, because he apparently believes that the rumors alone have harmed his reputation in the community enough to warrant killing Disi — the truth no longer matters. In 2006, Besem visited Disi in Chicago and told her that he planned to murder her when she returned to Jordan. In the proceedings in the Immigration Court, Disi testified that Besem said, “[W]hen you come back to Jordan, I’m going to kill you. Here [in the United States], I can’t do, because there is a penalty for this, but in Jordan, nobody can do for another killing.” Sarhan and his father have corroborated the sincerity of Besem’s threat….
This brings us to the role of the Jordanian government. “Persecution is something a government does, either directly or by abetting (and thus becoming responsible for) private discrimination by throwing in its lot with the deeds or by providing protection so ineffectual that it becomes a sensible inference that the government sponsors the misconduct.” … After reviewing the evidence of the Jordanian government’s treatment of honor crimes, we conclude that the record permits no conclusion other than that the government is ineffective when it comes to providing protection to women whose behavior places them in the group who are threatened with honor killings….
According to the State Department’s 2007 report, during that year there were “17 reported instances of honor crimes that resulted in the death of the victim, although activists reported that additional unreported cases likely occurred. A November [2007] UN Development Fund for Women study stated that 25 percent of honor crime victims in the country were killed merely because they were suspected of involvement in an illicit relationship.” U.S. Dep’t of State, Country Report on Human Rights Practices for Jordan (2007). At oral argument, the government called our attention to the fact that this amounts to 17 honor killings during a one-year period in a country with a population of 6 million. Apparently it meant to suggest that the low number of honor killings means it is not much of a problem. We do not see the logic; a common (though not inevitable) feature of persecution is that the victims come from minority populations. That there are few publicly recorded instances of killings within a particular social group does not mean that the U.S. government is free to remove someone who has experienced a direct and credible threat of such a killing. Nor does it address the twin problems of underreporting and measures short of killing (such as mutilation) that take place….
We find similarly unconvincing the unadorned fact that all 17 honor crimes committed during 2007 were prosecuted. Prosecution at times is an empty gesture. The sentences given out in Jordan for honor crimes show that prosecutions of honor crimes result in little more than a slap on the wrist. The State Department put it this way: “While the defendants are almost always universally found guilty, defendants often received token sentences, with the charges often reduced from premeditated murder to manslaughter. Many men convicted of an honor crime received minimal prison sentences, usually no more than six months.” A six-month sentence for this kind of premeditated murder, when all other murders are punished much more severely, sends a strong social message of toleration for the practice….
For a Ninth Circuit case from earlier this year, reaching the same result, see this post.