                           In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 04-1820
STEEVE SHAMOIL YOUKHANA,
                                                      Petitioner,
                              v.

ALBERTO R. GONZALES, Attorney General
of the United States,
                                                     Respondent.
                        ____________
                  Petition for Review of an Order
              of the Board of Immigration Appeals.
                          No. A78 542 148
                        ____________
  ARGUED NOVEMBER 28, 2005—DECIDED AUGUST 22, 2006
                   ____________


  Before KANNE, ROVNER, and WOOD, Circuit Judges.
  WOOD, Circuit Judge. Steeve Shamoil Youkhana, an
Assyrian Christian, fled Iraq in 2001 and sought asylum
in the United States, claiming that he had been persecuted
by the ruling Ba’ath Party regime on the basis of his
religion, ethnicity, and political opinion. The Immigration
Judge (IJ) who considered Youkhana’s case found his
testimony generally credible, but failed altogether to
address Youkhana’s religious and ethnic persecution claims.
With respect only to his political opinion claim, the IJ
concluded that Youkhana had indeed been persecuted for
his refusal to join the Ba’ath Party. This past persecution,
however, was not enough to establish a basis for a well-
2                                               No. 04-1820

founded fear of future persecution, because the Ba’ath Party
had been removed from power by the 2003 U.S.-led invasion
of Iraq. The IJ thus denied Youkhana’s claim. The Board of
Immigration Appeals (BIA) summarily affirmed.
  Although we see no legally supported reason to disagree
with the IJ’s resolution of Youkhana’s claim of persecu-
tion based on political opinion, we conclude that the BIA
erred by denying Youkhana’s religious and ethnic persecu-
tion claims without discussion. We therefore grant
Youkhana’s petition for review and remand so that the BIA
can address these claims.


                             I
  Youkhana is an Assyrian Christian and a member of the
Chaldean Catholic Church. According to the State Depart-
ment’s 2005 Country Report on Human Rights in Iraq,
followers of the Christian faith make up a small and
shrinking minority of the population in Iraq; 97 percent of
Iraqis are Muslim, and the number of Christians in Iraq
has decreased dramatically in recent years. In addition to
being identified as members of a minority religion, Assyrian
and Chaldean Christians are considered by other Iraqis to
constitute a distinct non-Arab ethnic minority.
  In March 2002, Youkhana attempted to enter the United
States at a border crossing in San Ysidro, California, having
already unsuccessfully attempted to apply for asylum in the
United States from Mexico. Immigration officials stopped
him at the border; when he admitted that he did not possess
a valid visa, they issued him a Notice to Appear. In June
2002, Youkhana moved for and was granted a change of
venue for his immigration proceedings from San Diego to
Chicago. In July 2002, Youkhana filed for asylum.
  The asylum hearing took place on May 28, 2003, two
months after the U.S.-led invasion of Iraq, but prior to the
capture of former Iraqi President Saddam Hussein. The
No. 04-1820                                                3

principal basis of Youkhana’s asylum claim consisted of
three incidents in which he was arrested and detained by
authorities in Iraq, allegedly because of his religion,
ethnicity, and political opinion. In addition to his own
testimony regarding these incidents, several aspects of
Youkhana’s claims were corroborated by the testimony
of his sister, Eilina Shamoil Youkhana, who is a legal
permanent resident of the United States.
  Youkhana testified that he was first arrested in 1997
while in his final year of high school. In his written asylum
statement, he explained that he and two of his Assyrian
friends were approached by government officials and
accused of making derogatory comments about the Ba’ath
Party and Saddam Hussein. In his oral testimony,
Youkhana elaborated that the detention occurred because
he refused to join the Ba’ath Party and “because I was
Assyrian Christian, and they used to brand us as enemies
of the Ba’ath Party because we are Christians, and we go to
the church, and [ ] we have relations with parties opposing
the regime.” During 45 days in custody, Youkhana was
interrogated and beaten. Upon his release, he was required
to sign a statement that he would not participate in any
anti-government activities.
  In 1999, while undertaking compulsory service in the
Iraqi army, Youkhana was arrested again, this time for
allegedly throwing dirt at a picture of Saddam Hussein.
While detained, Youkhana was beaten about the head until
he lost consciousness, leaving a scar behind his ear. Before
being released, Youkhana was required to sign another
statement, this one stating that he would be executed if he
ever again participated in anti-government activity.
  Finally, in 2001, while still in the army, Youkhana was
arrested and accused of assisting the escape of an Assyrian
prisoner charged with illegally selling fuel in the north of
Iraq. Testifying in immigration court, Youkhana denied the
4                                                No. 04-1820

charge and explained that he was singled out for punish-
ment only because the authorities “wanted to stick this
charge to me because I was Assyrian Christian, and
[ ] because I was not a member of the Ba’ath Party.” Again
he was badly beaten about the head. After two days he
managed to escape detention, at which point he decided to
leave Iraq.
  The IJ questioned Youkhana and his sister at length
about the removal of the Ba’ath Party regime from power
and the relevance of this fact to Youkhana’s claim that he
would be persecuted if he returned to Iraq. Youkhana
testified that he remained at risk of persecution because
members of the Ba’ath Party remained active in Iraq. He
also explained that Assyrian Christians faced a new threat
of persecution from “Muslim radicals” who, Youkhana
testified, “brand us Christians as dirty infidels.” This latter
point was supported by several newspaper articles attached
to Youkhana’s asylum application. A typical article stated
that “Christians throughout Iraq are feeling intimidated”
and “[t]hey say they are being harassed and threatened by
members of Shiite Muslim groups who are grabbing power
and who appear eager to transform Iraq into an Islamic
republic.” Michael Slackman & Robin Dixon, Shiite Gains
Trouble Christians, THE DETROIT NEWS, May 11, 2003, at
5A.
  In addition to his questions regarding country condi-
tions in Iraq, the IJ made a number of unusual statements
suggesting that Youkhana had a duty to return to Iraq to
assist in the dismantling of the Ba’ath Party regime. The IJ
inquired, for example, whether Youkhana thought he “could
be of help to the U.S. forces in finding the bad, evil Ba’ath
Party people,” and stated that “[t]he government of Iraq
probably needs people like you.” Finally, in denying asylum
to Youkhana, the IJ dressed his decision in patriotic garb,
stating: “The government of Iraq, particularly the Ba’ath
Party, have been removed at great expense in terms of lives
No. 04-1820                                                 5

of the coalition forces as well as the Iraqi people. To ignore
the effort that has gone into removing the Ba’ath Party
would be a significant injustice to all of those lives that
were lost in freeing Iraq from its persecutors.” The IJ also
denied Youkhana’s applications for withholding of removal
and relief under the Convention Against Torture. Regarding
the latter claim, the IJ reasoned that “[g]iven the fact that
there is no government of Iraq any longer, it cannot be
stated that the government of Iraq would persecute or treat
the respondent in a cruel or inhumane manner.”
   Youkhana appealed the denial of his asylum application
to the BIA, contending that the IJ had failed to address
his religious and ethnic persecution claims at all, had “erred
in not considering that conditions in Iraq have changed for
the worst [sic] in Iraq for the Christians,” and “placed the
respondent in a most uncomfortable situation, in effect [ ]
requesting that he join the U.S. military in Iraq.” The BIA
affirmed without opinion pursuant to 8 C.F.R. §
1003.1(e)(4). After filing this petition for review, Youkhana
filed a motion to reopen with the BIA, attaching further
documentation of deteriorating conditions in Iraq for
Assyrian Christians. The BIA denied this motion as well.
Youkhana did not file a second petition for review challeng-
ing the denial of his motion to reopen.


                             II
  In this petition for review, Youkhana contends that the
BIA erred by refusing to consider the religious and ethnic
persecution aspects of his asylum claim and denying his
request for relief under the Convention Against Torture. He
does not contest the BIA’s denial of his claims for relief
insofar as they rested on persecution based on his politi-
cal opinion. Youkhana also argues that the BIA abused
its discretion by refusing to grant his motion to reopen.
We consider each of his claims in turn.
6                                               No. 04-1820

                             A
   A petitioner seeking asylum carries the burden of proving
by a preponderance of the evidence that she suffered past
persecution or has a well-founded fear of future persecution
on account of her race, religion, nationality, membership in
a particular social group, or political opinion. Sosnovskaia
v. Gonzales, 421 F.3d 589, 593 (7th Cir. 2005). “An applicant
who has been found to have established [ ] past persecution
shall also be presumed to have a well-founded fear of
persecution on the basis of the original claim.” 8 C.F.R.
§ 208.13(b)(1). This presumption of future persecution can
be rebutted if the IJ finds by a preponderance of the
evidence that there has been “a fundamental change in
circumstances such that the applicant no longer has a well-
founded fear of persecution in the applicant’s country of
nationality.” 8 C.F.R. § 208.13(b)(1)(i)(A). An asylum
applicant can also prove a well-founded fear of future
persecution by showing “that he genuinely fears he will be
persecuted based on a protected ground if returned to his
native country, and that his fears are objectively reason-
able.” Jamal-Daoud v. Gonzales, 403 F.3d 918, 922 (7th Cir.
2005).
  In reviewing the denial of an asylum claim, “we assess
whether the BIA’s determination was supported by reason-
able, substantial, and probative evidence on the record
considered as a whole, and reverse only if the evidence
compels a contrary conclusion.” Tapiero de Orejuela v.
Gonzales, 423 F.3d 666, 671 (7th Cir. 2005) (quotation
marks omitted). In cases such as this one, where the BIA
affirms an IJ’s decision without opinion, “the IJ’s decision
becomes that of the BIA for purposes of judicial review.”
Georgis v. Ashcroft, 328 F.3d 962, 966-67 (7th Cir. 2003).
  The IJ credited Youkhana’s testimony that the three
detentions occurred. The IJ concluded, however, that the
final detention resulted from the prosecution of a criminal
matter and thus “was not ‘on account of’ any ground that is
protected by the [Immigration and Nationality] Act.”
No. 04-1820                                                   7

Nevertheless, the IJ apparently believed that the 1997 and
1999 detentions constituted sufficient proof of Youkhana’s
past persecution based on political opinion to raise a
presumption of a well-founded fear of future persecution.
The IJ thus turned to the question of changed country
conditions in Iraq, concluding that the removal of the
Ba’ath Party regime rebutted the presumption of future
persecution. As he put it, “it is the assessment of this Judge
that the fundamental change in country conditions requires
that the respondent’s request for political asylum be de-
nied.”
  Although the government argues that the IJ also con-
cluded that Youkhana had not been persecuted because
of his religion or ethnicity, we cannot locate any such
statement in the IJ’s decision. Similarly unavailing is the
government’s assertion that Youkhana manufactured his
claims of religious and ethnic persecution only after the fall
of the Ba’ath Party regime; in fact, Youkhana presented
these claims in his asylum application and pursued them
before the IJ and in his appeal to the BIA. Nor does the IJ’s
finding of changed country conditions dispose of Youkhana’s
religious and ethnic persecution arguments. The fact that
the Ba’ath Party has been removed from power does not
necessarily mean that conditions in Iraq have improved for
Assyrian Christians. See Margos v. Gonzales, 443 F.3d 593,
598 (7th Cir. 2006) (“Ironically, under [ ] Hussein’s iron fist,
Assyrian Christians and similar minorities were arguably
better off as their dictator did not tolerate factional strife
and civil unrest within ‘his’ country (unless it furthered his
own ends).”). Independent analysis of these claims by the IJ
was thus required.
  Particularly striking is the failure of both the IJ and the
BIA to discuss the 2001 State Department Country Report
on Iraq (submitted by the government to the IJ), which
stated that the Ba’ath Party regime “engaged in various
abuses against the country’s [ ] Assyrian and Chaldean
Christians.” We have previously admonished the BIA
8                                                No. 04-1820

for ignoring a prior version of this same publication in
an asylum case involving an Assyrian Christian. See
Mansour v. INS, 230 F.3d 902, 907-08 (7th Cir. 2000)
(stating that the 1998 Country Report, which “suggest[ed]
that the Iraqi government has engaged in abuses against
the Assyrian Christians,” may be “an indication of gross,
flagrant, or mass violations of human rights in Iraq;
however, the BIA never addressed this evidence”). We
also take judicial notice that the State Department has
recently released its 2005 Country Report on Iraq, the first
such report published since the removal of the Ba’ath Party
regime in 2003. This publication states that while governing
law now provides for freedom of religious belief and prac-
tice, “[d]eficiencies in security force capabilities and in the
rule of law made it difficult for the justice system to
investigate or address violations of these rights,” noting
particularly the “harassment of Christians.” More generally,
it paints a picture of “[a] climate of extreme violence” in
which “[r]eports increased of killings by the government or
its agents” as well as by “common criminals, insurgents,
and terrorists . . . sometimes masking their identity in
police and army uniforms.” On remand, therefore, the BIA
must consider whether the Iraqi government has failed to
protect Assyrian Christians like Youkhana from persecution
by insurgent Ba’ath Party members or Muslim extremist
organizations, and if so, whether this constitutes a ground
for granting asylum (or some other form of relief from
removal) to Youkhana. See Galina v. INS, 213 F.3d 955,
958 (7th Cir. 2000) (persecution can be found where,
although “government authorities . . . did not actually
perpetrate or incite [ ] persecution, [they] condoned it or at
least demonstrated a complete helplessness to protect the
victims”).
  In Margos we commented in dicta that the 2005 Country
Report on Iraq and similar general publications did not,
by themselves, provide a sufficient basis for proving a
No. 04-1820                                                   9

pattern or practice of the persecution of Assyrian Chris-
tians, under circumstances in which the applicant had
failed to exhaust her administrative remedies. 443 F.3d at
598-99. It should go without saying that each case must be
assessed on its own record; nothing in Margos indicates that
uniquely in this area the BIA may not take the Country
Report into account as some evidence supporting a finding
of persecution. As the Supreme Court made clear in a case
analogous to this one, “well-established principles of
administrative law [ ] require [a] Court of Appeals to
remand [a] ‘changed circumstances’ question to the BIA.”
INS v. Ventura, 537 U.S. 12, 16 (2002) (per curiam). We
apply those same principles here, remanding to give the
BIA an opportunity to consider the relevance of changed
country conditions in Iraq to Youkhana’s claims of persecu-
tion based on his religion and ethnicity.
  Since we are remanding Youkhana’s asylum claim, we
need not reach his argument that the BIA also erred by
denying his request for relief under the Convention Against
Torture (CAT). We note, however, the IJ’s mistake in
concluding that Youkhana was foreclosed from bringing a
CAT claim because there was “no government of Iraq
any longer.” For purposes of the Convention, torture is
defined broadly to include “pain or suffering . . . inflicted by
or at the instigation of or with the consent or acquiescence
of a public official or other person acting in an official
capacity.” 8 C.F.R. § 1208.18(a)(1). Moreover, at least since
the conclusion of the initial phase of the U.S. action in Iraq,
various governing authorities have existed. As of May 16,
2003, Iraq was governed by the Coalition Provisional
Authority (CPA). See generally http:// www.cpa-iraq.org/. As
of June 28, 2004, the CPA transferred power to the Iraqi
Interim Government, which in turn handed the reins over
to the Iraqi Transitional Government on January 30, 2005;
since that time, in early 2006, the elected government of
Iraq has taken over. See generally World Factbook,
10                                               No. 04-1820

http://www.cia.gov/cia/publications/factbook/geos/iz.html.
For purposes of assessing Youkhana’s likely fate if he were
returned to Iraq, it is the last of those governments that is
the important one now. Even at the time the IJ had the
case, the CPA leaders probably qualified as “public officials
. . . acting in an official capacity” for purposes of the CAT.
The IJ therefore should have analyzed this claim for relief.


                             B
   Youkhana also argues that the BIA abused its discre-
tion by refusing to grant his motion to reopen, a motion he
filed after he had already submitted his petition for review
of the BIA’s merits decision to this court. The motion
contained a number of attachments supplementing the
documentation Youkhana had earlier provided the IJ re-
garding deteriorating conditions for Assyrian Christians
in Iraq. Youkhana argued that these attachments demon-
strated that “Christian Assyrians are being targeted and
massacred in Iraq,” and that information regarding this
pattern and practice of abuse of Assyrian Christians was
not available at the time of the asylum hearing. The BIA
rejected the motion, explaining that it was untimely and
that Youkhana failed to satisfy the regulatory exception
that permits a late motion to reopen based on evidence of
changed country circumstances unavailable at the time of
the original asylum hearing. See 8 C.F.R. § 1003.2(c)(3)(ii).
In his brief to this court, Youkhana renews his argument
that the evidence he submitted of worsening conditions
in Iraq for Assyrian Christians was previously unavail-
able and therefore provided a proper basis for reopening.
  We cannot reach the substance of Youkhana’s argument
because he never filed a separate petition for review of the
BIA’s denial of his motion to reopen. The requirement to file
separate petitions for review stems from two provisions of
the Immigration and Nationality Act (INA). The first
No. 04-1820                                                 11

requires that a petition for review “must be filed not
later than 30 days after the date of the final order of re-
moval.” 8 U.S.C. § 1252(b)(1). The second states that “any
review sought of a motion to reopen or reconsider the order
shall be consolidated with the review of the order.” 8 U.S.C.
§ 1252(b)(6). In reviewing nearly identical provisions in a
previous version of the INA, the Supreme Court observed
that “[a]ll would agree” that the latter provision “envisions
two petitions for review,” since it “requires for its operation
the existence of two separate final orders, the petitions for
review of which could be consolidated.” Stone v. INS, 514
U.S. 386, 395 (1995). The Court thus concluded that the
filing of a motion for reconsideration or reopening does not
toll the time for an alien to petition for review of a BIA
decision on the merits. Id.
   This case presents the inverse situation: an alien who has
failed to file a petition for review of a motion to reopen after
having already filed a petition for review of the BIA’s
decision on the merits. Nevertheless, the same rule applies.
Youkhana was required to file a separate petition for review
if he wished us to consider the BIA’s denial of his motion to
reopen. Since he did not do so, we lack jurisdiction over this
aspect of his claim.


                              III
  We therefore GRANT Youkhana’s petition for review of the
BIA’s denial of his asylum claim and REMAND this matter
to the BIA for further proceedings consistent with this
opinion. Youkhana’s challenge to the BIA’s denial of his
motion to reopen is DISMISSED.
12                                        No. 04-1820

A true Copy:
      Teste:

                    ________________________________
                    Clerk of the United States Court of
                      Appeals for the Seventh Circuit




               USCA-02-C-0072—8-22-06
