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Fisher v. Immigration and Naturalization Service

filed as amended july 31 1995: October 5, 1994.

SAIDEH FISHER, AKA SAIDEH HASSIB-TEHRANI; KIAN HOSSEINI LAVASANI, PETITIONERS,
v.
IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT.



Petition for Review of a Decision of the Board of Immigration Appeals. INS Nos. A27-117-713. A27-140-319. Original Opinion Previously Reported at:,.

Before: Mary M. Schroeder, Harry Pregerson, and Dorothy W. Nelson, Circuit Judges.

Order AND AMENDED OPINION

Per Curiam:

Saideh Fisher and her son Kian Hosseini Lavasani are natives and citizens of Iran. An immigration Judge ("IJ") denied their requests for asylum and withholding of deportation brought pursuant to Immigration and Nationality Act ("INA" or "Act") sections 208(a) and 243(h), 8 U.S.C.A. §§ 1158(a), 1253(h)(1) (West Supp. 1993), and denied Fisher's application for voluntary departure under section 244(e), id. § 1254(c). The Board of Immigration Appeals ("Board" or "BIA") dismissed their subsequent appeal. Fisher and Kian now petition for review of the Board's judgment. We grant the petition, vacate the BIA's decision, and remand for further proceedings.

Factual and Procedural Background

In February 1984, Fisher left Iran with her then eleven-year-old son Kian Lavasani. Because Kian's immigrant status derives from his mother's, see 8 C.F.R. § 208.21 (1993), all further Discussion will focus on the experiences and status of Fisher, see Shirazi-Parsa v. INS, 14 F.3d 1424, 1425 n.1 (9th Cir. 1994).

Fisher, who was divorced from Kian's father, left Iran because of three incidents that occurred in the several months prior to her departure.*fn1 Approximately six or seven months before she left Iran, Fisher attended a party at a male friend's house during which she observed her host in bathing attire. The neighbors promptly notified agents of the Khomeini government, who upon arriving at the house handcuffed Fisher and then detained her at the local "Comite." Fisher was questioned there for several hours and was told that being present with a man dressed in bathing attire was "incorrect." Admin. Rec. at 91. The authorities also took down Fisher's name and address. Because of this first encounter with government agents, Fisher suffered from amnesia and "nerves." Fisher saw a psychiatrist, who gave her medication. Fisher did not return to her job as a teacher for several months after this incident because she was incapacitated. When she did return, the school fired her.

A few months after the "swimming incident," Fisher was stopped on the street and ordered at gunpoint into a car by four government agents. She was stopped because she had left some strands of hair outside of her veil or "chador," which the Iranian regime requires all women to wear. Once she was in their car, the agents told her that this was not a proper way to appear on the streets. The agents warned Fisher to cover her hair and not to appear on the streets like that again or she would be subject to questioning and possible arrest. The agents then drove her home.

The third incident occurred just before Fisher's departure. Government agents searched her house. Before leaving, they told Fisher that they had been informed that there were people visiting the house who were against the Khomeini regime. They advised Fisher that, if she observed further "comings and goings," she should inform the authorities. Admin. Rec. at 94. Fisher believed they were searching for people connected to her sister's husband, who was against the regime and was in prison at the time.

After leaving Iran, Fisher spent three months in Germany. During that time her step-cousin, Robert Lavasani, a United States citizen, asked Fisher to come to the United States to marry him. On April 30, 1984, Fisher legally entered the United States on a "fiance" visa. Fisher did not, however, wed Robert Lavasani. On August 4, 1984, she married Charles Fisher, a United States citizen. They divorced in 1987.

On February 4, 1986, the Immigration and Naturalization Service ("INS") began deportation proceedings against Fisher because she had overstayed her visa. At a hearing held on June 19, 1986, Fisher conceded her deportability. The proceedings were continued, however, to give Fisher the opportunity to file an asylum application.

Two additional hearings were conducted on May 15 and September 25, 1987, during which the IJ heard testimony from an INS official, Fisher, and Fisher's sister. Although he found "no lack of credibility in [Fisher's] testimony," the IJ denied Fisher's application for asylum and withholding of deportation. Admin. Rec. at 43-44. He also denied her application for voluntary departure; however, the IJ granted voluntary departure to Kian.

Fisher appealed to the BIA, and, with respect to her claims for asylum and withholding of deportation, raised two principal arguments. First, she maintained that her arrest for viewing her friend in a bathing suit and her detention for allowing her hair to become visible indicated that "she [had been] harassed for refusing to adhere to the regime's fundamentalist Moslem doctrines." Admin. Rec. at 18. Asserting that she possessed beliefs that were at odds with those espoused by the Khomeini regime, Fisher contended that these incidents demonstrated that the government "was attempting to eradicate [her beliefs] through violence"; consequently, Fisher reasoned that it was likely that she would suffer persecution upon return to Iran on account of those beliefs "whether considered as political or religious." Id. at 19. Second, Fisher appeared to claim that her brother-in-law's incarceration by the regime, coupled with the search of her residence, indicated that the regime viewed her as a political enemy. See id. at 20.

The Board rejected both arguments.*fn2 As to Fisher's violations of the Iranian fundamentalist laws, the Board noted that her detentions had been very brief and resulted from transgressing requirements that were applicable to "all women in Iran." Admin. Rec. at 5. Focusing on the treatment Fisher actually received, the BIA concluded that "while these rules may seem harsh by United States standards, we cannot say that they rise to the level of persecution." Id. The Board also rejected Fisher's second argument. Reasoning that "if the police thought that the respondent was connected with her brother-in-law's activities, they had ample opportunity to question her or detain her after they searched her house," the Board concluded that the search was unrelated to her brother-in-law's incarceration. Id. Fisher timely filed her petition for review of the Board's decision in this court. We have jurisdiction pursuant to 8 U.S.C. § 1105a(a).

Applicable Provisions and Standard of Review

Under 8 U.S.C. § 1158(a), the Attorney General has discretion to grant an alien asylum if the alien is determined to be a "refugee." See 8 U.S.C. § 1158(a) (1988). A refugee is defined as any person who is unable or unwilling to return to his or her country of origin "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." 8 U.S.C.A. § 1101(a)(42)(A) (West Supp. 1993). The "well-founded fear" standard has both objective and subjective components. The subjective component may be satisfied by "an applicant's credible testimony that he genuinely fears persecution." Acewicz v. INS, 984 F.2d 1056, 1061 (9th Cir. 1993) (citing Berroteran-Melendez v. INS, 955 F.2d 1251, 1256 (9th Cir. 1992)). "The objective component requires a showing by 'credible, direct, and specific evidence of facts supporting a reasonable fear of persecution'" on the relevant ground. Id. (quoting Rodriguez-Rivera v. INS, 848 F.2d 998, 1002 (9th Cir. 1988) (per curiam)). The burden is on the applicant to meet this standard. See 8 C.F.R. § 208.5 (1993). Because demonstrating a right to withholding of deportation requires the satisfaction of the higher standard of proof of "clear probability of persecution," see INS v. Cardoza-Fonseca, 480 U.S. 421, 449-50, 94 L. Ed. 2d 434, 107 S. Ct. 1207 (1987), failure to satisfy the lesser standard of proof for asylum necessarily results in a failure to demonstrate a right to withholding, see Acewicz, 984 F.2d at 1062.

When, as is this case, the Board has exercised its authority to conduct a de novo review of the IJ's decision, our review is limited to the BIA's decision. See Shirazi-Parsa, 14 F.3d at 1427. Factual determinations underlying the Board's order are reviewed under the "substantial evidence" standard. See INS v. Elias-Zacarias, 502 U.S. 478, 112 S. Ct. 812, 815, 117 L. Ed. 2d 38 (1992); Shirazi-Parsa, 14 F.3d at 1427; Abedini v. INS, 971 F.2d 188, 191 (9th Cir. 1992); 8 U.S.C.A. § 1105a(a)(4) (West Supp. 1993). Furthermore, "we review do novo the Board's determination of purely legal questions regarding the requirements of the Immigration and Nationality Act." E.g., Abedini, 971 F.2d at 190-91; Maldonado-Cruz v. Department of Immigration & Naturalization, 883 F.2d 788, 791 (9th Cir. 1989); accord Butros v. INS, 990 F.2d 1142, 1144 (9th Cir. 1993) (en banc). When appropriate, however, we apply the principles of deference to an agency's construction of a statute that it is charged with administering as articulated in Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984), and its progeny. See, e.g., Hernandez-Vivas v. INS, 23 F.3d, at * 8- * 9 (9th Cir. 1994); Montecino v. INS, 915 F.2d 518, 520 (9th Cir. 1990); see also Mendoza v. INS, 16 F.3d 335, 337 (9th Cir. 1994); Navarro-Aispura v. INS, 842 F. Supp. 1225, 1227-28 (N.D. Cal. 1993); cf. Osorio v. INS, 18 F.3d 1017, 1022-23 (2d Cir. 1994).

Analysis

This appeal presents three issues. First, Fisher contends that the BIA's decision must be reversed because the Board's Conclusion that she does not posses a well-founded fear of political or religious persecution lacks substantial evidence. Second, Fisher now claims for the first time that she is eligible for asylum and withholding of deportation because she is a member of a "particular social group." Finally, Fisher asserts that the Immigration Judge abused his discretion in denying her voluntary departure. We find it necessary to address only the first issue.*fn3

I. Religious Persecution

Based on the Enforcement of the Moral Codes

In rejecting Fisher's claim of persecution based upon the incidents involving the Iranian regime's enforcement of its ultraconservative rules, the Board appeared to reason that, because Fisher only had been "detained by the police" after the swimming incident and "merely [taken] back to her house" after the chador incident, she had not experienced a sufficient quantum of suffering to amount to "persecution" within the meaning of the INA. Moreover, the Board appeared to hold, on the basis of this Conclusion, that enforcement of the ultraconservative rules never could give rise to the level of harm sufficient to constitute persecution. As the BIA put it: "While these rules may seem harsh by United States standards, we cannot say that they rise to the level of persecution." Admin. Rec. at 5. It is apparent that, because the Board found the level of suffering that Fisher experienced insufficient to constitute persecution, it did not reach the question of whether enforcement of the moral codes, as claimed by Fisher, could result in persecution on account of religion or political opinion. See id.

We first conclude below that the Board erred in its analysis of whether Fisher might suffer harm amounting to persecution based upon enforcement of the Iranian ultraconservative laws. Because this Conclusion alone would not warrant a remand unless any such harm could be said to arise "on account of" Fisher's beliefs or status, we then examine whether any persecution that Fisher might suffer could arise "on account of" a characteristic protected by the INA.

A. The Board Erred in Failing to Consider whether Fisher Might Suffer Harm that Rises to the Level of Persecution for Future Noncompliance with the Moral Codes

1.

We find the Board's reasoning deficient in one fundamental respect. Although the Board purported to determine whether Fisher had a well-founded fear of future persecution, it considered only the treatment Fisher actually received for violating the regime's ultraconservative rules and not the punishment that Fisher might receive for future transgressions. It long has been recognized, however, that past persecution and future persecution provide distinct avenues for obtaining eligibility for asylum. See, e.g., Acewicz, 984 F.2d at 1061-62; Berroteran-Melendez v. INS, 955 F.2d 1251, 1255 n.3 (9th Cir. 1992) (citing Desir v. Ilchert, 840 F.2d 723, 729 (9th Cir. 1988)); see also 8 C.F.R. § 208.13 (1993) ("The applicant may qualify as a refugee either because he has suffered actual past persecution or because he has a well-founded fear of future persecution." (emphasis added)).*fn4

Although Fisher maintained that the incidents she experienced in the past themselves amounted to persecution, the essence of her claim was that she would suffer persecution if forced to return to Iran. See Admin. Rec. at 20 (Fisher's brief to the BIA arguing that "there is at least a 10% probability that she will suffer more severe persecution if she returns to Iran."). A proper evaluation of Fisher's claim of future persecution, consequently, should have included an assessment of the punishment that might be inflicted upon her for violating the ultraconservative laws should she return to Iran, and not merely her past experiences. See Bastanipour v. INS, 980 F.2d 1129, 1132-33 (7th Cir. 1992) (holding that the BIA erred by considering only the Iranian regime's formal definition of, and prescribed punishments for, apostasy, as opposed to how the Iranian officials in reality might treat the petitioner if he were to return to Iran); Rivas-Martinez v. INS, 997 F.2d 1143, 1146-48 (5th Cir. 1993) (holding that the BIA erred in failing to consider the possibility that a guerrilla group might learn of the petitioner's political beliefs despite their failure to learn of her beliefs up to that point). Accordingly, assuming arguendo that the Board determined correctly that Fisher was not eligible for asylum based upon past persecution, we hold that it erred by making its assessment of Fisher's past experiences conclusive as to the harm she might face upon return to Iran for further transgressions of the ultraconservative laws.

The Board's analytic error is particularly disturbing in light of significant evidence that severe sanctions can result from noncompliance with the Iranian ultraconservative laws, which we term the "moral codes," see generally Nader Entessar, Criminal Law and the Legal System in Revolutionary Iran, 8 Boston College Third World L.J. 91, 98 (1988) (describing the imposition of punishment for "immoral behavior" or "immodest clothing" as codified aspects of the general category of offenses known as the ...


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