Shirazi-Parsa v. I.N.S.

• Decision Date: 01 February 1994
• Docket Number: SHIRAZI-PARSA,No. 92-70336,92-70336
• Citation: 14 F.3d 1424
• Court: U.S. Court of Appeals — Ninth Circuit
• Parties: Masood; Georgina Shirazi-Parsa, Petitioners, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.

Page 1424

14 F.3d 1424

Masood SHIRAZI-PARSA; Georgina Shirazi-Parsa, Petitioners, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.

No. 92-70336.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Oct. 5, 1993.

Decided Feb. 1, 1994.

Robert A. Mautino, San Diego, CA, for petitioners.

William J. Howard, U.S. Dept. of Justice, Washington, DC, for respondent.

Petition for Review of a Decision of the Immigration And Naturalization Service.

Before: FLETCHER and NELSON, Circuit Judges, and WILL, ^* Senior District Judge.

D.W. NELSON, Circuit Judge:

Petitioner, ¹ Masood Shirazi-Parsa, and his wife, Georgina Shirazi-Parsa, petition this court for review of a final order of the Board of Immigration Appeals ("BIA" or "Board") that denied their request for asylum pursuant to 8 U.S.C. Sec. 1158(a) but granted them voluntary departure under 8 U.S.C. Sec. 1254(e). ² We reverse the decision of the Board and remand for further proceedings.

I. Factual and Procedural Background

Masood Shirazi-Parsa is a native and citizen of Iran. His wife, Georgina, is a native and citizen of Mexico. They met while students in the United States, and, in 1982, moved to Iran and married. Georgina Shirazi-Parsa made three trips to the United States during the course of their marriage. The first, in 1983, was to give birth to their daughter; the second occurred in 1985 when her husband was drafted into the Iranian army. The third and final trip, Petitioner contends, was occasioned by a series of events that occurred about August 1988. The couple was invited to dinner at an army officer's home. During the course of the evening, Georgina became very upset when the officer's wife made insulting remarks about Georgina's Mormon religion. Petitioner and his wife testified that the following night the Revolutionary Guard came to their home, seized Masood, beat him, questioned him concerning his wife's employment at the Argentine Embassy, their contacts with Argentine soldiers attached to the United Nations, and his wife's religion, and accused him of being a spy. Petitioner and his wife further testified that, prior to these incidents, he had been interrogated weekly on each of these subjects while in the army. After this incident, Georgina left Iran for Mexico, later entering the United States about January 1989 with a tourist visa. Masood remained in Iran; he fled after receiving a letter from a prosecutor that ordered him to appear at the appropriate office but did not specify any charges. ³ After travelling through Turkey to Mexico (where he was denied asylum because of his inability to meet the Mexican government's requirement that he be able to start a business capitalized at $200,000), Masood entered the United States without inspection in January 1989.

Petitioner applied for asylum and withholding of deportation under 8 U.S.C. Secs. 1158(a) & 1253(h)(1) in March 1989, asserting that he would be "imprisoned by the regime, and perhaps, tortured and killed" because of his and his wife's political and religious beliefs. Petitioners conceded deportability. On April 11, 1991, after a hearing, the Immigration Judge (IJ) denied Petitioner's requests, but granted him and his wife voluntary departure under 8 U.S.C. Sec. 1254(e). The IJ found that Petitioner had failed to satisfy his burden of demonstrating a "well-founded" fear of political or religious persecution. The IJ concluded that although Petitioner relied heavily on his receipt of a summons from the Iranian authorities to explain his sudden departure from Iran, he had failed to advance a plausible reason for failing to produce it. Petitioner also testified that he feared reprisals because of his father's membership in the SAVAK, the Shah's intelligence service, his own connections with the SAVAK while a student in the United States, and his brother's troubles with the regime. However, because Petitioner's father had lived unmolested in Iran for a number of years and because there was no evidence that the authorities had ever interrogated Petitioner concerning any of these subjects, the IJ found any fear of persecution based on them implausible.

Petitioner appealed to the BIA, which denied his petition and affirmed the IJ in an opinion dated April 22, 1992. The Board did not rely on Petitioner's inability to produce the summons, but found that the regime's interest in him was not on account of his religious or political views. Focusing on the specific questions asked during Masood's interrogations, the Board concluded that the regime merely believed Masood to be a spy. As for the summons, the Board noted that it contained no charges. Consequently, the Board reasoned that "even taken in conjunction with the prior inquiries and the [dinner] incident, [it did not] provide a reasonable basis for fearing persecution on account of religion or any of the other enumerated grounds." Admin.Rec. at 7 (emphasis added). Finally, the Board agreed with the IJ that it was implausible that Masood would be persecuted for his or his father's SAVAK connections or his brother's troubles with the regime.

Petitioner subsequently filed a timely petition for review under 8 U.S.C. Sec. 1105a(a)(1), and now makes three arguments. First, that the Board must be reversed because the IJ impermissibly relied on Petitioner's inability to produce the summons. Second, that the Board erred by failing to take administrative notice of several State Department reports that detailed the general pattern of "political" arrests and consequent persecution engaged in by the Iranian regime. Third, that the Board's finding that Petitioner does not possess a well-founded fear of political or religious persecution lacks substantial evidence to support it because the BIA failed to consider the cumulative effect of each of the incidents the Petitioner experienced as well as the context provided by the above-mentioned reports. This court has jurisdiction under 8 U.S.C. Sec. 1105a(a).

II. Applicable Provisions and Standard of Review

Under 8 U.S.C. Sec. 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.A. Sec. 1158(a) (West 1993). 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 ... religion ... or political opinion." Id. Sec. 1101(a)(42)(A). As both the IJ and the BIA correctly noted, 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 (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 id.; 8 C.F.R. Sec. 208.5 (1990).

Our review is limited to the BIA's decision. See Acewicz, 984 F.2d at 1059; Charlesworth v. INS, 966 F.2d 1323, 1325 (9th Cir.1992); see also Balazoski v. INS, 932 F.2d 638, 640 (7th Cir.1991) ("We review the decision of the BIA, not the IJ."). Any error committed by the IJ thus "may be rendered harmless" by the BIA's application of the correct legal standard. Elnager v. INS, 930 F.2d 784, 787 (9th Cir.1991). The BIA's opinion, however, cannot be mere "Boilerplate" and must describe "with sufficient particularity and clarity the reasons for denial of asylum." Castillo v. INS, 951 F.2d 1117, 1121 (9th Cir.1991).

Factual determinations underlying the Board's denial of asylum are reviewed under the "substantial evidence" standard. See INS v. Elias-Zacarias, --- U.S. ----, ----, 112 S.Ct. 812, 815, 117 L.Ed.2d 38 (1992); Abedini v. INS, 971 F.2d 188, 191 (9th Cir.1992); 8 U.S.C.A. Sec. 1105a(a)(4) (West 1993). Under this standard, a court must review "the findings by a slightly stricter scrutiny than the clear error standard." Rodriguez-Rivera, 848 F.2d at 1001. However, the court "may not reverse the BIA simply because [the court] disagree[s] with its evaluation of the facts." Id. " 'All the substantial evidence standard requires is that the BIA's conclusion, based on the evidence presented, be substantially reasonable.' " Id. (quoting Diaz-Escobar v. INS, 782 F.2d 1488, 1492 (9th Cir.1986)); accord Arriaga-Barrientos v. INS, 937 F.2d 411, 413 (9th Cir.1991); Estrada-Posadas v. INS, 924 F.2d 916, 918 (9th Cir.1991). Because the burden of proof is on the Petitioner to demonstrate eligibility for asylum, the reviewing court will reverse "only if the evidence presented ... was such that a reasonable factfinder would have to conclude that the requisite fear of persecution existed." Elias-Zacarias, --- U.S. at ----, 112 S.Ct. at 815; accord Abedini, 971 F.2d at 191. The evidence must "not only support [ ] ... but compel [ ]" this conclusion. Elias-Zacarias, --- U.S. at ---- n. 1, 112 S.Ct. at 815 n. 1 (emphasis in original). The legal conclusions of the Board are reviewed de novo. Abedini, 971 F.2d at 190-91.

III. Analysis

A. Inability to Produce the Summons

Petitioner asserts that the IJ placed undue emphasis on his inability to produce the summons. However, the BIA expressly denied that "the absence of the actual summons itself should preclude the respondent from [obtaining] relief." Admin.Rec. at 7 n. 2 (citing Matter of Mogharrabi, 19 I. & N. Dec. 439, 445 (BIA 1987)). Indeed, the Board conducted its de novo analysis based on the assumption that the summons contained precisely that which Petitioner contended: his name, the date and location of his appearance, but no specific charges. ⁴ As this court only reviews the BIA's decision, and not that of the IJ, see, e.g., Charlesworth,...