Maini v. INS

• Decision Date: 19 May 2000
• Docket Number: No. 98-70894,98-70894
• Citation: 212 F.3d 1167
• Parties: (9th Cir. 2000) RAKESH MAINI; JASMAIL MAINI;VIKRAM MAINI; ARJUM MAINI,Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE,OPINION Respondent
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1167

212 F.3d 1167 (9th Cir. 2000)

RAKESH MAINI; JASMAIL MAINI;VIKRAM MAINI; ARJUM MAINI,Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE,OPINION Respondent

No. 98-70894.

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted February 11, 2000

Filed May 19, 2000

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

COUNSEL: Garish Sarin, Los Angeles, California, for the petitioners.

John G. Cunningham, United States Department of Justice, Office of Immigration Litigation, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals INS Nos. A70-945-845 A70-945-846 A70-945-848 A70-945-847

Before: Harry Pregerson, Warren J. Ferguson, and Kim McLane Wardlaw, Circuit Judges.

OPINION

FERGUSON, Circuit Judge:

Rakesh Maini, his wife Jasmail Maini, and their sons Vikram and Arjum, petition for review of the Board of Immigration Appeals' (BIA) decision dismissing their appeal from the denial of their applications for asylum and withholding of deportation. They claim that, beginning in 1984 until their flight from India in 1992 (when Vikram Maini fled) and 1993 (when the rest of the petitioners fled), the Communist Party Marxist (CPM) persecuted them because they are an interreligious family. Although the Immigration Judge found the Mainis credible, both he and the BIA denied them asylum, reasoning that the CPM could not have objected to the Mainis' intermarriage because it is made up of people who practice different religions. We deem this reasoning to be speculative and inconsistent with the record evidence. We conclude that the record compels a finding that the Mainis have suffered persecution on account of religion and we grant and remand the petition for review.

FACTUAL BACKGROUND

At their asylum hearing on April 24, 1996, Mr. Maini, Mrs. Maini, and Vikram testified that they fled their home in Calcutta, India, in 1992 and 1993 after enduring years of threats, harassment, and -in Vikram's case -physical beatings at the hands of CPM members. Mr. Maini, a Hindu, and Mrs. Maini, a Sikh, were married on May 20, 1976, in an interfaith ceremony. They moved from Punjab to Calcutta, in West Bengal, where they had two sons, Vikram and Arjum, and a daughter. Vikram, the only one of their children present at the immigration hearing, testified that he followed both religions.

For a while, the Mainis lived very comfortably in Calcutta. Mr. Maini worked as the General Manager of an engineering company. The family enjoyed an affluent lifestyle; they lived in a house, employed two domestic workers, and rode in a chauffeur-driven car.

But in 1984, the Mainis' standard of living took a steady turn for the worse. On October 31, 1984, Indira Gandhi was slain by her Sikh security guards. Tensions between Sikhs and Hindus escalated throughout India. The CPM, a group which includes both Hindus and Sikhs, found the Mainis' intermarriage offensive. As Mr. Maini put it at the asylum hearing, "they didn't want this inter-racial marriage to be successful. They were against it. See, they are biased because I belonged to a Hindu religion and my wife belongs to a Sikh religion."

From 1984 until their escape to this country, the CPM repeatedly threatened the Mainis and physically attacked Vikram. The day of Gandhi's assassination, CPM members accosted Vikram, then seven years old, beat him, stabbed him in the side, and told him to switch religions. The stabbing left Vikram with a permanent scar, which he showed to the immigration judge at the asylum hearing.

Rather than pursue an investigation, the police threatened the Mainis when they reported the CPM's attack against Vikram. Mrs. Maini testified that, after the assault on Vikram and each time a police report was made, "[t]hey told us to run away from here and get out of the place otherwise we will treat you the same way, the way we treat with the people who come here and lodge complaint against our own people."

Vikram became the CPM's frequent target. His mother explained at their asylum hearing that "he is half Hindu and half Sikh. So, he is an easy target for anyone." She added that, "whenever [CPM members] would see him walking alone or he is alone, they would come and slap him." Vikram corroborated his mother's testimony when he explained that, between 1984 and 1992, "whenever they found an opportunity that I was alone, they would harass me or they beat me up. " CPM members threatened him at school, informing him that "Hindus should be killed; they should be wiped out." They ordered him to "change my religion." They told him to become a pure Sikh. But Vikram refused: "I would deny it very emphatically and I would say no, what I am, I am." Vikram feared participating in his school's extracurricular activities.

Around the same time as Gandhi's assassination and the 1984 attack against Vikram, Mr. Maini began to receive death threats. Mr. Maini testified that CPM members came to his home one night, banged on the door, and ordered him to "come outside. Step out of the house. We are going to kill you. You are a Hindu." Each time they threatened him, they told him that "wherever you go to any part of India, we are going to finish you off. You cannot be spared." When he reported this incident to the police, they told him "this is between Hindus and Sikhs. We cannot help."

For years, the CPM repeatedly threatened to murder the Mainis. Mrs. Maini testified, "I received many threats," and "I was threatened on the phone many times." Mr. Maini received threats at work. The CPM approached their chauffeur and told him that "[w]e are going to kill your boss." Each of the eight to ten times the Mainis reported such threats, the CPM-controlled police refused to help. Asked why, Mr. Maini testified that the police "directly work under the CPM party. They belong to CPM party . . . they just don't listen to us." He elaborated, "anyone who would go to police station and try to lodge a complaint against a CPM person or a case that is lodged then the area counselor person he would go to the police and he would say he is party member. Just leave him."

In 1991, a crowd of CPM members appeared at the Mainis' house. Mr. Maini testified that, while his wife hid in the bathroom, "those people they came in a crowd. They started throwing stones and was shouting `come out, step out of the house.' We are going to kill you." But Mr. Maini stayed put because "[i]f I had stepped out they would have killed me." After an hour or two of besieging the family, the crowd left. When Mr. Maini discovered that two people in the crowd worked in his office, he fired them. This triggered an escalation in death threats.

In 1992, the CPM's threats and attacks against the Mainis intensified. On August 3, 1992, CPM members seriously attacked and assaulted Vikram, who was then sixteen years old. Vikram testified that they accosted him and split open his head with a bottle, knocking him unconscious. He was sent to a local clinic. According to the medical report the Mainis offered at their asylum hearing, the attack caused a "head injury with laceration" and required four stitches. The attack left a permanent scar, which Vikram offered to show to the immigration judge. When they reported the attack to the police, the officers refused to write anything down. The 1992 attack against Vikram convinced the Mainis to send him out of the country. As Mr. Maini testified, "we were very scared of our life and I was very scared for him also. So, we took a decision to send him out." Vikram arrived in Los Angeles as a visitor for pleasure on August 10, 1992.

The CPM escalated its threats against the rest of the family in 1992. As Mr. Maini put it, "that was the year when I got maximum threats." He described it as "a very troublesome year. It was difficult to exist. They were just after me. They would threaten me in the office, on the way, at home."

The attacks and threats against the family took their toll at work, until Mr. Maini eventually was forced to resign. The atmosphere in the office grew extremely tense. Mr. Maini's subordinates refused to follow his orders and they frequently shouted slogans at him. He testified that, "I used to keep on thinking as to why these things are happening to me. " On May 20, 1993, Mr. Maini's employer sent him a letter demanding his immediate resignation. In the letter, which the Mainis submitted as evidence, the supervisor offered the following justification: "some person are enquiring[sic] about you in the office, and so many unwanted Telephone calls are waiting for you . . . . Inspite [sic] of our several reminders they have not stopped their activities. Office environment is being disturbed."

The Mainis decided to flee India. Mr. Maini explained under cross-examination that he was scared to relocate to another part of India because "they had openly threatened me, that wherever you go to settle or try to settle we are going to kill you. We won't leave you." They sold their personal possessions to pay for the trip and, on June 11, 1993, Mr. Maini arrived in Los Angeles as a visitor for pleasure. His wife and son Arjum followed a few weeks later, on July 26, 1993.

Hearing news reports of bomb blasts in Calcutta and continued ethnic tensions between Sikhs and Hindus persuaded them that returning to India would cost them their lives. Afraid to return, the Mainis applied for asylum before their visa expired. The family worries that, if forced to return, "we could be killed. They will kill us." At the time of their asylum hearing, the CPM still ran West Bengal, the region in which the Mainis lived.

IMMIGRATION PROCEEDINGS

The asylum hearing was on April 24, 1996. After a hearing on the merits, the immigration judge denied the Mainis asylum and withholding of deportation. He found them credible, noting, "I think that you are a very nice family and I believe that you have tried to tell the truth." He...