Ladha v. INS.

• Decision Date: 08 February 2000
• Docket Number: No. 98-70772,98-70772
• Citation: 215 F.3d 889
• Parties: (9th Cir. 2000) SHABANALI LADHA; KHATOON LADHA; FARZANA S. LADHA, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent
• Court: U.S. Court of Appeals — Ninth Circuit

Page 889

215 F.3d 889 (9th Cir. 2000)

SHABANALI LADHA; KHATOON LADHA; FARZANA S. LADHA, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 98-70772

U.S. Court of Appeals for the Ninth Circuit

Submitted February 8, 2000^* Pasadena, California

Filed June 1, 2000

Amended June 30, 2000

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Gary Silbiger, Silbiger & Honig, Los Angeles, California, for the petitioners.

Laura M. Friedman, 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; I&NS Nos. A70-804-909, A70-804-910, A70-804-912

Before: Harry Pregerson and Kim McLane Wardlaw, Circuit Judges, and Milton I. Shadur, District Judge^**.

WARDLAW, Circuit Judge:

Shabanali Ladha ("Mr. Ladha") and Khatoon Ladha ("Mrs. Ladha"), husband and wife, and Farzana Ladha ("Farzana"), their daughter, are Pakistani nationals and citizens. They petition for review of the decision of the Board of Immigration Appeals ("BIA") denying their claims to asylum and withholding of deportation. The BIA held that, even assuming that the Ladhas' testimony was credible, they had not met their burden of proof because they failed to provide corroborative evidence of their testimony. The Ladhas also challenge a decision of the Immigration Judge ("IJ") to exclude certain evidence from the immigration hearing. We have jurisdiction,¹ and we hold that the BIA erred as a matter of law in requiring corroborative evidence to support the Ladhas' credible testimony and that the IJ erred as a matter of law in failing to make a record of the evidence. We grant the petition for review, reverse in part, vacate in part, and remand in part.

I.

The background evidence in the record, set forth in a State Department report and in Mr. Ladha's testimony, sets the stage well for the Ladhas' claims. Mr. and Mrs. Ladha were born in Bombay, India, and moved to Karachi, Pakistan, when British India was partitioned. The Ladhas thus belong to the Khoja, or Mohajir,² community in Pakistan, which comprises "Pakistanis who emigrated from India at the time of the partition of the subcontinent in 1947, or their direct descendants." Bureau of Democracy, Human Rights and Labor, U.S. Dep't of State, Pakistan -Profile of Asylum Claims and Country Conditions 10 (1996) ("Profile"). Although Muslim, the Khojas are a small religious minority within Pakistan's Muslim population. "In a population of nearly 132 million people, 77 percent are Sunni Muslims [and] 20 percent Shia Muslims." Id. at 7. The Khojas are within the minority Shia branch, and, according to Mr. Ladha the Khoja sect constitutes only about "two to five percent" of the Shia population.

Relations between the Shia and the Sunni are unstable. "While the Shia are well integrated into Pakistani society and occupy responsible positions in society, there have been outbreaks of Sunni-Shia violence from time to time . . . ." Id. "Both Sunnis and Shiites have their own social, political and cultural organizations; some of these have been involved in attacks on individuals of the other religious persuasion . . . ." Id. Although the government generally responds quickly to such violence, according to the Profile, "in Karachi over the last few years . . . a serious law and order problem, in part but not exclusively arising from sectarian violence, has developed." Id. (noting that "for the first half of 1996, however, Karachi has been relatively quiet.").

Another rift in Pakistani society is between competing violent political organizations. The Mohajir Quami Movement ("MQM") is "a political organization representing the interests of mohajirs." Id. at 10. The MQM is split into two wings, which have "tense" relations with one another. Id. at 11. "Virtually all Pakistani political parties have armed militants and the MQM is no exception. It should be said also, however, that MQM members have sometimes been the victims of human rights abuses, including the killing of MQM workers, committed by other political party militants." Id. at 11.

II.

In the fall of 1995, the Immigration and Naturalization Service ("INS") charged the Ladhas with being deportable for staying in the United States after their authorization had expired. All three conceded deportability, but sought asylum, withholding of deportation, and in the alternative, voluntary departure. Although their original application cited other bases for relief under the Immigration and Nationality Act ("INA"), the Ladhas now rely on allegations of political, religious and social-group persecution. See 8 U.S.C. S 1101(a) (42)(A) (1994) (listing the bases for refugee status).

At the hearing before the IJ, most of the testimony was from Mr. Ladha, who testified in Urdu. Mr. Ladha testified that he was the chief priest³ over six Khoja churches in the Karachi area and that his church had 2500-3000 members. He described his duties at the church, testifying that he had been a priest from 1984 to 1990. Mr. Ladha also testified that he supported the MQM. He provided "[m]onitoring or if they needed any help, material-wise," i.e., "[i]f they needed some table, the chair, they wanted to make some arrangements for them for the meetings, I would help them."

As Mr. Ladha relates it, the majority Sunni Muslims "believe that we are not Muslims" and "warn that we should not believe in our practices, our religion." Mr. Ladha describes a pattern of abuse of his church members at the hands of people that he identified as "Suni [sic] fundamentalists and from Jamatay Islam":⁴ "when our ladies go to the church to pray and to meditate," these people would "bother the ladies. They abuse them and they do that all the time." When asked for specifics, he stated "When we go to our church in the evening for prayers, it is the time to pray, they come and interfere. They come in like in our way. They touch the ladies. They snatch their purses. They come and block their ways with two escorters."

In July 1988, Mr. Ladha encountered violence at the church. "Some people came to our church and just tried -like they broke the doors, windows, and just tried everything, and we had some speed breakers there to reduce speed and they broke that." Mr. Ladha added that these attackers were the "people from Jamatay Islam and Sunis [sic]." He testified that he came upon the church in the midst of this attack and "[w]hen I tried to talk with them, they slapped me."⁵ Mr. Ladha further testified that "[w]e filed a report against those people who broke all of the things against them in the police station right away. Because police was under their influence they did not take any step."

Violence struck another time that year. "[T]he fundamentalists, Suni [sic] Muslims," Mr. Ladha relates, "came to our shops and they beat us up there and we had -and they closed our shutters down and they threatened us, and they said that we should not support the Mohajer Khomy [sic ] movement." The group addressed Mr. Ladha "[b]ecause they knew that I was the leader of the church and they knew that if I don't support them that sect or that church will not support these people." "They said that if I stopped the support it would be better for me. Otherwise, they said that we can harm your family."

Mr. Ladha testified that he did not cease his support for MQM, and that in 1990, when Mr. Ladha was not at home, the fundamentalists came to his house and "abused our ladies," including pushing his pregnant daughter-in-law and hitting her "with a rifle butt on her face and there are still marks of that . . . ." Mrs. Ladha was also pushed, and Farzana was present. After this incident, the Ladhas left for the United States because they believed their "lives were in danger." More abstractly, he explained that "[t]he reason . . . we left Pakistan is because our -in Pakistan our religion is considered a minorities among minorities." The Ladhas intended to return to Pakistan "if the conditions got better; " however, Mr. Ladha's brothers have informed him that it is still not safe to return and, except for a brief visit by Mr. Ladha to sell some property, they have not returned. Mr. Ladha testified that his congregation still exists and still is being bothered, and that the person who is the church's priest keeps changing, because the priest is "the target" of the Sunni fundamentalists.

Mrs. Ladha and Farzana testified more briefly and confirmed the main details of Mr. Ladha's account. Farzana indicated that at the attack at their house she was "touched in the wrong places, it was not right" and that the attackers were Sunni Muslims from the Pakistan Peoples Party. She also gave details about her own work as a teacher and aide to her father at the church. She testified that if she returned to Pakistan some people would recognize her as the priest's daughter and that even if not recognized as such, her distinctive dress would identify her as Khoja and cause her to be "considered as a foreigner." Mrs. Ladha likewise confirmed the occurrence of the violence in her home, and described the duties she had at the church.

The IJ rejected the Ladhas' asylum and withholding of deportation claims, granting them voluntary departure.⁶ The IJ's decision contains a hodgepodge of rationales, some of which, at least, strike us as incorrect. Because the BIA provided de novo review of the record, however, we do not review the decision of the IJ but instead that of the BIA. See Yepes-Prado v. INS, 10 F.3d 1363 (9th Cir. 1993) (noting that "any errors made by the IJ will be rendered harmless" by the BIA's de novo review).

Explicitly reserving the question of the Ladhas' credibility, the BIA dismissed their appeal, citing its decisions in Matter of M-D-, Interim Decision 3339 (BIA 1998) (en banc), Matter of S-M-J-, Interim Decision 3303 (BIA 1997) (en banc), and Matter of Dass, 20...