Chand v. INS

• Decision Date: 17 March 2000
• Docket Number: No. 98-70541,98-70541
• Citation: 222 F.3d 1066
• Parties: (9th Cir. 2000) ASHOK CHAND; PREMILA MUDALIAR CHAND, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. Office of the Circuit Executive
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1066

222 F.3d 1066 (9th Cir. 2000)

ASHOK CHAND; PREMILA MUDALIAR CHAND, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 98-70541

Office of the Circuit Executive

U.S. Court of Appeals for the Ninth Circuit

Argued and Submitted March 17, 2000--San Francisco, California

Filed August 2, 2000

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Miguel D. Gadda, San Francisco, California, for the petitioner.

Nancy E. Friedman, Office of Immigration Litigation, U.S. Department of Justice, Washington, D.C., for the respondent.

Petition for Review from the Board of Immigration Appeals; Agency Nos. A72 135 003,72 135 004

Before: Henry A. Politz,¹ Stephen Reinhardt, and Michael Daly Hawkins, Circuit Judges.

REINHARDT, Circuit Judge:

Petitioner Ashok Chand seeks review of the BIA's decision denying his claim for asylum and withholding of deportation. We grant Chand's petition for review and hold that he is eligible for asylum².

I.

Chand is a Hindu Indian from Fiji who worked as a foreman in a shop of cabinet makers; he was not politically active. He lived in a small village on the island of Latouka. Twothirds of the people in the village were ethnic Fijians while the other one-third were Indian Fijians. The village was run by a chief who was a good friend of Chand's father. The chief afforded Chand's family a measure of security in the village. Chand stated that there were no problems between the Indian Fijians and ethnic Fijians prior to 1987, but that the situation changed dramatically following the coups.³ During the period immediately after the military takeover, the Fijian army raided and robbed the homes and businesses of Indians in the village, and also burned the temple which Chand and other Indians used.

However, Chand's problems were not limited to the months following the coups. He continued to suffer acts of persecution on account of his race and religion in the years between 1987 and his departure from Fiji in February of 1993. Chand was the victim of violent attacks on several occasions. One day (in 1988) Chand was playing soccer on a Sunday. A group of soldiers approached the players and broke up the game, forcing the players to run barefoot on a hot coal tar highway. The soldiers also beat Chand on his left leg with the butt of a rifle.

Chand was attacked by Fijian soldiers again, in 1991. On that occasion, Chand was cutting firewood with his father in preparation for Chand's wedding. Soldiers approached them and asked Chand's father if they had paid the royalty for the wood. His father responded by noting that the soldiers asked only Indians, and not ethnic Fijians, about the royalty. In response, the soldiers started beating both Chand and his father.⁴

Soldiers attacked Chand on still another occasion, in 1992. At that time, Chand was the secretary of a charitable youth club that was running a bazaar during Easter -Chand was organizing the club's stand, which was run by teenagers. Soldiers attacked the stand, beat both Chand and the teenagers, and took the group's money as well as the sweets and coffee they were purveying.

On another occasion, ethnic Fijians assaulted Chand's father while he was harvesting sugar cane. His father died waiting for the bus to take him to the hospital. Chand did not say where he was when his father was killed.

In addition to being the victim of direct physical attacks, Chand suffered several incidents of economic persecution. Chand was robbed by ethnic Fijians while going to or coming from work on three different occasions in 1990. When he complained to the police about these robberies, they took his statement but never took any other action, saying that he should talk to his village chief about his problems. In 1991, while Chand was on a longer trip involving work, ethnic Fijians robbed him and a group of his co-workers of their equipment. Finally, in early 1992, while his wife was alone at home, soldiers came to the family's house and asked his wife for money. When she replied that she did not have any, they vandalized the outside of the house, damaging the walls.

The final acts which led to Chand's decision to flee Fiji came at the end of 1992. Despite problems that many Indians had experienced throughout the islands, Chand had remained relatively safe while in his home village because the village's chief had been a good friend of his father, and had provided the family with a measure of protection. However, after the chief died, Chand's protection evaporated. The Fijians who owned the land he had lived on "raised his rent " from $100 per month to $3,000 per month. Chand was forced to leave the land. After forcing him to leave, the Fijian landlords also took his furniture and possession of the house, which belonged to him.⁵ Chand and his wife took shelter with friends for roughly one month after being displaced, and then came to the United States.

In addition to the transcript of the hearing and Chand's original application for asylum with the accompanying affidavit, the record also contains several secondary sources regarding the situation in Fiji. The State Department's 1994 "Profile for Asylum Claims and Country Conditions" for Fiji noted that the Fijian Constitution assured the political dominance of ethnic Fijians through a system of racially divided voting. The profile also contained the following passage regarding racial crime in Fiji:

Neither the Amnesty International 1992 annual report nor the Department of State's annual country report on Fiji has found evidence of widespread human rights violations in Fiji. Ethnic and communal differences, however, do cause significant social tension in Fiji. In some instances, this tension results in the harassment and intimidation of ethnic Indians by ethnic Fijians. The police are sometimes either unable or unwilling to prevent such harassment, which is frequently at a personal level difficult for the authorities to control or prevent. Indo-Fijians are also sometimes the victims of crime based on race. Inadequate police protection contributes to the frequency and seriousness of these incidents.

The Profile also stated that the government effectively upholds basic human rights, that there were no reports of political killings, and that, "despite the flawed nature of the Fijian political structure, we are not aware of any evidence that the Government of Fiji takes action against or fails to protect individuals solely because they are members of the Indo-Fijian community." It concludes with the following statement:

There are acknowledged racial tensions in Fiji. Residents of that country from both ethnic communities, however, are leading tranquil and productive lives throughout Fiji. Indo-Fijians of Moslem, Hindu, Sikh and Christian faiths are economically active and engage in business and professional activities.

The record also contains a letter from a desk officer sent to the Immigration Judge at the INS's request. The letter stated that, although there was considerable racial tension in Fiji and "isolated incidents do occur," "there is no evidence that members of the Indian community have been consistently mistreated in the manner claimed by this applicant. " The letter acknowledged the problems in Fiji that occurred around the time of the coup, stating that "political developments in Fiji in 1987 did result in some mistreatment but this was of short duration and has not been repeated." It added that emigration from Fiji "is prompted by economic considerations, not by human rights abuses." The letter's analysis concluded with a legal assessment. It stated that while the incidents described by Chand "are unfortunate and show a high level of prejudice, they do not appear to be the kind of mistreatment normally associated with asylum."

In addition to the documents from the State Department, the record contained a few articles from newspapers in Fiji. One, from 1994, prophetically described how the Prime Minister (who, as a military official, had led the coup in 1987) had subtly threatened the Indian community by referring to the possibility of another coup, "probably a bloody one." The Prime Minister also stated that it was wrong, according to Fijian custom, to imprison young men for crimes (other than crimes involving battle). Another article described the Prime Minister's statement that Fiji would be better off if the Indians just went back to India.

II.

Chand and his wife entered the United States on temporary visitor visas, but overstayed their time and then applied for asylum and withholding of deportation.

After Chand's initial application for asylum was denied, he was placed in deportation proceedings, and presented his claim for asylum at a hearing before an Immigration Judge (IJ). The IJ found Chand's testimony vague as to certain dates, and suggested therefore that he had "some difficulty with the credibility of the respondent" insofar as Chand stated that the problems he faced occurred in 1992, rather than in 1991 or earlier.⁶ However, the IJ acknowledged that Chand's testimony was substantiated by the fact that many Indians leaving Fiji had testified to similar events in other cases, conceded that there was "harassment, discrimination and significant annoyances" in Fiji, and stated that Indians were the victims of "severe criminal activity and that the police are not in as good control as they should be." Yet, the IJ did not believe that Chand had been or would be subject to persecution on account of a protected ground. He therefore denied both asylum and withholding of deportation.

Chand appealed to the BIA. The BIA appears to have reviewed the IJ's decision de novo, and in any event did not explicitly adopt the IJ's decision.⁷ After describing the facts, the BIA began its analysis with the conclusion that Chand's testimony was "not sufficiently detailed" and too "vague and general" to satisfy the burden of proof. The BIA then proceeded to...