Bandari v. INS

• Decision Date: 03 April 2000
• Docket Number: No. 98-71189,98-71189
• Citation: 227 F.3d 1160
• Parties: (9th Cir. 2000) ANDARANIK BANDARI, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1160

227 F.3d 1160 (9th Cir. 2000)

ANDARANIK BANDARI, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 98-71189

U.S. Court of Appeals for the Ninth Circuit

Submitted April 3, 2000¹

Filed September 26, 2000

[Copyrighted Material Omitted]

Andaranik Bandari, Pro per, Glendale, California, for the petitioner.

Kurt B. Larson, United States Department of Justice, Office of Immigration Litigation, Washington, D.C., for the respondent.

Petition for Review of a Decision of the Board of Immigration Appeals. INS No.A73-971-151

Before: Procter Hug, Chief Judge, Warren J. Ferguson, Circuit Judge, and Jane A. Restani, Judge. ²

FERGUSON, Circuit Judge:

Andaranik Bandari, a native of Iran, petitions for review of the Board of Immigration Appeals' ("BIA") decision denying his claim for asylum and withholding of deportation. Bandari is a twenty-five-year old Armenian Christian who fled Iran at age nineteen after being tortured for, and convicted of, inter-faith dating. We have jurisdiction pursuant to 8 U.S.C. S 1105a (1996), as amended by section 309 of the Illegal Reform and Immigrant Responsibility Act of 1996. We conclude that the BIA erred in affirming the IJ's adverse credibility determination. We deem him credible, grant his petitionfor review, and hold that he is eligible for asylum.

FACTUAL BACKGROUND

The following factual background is drawn from Bandari's testimony, his application for asylum, and corroborating evidence in the record. Before fleeing to the United States, Bandari lived with his grandparents in Teheran. When he was still in high school, he met a Muslim girl named Afsaneh Homaunfar ("Afsaneh"). She lived across the street, and for the first year that he knew her, they just stared at each other. After a year or so, Bandari and Afsaneh began to meet in secret. He knew that it was illegal for them to date, but as he explained during his asylum hearing, "I loved her very much and I wanted to get acquainted with her." The two met clandestinely over a period of a month about eight times.

One night in January of 1994, Bandari and Afsaneh embraced in the street. Three uniformed police officers saw them. After informing the two that they had broken a law against public displays of affection, they handcuffed Bandari.

When the police discovered that Bandari was a Christian, and Afsaneh a Muslim, their behavior suddenly changed. They called Bandari a "dirty Armenian" and told him that he had "no right to go out with a Persian girl." They hit him so hard that he fell to the ground. While Bandari tried to protect his face, the police officers continued to beat and kick him all over.

The police then took Bandari to the police station. They whipped him with a rubber hose and threw him into isolation. For four straight days, they demanded that he confess to raping Afsaneh and they beat him when he refused. As he put it at his asylum hearing, "I didn't sign, they used to come and beat me up every day, so - - so that I sign those papers, but I didn't." The beatings were so severe that he lost consciousness several times.

On the fifth day, the police took Bandari to court. The judge informed him that he had violated the Ayatollah's edict prohibiting interfaith relationships. The edict, which Bandari submitted as evidence, provides that, "an infidel is one who does not believe in the prophethood of Mohammed" and who is therefore "unclean." It also specifically forbids nonMuslims from marrying Muslim women. The judge ordered Bandari to convert to Islam or face punishment. When he refused to change his religion, Bandari testified,"[t]hey told me that I had broken the law by going out with a Persian girl and they told me that my punishment will be making me stand underneath a wall and being thrown rocks on me until death." Because of his youth, however, the judge reduced the sentence to seventy-five lashes and one year in prison. Bandari was released only after his grandfather paid a bribe to a government official. He went home, where he spent three weeksin bed recovering from the injuries the police had inflicted.

A few weeks later, when Bandari was out walking one day, two police officers recognized him. They beat him for approximately ten minutes. While they pummeled him, they yelled, "[y]ou raper [sic] of Moslem girl. You bastard Armenian. Leave and go and live in your Christian country. " Bandari managed to break free, and he ran to a friend's house where he hid until his grandfather brought him money to escape from Iran.

Bandari fled Iran the following day. He testified that he traveled on foot first to Turkey and that, during the trip, "I wasn't thinking of my pain because I wanted just -- just wanted to escape and -- and run for my life because they were going to kill me." When he was in Turkey, his grandfather told him that he had been charged with raping Afsaneh and urged him not to return. Two weeks later, he traveled to Germany, where he stayed and attended school for approximately four months.

Bandari arrived in this country on August 29, 1994, as a visitor for pleasure. His visa expired one year later. He has heard that a rape charge is still pending against him in Iran. On April 11, 1996, he applied for asylum because, as he said at the asylum hearing, "[i]f I go back, they'll kill me."

In addition to Bandari's testimony and application for asylum, the record contains several other sources of information. First, he submitted a birth certificate which indicates that he and his mother are Christian. Second, he submitted a copy of the religious edict prohibiting interfaith dating and marriage.

The INS submitted the State Department report on Iran as evidence. It contains several passages that corroborate Bandari's account of religious persecution. The report states, for example, that "[t]he Government is dominated by Shi'a Muslim clergy." General conditions in Iran are perilous, as the following passage makes clear:

The Government's human rights record remains poor; there was no evidence of significant human rights improvement during the year. Systematic abuses include extrajudicial killings and summary executions; disappearances; widespread use of torture and other degrading treatment; harsh prison conditions; arbitrary arrest and of the freedoms of speech, press, assembly, association, religion and movement.

The report goes on to explain that, "[t]he Government doesdiscriminate on the basis of religion and sex" and notes that Christians "suffer varying degrees of officially sanctioned discrimination." Bandari's claim that he was tortured comports with the Department's description that:

Credible reports indicate that security forces continue to torture detainees and prisoners. Common methods include suspension for long periods in contorted positions, burning with cigarettes, and, most frequently, severe and repeated beatings with cables or other instruments on the back and on the soles of the feet. A new law entered into force on July 10 that reinforces Islamic punishments such as flogging, stoning, amputations, and public executions.

His account of being accused of rape because of his religion is similarly consistent with the State Department's observation that, "[t]he Government often charges members of religious minorities with crimes rather than apostasy. " Moreover, Bandari's claim that the judge charged him with a violation of a religious edict is supported by the State Department's report that, "[t]he traditional court system is not independent and is subject to government and religious influence " and "the Government advises judges to base their decisions on Islamic law." His fear of return is understandable in light of the report's description that, "[r]eligious minorities suffer discrimination in the legal system, . . . incurring heavier punishments than Muslims."

IMMIGRATION PROCEEDINGS

Bandari's asylum hearing was on June 16, 1997. He spoke through an interpreter and without the assistance of counsel. That day, the immigration judge ("IJ") issued an oral decision in which she explained that "the Court does not find that the respondent has testified in a forthright and credible manner." She cited several reasons for her adverse credibility finding: (1) a discrepancy between Bandari's testimony that the Iranian police beat him with a rubber hose for ten to twenty minutes before they detained him and his statement in his application that he was sentenced to seventy-five lashes and one year in prison; (2) a discrepancy between his statement that he was whipped seventy-five times on the street and a later assertion on cross-examination that he was beaten in the police station; (3) his failure to include in his application that he was beaten with a rubber hose seventy-five times in light of the IJ's belief that "if the respondent was beaten with a rubber hose 75 times that the respondent would have mentioned this on his asylum application"; (4) a discrepancy between his testimony that his grandfather paid a sum of money to a government official to secure his release and a statement in his asylum application that his family spent a sum to an influential Muslim man; (5) the IJ's belief that it is "completely and wholly implausible that the respondent would have been beaten for a period of 20 minutes with a rubber hose and not bleed"; and (6) "[t]he Court does not believe that the German government would allow an individual who entered the country on a visitor's visa to attend college."

The IJ alternatively held that, if believed, Bandari had failed to establish persecution on account of a protected ground. She reasoned, "[t]he Court believes that any man, whether Christian or Muslim who was caught openly kissing a woman in Tehran would have been subjected to the same type of treatment as the respondent." She elaborated that "the respondent was imprisoned because he violated the law . . . . The Court believes that this is indeed a case of prosecution...