Nasseri v. Moschorak, 93-55997

• Citation: 34 F.3d 723
• Decision Date: 14 September 1994
• Docket Number: No. 93-55997,93-55997
• Parties: Delara NASSERI, Petitioner-Appellant, v. Robert MOSCHORAK, District Director, U.S. Immigration and Naturalization Service, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 723

34 F.3d 723

Delara NASSERI, Petitioner-Appellant, v. Robert MOSCHORAK, District Director, U.S. Immigration and Naturalization Service, Respondent-Appellee.

No. 93-55997.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 5, 1994.

Filed Sept. 14, 1994.

Lea Greenberger, Encino, CA, Judith Wood and Jesse A. Moorman, Los Angeles, CA, for petitioner-appellant.

John L. Lee, Asst. U.S. Atty., Los Angeles, CA, for respondent-appellee.

Appeal from the United States District Court for the Central District of California.

Before: D.W. NELSON and NOONAN, Circuit Judges, and SAMUEL P. KING, ^* District Judge.

D.W. NELSON, Circuit Judge:

Delara Nasseri appeals the district court's judgment denying her petition for a writ of habeas corpus contesting a final order of exclusion. The district court affirmed the decision of the Board of Immigration Appeals ("the Board") finding her excludable under 8 U.S.C. Secs. 1158 and 1253(h), and denying her application for asylum and withholding of deportation under 8 U.S.C. Secs. 1158(a) and 1253(h). We reverse the decision of the district court, grant the petition, and remand to the district court to issue the writ of habeas corpus.

FACTUAL AND PROCEDURAL BACKGROUND

Delara Nasseri is a thirty-nine year old native and citizen of Afghanistan. She was detained by the Immigration and Naturalization Service ("Service") when she attempted to enter the United States on June, 14, 1992. The Service initiated exclusion proceedings, and she applied for asylum and withholding of deportation. The following overview of the facts is taken from Nasseri's testimony before the Immigration Judge ("IJ").

From 1977 to 1991, Nasseri worked as a teacher in a public elementary school in Kabul, where she lived with her husband and four children. She was an active member of the Moslem League Group, also known as the National Islamic Front for Afghanistan (NIFA). The group, which advocated the return of a constitutional monarchy under King Sahir Shah, opposed both the communist regime that was in power at the time Nasseri left Afghanistan and the fundamentalist factions of the mujahidin who have since seized control of the government. Nasseri attended regular, private meetings and also engaged in public activities such as the distribution of leaflets. Her participation in NIFA, along with her work as a teacher, led mujahidin rebels to torture her, to bomb her parents' house, and to place her under surveillance.

In January 1990, armed men invaded Nasseri's home at night, kidnapped her, and imprisoned her in a government building at one of the ministries in Kabul. She was held in a dark basement room for nearly a month. In an attempt to discover information about After her release, followers of Hekmatyar, one of the fundamentalist factions of the mujahidin, confronted her and intimated that they had tortured her because she was working in opposition to the mujahidin. As a result of this confrontation and several other similar incidents, Nasseri became convinced that members of two mujahidin groups, one led by Hekmatyar and one led by Sayyaf, were responsible for her torture and were continuing to monitor her activities. She sold her household possessions and moved into her parents' house, which she believed would be safer than her former residence. In January 1991, her parents' house was bombed, and her aunt and uncle were injured. Several months later, in April 1991, her brothers noticed a group of people looking for her. To protect herself and her family, Nasseri fled with her husband and four children to India on February 19, 1992.

the political group she supported, her kidnappers repeatedly tortured and interrogated her. They beat her with fists and a stick, threatened her with a gun, and forced her to sleep on a cold floor covered with water. Nasseri concluded that her kidnappers belonged to fundamentalist mujahidin rebel groups when one of them declared that the mujahidin still had power, in spite of communist rule, and would destroy people like her. She believes that they eventually released her because she was sick, because she did not provide them with any information, and because they may have wanted to follow her to gather more evidence against her. She experiences headaches from being beaten on the head and is suffering from back pain from sleeping on the floor.

In India, two men attempted to abduct Nasseri while she was shopping in the marketplace. She believes that one of the men belonged to the Hekmatyar faction and the other to the Sayyaf faction. Two weeks after this incident, on June 14, 1992, she left India for the United States. Her husband and four children are still living in India.

In its decision of August 11, 1992, the IJ found Nasseri to be excludable under sections 212(a)(5)(A)(i) and 212(a)(7)(A)(i)(I) of the Immigration and Nationality Act ("the Act"), 8 U.S.C. Secs. 1158 and 1253(h), and denied her application for asylum and withholding of deportation under sections 208(a) and 243(h) of the Act, 8 U.S.C. Secs. 1158(a), 1253(h). In support of her application, Nasseri provided oral testimony and several newspaper articles describing the political turmoil in Afghanistan.

The IJ based its decision primarily on a finding that Nasseri's testimony was not credible. The IJ did not discredit Nasseri's account because of her demeanor or because of inconsistencies in her testimony, however. On the contrary, the IJ noted that "the applicant testified in an honest and forthright manner." The IJ concluded that Nasseri's account was implausible mainly because of "her failure to explain why Afghani Rebel Forces allegedly followed her from Afghanistan to India and then tried to torture her there." The IJ relied on an advisory opinion prepared by the State Department Bureau of Human Rights and Humanitarian Affairs (BHRHA) assessing Nasseri's case. While the BHRHA advisory opinion did not make a recommendation to grant or deny asylum, the opinion stated that "[i]t seems rather unusual to us that these persons, described by the applicant as her 'enemies', would follow her all the way to India." Nasseri contends that the assertions contained in the BHRHA report, and thus the IJ's decision, are mistaken, because she did not claim that she was followed to India but rather that she was "tracked down in India."

After conducting a de novo review of the record, the Board affirmed the decision of the IJ. As the IJ had, the Board rested its decision on a finding that Nasseri's testimony was not credible. Before the Board, Nasseri introduced affidavits from her husband corroborating her testimony, a letter from NIFA attesting to her membership, an affidavit from a former political assistant to the United States Embassy in Kabul stating that Nasseri was a well-known opponent of the communist regime and the fundamentalist rebels, documents describing the political upheaval in Afghanistan, and several additional documents. The Board based its adverse credibility finding both on the presumed implausibility of Nasseri's claim that she was Nasseri then filed a petition for a writ of habeas corpus in the District Court for the Central District of California. Adopting the recommendations of a magistrate judge, the district court dismissed the petition on June 23, 1993. We have jurisdiction under 28 U.S.C. Sec. 2253 and 8 U.S.C. Sec. 1105a(b).

followed to India and on several other factors.

STANDARD OF REVIEW

The decision whether to grant or deny a petition for habeas corpus is reviewed de novo. Desir v. Ilchert, 840 F.2d 723, 726 (9th Cir.1988). We review factual determinations underlying the Board's decision under the substantial evidence standard. INS v. Elias-Zacarias, 502 U.S. 478, ----, 112 S.Ct. 812, 815, 117 L.Ed.2d 38 (1992); see also Ghebllawi v. INS, 28 F.3d 83, 86 (9th Cir.1994) clarifying that the Elias-Zacarias Court did not intend to alter the "normal principles of administrative review").

DISCUSSION

I. CREDIBILITY FINDINGS

The Board upheld the IJ's decision denying Nasseri's request for asylum after conducting a de novo review of her claims and determining that the IJ's adverse credibility finding was correct. ¹ The Board relied on Nasseri's description of three alleged incidents of persecution: her detention and torture in Kabul, the mujahidin's subsequent efforts to place her under surveillance, and the attempt of mujahidin supporters to kidnap her after she had fled to India. The record does not support the Board's conclusions.

We accord substantial deference to credibility findings, but these findings must be supported by "specific, cogent reasons." Turcios v. INS, 821 F.2d 1396, 1399 (9th Cir.1987) (citations omitted). Furthermore, reasons alone are not sufficient. The reasons offered must be "substantial and must bear a legitimate nexus to the finding." Aguilera-Cota v. INS, 914 F.2d 1375, 1381 (9th Cir.1990). We are also bound to consider whether or not the reasons given are "valid grounds" for determining that a witness is not credible. Vilorio-Lopez v. INS, 852 F.2d 1137, 1142 (9th Cir.1988). In cases such as this one, in which the petitioner's testimony is the principal source of evidence, it is especially important "that the credibility determination be based on appropriate factors." Aguilera-Cota, 914 F.2d at 1381.

The Board did not rest its adverse credibility finding on anything other than faulty logic. In discounting Nasseri's account of the three incidents of persecution, the Board did not conclude that Nasseri's demeanor undermined her testimony or that her narrative was flawed because of inconsistencies. Indeed, the Board acknowledged the IJ's finding that Nasseri "testified in an honest and forthright manner and her testimony was consistent with her application." Instead, the Board based its conclusion that her testimony did not seem plausible on its analysis of the political situation in Afghanistan. This analysis, however, is not...