Jahed v. I.N.S.

Decision Date20 January 2004
Docket NumberNo. 02-70487.,02-70487.
Citation356 F.3d 991
PartiesAlireza Rabie JAHED; Maryam Feizi; Labon Rabie Jahed; Tansagol Rabie Jahed, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
CourtU.S. Court of Appeals — Ninth Circuit

Reza Athari, Immigration Law Offices of Reza Athari, Las Vegas, NV, for the Petitioner.

Christine A. Bither, U.S. Department of Justice, Washington, DC, for the Respondent.

Shelley Goad, U.S. Department of Justice, Washington, DC, for the Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency Nos. A70-085-247, A71-579-230 to A71-579-232.

Before: B. FLETCHER, KOZINSKI, and TROTT, Circuit Judges.

Opinion by Judge TROTT; Dissent by Judge KOZINSKI.

TROTT, Circuit Judge:

Alireza Rabie Jahed ("Petitioner"), his wife, and their two children (collectively "Petitioners") petition for review of the Board of Immigration Appeals's ("BIA") order denying their motion to remand and dismissing their appeal of an Immigration Judge's ("IJ") order denying their respective asylum applications. We have jurisdiction under 8 U.S.C. § 1252(a), and we grant the petition.

BACKGROUND
A.

Petitioners1 are citizens of Iran who applied for asylum in the United States on the grounds (1) that Petitioner Jahed had been the target of persecution by a soldier of the Iranian Revolutionary Guard, known as the "Pastars," and (2) that he fears dire consequences at the hand of the Iranian Government should he be forced to return. He alleges that his past persecution as well as his fear of future persecution stem from his involvement with the Mojahedin, a rival political group disfavored by the current government. In his asylum application, he described his association with that group as follows:

Q. 34 I belonged to the Mojahdeen (sic), 1981-85; the purpose of this group was to establish an impartial system of justice with the removal of torture and unwarranted executions, which involves the removal of current political leaders. My responsibilities included distribution of newsletters and scheduling of meetings. This is a banned opposition organization; the regime has openly stated that all members of this group shall be killed.

Q. 35 I have been a member of a banned opposition organization. I organized meetings and distributed literature. Our purpose was removal of the current regime and an end to torture, executions and human rights abuses. The regime has ordered that members of this group shall be killed.

Q. 44 In October 1990 one of the Pastars (Revolutionary Guard) recognized me and threatened me. He told me that if I didn't pay him 200,000 Toomans he would report me to the authorities. I didn't have the money, and in any event he would have turned me in whether or not I paid, so I had to flee immediately with my family. A similar incident had occurred to a friend, Cyrus Yaghley of Tehran; he was similarly blackmailed by the Pastars, didn't pay, and was imprisoned with his entire family in Tehran in 1987 and has not been heard of since. We fled to escape the same fate.

Jahed's testimony generally elaborated on this information in his application and added detail to it, as we will discuss later.

The State Department's relevant country report of August 1997 describes the Mojahedin and its hostile relationship to Iran's current government as follows:

The Mojahedin organization is one of the most active militant Iranian opposition groupings with a world-wide network of members and supporters. Known or suspected members of this organization face either execution or long prison terms if caught in Iran. Leaders of the Mojahedin living in exile have been targeted by the regime for assassination and kidnapping.

The Revolutionary Guard, or the Pastars, are well known to us. Our State Department has identified the group to which Jahed's alleged persecutor belonged as a "military force established after the revolution" that is "responsible for internal security." Using the Department of State's Iran Country Report on Human Rights Practices for 1997 as a source, we published in one of our cases the following description of their arbitrary activities on behalf of the Iranian government:

Political arrests are made by members of the Revolutionary Guard or, less commonly, by members of the komiteths, local neighborhood groups which have assumed a quasi-official role. No judicial determination of the legality of detention exists in Iranian law. ... Suspects are held for questioning at local Revolutionary Guard offices or in jails [and] it is unclear whether this questioning constitutes a trial by a Revolutionary court or whether it is part of the investigation process. Sometimes defendants are released after several hours or days, but the process may be repeated two or three times before the authorities decide the detainee is innocent or that he is guilty and should be jailed.

Shirazi-Parsa v. INS, 14 F.3d 1424, 1429 (9th Cir.1994) (alterations retained but emphasis removed from original text) overruled on other grounds by Fisher v. INS, 79 F.3d 955 (9th Cir.1996) (en banc).

To demonstrate the reality of his fear generated by the Pastar soldier at the time of the extortion and to explain the foundation of his fear of the future should he be forced to return to Iran, Petitioner submitted to the BIA contemporary chilling accounts of the Revolutionary Guard's barbaric capacity for torture and mayhem. The following is an excerpt from our Department of Defense's Emergency Net News Service Daily Report of 3 August 1996:

The USA Today reported on Friday that classified U.S. intelligence documents indicate that the rogue state of Iran has a network of eleven camps to train terrorists. It is believed, according to the documents, that the bombers who conducted the attacks on the U.S. military sites in Saudi Arabia in November of 1995 and on 25 June 1996 were trained at these Iranian terror camps.

The largest of the eleven sites is the Imam Ali camp, which is located east of Tehran. Other large camps are located northeast of Tehran in Qazvim; Qom, located south of Tehran; and another is located southwest of Tehran in Hamadan. All of the camps are said to be designed to look like small villages, with houses, shops and mosques. However, these small villages [are] all closed to the general public.

The camps were discovered through satellite [observation], intelligence gathered by the National Security Agency and through HUMINT sources.

Two organizations known as the Organization of Islamic Revolution and the Hezbollah of Hejaz are said to have received bomb training at the Imam Ali camp. U.S. intelligence believes that most of Iran's terrorist attacks are planned from Imam Ali.

The classified documents allegedly indicated that the camps teach students how to assemble bombs and carry out assassinations. Up to 5,000 men and women have been trained at the camps. It is believed that at least 500 people have been taught such skills as how to make suicide bombs. Trainees for the camps are said to have come from: Algeria, Egypt, Gaza, Iran, Jordan, Lebanon, Libya, Saudi Arabia, Sudan, Syria, and Turkey.

According to the documents, Iranian president Hasemi Rafsanjani set up the camps two years ago. The instructors in the camps are from Iran's Revolutionary Guard and intelligence service.

The June 26, 1995 edition of TIME — which is also part of the administrative record — corroborates this information:

How potent is Iran's variety of militant political Islam? To Bill Clinton and Warren Christopher, it is one of the most dangerous forces on earth. But listen to what an Iranian housewife named Hafezeh has to say. Earlier this month, just before the sixth anniversary of the death of Ayatullah Khomeini, she sat on a carpet inside his gold-domed mausoleum. Under her loosely draped chador she wore blue jeans and a bright turquoise blouse.

"I was just 16 when I joined the Revolutionary Guards [in 1979]," she said. "I used to go out in the patrol car with the sisters [female Revolutionary Guards]. They were looking for women who weren't wearing proper Islamic covering. They threw acid in their faces or said, `Let me take off your lipstick,' and cut their lips with a razor hidden in a Kleenex." She also recalls the early lure of plunder. "The government offered my husband and me a villa in north Tehran. It was incredible, like a palace. My husband said, `No, we can't take it.' But there were many other Revolutionary Guards who drank alcohol and took people's houses. It sickened us, and we both quit."

After receiving continuing threats from the Pastar soldier, Petitioner and his family left Iran. Small wonder.

B.

The IJ denied Petitioner's application for asylum and withholding of removal. The IJ concluded as to Jahed's claim of past persecution that although he had been a credible witness, he had established only that he had been the victim of an attempted extortion, not political persecution. The IJ noted that the soldier appeared to be motivated by his "isolated desire for money," and not by the applicant's political opinion. The IJ determined also from Jahed's testimony that the soldier was not acting in a government capacity. Finally, the judge found that Jahed's failure to buy off his extortionist "was not motivated by his political opinion or lack thereof, but rather by his inability to pay." The IJ indicated also that Jahed's extended family who remained in Iran had never been threatened or harmed, suggesting that his fear was not objectively reasonable.

As to Jahed's claim of a well-founded fear of future persecution should he be forcibly repatriated, the IJ concluded that because Jahed had not established past persecution, he was not entitled to a regulatory presumption of a well-founded fear of future persecution; and that because the facts adduced did not independently and objectively support this claim, it...

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