47 F.3d 336 (9th Cir. 1995), 94-70132, Prasad v. I.N.S.

Docket Nº:94-70132.
Citation:47 F.3d 336
Party Name:Kamla PRASAD; Meena Kumari Prasad; Catherine Sandhya Prasad; Micky Sudesh Prasad; Ricky Sumit Prasad, Petitioners, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.
Case Date:February 01, 1995
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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47 F.3d 336 (9th Cir. 1995)

Kamla PRASAD; Meena Kumari Prasad; Catherine Sandhya

Prasad; Micky Sudesh Prasad; Ricky Sumit Prasad,




No. 94-70132.

United States Court of Appeals, Ninth Circuit

February 1, 1995

Argued and Submitted Dec. 15, 1994.

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Alan M. Kaufman, San Francisco, CA, for petitioners.

David M. McConnell and Karen Ann Hunold, U.S. Dept. of Justice, Washington, DC, for respondent.

Petition for Review of a Decision of the Board of Immigration Appeals.

Before: WALLACE, Chief Judge, PREGERSON and BEEZER, Circuit Judges.

BEEZER, Circuit Judge:

Kamla Prasad, Meena Kumari Prasad and their three children, ethnic Indian citizens of Fiji, petition for review of a decision of the Board of Immigration Appeals ("Board") affirming the Immigration Judge's denial of their application for asylum and withholding of deportation. The Board concluded that the Prasads failed to demonstrate past persecution

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or a well-founded fear of persecution on account of their race, religion, or political opinion. We have jurisdiction over this timely filed petition pursuant to 8 U.S.C. Sec. 1105a(a). We deny the petition.


Fiji, an island nation in the South Pacific, is composed of a multiracial society divided evenly in population between ethnic Fijians and ethnic Indians. In 1987, Sitiveni Rabuka, an ethnic Fijian military officer, led a coup that overthrew the recently-elected ethnic Indian controlled government. Since 1987, the government of Fiji has been dominated by ethnic Fijians.

Kamla Prasad, who worked in Fiji as a cook and taxi driver, departed Fiji in October of 1987, soon after the coup. His wife and children followed not long after. The Prasads initially applied for asylum in Canada, but eventually entered the United States without inspection in 1991. They sought asylum here. The Immigration Judge and Board both denied their applications, and they petitioned for review.


Under 8 U.S.C. Sec. 1158(a), the Attorney General has discretion to grant an alien asylum if the alien is a refugee. Refugees are defined as aliens who are unable or unwilling to return to their country of origin "because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. Sec. 1101(a)(42)(A).

A well-founded fear of persecution requires examination of both objective and subjective components. Estrada-Posadas v. INS, 924 F.2d 916, 918 (9th Cir.1991). The subjective component may be satisfied by credible testimony that the applicant genuinely fears persecution. Acewicz v. INS, 984 F.2d 1056, 1061 (9th Cir.1993). The objective inquiry requires "a showing by credible, direct, and specific evidence of facts supporting a reasonable fear of persecution on the relevant ground." Shirazi-Parsa v. INS, 14 F.3d 1424, 1427 (9th Cir.1994) (internal quotations and citations omitted).


We begin by addressing apparent confusion regarding the appropriate standard of review for factual asylum decisions of the Board. The Prasads argued that we, in Ghebllawi v. INS, 28 F.3d 83 (9th Cir.1994), have taken a position in conflict with that of the United States Supreme Court.

The Supreme Court, in INS v. Elias-Zacarias, 502 U.S. 478, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992), set forth the standard of review for appeals from the Board pursuant to 8 U.S.C. Sec. 1105a(a)(4), which provides that the Board's determination regarding a petitioner's asylum eligibility must be upheld if it is "supported by reasonable, substantial, and probative evidence on the record considered as a whole." In unmistakably clear language, the Court held that in order to obtain reversal, a petitioner must show "that the evidence he presented was so compelling that no reasonable factfinder could fail to find the requisite fear of persecution." Id. at 483-84, 112 S.Ct. at 817. In at least three other places in its opinion, the Court reiterated and reemphasized this standard. See id. at 479, 112 S.Ct. at 814 (relevant question is whether government action "necessarily constitute[s] persecution"); id. at 481, 112 S.Ct. at 815 (Board can be reversed only if evidence was such that a reasonable factfinder "would have to conclude that the requisite fear of persecution existed"); id. at 481 n. 1, 112 S.Ct. at 815 n. 1 (to reverse Board, court must find that evidence "not only supports that conclusion, but compels it") (emphasis in original).

In Ghebllawi, we stated that "we do not find that without saying so the Supreme Court intended to change the normal principles of administrative review" in the context of factual determinations in asylum cases. 28 F.3d at 86. We added that "[n]othing in the text of Elias-Zacarias suggests that such a significant change is being effected." Id.; see also Nasseri v. Moschorak, 34 F.3d 723, 726 (9th Cir.1994).

In other cases since Elias-Zacarias, however, we have acknowledged that the "substantial

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evidence" standard means exactly what the Supreme Court said it meant. See Paredes-Urrestarazu v. INS, 36 F.3d 801, 816 (9th Cir.1994); Kotasz v. INS, 31 F.3d 847, 851 (9th Cir.1994); Hartooni v. INS, 21 F.3d 336, 340 (9th Cir.1994); Shirazi-Parsa v. INS, 14 F.3d at 1427. Ghebllawi and Nasseri are not inconsistent with this line of authority. They do, however, leave the impression that the Supreme Court's opinion is not all that important. It is true that Elias-Zacarias did not change principles of administrative review in the context of asylum cases. The standard of review has always been, and continues to be, a deferential one. Thus, we agree with Ghebllawi to the extent that it recognizes that Elias-Zacarias represents the same standard of review previously applied in these cases.

Elias-Zacarias did, however, clarify that standard of review. As such, it is important for us to look to the Supreme Court's opinion as the touchstone for reviewing the Board's factual decisions in asylum cases. We need not address what "substantial evidence" means in the myriad other contexts in which it is used. Here, we are concerned only with how it should be interpreted in asylum cases. The Supreme Court's opinion in Elias-Zacarias is the definitive statement of "substantial evidence" in the context of the standard of review of factual determinations in asylum cases.


In light of the principles we have discussed above, we now examine the Prasads' petition. They argue that a reasonable factfinder would be compelled to conclude that Kamla Prasad was subject to persecution and had a well-founded fear of persecution on account of race, religion, or political opinion. We disagree.

Kamla Prasad testified in support of his family's application. Neither the Immigration Judge nor the Board questioned Kamla or Meena Prasad's credibility. Thus, we accept the truth of their testimony and examine only whether it is sufficient to establish statutory grounds for asylum.

Prasad contended that in September of 1987, while he was driving his taxi, he was stopped at a roadblock by a number of ethnic Fijians, some of whom were dressed in military uniforms others dressed as civilians. Prasad was taken to a police station, where he was placed in a jail cell. At some point, Prasad was hit on his stomach and kicked from behind. His captors questioned Prasad regarding his support for the ethnic Indian led Labour Party. Although they did not...

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