Fatin v. I.N.S.

• Decision Date: 20 December 1993
• Docket Number: No. 92-3346,92-3346
• Citation: 12 F.3d 1233
• Parties: Parastoo FATIN, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Third Circuit

Page 1233

12 F.3d 1233

Parastoo FATIN, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.

No. 92-3346.

United States Court of Appeals, Third Circuit.

Argued May 21, 1993.

Decided Dec. 20, 1993.

Lawrence H. Rudnick (argued), Christina Aborlleile, Steel & Rudnick, Philadelphia, PA, for petitioner.

Stuart M. Gerson, Carl H. McIntyre, Jr. (argued), Carl W. Hampe, Lauri Steven Filppu, Office of Immigration Litigation, Civ. Div., U.S. Dept. of Justice, Washington, DC, for respondent.

Nancy Kelly, Deborah E. Anker, John Willshire-Carrera, Chin-Chin Yeh, Cambridge, MA, Gail Pendleton, Boston, MA, for amici curiae.

Before: STAPLETON and ALITO, Circuit Judges, and POLLAK, District Judge ^*.

OPINION OF THE COURT

ALITO, Circuit Judge:

Parastoo Fatin has petitioned for review of an order of the Board of Immigration Appeals (the "Board" or "BIA") requiring her to depart or be deported from the United States. Arguing that she has a well-founded fear of persecution and that she is likely to be persecuted if she returns to her native country of Iran, the petitioner contends that the Board erred in holding that she is not entitled to asylum, withholding of deportation, or suspension of deportation. Based on the administrative record before us, however, we are constrained to deny the petition for review.

I.

The petitioner is a native and citizen of Iran. On December 31, 1978, approximately two weeks before the Shah left Iran, the petitioner entered the United States as a nonimmigrant student. She was then 18 years old. She attended high school in Philadelphia through May 1979, and the following September she enrolled in Spring Garden College, also in Philadelphia.

In May 1984, apparently while still attending college, she applied to the Immigration and Naturalization Service District Director for political asylum pursuant to Section 208(a) of the Immigration and Nationality Act ("INA"), 8 U.S.C. Sec. 1158(a) (1988), by submitting a completed INS Form I 589. In response to question 31 on this form, which asked what she thought would happen to her if she returned to Iran, she wrote: "I would be interrogated, and I would be forced to attend religious sessions against my will, and I would be publicly admonished and even jailed." In answer to question 34, which asked about any organization in Iran to which she or any immediate family member had ever belonged, she wrote:

I personally belonged to a student group that favored the Shah. We refused to demonstrate with the students who favored Khomeni. I refused to wear a veil which was a sign or badge that I favor Khomeni. My cousin ... is now a refugee living in Paris France. He was formerly one of the guards for the Shah.

In response to question 37, which asked whether she claimed that conditions in Iran affected her freedom more than that of the rest of the population, she answered: "The present Iranian Government now looks with greater suspicion at famil[ies] having education and some wealth." Finally, in answer to question 38, which inquired about mistreatment of family members, she stated that her father, a physician, had been harassed by "religious fanatics," but that the harassment had stopped after war broke out between Iran and Iraq and doctors were desperately needed. She also stated that two of her cousins had been jailed for about one year.

After receiving an advisory opinion from the Department of State that the petitioner had failed to establish a well-founded fear of persecution, the INS District Director denied her application in January 1986. The INS then commenced a deportation proceeding against her in February 1986. In its order to show cause and notice of hearing, the INS alleged that she had stopped attending college and was therefore deportable under what was then Section 241(a)(9) of the INA, 8 U.S.C. Sec. 1251(a)(9) (1970), ¹ since she was not in compliance with the conditions of her admission as a nonimmigrant. At a hearing in May of that year, she conceded deportability, but she renewed her application for asylum and also applied for withholding of deportation under Section 243(h)(1) of the INA, 8 U.S.C. Sec. 1253(h)(1) (1988).

At a later hearing in May 1987, she advised the immigration judge that she also wished to apply for suspension of deportation under Section 244(a)(1) of the INA, 8 U.S.C. Sec. 1254(a)(1) (1988). In addition, she testified in support of all of her claims for relief. She reiterated and expanded upon the statements in her initial asylum application concerning the treatment of her relatives in Iran, adding that one of her cousins had subsequently been killed in a demonstration and that her brother was in hiding in order to avoid the draft. She also elaborated upon her political activities prior to coming to the United States, stating that she had been involved with a student political group and with a women's rights group associated with the Shah's sister.

When her attorney asked her why she feared going back to Iran, she responded: "Because of the government that is ruling the country. It is a strange government to me. It has different rules and regulation[s] th[a]n I have been used to." App. 49. She stated that "anybody who [had] been a Moslem" was required "to practice that religion" or "be punished in public or be jailed," and she added that she had been "raised in a way that you don't have to practice if you don't want to." Id. She subsequently stated that she would be required "to do things that [she] never had to do," such as wear a veil. Id. at 55. When asked by her attorney whether she would wear a veil, she replied:

A. I would have to, sir.

Q. And if you didn't?

A. I would be jailed or punished in public. Public mean by whipped or thrown stones and I would be going back to barbaric years.

Id. at 56. Later, when the immigration judge asked her whether she would wear a veil or submit to arrest and punishment, she stated:

If I go back, I would try personally to avoid it as much as I could do.... I will start trying to avoid it as much as I could.

Id. at 68.

The petitioner also testified that she considered herself a "feminist" and explained:

As a feminist I mean that I believe in equal rights for women. I believe a woman as a human being can do and should be able to do what they want to do. And over there in ... Iran at the time being a woman is a second class citizen, doesn't have any right to herself....

Id. at 73-74.

After the hearing, the immigration judge denied the petitioner's applications for withholding of deportation, asylum, and suspension of deportation. Addressing her request for withholding of deportation, the immigration judge stated that, although she would be subject to the same discriminatory treatment as all other women in Iran, there was "no indication that there is a likelihood that the Iranian government would be particularly interested in this individual and that they would persecute her." App. 17. Similarly, with respect to her renewed request for asylum, the judge stated:

Respondent has offered no objective indic[i]a which would lead the Court to believe that there is a possibility that she would be persecuted upon return to Iran. Respondent has not been political[ly] active in the United States nor openly opposed to the Khomeni Government. It would appear that her fear of return to Iran while indeed understandable is based upon uncertainty and the unknown. In addition, it would appear that the respondent's fear upon return to Iran is her apparent dislike for the system and her belief that she as a woman would be subject to the severe restrictions presently imparted on Iranian[s] in that country. Respondent therefore contends that her beliefs as a "feminist" would be compromised. While the Court is very much sympathetic to the respondent's desire not to return to Iran, nonetheless, in applying the law to include case law, the Court is compelled to find that the respondent has failed to sustain her burden of proof necessary to be accorded asylum in the United States.

Id. at 18. Finally, the immigration judge held that the petitioner's "lack of desire" to return to Iran and "her fear of the uncertainties" involved were not enough to establish the "extreme hardship" needed for suspension of deportation. Id. at 19.

Petitioner then appealed to the Board of Immigration Appeals. In her brief, she argued that she feared persecution "on account of her membership of a particular social group, and on the basis of her political opinion." Petitioner's BIA Brief at 7. Her brief identified her "particular social group" as "the social group of the upper class of Iranian women who supported the Shah of Iran, a group of educated Westernized free-thinking individuals." Id. at 8. Her brief also stated that she had a "deep[ly] rooted belief in feminism" and in "equal rights for women, and the right to free choice of any expression and development of abilities, in the fields of education, work, home and family, and all other arenas of development." Id. at 4. In addition, her brief observed that she would be forced upon return to Iran "to practice the Moslem religion." Id. at 8. Her brief stated that "she would try to avoid practicing a religion as much as she could." Id. Her brief added that she had "the personal desire to avoid as much practice as she could," but that she feared that "through religious ignorance and inexperience she would be unable to play the role of a religious Shi'ite woman." Id. Her brief contained one passage concerning the requirement that women in Iran wear a veil in public:

In April 1983, the government adopted a law imposing one year's imprisonment on any women caught in public without the traditional Islamic veil, the Chador. However, from reports, it is clear that in many instances the revolutionary guards ... take the law into their own hands and abuse the transgressing women....

Id. at 3-4. Her brief did not discuss the question whether she would comply...