Fisher v. I.N.S.
| Decision Date | 02 April 1996 |
| Docket Number | No. 91-70676,91-70676 |
| Citation | 79 F.3d 955 |
| Parties | 96 Cal. Daily Op. Serv. 2252, 96 Daily Journal D.A.R. 3751 Saideh FISHER, aka Saideh Hassib-Tehrani; Kian Hosseini Lavasani, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Walter Rafael Pineda, Charles E. Nichol, San Francisco, California; Carolyn Patty Blum, Central American Refugee Defense Fund, Berkeley, California, for petitioners.
Karen Fletcher Torstenson, Thomas W. Hussey, Office of Immigration Litigation, United States Department of Justice, Washington, DC, for respondent.
Petition for Review of a Decision of the Board of Immigration Appeals; INS Nos. A27-117-713, A27-140-319.
Before: WALLACE, FLETCHER, CANBY, HALL, BRUNETTI, JOHN T. NOONAN, Jr., THOMPSON, O'SCANNLAIN, TROTT, FERNANDEZ, and RYMER, Circuit Judges.
Opinion by Judge WALLACE; Concurrence by Judge CANBY; Dissent by Judge NOONAN.
Saideh Fisher and her son Kian Hosseini Lavasani are natives and citizens of Iran. On her behalf, as well as for her son, Fisher petitions for review of the Board of Immigration Appeals' (Board) decision denying her application for asylum and withholding of deportation. The Board also denied Fisher's application for voluntary departure pursuant to section 244(e) of the Immigration and Nationality Act (Act). 8 U.S.C. § 1254(e). We have jurisdiction over this timely appeal pursuant to 8 U.S.C. § 1105a(a). The petition is denied.
Fisher and her son entered the United States on April 30, 1984. Because her son's immigration status derives from her own, our discussion will focus on the status of Fisher. 8 C.F.R. § 208.21 (1995). Although Fisher was admitted as the fiancee of a United States citizen, she did not marry her then-fiancee within the 90-day period allowed by her visa. Instead, on August 4, 1984, she married Charles Fisher (Charles), a United States citizen. They were divorced in 1987.
Prior to their divorce, Charles filed a petition in support of Fisher's application for permanent resident status. On February 3, 1986, he withdrew the petition and filed an affidavit which stated, "I was given $500.00 to marry my wife Saideh." According to the affidavit, a co-worker apparently told Charles that Fisher's step-cousin, to whom she was originally engaged to be married, would pay him the $500. Charles also denied living with Fisher on a continuous basis since their marriage.
Accordingly, on February 3, 1986, the Immigration and Naturalization Service (INS) denied Fisher's application for permanent resident status and began deportation proceedings. Fisher conceded deportability and filed for asylum and withholding of deportation pursuant to 8 U.S.C. §§ 1158(a), 1253(h).
An immigration judge (IJ) held two hearings, one on May 15, 1987, concerning Fisher's application for voluntary departure, and another on September 25, 1987, concerning Fisher's asylum application. At the May hearing, Fisher testified that she originally came to the United States to marry Robert Lavasani, her step-cousin. When she arrived, she learned that he was living with and had impregnated another woman. Upset and lonely, she testified that she then married Charles, but she denied offering him money to marry her. She suspected that Charles withdrew his petition in support of her application for permanent resident status because he "never kept his promises" and he took advantage of her.
Fisher testified that she lived with Charles as husband and wife for approximately one year. Yet in preparation for an interview conducted by INS officials to determine the validity of her marriage, Fisher testified that she reviewed potential questions and answers with Charles. She also referred to handwritten notes during the interview, which contained information including: what time she and her husband went to sleep at night, how often she saw his two daughters, what kind of food he likes, what time he comes home from work, how much money he gives her, how long they have lived in their new house, what kind of car they own, what kind of television programs he watches, his parents' names, what clothing items he owns, and what brand of cigarettes he smokes. The notes also contained information such as her parents' names, her own birth date, and her place of work. Fisher testified that she needed these notes because she had difficulties remembering many things, in part because of her traumatic experiences in Iran.
Charles was not available to testify at the May hearing. The INS issued a subpoena, to which he did not respond; its investigations unit attempted to locate him, but without success. An INS officer who interviewed Fisher in depth also was unavailable to testify because he had been reassigned to Alaska. Another INS officer, who interviewed Fisher briefly, testified that she told him she had a bona fide marriage with Charles. The IJ decided that "the case will just have to stand on the evidence" presented as well as Fisher's own testimony. Fisher's counsel did not object.
At the September hearing on Fisher's asylum application, she testified that she left Iran in February 1984 following three events. First, Fisher testified that she was detained and questioned by Khomeini government officials because she attended a party at a male friend's home where she observed her host in a bathing suit. When this occurred is unclear, but she alleges to us that it was approximately six months prior to leaving Iran. Along with several other female guests, Fisher was held at the "Comite"--probably a police station--for several hours. The authorities recorded Fisher's name and address, and they told her that being present with a man in a bathing suit was "incorrect." She was then released.
The next incident occurred approximately one month prior to her departure from Iran. Fisher testified that four government officials stopped her on the street and ordered her into their car at gunpoint. She said she was stopped because she "had a few pieces of hair hanging out [of her chador or veil] by mistake." The officials told her that she was not dressed properly, returned her to her home, and admonished her not to appear on the street like that again.
The third incident occurred shortly after the "veil incident." Fisher testified that government officials came to her father's home, where Fisher lived, to search for political dissidents. She said that the search was a "normal" occurrence, and that she assumed the officials were looking for persons associated with her brother-in-law, who was in prison at the time. In her brief to this court, Fisher suggests that her brother-in-law was arrested for political activities, but there was no record testimony concerning the reasons for his imprisonment. Government officials did not question or detain Fisher as a result of the search. They merely asked her to inform them if she learned of any persons who were "against the regime," and they left.
Fisher testified that these three events so traumatized her that she became ill, missed several months of work, and eventually left Iran. She argues that these events amount to persecution on account of her religious and political beliefs. With respect to these beliefs, Fisher testified that she did not believe in "the way [the Khomeini government] treat[s] people, the covering of the face, and the way of life" dictated by the government. When asked what might happen to her if she returned to Iran, Fisher responded that she "presumes" she would be "in a worse situation" than before she left. Significantly, Fisher did not state whether she would comply with the governmental requirements if she returned to Iran.
The IJ found Fisher's testimony concerning her application for asylum credible, but nevertheless denied her request for asylum and withholding of deportation because she did not have a well-founded fear of persecution and did not face a clear probability of persecution. The IJ also denied Fisher's request for voluntary departure, finding that she married Charles solely for immigration purposes. The IJ based his decision on Charles's affidavit and Fisher's behavior during her interview with the INS interviewing officer. He found Fisher's testimony concerning her marriage not credible.
Fisher appealed from the IJ's decisions to the Board, which independently reviewed the record and affirmed the IJ's findings concerning Fisher's application for asylum and withholding of deportation. The Board first held that general enforcement of Iran's rules concerning the interaction between men and women and clothing restrictions, which require all women to wear "ultraconservative dress," do not "rise to the level of persecution." It also held that although Fisher stated she feared persecution upon return to Iran, she failed to present sufficient evidence showing how the government's actions related specifically to her and to her beliefs. For example, the Board found that Fisher provided no evidence of how the search of the family home related to her. The Board also adopted the IJ's findings and decision concerning Fisher's request for voluntary departure.
A three-judge panel of this court vacated the Board's decision and remanded, holding that (1) the Board failed to consider whether Fisher would suffer future persecution if she returned to Iran; (2) the Board improperly defined "persecution"; (3) Fisher may suffer persecution on account of her religious beliefs as a result of Iran's enforcement of its conduct and dress rules; and (4) Fisher may face persecution on account of her political beliefs based on a "totality of the circumstances." Fisher v. INS, 61 F.3d 1366 (9th Cir.1995). Because the three-judge panel remanded for the Board to reconsider Fisher's...
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