Gafoor v. Immigration & Naluralization Serv., No. 98-71201

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtHAWKINS; O'SCANNLAIN
Citation231 F.3d 645
Parties(9th Cir. 2000) ABDUL GAFOOR; BIBI NURUN NISHA; FAYMEEZA NISHA; FARZANA NISHA; Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent
Docket NumberNo. 98-71201
Decision Date03 November 2000

Page 645

231 F.3d 645 (9th Cir. 2000)
ABDUL GAFOOR; BIBI NURUN NISHA; FAYMEEZA NISHA; FARZANA NISHA; Petitioners,
v.
IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
No. 98-71201
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Argued and Submitted December 9, 1999
Filed November 3, 2000

Page 646

Copyrighted Material Omitted

Page 647

Jorge Rodriguez-Choi (argued) and Suzanne B. Friedman, San Francisco, California, for the petitioners.

Alice E. Loughran, Office of Immigration Litigation, U.S. Department of Justice, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. INS Nos.A71-781-355 A71-781-356 A71-781-357 A71-781-358

Before: Diarmuid F. O'Scannlain, Michael Daly Hawkins, and Sidney R. Thomas,1 Circuit Judges.

OPINION by Judge HAWKINS; Disssent by Judge O'Scannlain

HAWKINS, Circuit Judge:

This is the latest in a long line of immigration cases involving claims of racial and political persecution against people of Indian descent living on the South Pacific island of Fiji. Like those asylum-seekers before him, Abdul Gafoor claims he was persecuted by ethnic Fijians on account of his Indian background and that he and his family will be harmed if forced to return to Fiji. We have taken the claims of IndoFijians very seriously because of the severe mistreatment they have suffered in their adopted country. Recent years have brought about improvements in Fiji, and consequently we have held in one case that changed country conditions rebutted the fears of an Indo-Fijian woman that she would be persecuted if sent home. See Kumar v. INS, 203 F.3d 931 (9th Cir. 2000). But the underlying racial tension between ethnic and Indo-Fijians has persisted, and in the past several months conditions

Page 648

in the country have deteriorated to their lowest point in 13 years.

It is in the context of these developments that we review the BIA's decision that Gafoor is not eligible for asylum and that he and his family must return to Fiji.2 We conclude that the BIA's decision is not supported by substantial evidence, and we remand the case for a determination of whether recent events support Gafoor's fear that he will be persecuted if forced to return to Fiji.

I. FACTS AND PROCEDURAL BACKGROUND

In 1874, when the British Empire assumed control of Fiji, the country was populated primarily by indigenous Fijians. Beginning in 1879, however, indentured workers from India were brought to Fiji to farm the expanding sugar plantations. When the importation of indentured workers stopped in the 1920s, a new wave of migrant workers began arriving from India, and by the mid-1960s Indo-Fijians accounted for more than half of the country's population.

Fiji gained independence from Britain in 1970 and instituted a system of parliamentary democracy under the leadership of Prime Minister Ratu Sir Kamisese Mara, an ethnic Fijian. Due to the emigration of Indo-Fijians and an increase in ethnic-Fijian birth rates, the population shifted again so that Indo-Fijians were slightly outnumbered by ethnic Fijians. Despite their similar size, however, the two groups remained rigidly separate. Indo-Fijians, overwhelmingly Hindu or Muslim, dominated the economy and professions, while ethnic Fijians, almost exclusively Christian, controlled the nation's military and its political structures. Racial intermarriage was virtually non-existent.

In 1987, after two decades of rule by ethnic-Fijians, the voters of Fiji elected the first government dominated by IndoFijians. The administration was short-lived, however; in May and October, the Fijian military staged two coups that ousted the Indo-Fijian government. According to the U.S. State Department, the "stated purpose of the 1987 military coups was to ensure the political supremacy of the indigenous Fijian people and to protect their traditional way of life and communal control of land." U.S. Dep't of State, Country Reports on Human Rights Practices for 1992, at 566 (1993). To achieve that purpose, the military installed an interim government led by Former Prime Minister Sir Kamisese. This "unelected, interim government" then promulgated a new constitution, which "was never approved by a national referendum" and which "ensur[ed] political dominance by ethnic Fijians." Id. at 565. The constitution effectively wrote Indo-Fijians out of the government, reserving a majority of seats in Parliament for ethnic Fijians, requiring the election of an ethnic Fijian Prime Minister, and ensuring the selection of an ethnic Fijian President. See id.

In addition to this structural discrimination, the coups resulted in widespread abuse and violence against IndoFijians. See U.S. Dep't of State, Country Reports on Human Rights Practices for 1987, at 694-700 (1988)[hereinafter "Country Reports for 1987"]. The Department of State received "numerous reports of physical abuse of detainees by the military," some of whom "were forced to run barefoot on blacktop roads in the hot sun for several kilometers or were dumped in pit latrines or in the sewage treatment holding plants." Id. at 695. "The most horrible reported attacks on Indo-Fijians include women raped in front of their children, political opponents brutally beaten, detainees forced to walk naked in the streets while holding human excrement, people forced to swim in sewage ponds,

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and children stripped and beaten for Sunday curfew violations and forced to rub their noses against a concrete floor until their noses bled." Singh v. INS, 94 F.3d 1353, 1357 (9th Cir. 1996). "Ethnic Fijian youth gangs . . . raided, stoned, and fire bombed Indo-Fijian homes. In 1989, five Hindu temples were burned. In October 1990, an Indian school was burned." Id. "Freedom of speech [was] severely constrained," and "[p]olitical meetings and demonstrations [were] banned." See Country Reports for 1987, at 696-97. Fearing for their safety, roughly 35,000 Indo-Fijians fled the country. See U.S. State Department, Background Notes: Fiji, May 1996 (last visited Sept. 8, 2000); http://www.state.gov/www/background_notes/fiji_0596_bgn.html

Abdul Gafoor was one of those. At the time of the coups, he was a police officer in Fiji with eighteen years experience. Born in Fiji to Indian parents, he was one of the few IndoFijians on the country's police force. One day in October 1987, he was on patrol when he heard screams in a nearby street and came upon a man in civilian clothing who was raping a 13-year-old girl. Gafoor arrested the man and escorted him to the police station, but his supervisor, an ethnic Fijian, explained that the man was a high-ranking army officer. The man was then released without being charged, and the supervisor warned Gafoor that his life was in danger.

The next night, the army officer he had arrested came to Gafoor's house with seven or eight other men, all dressed in army uniforms. They beat Gafoor in front of his wife and children and took him to an army camp in Nambala, where he was locked up for one week. During his captivity, several soldiers came to his cell and hit him in the stomach. They asked him why he had arrested an army officer, and they warned him not to tell anyone about the rape or his beating. They also accused him of opposing the army.

After he was released, Gafoor received treatment for his injuries and was transferred temporarily to a job as a court bailiff so that he could recover. Several nights later, he resumed his regular patrol duties and was walking down the street when a military van pulled up to the curb. The army had become involved in police work following the coups, and Gafoor thought the soldiers in the van had stopped to assist him. But when they stepped out of the van, he recognized the officer he had arrested among the group. The soldiers approached, beat him with their rifles, and threatened to kill him. They told him Fiji was their country and that he "should go back to India." Then, they left him in a water ditch, bleeding and unconscious. When he awoke the next morning, he was in a hospital, where he remained for nine days.

Gafoor feared the soldiers would return to kill him, so on November 15, 1987, he fled with his family to Canada. He stayed there until February 1991, when he entered the United States. The INS instituted deportation proceedings against Gafoor and his family in January 1993. He then applied for asylum and withholding of deportation. At his hearing before the Immigration Judge ("IJ"), Gafoor testified about the things that had happened to him. He also testified that ethnic Fijians had since taken over his house in Fiji and that he feared returning home.

The IJ denied Gafoor's application, finding that the abuse he suffered "had nothing to do with any political motives, racial motives, membership in any particular social group orreligious belief or any of the other items mentioned." Instead, the IJ concluded, the attacks against Gafoor were motivated solely by revenge for the arrest of the army officer. The BIA affirmed this decision in September 1998, finding "no nexus between the incidents . . . and any ground protected by" the Immigration and Nationality Act. The BIA also ruled that even if Gafoor had been persecuted on account of a protected ground, country conditions had changed sufficiently to rebut the presumption of a well-founded

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fear. Gafoor then filed a timely petition for review of the BIA's decision.

II. STANDARD OF REVIEW

"We must uphold the BIA's determination that an alien is not eligible for asylum if it is supported by reasonable and substantial evidence based on the record as a whole. " Maini v. INS, 2000 WL 640352 (9th Cir. May 19, 2000)."Put differently, we will reverse its decision only if the petitioner can demonstrate that the evidence is `such that a reasonable fact finder would have to conclude that the requisite fear of persecution existed.' " Id. (quoting INS v. Elias-Zacarias, 502 U.S. 478,...

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