Hadjimehdigholi v. I.N.S., 93-9563

• Citation: 49 F.3d 642
• Decision Date: 01 March 1995
• Docket Number: No. 93-9563,93-9563
• Parties: Khosrow HADJIMEHDIGHOLI, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 642

49 F.3d 642

Khosrow HADJIMEHDIGHOLI, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.

No. 93-9563.

United States Court of Appeals Tenth Circuit.

March 1, 1995.

Nancy B. Elkind of Stern & Elkind, Denver, CO, for petitioner.

Richard M. Evans, Office of Immigration Litigation, U.S. Dept. of Justice, Washington, DC (Frank W. Hunger, Asst. Atty. Gen. Civ. Div., Washington, DC, with him on the brief), for respondent.

Before KELLY, HENRY, Circuit Judges, and VAN BEBBER, District Judge. ^*

VAN BEBBER, District Judge.

Khosrow Hadjimehdigholi has petitioned this court to review the final deportation order and denial of his request for asylum and withholding of deportation by the Board of Immigration Appeals (BIA). We exercise jurisdiction pursuant to 8 U.S.C. Sec. 1105a(a) and affirm.

I. Factual and Procedural Background

Petitioner, a native and citizen of Iran, entered the United States with a valid visitor visa on April 20, 1988. On September 23, 1988, prior to the expiration of his visa, he submitted a request for asylum in the United States to the Immigration and Naturalization Service (INS). His request was denied on March 23, 1989, and the INS commenced deportation proceedings based on petitioner overstaying his visa. On May 30, 1989, petitioner conceded deportability but requested asylum and withholding of deportation. A hearing was held before an Immigration Judge (IJ) on September 25, 1989. The following factual summary is based on testimony and evidence submitted at that hearing.

Petitioner served in the Iranian armed forces from 1959 until 1986. He was an army tank officer until 1965 when he transferred to the air force and trained to become a pilot. He eventually became a flight instructor, a position he held until he retired in 1986. In 1984, petitioner was promoted to full colonel which was his rank at retirement. He received monthly retirement pay until he left Iran in 1988.

In 1963, while the Shah was still in power, petitioner was a third lieutenant and tank commander in the army. Followers of the Ayatollah Khomeini who were protesting land reform instituted by the government attempted a revolution. Petitioner was in charge of one of four tank units that were instrumental in quelling the uprising. He later received commendations for his role in putting down the revolt.

After Khomeini took power in 1979, the general who was in charge of quelling the 1963 revolt was executed. Petitioner's military records reflected his role in quashing the rebellion, but the records were apparently never discovered by the new government, and petitioner remained in the military. Shortly before petitioner left Iran he was involved in an argument with his uncle who was a supporter of Khomeini and a member of the pro-Khomeini Hezbollah party. The uncle stated that he knew what petitioner had done while in charge of the tank unit and the uncle threatened to tell authorities about petitioner's support of the Shah. Petitioner felt that it was only a matter of time before the authorities learned of his past loyalty to the Shah.

Petitioner and another pilot in his unit, Major Shahin Abbassi, were close friends. Major Abbassi confided in petitioner about plans to defect from Iran and encouraged petitioner to join him and leave the country. Petitioner declined because of concerns for his family. In April 1987, Major Abbassi pirated an Iranian military helicopter and escaped to Turkey with his family. He eventually received asylum in the United States. The Iranian government imposed two death sentences on Major Abbassi, one for deserting in time of war since he fled the country during the Iran-Iraq war, and the other for stealing the military helicopter. After he arrived in Turkey, and later in the United States, Major Abbassi communicated covertly with petitioner and urged him to also leave Iran. Petitioner was never questioned by Iranian authorities about Abbassi's defection. Since his arrival in the United States, petitioner has continued his association with Major Abbassi.

When petitioner decided to leave Iran in 1988 he did not inform the authorities of his intention to go to the United States. Because of his rank in the military and the timing of his departure, which came soon after a clash between the United States and Iran in the Persian Gulf, petitioner believed that Iranian authorities would have viewed his departure as a defection and a strong anti-government act deserving of punishment. Through contacts in the passport office petitioner was able to obtain a passport which omitted any indication that he was a retired military officer. This enabled him to leave Iran without securing a special exit permit.

Since petitioner's departure from Iran, authorities have questioned his wife regarding his whereabouts. Petitioner is concerned that his wife and other members of his family will be harassed or persecuted. Major Abbassi's brother was imprisoned soon after Abbassi left Iran.

At the hearing petitioner testified that he believed he would be sentenced to death if he returns to Iran. He cited the following reasons for this belief: his association with Major Abbassi, the likelihood that the Iranian government will learn of his support for the Shah during his military career and specifically his role in quelling the 1963 rebellion, his departure from Iran and travel to the United States, and the fact that his brother has become a United States citizen. Mr. Afshin Shariati, an Iranian citizen and permanent United States resident, also testified at the hearing. Mr. Shariati is associated with the Movement for the National Independence of Iran, a United States-based anti-Khomeini group. He testified that he believed petitioner would be executed if he returned to Iran because of his role in the 1963 revolt and because petitioner has been outspoken about his political opinions.

The Department of State's Bureau of Human Rights and Humanitarian Affairs submitted an advisory opinion. In its opinion, the agency stated that the allegations in petitioner's application for asylum, together with information available to it about conditions in Iran, failed to demonstrate that petitioner has a well-grounded fear of persecution upon return to Iran.

The IJ also had available to him two reports concerning conditions in Iran. The 1987 Amnesty International report indicated that hundreds of political arrests had been made during the preceding year and that thousands of political prisoners remained incarcerated with little hope of receiving a fair trial. The State Department's Country Reports on Human Rights Practices for 1987 contained no estimate of the number of political prisoners in Iran, and also indicated that there was a lack of procedural safeguards for prisoners in Iranian courts. The State Department report stated that travel outside Iran had become easier and that, with the exception of some with close ties to the former regime, Iranians are generally able to return after long periods abroad without reprisal. There were, according to the report, unconfirmed reports that Iranians suspected of close association with the old regime being arrested upon their return to Iran.

At the conclusion of the hearing, the IJ denied petitioner's request for asylum and withholding of deportation but granted voluntary departure. Although the IJ found that petitioner had a legitimate fear of returning to Iran, the IJ held that petitioner did not establish that a reasonable person in petitioner's position would have a well-founded fear of persecution based on race, religion, nationality, membership in a social group, or political opinion.

On appeal, the BIA affirmed the IJ's decision and dismissed petitioner's appeal. Finding that petitioner's claim was based on speculation rather than hard evidence, the BIA held that petitioner had failed to establish that he has a well-founded fear of persecution. The BIA also rejected petitioner's claim that he was denied due process because of the incompetency of the translator during the hearing before the IJ.

II. Analysis

Petitioner raises the following claims on appeal: (1) the BIA erred in finding that petitioner did not qualify for asylum or withholding of deportation because the BIA failed to apply the proper legal standards, and because the BIA's conclusions are not supported by substantial evidence; and (2) petitioner was denied due process of law as a result of prejudicial errors committed by the BIA and the IJ.

A. Qualification for Asylum

"[T]he Immigration and Nationality Act [8 U.S.C. Secs. 1101 et seq.] has provided two methods through which an otherwise deportable alien who claims that he will be persecuted if deported can seek relief." INS v. Cardoza-Fonseca, 480 U.S. 421, 423, 107 S.Ct. 1207, 1209, 94 L.Ed.2d 434 (1987). These two methods are asylum and withholding of deportation. Petitioner applied for and was denied both forms of relief.

The granting of asylum under 8 U.S.C. Sec. 1158(a) is a two-step process. ¹ In the first step, the alien must establish that he or she is a refugee as defined by statute. If an alien has established statutory eligibility as a refugee, then in the second step the Attorney General applies her discretion to grant or deny asylum. Kapcia v. INS, 944 F.2d 702, 706, 708 (10th Cir.1991). In this case, the IJ and BIA determined that petitioner did not qualify as a refugee, therefore in this appeal we are concerned only with the first step.

"To establish refugee status, the alien must prove either past 'persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.' " Id. at 706 (quoting 8 U.S.C. Sec. 1101(a)(42)). The well-founded fear of persecution standard is comprised of both a subjective and an objective component. Id. The subjective component requires that the alien's fear be genuine. This is relevant only if the petitioner...