Hamzehi v. I.N.S.

• Decision Date: 19 December 1995
• Docket Number: No. 94-2579,94-2579
• Citation: 64 F.3d 1240
• Parties: Shirin HAMZEHI; Parviz Hamzehi; Pantheha Hamzehi; Bahareh Hamzehi, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1240

64 F.3d 1240

Shirin HAMZEHI; Parviz Hamzehi; Pantheha Hamzehi; Bahareh

Hamzehi, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 94-2579.

United States Court of Appeals,

Eighth Circuit.

Submitted Jan. 9, 1995.

Decided Sept. 8, 1995.

Rehearing and Suggestion for Rehearing En Banc Denied Dec.

19, 1995. ^*

William E. Pfeiffer, Omaha, NE, argued, for appellant.

Michell Y.F. Sarko, Dept. of Justice, Washington, DC, argued (David J. Kline, on the brief), for appellee.

Before LOKEN, Circuit Judge, GODBOLD, ^* Senior Circuit Judge, and MORRIS SHEPPARD ARNOLD, Circuit Judge.

LOKEN, Circuit Judge.

The Hamzehi family are Iranian citizens who entered the United States in 1986 on a six-month nonimmigrant visa. The visa expired, and the Immigration and Naturalization Service commenced this deportation proceeding. The Hamzehis conceded deportability, but Shirin Hamzehi filed an asylum application for herself, her husband, and their two daughters. Following a hearing, the Immigration Judge denied the Hamzehis either asylum or withholding of deportation to Iran. See 8 U.S.C. Secs. 1158 and 1253(h). The Board of Immigration Appeals (BIA) dismissed their appeal, and the Hamzehis now petition for judicial review. See 8 U.S.C. Sec. 1105a. Substantial evidence supports the BIA finding that the Hamzehis lack a well-founded fear of persecution should they return to Iran. Therefore, we affirm.

The Attorney General may grant asylum to a deportable alien who proves "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 is one that is both "subjectively genuine and objectively reasonable." Ghasemimehr v. I.N.S., 7 F.3d 1389, 1390 (8th Cir.1993). To overturn the BIA's adverse determination on this issue, Mrs. Hamzehi bears a heavy burden. She must show that her evidence "was so compelling that no reasonable factfinder could fail to find the requisite fear of persecution." I.N.S. v. Elias-Zacarias, 502 U.S. 478, 484, 112 S.Ct. 812, 817, 117 L.Ed.2d 38 (1992).

Mrs. Hamzehi submitted two pre-hearing affidavits in support of her asylum application. In those affidavits, she alleged a well-founded fear of both ethnic and political persecution, ethnic persecution because "I belong to the ethnic minority in Iran known as the Kurds," and political persecution because "various members of my family have been active against the Khomeini government." The affidavits went on to relate several incidents in Iran supporting her claim of political persecution.

As is customary, INS referred Mrs. Hamzehi's application and supporting affidavits to the State Department's Bureau of Human Rights and Humanitarian Affairs and requested an advisory opinion. Regarding Mrs. Hamzehi's fear of ethnic persecution, the State Department opined, "[t]here is no pattern of indiscriminate persecution by the Islamic regime against Kurds as such." The Hamzehis did not rely on an alleged fear of ethnic persecution at the hearing or on appeal. Thus, the asylum issue turns on their claim of a well-founded fear of political persecution.

This claim was supported by Mrs. Hamzehi's pre-hearing affidavits and by the testimony of Mr. and Mrs. Hamzehi at the hearing. An applicant's uncorroborated testimony, if believed, may establish an objectively reasonable fear of persecution. See Ghasemimehr, 7 F.3d at 1391. However, the Immigration Judge found that Mr. and Mrs. Hamzehi were not credible, and the BIA agreed. This credibility finding is the principal focus of the Hamzehis' appeal. We must defer to a credibility finding "when the immigration judge states a specific, cogent reason, or a legitimate, articulable basis for the finding." Hajiani-Niroumand v. I.N.S., 26 F.3d 832, 838 (8th Cir.1994).

Mrs. Hamzehi's pre-hearing affidavits described a number of seemingly unrelated events over a significant period of time. Taking these events in chronological order, Mrs. Hamzehi first related numerous incidents in 1980 and 1981, the early days of the Khomeini regime, such as the Hamzehis' participation in student demonstrations that were violently dispersed; frequent questioning and threats by the regime's Revolutionary Guards; Mr. Hamzehi's arrest and detention for three days following one such student demonstration; and atrocities visited upon relatives and neighbors during this period of mob rule. The second series of events, which are clearly the most relevant to her fear-of-persecution claim, involved Mrs. Hamzehi's brother and his wife. Mrs. Hamzehi explained that her sister-in-law, an activist in the Mojahedeen Khalq opposition party, was executed in 1983. This caused her brother to increase his opposition activities and eventually flee Iran in 1985, following which the Revolutionary Guards repeatedly invaded the Hamzehis' home and coercively questioned them about her brother, who eventually was granted refugee status in West Germany. Finally, Mrs. Hamzehi averred that in 1986 a religion teacher questioned daughter Bahareh Hamzehi at school regarding her parents' political opinions, and in late 1987 a younger brother mysteriously disappeared for a few months while studying at the University of Tehran.

While this is a substantial showing on the fear-of-persecution issue, the record also contains considerable evidence suggesting that the Hamzehis' professed fear of political persecution is not objectively reasonable, as both the Immigration Judge and the BIA noted. Mr. and Mrs. Hamzehi are not members of an opposition political organization and have not been politically active in the United States or Iran. The family departed Iran on a visa issued to Mr. Hamzehi, and they had previously been permitted to depart for a vacation in West Germany, the country that is harboring Mrs. Hamzehi's fugitive brother. Before leaving Iran in 1986, Mrs. Hamzehi was employed by the Iranian government giving German language lessons over state-owned television. Addressing Mrs. Hamzehi's claim of political persecution, the State Department advisory opinion letter commented:

Hundreds of thousands of Iranians are related to persons who have been imprisoned, executed or otherwise punished because of their anti-regime political activity. There is no pattern of persecution by the regime against such persons simply because of their family relationship to such people. In the case of the applicant, she was able to get a valid Iranian passport for travel to the U.S. We doubt very much that the regime would have permitted such travel had she in fact been singled out for persecution. In a word, the assertions made by this applicant simply do not reflect the current situation in Iran.

Given this conflicting evidence, the credibility of the Hamzehis' hearing testimony is critical to their request for asylum. To prove a present, well-founded fear of political persecution, it is not enough to show that the Hamzehis were harassed as student demonstrators in 1980, or that Revolutionary Guards invaded their home and hounded them while looking for Mrs. Hamzehi's fugitive brother in the mid-1980s. Mrs. Hamzehi must show why these rather dated events provide an objectively reasonable basis for a present fear of "particularized persecution directed at her personally on the basis of her political opinion," Safaie v. I.N.S., 25 F.3d 636, 640 (8th Cir.1994), or, we would add in view of the dissent's extended focus on the nuclear family question, on the basis of her family's political opinions.

Viewed in this light, the Immigration Judge's credibility finding must be sustained. At the hearing, whenever the Judge sought to question Mr. or Mrs. Hamzehi about when a particular event occurred, why it occurred, how often it occurred, or even where they were living at the time it occurred, the Hamzehis could not supply the kind of specific, consistent details that tend to reassure a factfinder as to a witness's credibility. Their inability to provide supporting details regarding the events in question, or even consistently to describe those events, gave the Immigration Judge a "legitimate, articulable basis" for his adverse credibility finding.

On appeal, the Hamzehis complain that the Immigration Judge improperly emphasized minor details, in effect concluding that, because Mrs. Hamzehi was confused about dates, "she must have been lying about all of the other horrors that have been visited upon her and her family." But the ultimate issue here is not simply whether the Hamzehis were mistreated at the hands of the Iranian government before they left Iran. Rather, the issue is whether the injuries inflicted upon them in the past were so selective and severe as to provide a well-founded fear that they will be persecuted as political enemies of the state if they return to Iran at the present time.

For example, the Hamzehis rely heavily on the State Department's 1990 Country Report for Iran, which states that the Iranian government is known to harass relatives of fugitive political suspects to induce the suspects to give themselves up. Department of State, Country Reports on Human Rights Practices for 1989 1401 (1990). But accepting that as true, relevant questions remain, such as whether the Hamzehis were harassed in the mid-1980s because government agents were seeking Mrs. Hamzehi's fugitive brother and, if so, whether that sort of familial harassment would continue now that her brother has been granted asylum in Germany. The Hamzehis' vague, inconsistent hearing testimony simply shed no light on these important questions.

Because vagueness, confusion, and inconsistencies permeated the Hamzehis' testimony, they failed to establish an objectively reasonable link between the mistreatments of the past and their claim of a present, well- founded fear of political persecution. Thus, while inconsistencies of this nature might not justify the denial of...