Hasan v. Ashcroft

• Decision Date: 18 August 2004
• Docket Number: No. 02-73867.,02-73867.
• Citation: 380 F.3d 1114
• Parties: Afroza HASAN; Khandker Nazmul Hasan, Petitioners, v. John ASHCROFT, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

380 F.3d 1114

Afroza HASAN; Khandker Nazmul Hasan, Petitioners, v. John ASHCROFT, Attorney General, Respondent.

No. 02-73867.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 29, 2004.

Filed August 18, 2004.

COPYRIGHT MATERIAL OMITTED

Carlos Cruz (argued), Los Angeles, CA, for the petitioners.

Alison Drucker (argued), Office of Immigration Litigation, U.S. Department of Justice, Washington DC, for the respondent.

Margaret J. Perry, Senior Litigation Counsel, Office of Immigration Litigation, U.S. Department of Justice, Washington DC, for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals.

Before D.W. NELSON, FERNANDEZ, and KLEINFELD, Circuit Judges.

D.W. NELSON, Senior Circuit Judge:

Afroza and Khandker Hasan, husband and wife, and native citizens of Bangladesh, petition for review of the Board of Immigration Appeals' denial of their requests for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"). The Immigration Judge ("IJ") found that the Hasans had failed to establish that their past persecution was on account of an enumerated ground, and therefore dismissed their claims for asylum and withholding of removal. The IJ also found that the Hasans had failed to establish that, upon their return to Bangladesh, they were more likely than not to experience torture with the consent or approval of government officials acting in their official capacity, and therefore, denied them relief under CAT. The Board of Immigration Appeals ("BIA") affirmed the decision of the IJ without opinion.

We have jurisdiction pursuant to the Immigration and Nationality Act ("INA") § 242(a)(1), 8 U.S.C. § 1252(a)(1). We find that substantial evidence supported the IJ's conclusion that the Hasans had not established eligibility for CAT relief. However, the IJ erred in concluding that the Hasans had not established that their past persecution was on account of political opinion. Accordingly, we grant the petition for review and reverse and remand to the BIA for further proceedings consistent with this opinion.

I. Factual and Procedural History

The following facts are drawn from the Hasans' testimony at their asylum hearing, as well as their written application for asylum. Because the IJ did not make an adverse credibility finding, we accept the Hasans' testimony as true. See Damon v. Ashcroft, 360 F.3d 1084, 1086 n. 2 (9th Cir.2004).

A. The Hasans' Experiences in Bangladesh

Afroza Hasan (hereinafter "Afroza," in order to distinguish her from her husband "Khandker"), the lead petitioner, worked as a reporter for Purnima, a local newspaper in Bangladesh. She primarily reported on women's issues in the region in which she lived. Afroza was a member of the Bangladesh Nationalist Party ("BNP"), one of Bangladesh's major political parties. She was also a member of Mohila Parishad, a women's organization that served distressed women in the region.

In 1995, Afroza wrote an article that criticized a member of the local government who worked for Chairman Abu Jaher (hereinafter "the Chairman"), an important government leader in the region, who was chairman of the local union parishad — the Dhaka Union Parishad. The Chairman was a member of the Awami League, another of Bangladesh's major political parties, which assumed control of the national government in 1995. Shortly after the article came out, Afroza was approached by the person her article had criticized, as well as two other people. They threatened her, demanding that she stop writing or, as she described it during the hearing, "they will break my hand, and I will be burned by the acid."

In 1996, a woman reported to the Mohila Parishad that she had been raped by the Chairman. When she went to file a police report, the Chairman identified her as a prostitute. The woman's husband divorced her and she committed suicide. Before killing herself, she told Afroza of two people who could serve as witnesses to the Chairman's crimes. Based on these and other sources, Afroza wrote a report that described the Chairman as a "godfather" in the region, with a gang of followers who carried out a wide range of criminal activities: drug deals, misappropriation of money and foodstuff, bribery, and terrorizing of the population. Afroza's editor promised not to put her name on the article, but when the article was published, on November 11, 1998, it had her name prominently displayed as the author.

On November 14, 1998, a group of "people of the Chairman" attempted to attack Afroza in multiple incidents throughout the night. First, a group of fifteen to twenty men broke into one of Afroza's two apartments, which was located near her parents' home. It was empty at the time, and the men ransacked it. Then, they went to her parents' apartment in search of Afroza. They punched her father, pulled off her mother's sari, and shouted and cursed at them, including the following, as paraphrased by Afroza at the hearing: "Your ... daughter writes, and ... get involved with the women's organization. First we will let your daughter be (indiscernible) and then we will bite her like a vulture."

After leaving her parents' home, the Chairman's men found Khandker in his car a short distance away from his apartment. They stopped his car, broke the glass, pulled him out of the car through the glass, punched and beat him with sticks, attempted to stab him, and shouted at him, "Why didn't you stop your wife, and how do you let your wife do all this bad things? And your wife wrote against our boss, how come you didn't stop her?" Some of the men began arguing about when and where to kill him. At that point, Khandker was knocked unconscious, and awoke to learn that some of his friends had taken him to the hospital. He was hospitalized for three days after the incident.

Finally, the group of men came looking for Afroza in the apartment she lived in with Khandker, where she was staying that night. She heard them break down the main gate and she ran away through the back gate. As she ran, she fell, injuring her nose and stomach. While she hid in a neighboring house, they set fire to her bedroom. Afroza was hospitalized for two days for treatment of the injuries from her fall.

The day after these attacks, November 15, 1998, Purnima published an article describing "a group of gang men" who attacked Afroza's parents, husband, and homes. The article reported that the special report by Afroza published on November 11 had "enraged the chairman ... who in turn set out his gang members to take revenge." The record contains this article, as well as photos of women marching to protest the attack on Afroza in the days following November 14.

Also on November 15, Afroza's father went to the police in Bandar, where his house was located, to report the incidents. The Bandar police refused to take down a report. Her father then went to the police in Narayangonj, where Khandker's apartment was located. The Narayangonj police made a "general diary" of the incidents, but they never undertook any follow up. No one was ever arrested for the attacks that night.

After the Hasans were released from the hospital, they stayed in hiding with various relatives in and around Dhaka for two months. While they were in hiding, the Chairman posted a poster with Afroza's photograph on it, which stated:

DO ARREST AND METE OUT EXEMPLARY PUNISHMENT TO AFROZA SULTANA JOURNALIST AND MEMBER OF THE "MOHILA PARISHAD SAMITY" FOR HER ALLEGED INVOLVEMENT THROUGH THE SAID SAMITY IN ANTI ISLAMIC ACTIVITIES ...¹

Afroza testified that the Chairman's purposes in posting the sign were "to locate me ... and to hang me as a bad character, and to portray himself as a good person in the society." Afroza made sure she was always covered when she went outside during this period, and Khandker's family refused to help the Hasans because Afroza's "picture was everywhere in the poster, and they were feeling insult for that."

The Hasans fled to the United States on February 14, 1999. After they arrived in this country, the police came looking for Afroza in Bangladesh. They beat up her brother for refusing to disclose Afroza's whereabouts. When they learned that she had left the country, they told her father, "The day your daughter will land in ... Bangladesh that will be her last day." Men working for the Chairman also visited Khandker's factory and demanded money from his partner.

The Hasans entered the United States with visitor visas and overstayed their six-month authorized stay. In March 2000, the Immigration and Naturalization Service initiated removal proceedings. The Hasans conceded removability and applied for asylum and withholding of removal pursuant to 8 U.S.C. §§ 1158(a) and 1231(b)(3), and withholding of removal under CAT pursuant to 8 C.F.R. §§ 208.16(c) and 208.18.

B. The Asylum Hearing

At the hearing before the IJ, the Hasans each testified to the foregoing experiences. As rebuttal, the government offered documentary evidence of changed country conditions in Bangladesh since the Hasans' departure. In particular, the government submitted three articles describing the 2001 election of a new prime minister, Khaleda Zia, a woman and a member of the BNP. The Hasans both testified that they did not think this change in country conditions since their departure would change the danger they faced.

Khandker testified that the Chairman can change political parties at will, and that his local power is not tied to what party happens to be in control of the national government. Khandker also testified that they could not safely live in another part of the country because, "[The Chairman] has maintenance of groups not only his locality. He has (indiscernible) in lot of places, they deal with drugs. Also, he controlling those places, the criminals and police administration."

Neither the government attorney nor the IJ asked Afroza any questions about whether the new...