Hoque v. Ashcroft

• Decision Date: 19 May 2004
• Docket Number: No. 02-72404.,02-72404.
• Citation: 367 F.3d 1190
• Parties: Mohamad Ahsanul HOQUE; Morsheda Hoque, Petitioners, v. John ASHCROFT, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

367 F.3d 1190

Mohamad Ahsanul HOQUE; Morsheda Hoque, Petitioners, v. John ASHCROFT, Attorney General, Respondent.

No. 02-72404.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 5, 2003.

Filed May 19, 2004.

COPYRIGHT MATERIAL OMITTED

David Nakatsuma, Los Angeles, CA, for the petitioners.

Jacqueline R. Dryden and Teresa L. Donovan, United States Department of Justice, Washington, DC, for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency Nos. A74-814-465, A74-814-466.

Before BEEZER, KOZINSKI, Circuit Judges, and SCHWARZER,^* Senior District Judge.

BEEZER, Circuit Judge.

Petitioner Mohamad Ahsanul Hoque ("Ahsanul") and his wife, Morsheda Hoque ("Morsheda"), whose claims derive from his, petition for review of a decision of the Board of Immigration Appeals ("BIA") dismissing without opinion their appeal from a decision of an Immigration Judge ("IJ") denying their application for asylum and withholding of removal. The Hoques contend that the IJ and BIA erred in finding their testimony incredible, in determining that they were not persecuted on account of any of the grounds enumerated in the Immigration and Nationality Act ("Act"), and in determining that they faced valid prosecution rather than political persecution if removed to Bangladesh. The Hoques claim that Ahsanul was persecuted by members of a political group that the Bangladeshi government was unable to control because of his political beliefs and activity in support of the Bangladesh Nationalist Party ("BNP").

We have jurisdiction pursuant to 8 U.S.C. § 1252, and we grant the petition for review. We hold that the IJ's adverse credibility determination is not supported by substantial evidence. The IJ's findings of fact underlying the additional bases for denying asylum — that Ahsanul was not persecuted on account of political opinion and did not fear persecution, but valid prosecution — are not supported by substantial evidence. The IJ's determination that Ahsanul was not persecuted on account of political opinion because "political jealousy" was a factor that motivated his persecutors is inconsistent with the law of this circuit. Crediting the Hoques' testimony, we conclude that the Hoques have established past persecution, giving rise to a presumptive eligibility for asylum and withholding of removal. We remand to the BIA to give the Attorney General an opportunity to rebut this presumption and for the BIA to determine whether the Hoques qualify for asylum and withholding of removal and, if appropriate, to exercise discretion on behalf of the Attorney General regarding the asylum claim.

I

Ahsanul and Morsheda Hoque are natives and citizens of Bangladesh. Ahsanul testified that he joined the BNP as a university student in the late 1980s and became active in local and national politics. His stated goal was to become a high-level political leader to promote democracy and alleviate the poverty of Bangladesh.

Ahsanul testified that he became vice president of the BNP Youth Group for his region in 1993. In this role, he worked to arrange meetings and demonstrations in support of the party. Ahsanul actively supported the BNP in Bangladesh's February 15, 1996 national elections. The BNP held power at the time, and the main opposition parties denounced the elections as unfair and held a boycott to stop the elections. Ahsanul stated that he worked to encourage people to participate in the election and to support the BNP. The BNP won the election, though the opposition parties questioned the result.

Ahsanul said that two days after the election, on February 17, 1996, he was kidnaped by ten to fifteen men, some of whom he recognized as members of the Awami League, a competing political party. Ahsanul said that the men took him to their camp in Mirpur, where they beat him with wooden sticks and an iron rod and stabbed him in his back, shoulders, forehead and both hands. Ahsanul testified that the men who beat him said, "How dare you are working [sic] for the elections when we are not." Ahsanul was found unconscious on the street the next morning and was hospitalized for eight days. He was instructed to rest at home for about a month after his hospitalization.

After recovering from his injuries, Ahsanul resumed his political involvement. Ahsanul testified that he was "harassed all the time," and that members of the Awami League threatened his family and co-workers, telling them that if Ahsanul reported the incident to the police, he would be killed. However, he did not experience more serious difficulties until the approach of a June 1996 national election.

In the spring of 1996, the BNP agreed to allow a temporary caretaker government to assume power to conduct another national election on June 12, 1996. Ahsanul stated that he organized and participated in a local demonstration in support of a BNP candidate on May 28, 1996, approximately two weeks before the June election. The Awami League held a demonstration on the same day, and the two groups clashed in the street. According to Ahsanul, about seven people on each side suffered injuries. Ahsanul testified that he never advocated the use of violence or physical action by his party against other parties' members and asserted that he never had physical contact with anyone, other than to defend himself when he was assaulted. Ahsanul testified that the Awami League wrongly blamed him for the violence because he had played a leading role in organizing the demonstration.

After the demonstration, Awami League members searched for Ahsanul at work and at home. Ahsanul stated that he went into hiding on May 28 or 29, 1996, and remained in hiding until approximately three weeks following the election, when he and his wife left Bangladesh.

Ahsanul testified that on May 30, 1996, while he was in hiding, members of the Awami League entered his audio-video business and destroyed all of the equipment, making any recovery of the business impossible.

Ahsanul testified that when the Awami League won the national elections on June 12, 1996, the new government falsely accused him of inciting violence at the May demonstration. Ahsanul stated that the Awami League brought charges against him and named him as a defendant in a lawsuit.

The Hoques arrived in the United States on or about July 4, 1996.¹ They were admitted as nonimmigrant visitors for pleasure with authorization to remain in the United States until January 3, 1997.

After his arrival in the United States, Ahsanul occasionally communicated with his mother and friends from the BNP back in Bangladesh. A BNP friend informed Ahsanul about the charges against him for his involvement in the May 1996 demonstration, but the friend was unable to provide details about the status of his case in Bangladesh. Ahsanul expressed fear that if he returned to Bangladesh he would be immediately apprehended and possibly killed by the Awami League.

The Hoques applied for asylum and withholding of removal on September 30, 1996. On January 21, 1997, the former Immigration and Naturalization Service ("INS")² issued the Hoques Orders to Show Cause. The Hoques have conceded that they are removable.

II

To be eligible for asylum, the Hoques must show that Ahsanul is unable or unwilling to return to his country of origin because of "persecution or 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. § 1101(a)(42)(A). In order to qualify for withholding of removal, the Hoques must show that Ahsanul's "life or freedom would be threatened" if he is returned to his homeland on account of one of the above factors. 8 U.S.C. § 1231(b)(3).

Where, as here, the BIA adopts the decision of the IJ, we review the IJ's decision as if it were that of the BIA. Wang v. Ashcroft, 341 F.3d 1015, 1020 (9th Cir.2003).

In reviewing a decision of the BIA to deny asylum and withholding of removal, we examine whether the decision is supported by substantial evidence. Id. at 1022. We review adverse credibility determinations under the substantial evidence standard. He v. Ashcroft, 328 F.3d 593, 595 (9th Cir.2003). Although the standard of review is deferential, an adverse credibility determination must be supported by "specific, cogent reason[s]." Gui v. INS, 280 F.3d 1217, 1225 (9th Cir.2002) (internal quotation marks and citations omitted). Any such reason must be "substantial and bear a legitimate nexus to the finding." Chebchoub v. INS, 257 F.3d 1038, 1043 (9th Cir.2001) (internal quotation marks and citations omitted). "Minor errors or inconsistencies... do not constitute a valid ground upon which to base a finding that an asylum applicant is not credible." Akinmade v. INS, 196 F.3d 951, 954 (9th Cir.1999) (internal quotation marks and citations omitted). This is particularly true where inconsistencies cannot be viewed properly as attempts to enhance claims of persecution or where they reveal nothing about the applicant's fear for his safety. See Shah v. INS, 220 F.3d 1062, 1068 (9th Cir.2000).

We review questions of law, and the application of legal principles to facts, de novo. Singh v. Ilchert, 63 F.3d 1501, 1506 (9th Cir.1995).

III

We conclude that the IJ's reasons for finding the Hoques incredible are not supported by substantial evidence. We therefore reverse the IJ's adverse credibility determination.

The IJ based her adverse credibility determination on the following factors: (1) a discrepancy between the original and a copy of a corroborating letter from the BNP (an illegible handwritten date on the original that is not present on the copy); (2) inconsistencies between the testimony of Ahsanul and his wife regarding the dates and occasions on which Ahsanul was in hiding; (3) a finding that Morsheda's testimony regarding the dates Ahsanul hid was internally inconsistent, hesitant, and unsure; (4) Morsheda's failure to...