Kazemzadeh v. U.S. Atty. Gen.

Decision Date06 August 2009
Docket NumberNo. 08-12857.,08-12857.
Citation577 F.3d 1341
PartiesHani KAZEMZADEH, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.
CourtU.S. Court of Appeals — Eleventh Circuit

Karen Y. Stewart, David V. Bernal, Liza S. Murcia, U.S. Dept. of Justice, Civ. Div., OIL, Washington, DC, for Respondent.

Petition for Review of a Decision of the Board of Immigration Appeals.

Before MARCUS and PRYOR, Circuit Judges, and EDENFIELD,* District Judge.

PRYOR, Circuit Judge:

This petition for review, filed by an Iranian who has converted from Islam to Christianity and claims to fear persecution in Iran where apostasy is punishable by death, places this Court between Scylla and Charybdis. A denial of review will return the petitioner to the theocratic regime in Iran, but an erroneous grant of review could establish a precedent that rewards less than genuine fears of persecution based on religious conversion. Hani Kazemzadeh, a native and citizen of Iran, petitions this Court for review of the denial of his application for asylum and withholding of removal based on political and religious persecution. The main issue presented is whether the Immigration Judge and the Board of Immigration Appeals gave reasoned consideration to Kazemzadeh's evidence that he has a well-founded fear of persecution based on his conversion to Christianity while in the United States.

The right course between the threats of Scylla and Charybdis is for the Board to reconsider the record, which contains important evidence that the Board failed to mention. Although substantial evidence supports the decision of the Board that Kazemzadeh failed to prove a well-founded fear of persecution based on his political opinion, the Board failed to give reasoned consideration to Kazemzadeh's evidence of a well-founded fear of persecution based on his religion. There is evidence that the law against apostasy is not often enforced in Iran, but neither the Board nor the Immigration Judge considered Kazemzadeh's testimony that Iranians who convert from Islam to Christianity avoid punishment by instead suffering persecution by practicing underground. The Board and the Immigration Judge also failed to consider whether the Iranian regime has a heightened interest in Kazemzadeh that makes it more likely that Kazemzadeh's conversion will be discovered. We deny Kazemzadeh's petition about political persecution, and we grant Kazemzadeh's petition about religious persecution, vacate the decision of the Board about that claim, and remand for further proceedings consistent with this opinion.


Our discussion of the background of this petition is divided in three parts. We first discuss Kazemzadeh's entrance to the United States and his application for asylum and withholding of removal. We next discuss Kazemzadeh's removal hearing and the decision of the Immigration Judge. We then discuss Kazemzadeh's appeal to the Board and its decision.

A. Kazemzadeh's Entrance to the United States and Application for Asylum and Withholding of Removal

Kazemzadeh entered the United States on April 7, 2005, as a nonimmigrant visitor entitled to remain in the country until October 6, 2005. Kazemzadeh stayed in the United States longer than permitted. On March 20, 2006, Kazemzadeh applied for asylum, 8 U.S.C. § 1158(a)(1), and withholding of removal, id. § 1231(b)(3), based on religion, political opinion, and membership in a particular social group, and he sought relief under the Convention Against Torture, 8 C.F.R. § 208.16(c)(2).

In his application, Kazemzadeh stated that, while attending a university in Iran in August 2003, he "became involved in the student group opposed to the government of Iran." He said that he "helped organize and participated in several student demonstrations during this time" and "spoke openly about freedom of religion." Kazemzadeh stated that he was arrested and detained for several days after he participated in a large demonstration on July 10, 2004. Kazemzadeh alleged that he was interrogated, beaten, tortured, and denied access to his family and an attorney. Kazemzadeh stated that after his release he was monitored by Iranian authorities and the discipline committee of the university. Kazemzadeh alleged that in October 2004 he was summoned to appear before the committee, did not appear because he feared arrest, and stopped attending the university. Kazemzadeh alleged that he was notified in December 2004 that he had been expelled from the university.

Kazemzadeh also stated that in January 2005 he traveled to Germany to apply for a United States visa. Kazemzadeh stated that he returned to Iran later that month and "kept a low profile," "sometimes sleep[ing] at friends' and other relatives' homes." Kazemzadeh alleged that in April 2005 he received "a Subpeona [sic] to appear in Court on June 1, 2005." According to Kazemzadeh, he then decided "to leave Iran for a while to see if things would get better."

Kazemzadeh alleged that, after he left Iran for the second time, he "was convicted of being an Agitator against the Islamic Republic of Iran and sentenced to 6 years in prison." Kazemzadeh also stated in his application that in 1987 his father "was accused of being active with an anti-revolutionary group advocating against the government and against the islamic religion." His father "was found guilty and was expelled from the public education system and from all government jobs for life."

Kazemzadeh submitted several documents with his application: (1) an undated letter from Jose David Lopez, associate pastor at West Kendall Baptist Church in Miami, Florida, which confirmed Kazemzadeh's conversion to Christianity while in the United States; (2) a letter dated January 23, 2006, from Rob Myers, senior pastor at West Kendall, which confirmed that Kazemzadeh began visiting West Kendall in September 2005, was baptized on November 6, 2005, and remained a "member in good standing" after his baptism; (3) a certificate of Kazemzadeh's baptism at West Kendall on November 6, 2005; (4) two letters that summoned Kazemzadeh to appear before the discipline committee of the Iranian university, dated October 24, 2004, and November 24, 2004, respectively; (5) a letter dated December 29, 2004, from the discipline committee to Kazemzadeh, which stated that he had been expelled from the university; (6) a complaint dated January 7, 2005, filed against Kazemzadeh by the committee; (7) a letter dated April 4, 2005, from the Ministry of Justice of Iran that commanded Kazemzadeh to appear in court on June 1, 2005; (8) a default judgment dated August 14, 2005, which sentenced Kazemzadeh to six years in prison; (9) a petition signed by several "resident[s] of Bagh Flahat, Restaurant Mizban Street," which confirmed Kazemzadeh's arrest on July 10, 2004, and the harassment by the authorities that followed; and (10) various forms of government-issued identification.

After an asylum officer interviewed Kazemzadeh and declined to grant him asylum the Immigration and Naturalization Service charged him with removability, 8 U.S.C. § 1227(a)(1)(B), and ordered him to appear at a removal hearing. Kazemzadeh appeared with counsel. Kazemzadeh admitted the allegations in the notice to appear, conceded removability, and renewed his requests for asylum, withholding of removal, and relief under the Convention Against Torture.

B. Kazemzadeh's Removal Hearing and the Decision of the Immigration Judge

On October 12, 2006, Kazemzadeh appeared with counsel at the removal hearing. The Immigration Judge admitted three exhibits at the hearing: (1) the notice to appear; (2) Kazemzadeh's application for asylum and withholding of removal, with all attached documents; and (3) the 2005 country report for Iran published by the State Department. The government objected to the documents attached to Kazemzadeh's application on the ground that the documents were not authenticated, and the Immigration Judge noted the objection. The Immigration Judge heard testimony from Kazemzadeh and Pastor Lopez.

Kazemzadeh initially testified about his political activities in Iran. Kazemzadeh testified that one month after he began attending a university in Bushehr, Iran, in 2003, he and two friends organized a weekly discussion group of about 50 students. He later testified that he had organized the group before entering the university. Kazemzadeh stated that the main concern of the group was "freedom, freedom of the expression and freedom of religion and also there was some other fact like poverty and other stuff." Kazemzadeh testified that he "grew up in a political family because [his] father was from the childhood always was interested in politics[,]" but that he was not active politically before entering the university.

Kazemzadeh testified that he participated in three demonstrations in Iran. The first demonstration was in Tehran in 2003 and was attended by "more then 500 students." Kazemzadeh testified that the first demonstration was peaceful, but that the "Bashigis Islamic government" would try to stop the demonstrations and the police would use batons, fire hoses, and gas. The second demonstration was in Tehran in spring 2004 and was attended by about 500 to 600 students. The third demonstration was at the university Kazemzadeh attended in Bushehr in July 2004 and was attended by 150 students. That demonstration commemorated the arrest of another student.

Kazemzadeh testified that he and three other students were arrested when the police used batons and gas to stop the third demonstration. The police took Kazemzadeh and the other three students by car to a prison, where they were placed in separate rooms. Kazemzadeh testified that he was then beaten and questioned about his discussion group for five hours. Kazemzadeh testified that the police used their hands and electric wire to beat him and beat him on his knees to hide his bruises. Kazemzadeh testified that he...

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