Lal v. Immigration & Naturalization Service

• Decision Date: 09 December 1999
• Docket Number: No. 98-71087,98-71087
• Citation: 255 F.3d 998
• Parties: (9th Cir. 2001) JASWANT LAL; SHAKUNTLA LAL; RIKESH LAL PETITIONERS, v. IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT
• Court: U.S. Court of Appeals — Ninth Circuit

Page 998

255 F.3d 998 (9th Cir. 2001)

JASWANT LAL; SHAKUNTLA LAL; RIKESH LAL PETITIONERS, v. IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT.

No. 98-71087

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted December 9, 1999--San Francisco, California

Filed July 3, 2001

NOTE: SEE AMENDED OPINION AT 268 F.3d 1148.

[Copyrighted Material Omitted] William Roman Gardner and Miguel D. Gadda, San Francisco, California, for the petitioners.

David W. Ogden, Acting Attorney General, Civil Division; Kristen A. Giuffreda, Senior Litigation Counsel; and John P. Moran, Attorney, Office of Immigration Litigation, for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. I&NS Nos. A72-399-030; A72-399-031; A72-399-032

Before: Betty B. Fletcher^*, Diarmuid F. O'Scannlain, and Michael Daly Hawkins, Circuit Judges.

B. Fletcher, Circuit Judge

Jaswant Lal and his family, citizens of Fiji of Indo-Fijian ethnic origin, petition this court for review of a decision of the Board of Immigration Appeals ("BIA"). In May 1994, an Immigration Judge ("IJ") granted asylum to the family, finding persecution based on religion and political opinion. The INS appealed and the BIA reversed, ordering the petitioners deported to Fiji. We grant the timely petition for review, find eligibility for asylum, order withholding of deportation, and remand to the BIA for exercise of discretion as to the grant of asylum.

I.

The BIA's factual determinations are reviewed under the substantial evidence standard. See INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992). We owe deference to legal decisions rendered by the BIA under the rubric of Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945). See Shalala v. Guernsey Memorial Hospital, 514 U.S. 87 (1995); Thomas Jefferson University v. Shalala, 512 U.S. 504 (1994); Singh-Bhathal v. INS, 170 F.3d 943, 945 (9th Cir. 1999); Santamaria-Ames v. INS, 104 F.3d 1127, 1130 (9th Cir. 1996). We may reverse if the evidence is such that a reasonable factfinder would be compelled to conclude that a well-founded fear of persecution has been established. See Elias-Zacarias, 502 U.S. at 481; Singh v. INS, 134 F.3d 962, 966 (9th Cir. 1998); Chand, slip op. at 9392. When, as here, the BIA has conducted an independent review of the record, we review its decision rather than the IJ's. See Ghaly v. INS, 58 F.3d 1425, 1430 (9th Cir. 1995).

II.

Jaswant Lal and his family¹ suffered very serious persecution in Fiji on account of Mr. Lal's political opinion and religious beliefs. Their problems began in the late 1980s, when Mr. Lal was a prominent member of the Fijian Labor Party, a legitimate, non-violent organization consisting mostly of Hindu Fijians of Indian descent. Mr. Lal served as branch secretary for a local division of the Labor Party. During the run-up to the 1987 elections, Mr. Lal recruited for the Party, distributed posters, and coordinated events in his region. On election day, he provided transportation services.

The Labor Party was successful in its 1987 electoral bid, winning a majority of seats in Parliament. The Fijian military, which was controlled by members of the native Fijian population, opposed the results and staged a coup in May 1987. The army then set out to terrorize those who had worked to secure the electoral victory of the Labor Party.

In the aftermath of the coup, Mr. Lal was dragged from his home by soldiers, who held guns to his head. He was placed in detention and held for three days by the army. His captors beat and tortured him, explaining that his treatment was in retaliation for his work on behalf of the Labor Party. Mr. Lal was stripped of his clothes, urine was forced into his mouth, and he was cut with knives and singed with burning cigarettes. For three days, he was deprived of food and water. When he asked for something to drink, army officials mocked him by offering meat, which they knew he could not eat because of his Hindu religious beliefs. While Mr. Lal was in jail, Fijian soldiers appeared at the Lal home, stole money and jewelry, and threatened Mrs. Lal and the couple's son.

Sometime after he was released from detention, soldiers returned to the Lals' home and sexually assaulted Mrs. Lal. Mr. Lal was forced to watch the assault at gunpoint. Before they left, the soldiers told the Lals that "people like" them were not welcome in Fiji and would be shot down in the streets. The Lals understood that this comment referred to Fijians of Indian descent.

During the next four years, Mr. Lal was detained again --at least three times -- by the government. Each time soldiers forced him from his home at gunpoint. His house was set ablaze twice by the government; extensive damage resulted. The Lal home was placed under constant surveillance. On one occasion, Mr. Lal's Hindu temple was ransacked by soldiers who accused him of holding a political meeting inside the temple. Soldiers forced Mr. Lal to eat meat, told him and his fellow worshipers that they must become Christian, and said they were not welcome in their own country. After burning the temple's sacred text and denigrating Hindu religious figures, the soldiers warned the worshipers that they should leave Fiji or face death. The Lals' son was mocked and taunted, and was denied a place in a well-known school because of his race and religion.

The Lals tried to escape Fiji in 1987, 1988, and 1990, but each time they were turned back at gunpoint at an airport checkpoint because the family had been blacklisted. In 1991, Mr. Lal was detained for the final time. During his 24-hour detention, he was tortured and beaten by soldiers. Searching for a means of escape, the Lals took advantage of an opening: the airport checkpoint that had held the Lals back so many times was gone. With a U.S. visa, Mr. and Mrs. Lal traveled to this country with their son, hoping to escape from their persecutors forever.

III.

An asylum applicant must demonstrate that he is"unwilling or unable" to return to his home country "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) (1994) (defining "refugee"). To establish a well-founded fear of persecution, the applicant must demonstrate that his fear is both objectively reasonable and subjectively genuine. See Fisher v. INS, 79 F.3d 955, 960 (9th Cir. 1996) (en banc). Establishing past persecution triggers a rebuttable presumption of a well-founded fear of future persecution. See 8 C.F.R. § 208.13(b) (1)(i) (1999). The INS can rebut this presumption by showing by a preponderance of the evidence that conditions"have changed to such an extent that the applicant no longer has a well-founded fear of being persecuted if he or she were to return." Id.

In this case, the Immigration Judge found Mr. Lal credible and determined that he had suffered past persecution in Fiji on the basis of his political opinion and religious beliefs. Determining that no record evidence rebutted Mr. Lal's reasonable fear of future persecution, the judge granted asylum. The INS appealed to the BIA. The Board, relying solely on the State Department's Profile of Asylum Claims and Country Conditions - Fiji (1994), determined that even though it would not disturb the IJ's finding of statutory eligibility, country conditions in Fiji had changed to such a degree as to render petitioner's fear of future persecution no longer well-founded. The BIA then considered Mr. Lal's case under the humanitarian exception to the changed country conditions rule developed in its own published opinion, Matter of Chen, and later codified in regulations relating to asylum. See Matter of Chen, 20 I. & N. Dec. 16, 21 (BIA 1989); 8 C.F.R. §208.13(b)(1)(ii) (1999) ("An application for asylum shall be denied if the applicant establishes past persecution under this paragraph but it is also determined that he or she does not have a wellfounded fear of future persecution . . . unless it is demonstrated that the applicant has demonstrated compelling reasons for being unwilling to return to his or her country . . . arising out of the severity of the past persecution."). The Matter of Chen exception is based on a "general humanitarian principle," and it waives the requirement that an individual who has suffered past persecution must also demonstrate a well-founded fear of future persecution. See id. at 19. Instead, those who were subjected to severe forms of past persecution need only demonstrate the severity of their past abuse. In this case, the BIA considered the Matter of Chen exception, but concluded that Mr. Lal did not show that he suffered from a lasting disability. On this basis, the BIA determined that Mr. Lal's case did not qualify for Matter of Chen treatment. The Board therefore reversed the IJ and denied Mr. Lal's application for asylum.

However, the Board's decision is not due the deference that it otherwise would deserve because it interprets the regulation in a manner inconsistent with its plain language and clear intent. We are further convinced that the Board's construction of the humanitarian exception strayed impermissibly from its own case law interpreting the exception, and we reverse on that ground as well. Further, we are bound to hold that Mr. Lal qualifies for asylum under past Ninth Circuit law construing the humanitarian exception. Finally, after careful review of the record in this case, we conclude that the BIA's changed country conditions decision was not supported by substantial evidence and that reversal is called for on this ground as well.

A. Humanitarian Exception²

Mr. Lal and members of his family endured repeated arbitrary detentions, painful and humiliating torture, sexual assault, threats, and severe intimidation on the basis of their political opinion and religious beliefs. They suffered the horror of attempting to escape but...