Mashiri v. Ashcroft
| Decision Date | 22 September 2004 |
| Docket Number | No. 02-71841.,02-71841. |
| Parties | Zakia MASHIRI, Petitioner, v. John ASHCROFT, Attorney General, Respondent.<SMALL><SUP>*</SUP></SMALL> |
| Court | U.S. Court of Appeals — Ninth Circuit |
Kathrin S. Mautino, Mautino & Mautino, San Diego, CA, for the petitioner.
Luis E. Perez, Department of Justice, Civil Division, Office of Immigration Litigation, Washington, DC, for the respondent.
On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A74-822-406.
Before HUG, B. FLETCHER, and WARDLAW, Circuit Judges.
Zakia Mashiri ("Zakia") petitions for review of a decision of the Board of Immigration Appeals ("BIA") affirming the denial of her applications for asylum, withholding of deportation and voluntary departure.1 We grant the petition on the issue of asylum because Zakia's credible testimony compels a finding of past persecution and because the respondent ("the government") has failed to rebut the presumption of a well-founded fear of future persecution.
Zakia and her husband, Farid Mashiri ("Farid"), are natives of Afghanistan. The Mashiris moved to Germany in the 1970s and eventually settled in the German city of Bergedorf. Zakia became a German citizen. The Mashiris' two sons, Asil and Hadjir, were born in Germany and are also German citizens. Despite their German citizenship and the family's many years in Bergedorf, the Mashiris repeatedly experienced anti-foreigner threats and violence in Germany.
Farid, who worked as a taxi driver, was beaten twice by passengers in his cab. In March 1990, three passengers began making anti-foreigner statements and jokes during their ride. They invoked Germany's Nazi past, telling Farid that foreigners would now be treated as Jewish Germans had been treated under Hitler. When Farid objected to these statements, the passengers told him to shut up and punched him in the face. Farid pulled over to the side of the road, but the passengers began to punch and beat him even more. Farid was able to escape only because he pushed an alarm in his car that drew other taxis to the area. Farid was left with a swollen, sore face and a black eye, and he could not work for several days. The police responded to the scene of this incident but never made any arrests.
Farid was attacked a second time in December 1990. Two German passengers called him "Scheiss Auslander," which means "shit foreigner," and told him to get out of their country. They beat Farid but ran away before he could hit the alarm button. Farid did not report this incident to the police because he knew a report would do no good.
After these attacks, Farid concluded that he could no longer work safely as a taxi driver. He returned to school to study information electronics but could not find work in his field after graduation, apparently because of an official workplace preference for ethnic Germans. Farid eventually returned to his job as a taxi driver despite the risk and his additional schooling.
On New Year's Eve 1993, the Mashiris were forced to hide from an anti-foreigner mob in their neighborhood. Neo-Nazis attacked a nearby store owned by a person of Turkish descent. At her asylum hearing, Zakia testified that the Mashiris could see the attack from their home and could hear the neo-Nazis shouting anti-foreigner slogans:
[N]ear our house there was [a] store that belong[ed] to a Turkish person and ... on that night, the neo-[N]azis attacked that shop and they burned it, they set it [on] fire and I was witness that they were throwing explosives into the store. And, they were shouting while doing this, that you are dirty foreigners, leave Germany because Germany is not your place and you don't belong to Germany. And, there, when I saw that... I was in so much fear, I closed the door, shut the windows, shut all the doors, kept my children inside and we were so afraid and praying that they will, they may not realize that we too are foreigners here because then they are going to throw the same explosive into our house. And, that night, even though it was New Year's Eve, and ... my children would have liked to be outdoor enjoying the festivities, we did not, they did not leave. We all stayed there indoor and spen[t] the whole evening in fear.
Zakia and Farid purchased "steel-type drapes" to protect their windows from similar attacks.
In October 1995, the Mashiris discovered a threat on their car's windshield. It included the words "Heil Hitler" and said either "you" or "you foreigners" will be killed if you don't leave Germany. The Mashiris' tires were slashed; they had also been slashed in January 1995.
One month after receiving the October death threat, the Mashiris came home to find that their apartment had been ransacked. A rug and some jewelry had been stolen, but other valuable items were left behind. The Mashiris suspected that they had been specifically targeted as foreigners because of the threatening note left on their car a month earlier and because the attackers had tried to destroy the family's apartment. The attackers had destroyed furniture, torn the couch with a sharp knife, thrown a vase toward the window, and torn mattresses in the bedrooms. The attackers had even broken small souvenirs from the family's travels — including little statues of the Taj Mahal and Eiffel Tower. According to Zakia, it looked as if the attackers had "done things out of anger." The Mashiris reported this incident to the police, but the police closed the case after concluding that the attack was nothing more than simple theft.
A few months later, in February 1996, Zakia was forced to run from an anti-foreigner mob that had gathered at the train station near the Mashiris' home. As Zakia got off a train, she heard a group of Germans shouting slogans at foreigners, telling them to get out of Germany because "Germany belongs to Germans." Members of the group had sticks in their hands and were fighting someone, although it was too dark for Zakia to see more. They shouted "dirty foreigners [get] out" and "Heil Hitler." Zakia was immediately afraid:
[A]s I got out of the train, as soon as I heard this noise, [it] suddenly dawn[ed] on me that, oh God, I am a foreigner and what should I do now.... I had a jacket that had a hood and I put the hood on so they would not see my hair, the color of my hair and realize that I am a foreigner. And, I was so afraid that ... I just didn't know what, what I should do. And, I was thinking that any, any moment they can come and they can attack me. And, that area there was a road, there was, I, I tried to, I took a short cut and I put myself in a road that I could get home quicker and I jumped, I jumped over a fence to get on a short cut road and to get to home quicker and because of that even injured my leg doing that out of fear. And, when I reached home, I cannot even describe how horrified I was[.] I was in a very bad condition.
Zakia's fears proved to be well-founded. She learned later that several foreigners in her neighborhood were attacked and beaten severely with sticks that night. One man tried to run to escape, but the mob caught him at his doorstop and broke down the door of his house. The day before these events, a Nazi group had distributed a warning for foreigners in the Mashiris' neighborhood.
One month after this incident, in March 1996, a German man living in the Mashiris' neighborhood fired a gun over the heads of two Afghan children playing outside. The children were playing in front of the man's house, and he fired after telling them that foreigners shouldn't play there. The Mashiris' younger son, Hadjir, walked by the man's house every day on his way to school. After the shooting the Mashiris were too afraid to let him walk alone. They began to take Hadjir to school every morning, but because they could not leave work in the afternoon, they had to let him walk to day care after school. Zakia worried about this every day and would call the day care center to make sure Hadjir arrived safely.
The Mashiris' sons faced persecution even at school. Both were physically attacked and called names because they were viewed as non-German foreigners. The Mashiris' younger son, Hadjir, was beaten and humiliated by classmates at school. The students called him a "dirty foreigner" or a "refugee," and their physical attacks resulted in a permanent scar. When the Mashiris reported these incidents, they were told that the school neither could nor would do anything. School officials did not even report this behavior to the parents of the students involved. As a result of this response, the Mashiris concluded that school officials would not help them.
The Mashiris' older son, Asil, was attacked violently in May 1996. Four neo-Nazis followed Asil on his way home from school, called him a "foreigner," and asked him what he was doing in Germany. When Asil responded that he was a German citizen, one member of the group punched him in the face, another kicked him, and they threw him on the ground and beat him. Asil saw that one of the men had a Hitler mark on the back of his head.
During her deportation hearing, Zakia described opening the door for Asil as he tried to escape his attackers:
One day, a day that I can never ever[ ] forget in my life. It was in the month of May, and my oldest son was coming from, back from school. Usually, he has a key to open, he had a key to open the door, but on that day he was knocking at the door and ringing the door. And, his, he was full of blood.
...
[W]hen he came in, my child came, he was trembling, shaking, he was terrorized and, and he was bleeding on his face and he, they had cut his face on the side of his, near the eye on the lower part.... [T]o this day there is a mark on his face.
Zakia took Asil to the doctor and then to the police. The police asked Asil what...
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