Nahrvani v. Gonzales

• Decision Date: 07 March 2005
• Docket Number: No. 03-70586.,03-70586.
• Parties: Hossein NAHRVANI, Petitioner, v. Alberto GONZALES,<SMALL><SUP>*</SUP></SMALL> Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

399 F.3d 1148

Hossein NAHRVANI, Petitioner, v. Alberto GONZALES,^* Attorney General, Respondent.

No. 03-70586.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted August 6, 2004.

Filed March 7, 2005.

COPYRIGHT MATERIAL OMITTED

Louis A. Gordon, Los Angeles, CA, for the petitioner.

Daniel E. Goldman (briefed), Earle B. Wilson (argued), Office of Immigration Litigation, Washington, D.C., for the respondent.

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

Before: B. FLETCHER, HANSEN,^** and RAWLINSON, Circuit Judges.

Opinion by Judge RAWLINSON; Dissent by Judge FLETCHER.

RAWLINSON, Circuit Judge:

Hossein Nahrvani, a native of Iran, petitions for review of the Board of Immigration Appeals' (BIA) summary affirmance of the Immigration Judge's (IJ) denial of his request for asylum from Iran and his request for withholding of removal and protection under the Convention Against Torture (CAT) as to Germany. The IJ granted withholding of removal and protection under the CAT as to Iran. Because the IJ's determinations were supported by substantial evidence, we deny the petition.

I. BACKGROUND

Nahrvani entered the United States on or about April 15, 1999. Approximately one year later, the Immigration and Naturalization Service (INS) issued Nahrvani a Notice to Appear alleging that he was removable under Section 237(a)(1)(B) of the Immigration and Naturalization Act for remaining in the United States longer than was permitted. Nahrvani conceded removability, but submitted an application for asylum and withholding of removal. In the alternative, Nahrvani requested that the case be reviewed under the CAT.

In support of his application, Nahrvani testified that, while living in Iran, he was arrested and jailed for approximately two years as a result of his participation in an anti-government demonstration. During his incarceration, Nahrvani was repeatedly tortured. He fled to Germany in 1989, where he was granted political asylum and permanent residency.

Nahrvani lived in Germany for approximately ten years. During that time, Nahrvani owned a car, and traveled and worked without restriction. Nahrvani converted to Christianity and married a German Lutheran pastor. Nahrvani sought German citizenship, but was informed that he must first renounce his Iranian citizenship. Nahrvani completed the necessary paperwork at the Iranian Consulate to renounce his citizenship, but never attained German citizenship.

As a result of his conversion to Christianity and his efforts to renounce his Iranian citizenship, Nahrvani became the target of harassment and threats, and his bicycle and car were damaged. He testified that officials from the Iranian Consulate were "chasing" him and stealing his possessions. Nahrvani reported these incidents to the German police without providing the police with specific names of individual perpetrators. Nahrvani's wife testified that the German police investigated the complaints, but were ultimately unable to solve the crimes.

The IJ found Nahrvani's testimony to be credible. Based on Nahrvani's testimony, the IJ determined that, due to his Christian beliefs, Nahrvani would face persecution if returned to Iran. Although the IJ denied Nahrvani's asylum claim because he was firmly resettled in Germany, the IJ granted Nahrvani's request for withholding of removal and CAT relief from Iran.

The IJ denied Nahrvani's request for asylum from Germany on the basis that Nahrvani had failed to establish a well-founded fear of future persecution in Germany. Specifically, the IJ determined that Nahrvani had not established that the German government was unwilling or unable to protect him from the alleged persecution. For similar reasons, the IJ denied Nahrvani's requests for withholding of removal and CAT relief.

The BIA affirmed the IJ's denial of asylum without opinion. Nahrvani filed a timely petition for review.

II. STANDARDS OF REVIEW

Because the BIA affirmed the IJ's ruling without an opinion, the IJ's decision is the final agency action for purposes of this appeal. See Falcon Carriche v. Ashcroft, 350 F.3d 845, 851 (9th Cir.2003). The IJ's determination that Nahrvani is ineligible for asylum "can be reversed only if the evidence presented by [Nahrvani] was such that a reasonable factfinder would have to conclude that the requisite fear of persecution existed." INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (citation omitted). To reverse the IJ's finding, we "must find that the evidence not only supports that conclusion, but compels it[.]" Id. at 481 n. 1, 112 S.Ct. 812. To that end, "[t]he [IJ's] decision need only be supported by substantial evidence." Gonzalez-Hernandez v. Ashcroft, 336 F.3d 995, 998 (9th Cir.2003) (citation omitted). "This is a highly deferential standard of review." Marcu v. INS, 147 F.3d 1078, 1080-81 (9th Cir.1998).

III. DISCUSSION

A. Iran

Nahrvani bears the burden of proof with respect to his eligibility for asylum from Iran. 8 C.F.R. § 208.13(a). An application for asylum must be denied if the alien has firmly resettled in another country. 8 C.F.R. § 208.13(c)(2)(B). "Firm resettlement" is defined in 8 C.F.R. § 208.15 as follows:

An alien is considered to be firmly resettled if, prior to arrival in the United States, he or she entered into another country with, or while in that country received, an offer of permanent resident status, citizenship, or some other type of permanent resettlement unless he or she establishes:

(a) That his or her entry into that country was a necessary consequence of his or her flight from persecution, that he or she remained in that country only as long as was necessary to arrange onward travel, and that he or she did not establish significant ties in that country; or

(b) That the conditions of his or her residence in that country were so substantially and consciously restricted by the authority of the country of refuge that he or she was not in fact resettled. In making his or her determination, the asylum officer or immigration judge shall consider the conditions under which other residents of the country live; the type of housing, whether permanent or temporary, made available to the refugee; the types and extent of employment available to the refugee; and the extent to which the refugee received permission to hold property and to enjoy other rights and privileges, such as travel documentation that includes a right of entry or reentry, education, public relief, or naturalization, ordinarily available to others resident in the country.

The IJ did not err in denying Nahrvani's request for asylum from Iran. The evidence substantially supports the IJ's conclusion that Nahrvani established deep and significant ties to Germany during his ten-year residence in the country. Nahrvani was granted permanent residency in Germany and renounced his Iranian citizenship in an attempt to gain German citizenship. See Andriasian v. INS, 180 F.3d 1033, 1043 (9th Cir.1999) (stating that an alien has firmly resettled within the meaning of 8 C.F.R. § 208.15 "if a third country in which the alien has resided after becoming a refugee offers him permanent resettlement[.]"). Nahrvani married a German citizen, worked and traveled freely throughout the country, and practiced Christianity openly. Nahrvani made no showing that the conditions of his ten-year residence in Germany were so "substantially and consciously restricted by[the German authorities] that he ... was not in fact resettled." 8 C.F.R. § 208.15(b). As the IJ's finding of firm resettlement in Germany is supported by substantial evidence, Nahrvani's request for asylum from Iran must be denied.

B. Germany

Nahrvani requested asylum from both Iran and Germany, and the IJ addressed the issue of asylum from both countries.¹

"[T]o be eligible for asylum, an applicant must establish either past persecution or a well-founded fear of present persecution on account of a protected ground."² Singh v. Ashcroft, 362 F.3d 1164, 1170 (9th Cir.2004) (citation, alteration, and internal quotation marks omitted).

To establish a well-founded fear of persecution, an applicant must show that his fear is "both subjectively genuine and objectively reasonable." Gormley v. Ashcroft, 364 F.3d 1172, 1180 (9th Cir.2004) (citation omitted). "The subjective component may be satisfied by credible testimony that the applicant genuinely fears persecution." Id. (citation omitted). "The objective component of this test requires showing, by credible, direct, and specific evidence in the record, that persecution is a reasonable possibility." Agbuya v. INS, 241 F.3d 1224, 1228 (9th Cir.2001) (citation and internal quotation marks omitted). "This showing may be made by the production of specific documentary evidence or by the credible and persuasive testimony of the applicant." Id. (citation and internal quotation marks omitted).

We have characterized "persecution as an extreme concept, marked by the infliction of suffering or harm in a way regarded as offensive." Li v. Ashcroft, 356 F.3d 1153, 1158 (9th Cir.2004) (en banc) (citation, alteration, and internal quotation marks omitted). Physical violence inflicted against an individual often "meets the requirement of severity that characterizes persecution[.]" Hoxha v. Ashcroft, 319 F.3d 1179, 1182 n. 5 (9th Cir.2003) (citation omitted); see also Duarte de Guinac v. INS, 179 F.3d 1156, 1161 (9th Cir.1999) ("we have consistently found persecution where, as here, the petitioner was physically harmed ...") (citations omitted). Although death threats against an individual may be sufficient to constitute persecution, see Khup v. Ashcroft, 376 F.3d 898, 903 (9th Cir.2004), most threats do not rise to the level of persecution. See Hoxha, 319 F.3d at 1182 (characterizing unfulfilled threats as harassment rather than persecution); see also Lim v. I.N.S, 224 F.3d 929, 936 (9th Cir.2000) ("Threats themselves are sometimes hollow...