Najaf-Ali v. Meese

• Decision Date: 13 February 1987
• Docket Number: No. C-86-4786 SAW.,C-86-4786 SAW.
• Court: U.S. District Court — Northern District of California
• Parties: Zubaida NAJAF-ALI, a.k.a. Zobida Nayibkhil, Petitioner, v. Edwin MEESE, Attorney General of the United States and David N. Ilchert, District Director of the United States Immigration and Naturalization Service, Respondents.

653 F. Supp. 833

Zubaida NAJAF-ALI, a.k.a. Zobida Nayibkhil, Petitioner, v. Edwin MEESE, Attorney General of the United States and David N. Ilchert, District Director of the United States Immigration and Naturalization Service, Respondents.

No. C-86-4786 SAW.

United States District Court, N.D. California.

February 13, 1987.

Miriam Aroni Krinsky, Hufstedler, Miller, Carlson & Beardsley, Los Angeles, Cal., for petitioner.

Joseph P. Russoniello, U.S. Atty., Larry J. Gallagher, Sp. Asst., San Francisco, Cal., for respondents.

MEMORANDUM AND ORDER

WEIGEL, District Judge.

I. SUMMARY

Zubaida Najaf-Ali, an elderly native of Afghanistan, petitions for a writ of habeas corpus. Upon entering this country in June, 1982, she was deemed by an immigration inspector to be "excludable" for lack of a valid visa. In a hearing before an immigration judge ("IJ") in January, 1985, petitioner admitted excludability, but sought asylum as a "refugee," or alternatively, "withholding of deportation" on the grounds of likely persecution. The IJ denied this relief, ordering her excluded and deported to Afghanistan. The Board of Immigration Appeals ("BIA") dismissed her appeal in March, 1986.

Her petition here claims that (1) the decisions of the IJ and the BIA were not supported by substantial evidence; (2) the legal standards for granting political asylum and "withholding of deportation" were misapplied; (3) her right to due process was violated because her children were not allowed to testify at the exclusion hearing; (4) she was denied due process, also, because the interpreter at the hearing spoke a different dialect than that spoken by petitioner; (5) she received ineffective assistance of counsel; and (6) respondents should be estopped from deporting her because of delay in concluding the exclusion proceedings. On September 15, 1986, this Court granted petitioner's application for a temporary restraining order and order to show cause.

The Court finds that the BIA's decision is not supported by substantial evidence, and that petitioner is "more likely than not" to be persecuted under the standard for "withholding of deportation." Therefore, she also meets the criterion for consideration of asylum based upon a "wellfounded fear of persecution." The Court also finds that petitioner was deprived of due process when the IJ excluded the testimony of her children. The Court further finds that respondents violated regulations governing the timing of exclusion proceedings and that petitioner may have been prejudiced by the resulting two-year delay. The Court has concluded that petitioner's claims of inadequate translation and ineffective assistance of counsel lack merit.

II. FACTUAL BACKGROUND

The following facts are based upon the uncontested testimony of petitioner. Both the BIA and the IJ accepted her testimony as true.¹

Prior to coming to the United States, petitioner lived with her husband and children in Afghanistan. Her husband was a retired military officer loyal to the deposed king. Approximately one year after the Russian invasion and occupation, petitioner's husband was abducted from their house and has not been seen since. Like their father, petitioner's six children resisted allegiance to the communist government. They refused to join a youth organization of the communist party. One of her sons was imprisoned for two months for antigovernment sentiments. Her daughter, a teacher, was demoted for refusing to teach government doctrine. Petitioner's children finally fled Afghanistan at her direction. One settled in India; the other five became lawful permanent residents of the United States. Afghan government agents thereafter questioned petitioner as to the whereabouts of her children. Three of petitioner's siblings were jailed by the government. Petitioner, fearing for her life, fled to India in 1982. Shortly thereafter, she came to the United States, where she was deemed to be "excludable" under section 212(a)(20) of the Immigration and Nationality Act ("the Act"), 8 U.S.C. § 1182(a)(20), because she lacked a valid immigration visa. These proceedings ensued.

III. PROHIBITION AGAINST DEPORTATION UNDER SECTION 243(h)

Aliens who fear persecution in their native country may seek two forms of relief. Section 243(h) of the Act, 8 U.S.C. § 1253(h), prohibits the Attorney General from deporting an alien who establishes that it is "more likely than not that she would be subject to persecution." INS v. Stevic, 467 U.S. 407, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984). An alien may also avoid deportation by obtaining political asylum under section 208(a) of the Act, 8 U.S.C. § 1158(a). To obtain this relief, the alien must demonstrate that she is a "refugee," i.e. a person with a "well-founded fear of persecution" in the native country. Section 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). The Attorney General has discretion to grant asylum to an alien who qualifies as a "refugee." 8 U.S.C. § 1158(a).

The IJ and BIA decided that petitioner demonstrated neither a "well-founded fear" of persecution under the standard for asylum nor that she was "more likely than not" to be persecuted under the standard for "withholding of deportation."

When, as here, the BIA has disposed of both claims in a single proceeding, a reviewing court considers first the decision regarding "withholding of deportation." Bolanos-Hernandez v. INS, 767 F.2d 1277, 1283 (9th Cir.1984).² The standard of review is whether or not the decision is supported by "substantial evidence." McMullen v. INS, 658 F.2d 1312, 1316 (9th Cir.1981). The BIA's decision that petitioner was not "more likely than not" to be persecuted in Afghanistan is not so supported.

The BIA and the IJ based their decisions upon two principal inferences. First, they inferred that petitioner came to the United States because there was no one left to support her in Afghanistan. Second, they inferred that there was no evidence that petitioner was in danger in Afghanistan.

There is, indeed, evidence that when petitioner came to the United States, she was motivated in part by her desire to regain the companionship and support of her family. Much of this evidence, however, consists of petitioner's testimony as to why she left India, not her reasons for leaving Afghanistan four months earlier. It is not surprising that, having escaped from Afghanistan into India, petitioner was no longer preoccupied with the persecution she faced in Afghanistan, but instead focused on being reunited with her children in the United States. When petitioner was asked specifically her reasons for leaving Afghanistan, she referred to the persecution of her family and her fear for her life along with her desire to be reunited with her children. Thus, the record does not support the inference of the BIA and the IJ that petitioner was unlikely to be persecuted because she desired to be reunited with her family. See Garcia-Ramos v. INS, 775 F.2d 1370, 1374-75 (9th Cir.1985) (it is not inconsistent with a claimed fear of persecution that a refugee, after he flees his homeland, comes to the United States seeking economic opportunities; nor need fear of persecution be an alien's only motivation for fleeing).

The second basis for the BIA's denial of withholding of deportation was the conclusion of the BIA and the IJ that petitioner was not in danger because she herself was never accused, threatened, or arrested. This conclusion is not supported by substantial evidence in the record.

The opinion of the IJ errs in stating that petitioner was not in danger because she continued to live in Afghanistan for two years after her husband was abducted. In fact, uncontradicted evidence shows that petitioner lived in Afghanistan for only nine months thereafter. During that time, she sent her children out of Afghanistan. Government agents came to her house to question her regarding the whereabouts of the children, whose resistance to the communist party had resulted in a jail term for one son and a professional demotion for petitioner's daughter. Petitioner feared for her life. Of the members of her family who still remained in Afghanistan, her husband was still missing and three siblings were in jail. Thus, regardless of whether petitioner was personally threatened with physical harm, the foregoing uncontradicted evidence shows that the circle of persecution of her family was drawing closer and closer to petitioner herself. Had she stayed in Afghanistan, it was "more likely than not" that she would be persecuted. The findings of the BIA and IJ to the contrary are not supported by substantial evidence. Petitioner therefore may not be deported.

The Court now turns to an examination of petitioner's other contentions to determine what bearing they may have upon disposition of this matter upon remand.

IV. DUE PROCESS

Petitioner argues that she was denied due process of law at the exclusion hearing because (1) the IJ erroneously excluded her children's testimony; (2) the interpreter spoke a different dialect from that spoken by petitioner; and (3) petitioner received ineffective assistance of counsel. Careful review of the record fails to support the second or the third claims. The Court now considers whether petitioner was denied due process when the IJ excluded the testimony of her children.

The Supreme Court has held that for "an alien on the threshold of initial entry, ... the procedure authorized by Congress is ... due process...." 1A C. Gordon & H. Rosenfield, Immigration Law and Procedure § 3.18, at 3-180 (1986), quoting Shaughnessy v. Mezei, 345 U.S. 206, 212, 73 S.Ct. 625, 629, 97 L.Ed. 956 (1953). Congress has, in turn, commanded that a hearing be given to those whose right of entry is disputed. Id. at 3-182, citing 8 U.S.C. §§ 1225, 1226. When a hearing is required, it must be fairly conducted. Id., citing Chin Yow v. U.S., 208 U.S. 8, 28 S.Ct. 201, 52 L.Ed. 369 (1908). "Therefore it is correct to state that similar requirements of...