Nazaraghaie v. I.N.S., 95-1373

• Decision Date: 13 December 1996
• Docket Number: No. 95-1373,95-1373
• Citation: 102 F.3d 460
• Parties: 96 CJ C.A.R. 2028 Iraj NAZARAGHAIE, Petitioner-Appellant, v. IMMIGRATION & NATURALIZATION SERVICE, Joseph R. Greene and John Doe, Respondents-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 460

102 F.3d 460

96 CJ C.A.R. 2028

Iraj NAZARAGHAIE, Petitioner-Appellant, v. IMMIGRATION & NATURALIZATION SERVICE, Joseph R. Greene and John Doe, Respondents-Appellees.

No. 95-1373.

United States Court of Appeals Tenth Circuit.

Dec. 13, 1996.

L. Ari Weitzhandler, Allott and Makar, Denver, CO (Curtis L. Heidtke of Curtis L. Heidtke, P.C., Littleton, CO) for Petitioner--Appellant.

Laura M. Friedman, Office of Immigration Litigation, Washington, DC (Patricia M. Connally, William J. Howard, Senior Litigation Counsel, on the brief, Office of Immigration Litigation, Washington, DC), for Respondents--Appellees.

Before ANDERSON, KELLY and LUCERO, Circuit Judges.

LUCERO, Circuit Judge.

Iraj Nazaraghaie, a citizen of Iran, appeals the denial by the district court of his petition for a writ of habeas corpus. At a hearing before an immigration judge, Mr. Nazaraghaie conceded his excludability under 8 U.S.C. §§ 1182(a)(5)(A)(i) (seeking to enter to perform labor, without prior authorization) and 1182(a)(7)(A)(i)(I) (seeking to enter without a valid entry document). Appellant's App., Ex. 1. Seeking relief from exclusion, he requested that the immigration judge grant him asylum, pursuant to 8 U.S.C. § 1158, or withholding of deportation, pursuant to 8 U.S.C. § 1253(h). The immigration judge denied both requests, a determination upheld on appeal by the Board of Immigration Appeals ("BIA"). Appellant's App., Ex. 2. Pursuant to 8 U.S.C. § 1105a(b), Mr. Nazaraghaie then filed a motion for habeas corpus. The district court denied that motion. Our jurisdiction arises under 28 U.S.C. § 2253. We affirm.

I

Prior to the 1979 revolution in Iran, Mr. Nazaraghaie worked as a regional official of the Shah of Iran's Central Intelligence Service, SAVAK. Mr. Nazaraghaie testified that following the overthrow of the Shah, he was identified by revolutionary guards as a member of SAVAK. Appellant claims he was then imprisoned after refusing to sign a statement declaring his hatred for the Shah's regime. The BIA characterized his arrest on this occasion as being "in connection with a problem relating to his automobile." Appellant claims further that he was beaten severely before his detention, and deprived of water for periods during it. The BIA, however, found that the record contained no evidence of torture or beatings. ¹

After ten months incarceration, appellant was released with a large number of other SAVAK employees. He opened a shoe and handbag store, which he ran until 1991. He tried to obtain the necessary licenses for this business, but was refused several times, allegedly as a result of his SAVAK membership. Consequently, he was obliged to bribe officials to stay in business. After eight years, he was no longer able to persuade officials to accept such bribes. In April 1991, following another unsuccessful effort to obtain the proper business documentation, Mr. Nazaraghaie "cursed the regime" in the presence of government officials. He was then arrested and imprisoned.

Released after 16 months, appellant did not reopen his shop because he continued to lack the required documentation. After 11 months in Iran, he traveled to Pakistan, and thence to Malaysia and the United States, a journey of some four months. He was detained on arrival in the United States. Mr. Nazaraghaie claims that since his departure unidentified parties, whom he believes to be government officials, have twice sought him at his home in Iran.

II

An alien who fears persecution if deported has two possible means of relief: asylum and withholding of deportation. Rezai v. INS, 62 F.3d 1286, 1288 (10th Cir.1995). Obtaining asylum is a two-stage process. First, the alien must establish he is a "refugee" by showing that he is unable or unwilling to return to "any country of such person's nationality ... because of [past] 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); see 8 C.F.R. § 208.13(b); INS v. Cardoza-Fonseca, 480 U.S. 421, 428, 107 S.Ct. 1207, 1211, 94 L.Ed.2d 434 (1987). Once the alien establishes refugee status, the Attorney General has discretion to grant or deny asylum. 8 U.S.C. § 1158(a); Cardoza-Fonseca, 480 U.S. at 428 n. 5, 107 S.Ct. at 1211 n. 5.

Appellant claims refugee status on two grounds: first, that he has a well-founded fear of persecution on account of political opinion; second, that he was subjected to political persecution in Iran. Fear of persecution is well-founded if it is subjectively genuine and objectively reasonable. See Kapcia v. INS, 944 F.2d 702, 706 (10th Cir.1991); see also 8 C.F.R § 208.13(b)(2). The objective component requires the asylum applicant to show a "reasonable possibility of actually suffering ... persecution if he were to return" to the country of persecution. Id. The Supreme Court has suggested that a one in ten chance may constitute a "reasonable possibility" of persecution. Cardoza-Fonseca, 480 U.S. at 431, 107 S.Ct. at 1213. The burden of meeting this objective component lies with the asylum applicant, and must be met by "credible, direct, and specific evidence in the record." Kapcia, 944 F.2d at 707 (quotation and citation omitted). The BIA determined that appellant did not show his fear of persecution to be well-founded.

To prove past persecution, an asylum applicant "must present specific facts through objective evidence." Kapcia, 944 F.2d at 707 (quotation and citation omitted). If the applicant meets this burden, a well-founded fear of persecution is presumed; the presumption is rebutted if a preponderance of the evidence indicates that since the time the persecution occurred, country conditions have changed such that the applicant's fear is no longer well-founded. See 8 C.F.R. § 208.13(b)(1)(i). In addition, severe past persecution is grounds for a discretionary, humanitarian grant of asylum even if no well-founded fear of persecution now exists. 8 C.F.R. § 208.13(b)(2)(ii); In re Chen, Int. Dec. 3104 (BIA 1989). The BIA held that the appellant had not established past persecution, severe or otherwise.

The BIA's finding that appellant was not eligible for asylum "must be upheld if supported by reasonable, substantial, and probative evidence on the record considered as a whole." INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 815, 117 L.Ed.2d 38 (1992) (internal quotation omitted). It can be reversed only if the evidence presented compels a finding of eligibility. Id. & n. 1. ² We give no deference, however, to the legal or factual decisions of the district court, Marczak v. Greene, 971 F.2d 510, 515 n. 9 (10th Cir.1992) (citing Webb v. Hodel, 878 F.2d 1252, 1254 (10th Cir.1989) ("[The Court of Appeals] render[s] an independent decision on the basis of the same administrative record as that before the district court; the identical standard of review is employed at both levels; and once appealed, the district court decision is accorded no particular deference.")). Nor do we defer to the findings of the immigration judge. See Rubio-Rubio v. INS, 23 F.3d 273, 274 n. 1 (10th Cir.1994) (citation omitted).

After reviewing the record in this case, we conclude that substantial evidence supports the BIA's rejection of both claims. We agree with the Board that appellant's long-term operation of his business, as well as the 11 months that passed without incident following his second release from jail, indicate that his fear of persecution is not well-founded. In addition, we note that the government never closed his business, and that his wife worked for the Iranian government for four years following the 1979 revolution and continues to draw a government pension. The subsequent search for Mr. Nazaraghaie by unidentified parties does not compel reversal. Hadjimehdigholi v. INS, 49 F.3d 642, 648 (10th Cir.1995). We also reject appellant's contention that he will be persecuted because he fled Iran without permission from the authorities. Exit restrictions do not constitute persecution. Id. (citing Abedini v. INS, 971 F.2d 188, 191 (9th Cir.1992)). Any penalty imposed on appellant for violating such restrictions would therefore constitute prosecution, not persecution.

The BIA's determination that appellant is ineligible for a humanitarian grant of asylum pursuant to In re Chen is also supported by substantial evidence. Whatever his exact treatment by Iranian authorities, it does not constitute severe persecution, as defined in In re Chen. The quantum of persecution he experienced would not " 'so sear a person with distressing associations with his native country that it would be inhumane to force him to return there, even though he is in no danger of future persecution.' " Baka v. INS, 963 F.2d 1376, 1379 (10th Cir.1992) (quoting Skalak v. INS, 944 F.2d 364, 365 (7th Cir.1991)).

We are concerned, however, that Mr. Nazaraghaie may have established non-severe past persecution. We agree with the Board that appellant has not shown that his second period of detention was on account of political opinion. In sharp contrast, however, appellant's first period of detention appears to represent a paradigmatic example of past persecution on account of political opinion. Appellant worked for the Shah's government. He was apprehended and beaten for that association. When he refused to repudiate that association publicly, he was thrown in jail for ten months. The BIA, in considering this incident, noted that "a short detention by a totalitarian regime for political opposition does not always rise to the level of persecution, as that term is contemplated in the Act." Appellant's App., Ex. 2 at 5. However, none of the case law cited by the BIA in support of that proposition suggests that ten months is too short a period to constitute political persecution. See Zalega v. INS, 916 F.2d 1257, 1259-60 (7th Cir.1990) (detention for total period of around 36 hours); Kubon v....