Padash v. I.N.S.

• Decision Date: 19 February 2004
• Docket Number: No. 02-70439.,02-70439.
• Citation: 358 F.3d 1161
• Parties: Ali PADASH, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

358 F.3d 1161

Ali PADASH, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 02-70439.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 16, 2003 — San Francisco, California.

Filed February 19, 2004.

COPYRIGHT MATERIAL OMITTED

Frank P. Sprouls, Law Office of Ricci & Sprouls, San Francisco, California, for the petitioner.

Nancy Friedman, Office of Immigration Litigation Civil Division, Department of Justice, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A73-396-582.

Before: Stephen REINHARDT, Eugene E. SILER,^* and Michael Daly HAWKINS, Circuit Judges.

Opinion by Judge Reinhardt.

OPINION

REINHARDT, Circuit Judge:

Ali Padash ("Padash") petitions for review of an order of the Board of Immigration Appeals ("BIA") denying his application for asylum and withholding of deportation. Padash contends that the BIA erred in concluding that he had not established past persecution or a well-founded fear of persecution in India or Iran. He also challenges the BIA's determination that he is ineligible to adjust his status to that of permanent resident as a derivative beneficiary of his parents' visa.

We affirm the BIA's decision to deny his application for asylum and withholding of deportation, but reverse the denial of adjustment of status. The latter denial was based on a determination that Padash was not statutorily eligible for permanent residence because, having turned twenty-one before his visa was adjudicated, he no longer fit within the Immigration and Nationality Act's ("INA") definition of a child. INA § 101(b)(1), 8 U.S.C. § 1101(b)(1). Because we hold that the subsequently-enacted Child Status Protection Act of 2002,¹ which prevents individuals from "aging out" of a visa category as a result of delays in visa processing and adjudication, applies to Padash, we reverse and remand to the BIA for further proceedings.

I

On or about August 1, 1992, Padash, a native of India and a citizen of Iran,² came to the United States to visit his aunt and uncle in California. Padash and his mother left their home in India suddenly, without saying goodbye to Padash's father, who had been missing for a week prior to their departure. At the time, Padash was seventeen. One month after their arrival in the United States, Padash's mother also disappeared inexplicably, leaving Padash in the care of relatives. Padash testified that he has neither seen nor heard from his mother since then.

On April 19, 1995, the INS served Padash with an order to show cause, charging him with the deportable offense of over-staying his temporary visa in violation of INA § 237(b), 8 U.S.C. § 1227(b). Padash conceded deportability but requested asylum and withholding of deportation from both India and Iran.

In support of his application for asylum, Padash testified that he fears persecution in India on the basis of his Muslim religion. His claim is based on two incidents of violence that occurred at his father's restaurant. During the first incident, five individuals came into the restaurant and asked for an item on the menu. When Padash told the customers that the item was unavailable, they started a fight. They threw stones at the restaurant and insulted Padash, calling him various names, including religious slurs. There was a police station across the street. Neither Padash nor his father called for help, but the officers could hear the commotion. Shortly after the fight began, they came to the restaurant, stopped the altercation, and arrested the individuals involved. One month later, a different group of individuals started a similar fight. Although Padash was not present on that occasion, his father told him that one of the men threatened to kill the two of them. Padash left India a few weeks after the second altercation. Padash testified that because the current regime in India is "against the Muslims," he fears for his safety if he is returned.

On the assumption that the IJ might order him deported to Iran if the Indian government denied him reentry, Padash requested asylum and withholding of deportation from that country as well.³ Padash testified that he was afraid that if he were returned to Iran, he would be forced to join the military and that he might be killed as a result. He testified that two of his cousins died while serving in the Iranian military in 1992.

The IJ found Padash credible but denied his application for asylum and withholding of deportation, holding that he had not established past persecution or a well-founded fear of persecution if returned to India, or alternatively, Iran. Padash appealed to the BIA.

On September 5, 1984, a fourth preference family-based visa petition had been filed with the INS by Padash's uncle, who is a United States citizen. See INA § 203(a)(4), 8 U.S.C. § 1153(a)(4). Padash was included as a derivative beneficiary on this petition. See INA § 203(d), 8 U.S.C. § 1153(d). The INS approved the petition on October 24, 1984 and transferred it to the American Embassy in Bombay, India to await issuance of a permanent resident visa.

On March 1, 1996, while Padash's appeal was pending before the BIA, the permanent resident visa finally became available. Padash filed a motion with the BIA to expedite and reopen the deportation proceedings, arguing that he was entitled to an adjustment of his status. At the time, because Padash was under twenty-one years of age, he was eligible for immediate issuance of a visa as a child "accompanying" his parents, the principal alien beneficiaries of the 1984 petition. Id.⁴

On April 3, 1996, the BIA granted Padash's motion, concluding that he was prima facie eligible to adjust his status, and remanded the case to the IJ for consideration. The IJ did not hold a hearing on the matter until June 24, 1997, more than a year after the case was remanded. According to Padash's counsel, sometime prior to the hearing, the consulate office in India granted Padash's parents permanent residence status based on their approved visa petitions. At the hearing, the IJ concluded, however, that Padash was no longer eligible for adjustment because he had turned twenty-one on May 21, 1996, and therefore no longer met the definition of "child" under section 101(b) of the INA (defining "child" as an unmarried person under twenty-one years of age).

On February 26, 2002, the BIA affirmed the IJ's decisions in all respects. The BIA concluded that Padash had not established past persecution or a well-founded fear of future persecution on a ground protected under the INA. The BIA stated that the events in which Padash was involved, the two fights at his family's restaurant and the accompanying religious slurs and threats, did not rise to the level of harm required to establish past persecution. It also concluded that Padash had failed to show that the government of India was unable or unwilling to control the restaurant patrons who harassed and threatened his family. Indeed, the BIA noted that the police broke-up the first fight in the restaurant and arrested the offending individuals. The BIA then determined, inter alia, that Padash had failed to establish a pattern or practice of government persecution of Muslims on account of religion. The BIA also affirmed the IJ's finding that Padash failed to present sufficient evidence that the Iranian military sought to recruit or harm him "on account of" a protected ground under the INA. Finally, the BIA held that Padash was not eligible to adjust his status as a derivative beneficiary because he had turned twenty-one and no longer met the definition of "child" under section 101(b).

II

A. Asylum and Withholding of Deportation

Padash contends that the BIA erred in denying his petition for asylum and withholding of deportation. We review the BIA's factual determinations, including findings that an asylum applicant has failed to demonstrate statutory eligibility, for substantial evidence. INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). The BIA's determination must be upheld if "supported by reasonable, substantial, and probative evidence on the record considered as a whole." Id. (quoting 8 U.S.C. § 1105a(a)(4)). Reversal is warranted only if the evidence presented was such that a reasonable fact-finder would be compelled to conclude that the petitioner was persecuted or has a well-founded fear of persecution on account of "race, religion, nationality, membership in a particular social group, or political opinion." Id.; INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A) (defining "refugee").

To establish eligibility based on past persecution, an asylum applicant must show "(1) an incident, or incidents, that rise to the level of persecution; (2) that is `on account of' one of the statutorily-protected grounds; and (3) is committed by the government or forces the government is either `unable or unwilling' to control." Navas v. INS, 217 F.3d 646, 655-56 (9th Cir.2000) (footnotes omitted). Once past persecution has been established, "a presumption arises that a well-founded fear of future persecution exists." Id. at 657 (citing 8 C.F.R. § 208.13(b)(1)).

After reviewing the record, we conclude that the BIA's determination that Padash failed to establish past persecution on account of his religion is supported by substantial evidence. Persecution has been defined as "the infliction of suffering or harm upon those who differ (in race, religion or political opinion) in a way regarded as offensive." Ghaly v. INS, 58 F.3d 1425, 1431 (9th Cir.1995) (quotation omitted). "Discrimination, harassment, and violence by groups that the government is unwilling or unable to control can[] constitute persecution." Singh v. INS, 94 F.3d 1353, 1359 (9th Cir.1996). "The key question is whether, looking at the cumulative effect of all the incidents a petitioner has suffered, the treatment [he] received rises to the level of...