Rahimzadeh v. Holder Jr.
| Decision Date | 26 July 2010 |
| Docket Number | No. 08-73985.,08-73985. |
| Citation | 613 F.3d 916 |
| Parties | Changiz RAHIMZADEH, Petitioner, v. Eric H. HOLDER Jr., Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
OPINION TEXT STARTS HERE
COPYRIGHT MATERIAL OMITTED.
Randy J. Tanner and Matthew B. Hayhurst, Boone Karlberg P.C., Missoula, MT, pro bono counsel for the petitioner.
Tony West, Terri J. Scadron, and Corey L. Farrell, Civil Division, U.S. Department of Justice, Washington, DC, for the respondent.
On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. 98-764-810.
Before A. WALLACE TASHIMA, RAYMOND C. FISHER, and MARSHA S. BERZON, Circuit Judges.
Changiz Rahimzadeh (Rahimzadeh) testified that he was persecuted first in Iran by the government on account of his political activity and later in the Netherlands by Muslim extremists on account of his conversion to Christianity. The Immigration Judge (IJ) deemed Rahimzadeh's testimony credible and granted withholding of removal to Iran, but denied asylum from, and withholding of removal to, the Netherlands. The IJ concluded that Rahimzadeh had not suffered past persecution in the Netherlands and that his fear of future persecution was not objectively reasonable, because he did not show that Dutch authorities were unable or unwilling to control his attackers. After the Board of Immigration Appeals (BIA) affirmed without opinion, Rahimzadeh petitioned this court for review. We deny the petition, for reasons that will duly appear.
Rahimzadeh entered the United States on a B-1 visa on September 6, 2006. He applied for withholding of removal to Iran, and asylum from, and withholding of removal to, the Netherlands on November 6, 2007. 1 In his removal hearing, Rahimzadeh testified to the abuse he suffered in Iran because of his political leanings and in the Netherlands because of his religious beliefs. The IJ deemed Rahimzadeh's testimony credible, and the BIA did not find otherwise, so “we accept as undisputed the testimony of the applicant.” Baballah v. Ashcroft, 367 F.3d 1067, 1073 (9th Cir.2004) (citation omitted).
Rahimzadeh was born on April 19, 1964 to a Muslim family in Tehran, Iran, where he lived until he turned sixteen. At that time, his family moved to the nearby city of Karaj because of difficulties arising from their pro-monarchy political leanings. Rahimzadeh helped the Mujahedin movement oppose the Islamic Republic, although he never became a Mujahedin member. Police arrested him for involvement with the Mujahedin and sent him to Evin prison, where guards interrogated and tortured him for three to four days using techniques such as beating his feet with cables and contorting his body into positions so he could not breathe. Rahimzadeh was convicted of aiding terrorists and held in prison for approximately three years.
After he was released, police arrested Rahimzadeh twice more for attempting to escape Iran without permission. On the first occasion, they sent him to Evin prison, where he attempted suicide; on the second, they held him for nineteen days. At some point, a doctor in Iran prescribed medication to Rahimzadeh to treat PTSD.
Rahimzadeh later traveled to Turkey and Japan. While in Japan, he converted to Christianity and was baptized. After two years, in 1992, Japanese officials ordered him deported to Iran, but he went to the Netherlands instead and applied for asylum, which was granted in 1996.
While in the Netherlands, Rahimzadeh practiced Christianity, proselytized to Muslims, including a visit to a Dutch mosque, and in 1994 gave a televised interview during which he discussed the torture and abuse he suffered in Iran. In 1999, unidentified people whom Rahimzadeh believed to be Muslims from Morocco came to his home in Amersfoort, put a knife to his throat, blindfolded him, laid him on the floor, read the Koran, and beat his feet with cables, all while complaining of his conversion to Christianity. The invaders threatened to kill him if he reported the incident to the police. After the incident, fearing for his safety, Rahimzadeh went to Canada for three months and to the United States for five, on tourist visas. He then returned to the Netherlands to be with his brother, with whom he feels close. (Both his sister and brother live in the Netherlands and remain Muslims.)
Rahimzadeh again experienced difficulties in the Netherlands in 2005, when he began to receive anonymous threatening calls to his cell phone. He believed the callers to be fanatical Muslims based in the Netherlands. They threatened to kill him because of his religious conversion and warned that they would hurt or kill his sister if he reported the calls to police. Rather than report the calls, Rahimzadeh traveled again to the United States on a tourist visa for two to three months. On his return to the Netherlands the phone calls started again. Rahimzadeh did not buy a new cell phone because of the cost and his belief that extremist Muslim groups would find his new number.
Ultimately, while Rahimzadeh was still living in Amersfoort, four people carrying guns forced him into a car for ten to fifteen minutes. They threatened to kill him and harm his family if he continued to attend his church and to kill his sister if he reported the incident to police.
Rahimzadeh did not report this incident-or any other of the threats and attacks-to Dutch police. Instead, one month after the last incident, he left again for the United States. Before his departure, he stayed briefly in Amsterdam, where he felt unsafe because he perceived the Netherlands to be a small country with a large Muslim population and approximately “280,000 fanatic [s]” from whom the authorities were unable to protect him. Rahimzadeh fears for his life if he returns to the Netherlands.
Rahimzadeh presented expert testimony that he suffers from PTSD arising from the torture in Iran and the kidnapping in the Netherlands. He also presented documentary evidence detailing Islamic radicalism in the Netherlands and death threats to Muslims who convert to Christianity.
The government offered documentary evidence as well, including the 2006 U.S. Department of State Country Reports for the Netherlands, indicating that the Dutch government “at all levels ... did not tolerate [abuse of the right to freedom of religion], either by governmental or private actors,” that the Netherlands had taken “firm action against groups espousing violence in support of an Islamic extremist agenda,” that the law and the judiciary provide effective relief for abuses of human rights, that police forces are “generally effective,” and that the government takes steps to deal with any shortcomings in its human rights record.
The IJ credited Rahimzadeh's testimony; granted withholding of removal to Iran under section 241(b)(3) of the Immigration and Nationality Act (INA); did not reach his application for withholding of removal to Iran under CAT; and denied asylum from, and withholding of removal to, the Netherlands. Although the IJ found that Rahimzadeh suffered abuse rising to the level of persecution in the Netherlands on account of his religion, the IJ determined that the Muslims who abused Rahimzadeh were neither government agents nor individuals whom the government was unable or unwilling to control. Noting that Rahimzadeh failed to report the incidents to authorities, the IJ observed that recourse to the authorities likely would not have been futile, because country reports indicate that the Dutch government seeks to promote and protect religious liberty and that the law and judiciary provide effective means of addressing individual instances of private violence.
The BIA affirmed without opinion. Rahimzadeh timely petitioned for review.
Where, as here, the BIA affirms without opinion, the IJ's decision is the final agency determination for purposes of this court's review. Renteria-Morales v. Mukasey, 551 F.3d 1076, 1081 (9th Cir.2008). We review the IJ's legal determinations de novo, subject to established principles of deference. Ornelas-Chavez v. Gonzales, 458 F.3d 1052, 1055 (9th Cir.2006). We must uphold the IJ's factual findings “if supported by reasonable, substantial, and probative evidence on the record.” Id. at 1056 (internal quotations omitted). Thus, “[e]ven if we might have reached a conclusion different from that reached by the [IJ], we may not reverse unless we determine that any reasonable factfinder would have been compelled to reach that conclusion.” Lolong v. Gonzales, 484 F.3d 1173, 1178 (9th Cir.2007).
The Attorney General has discretion to grant asylum to any alien who qualifies as a “refugee” within the meaning of section 101(a)(42)(A) of the INA. See 8 U.S.C. § 1158(b)(1). The applicant has the burden to establish his status as a refugee, id. § 1158(b)(1)(B)(i), defined as a person “unable or unwilling” to return to his home country “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion,” id. § 1101(a)(42)(A); Navas v. INS, 217 F.3d 646, 654 (9th Cir.2000). Central to this case is the requirement that, to demonstrate persecution within the meaning of the Act, the applicant show that abuse was “committed by the government or forces the government is either unable or unwilling to control.” Knezevic v. Ashcroft, 367 F.3d 1206, 1211 (9th Cir.2004); Navas, 217 F.3d at 655-56.
Dutch officials did not participate in or sponsor the attacks on Rahimzadeh, so Rahimzadeh must establish that the Dutch government was unable or unwilling to control his attackers. He has not done so. Rahimzadeh never reported the abuse to police; instead, his evidence of the government's inability or unwillingness to stop the attacks consists solely of a private threat of harm and the presence...
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