Surita v. I.N.S.

• Decision Date: 09 September 1996
• Docket Number: No. 95-70210,95-70210
• Citation: 95 F.3d 814
• Parties: 96 Cal. Daily Op. Serv. 6722, 96 Daily Journal D.A.R. 10,978 Rina Kumari SURITA, a.k.a. Rina Kumari; Afzal Yunas, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 814

95 F.3d 814

96 Cal. Daily Op. Serv. 6722, 96 Daily Journal

D.A.R. 10,978

Rina Kumari SURITA, a.k.a. Rina Kumari; Afzal Yunas, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 95-70210.

United States Court of Appeals Ninth Circuit.

Argued and Submitted May 14, 1996.

Decided Sept. 9, 1996.

Suzanne B. Friedman and Thomas L. Hiester, Daly City, CA, for petitioners.

Lisa M. Arnold (argued), and Christine Bither (on the briefs), Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for respondent.

Petition to Review a Decision of the Immigration and Naturalization Service. INS Nos. A28-806-577, A28-806-576.

Before: PREGERSON and TROTT, Circuit Judges, and WINMILL, ^* District Judge.

PREGERSON, Circuit Judge:

Petitioners Rina Kumari Surita ("Surita") and her minor son, Afzal Yunas ("Yunas"), ethnic Indian citizens of Fiji, petition for review of a decision of the Board of Immigration Appeals ("BIA" or "Board"). The BIA affirmed an immigration judge's denial of Surita's and Yunas's application for asylum and withholding of deportation, finding them statutorily ineligible for such relief from deportation under Sections 208(a) and 243(h) of the Immigration and Nationality Act ("INA"), 8 U.S.C. §§ 1158(a), 1253(h). We have jurisdiction under 8 U.S.C. § 1105a(a), and we grant the petition and remand to the BIA for further proceedings.

I. BACKGROUND

Surita is a forty-one-year-old native and citizen of Fiji. Ethnically, she is of Indian descent and her religion is Hindu. Surita entered the United States on or about July 1, 1987 on a visitor's visa with her two-year-old son, Yunas, and her parents. ¹ On March 30, 1990, the INS issued an Order to Show Cause why Surita and Yunas should not be deported for overstaying their visas. Surita and Yunas conceded deportability but applied for asylum and withholding of deportation. ²

Surita submitted newspaper articles and the U.S. Department of State's Country Reports on Human Rights Practices for 1990, [hereafter Country Report ] in support of her asylum application. According to the Country Report, Fiji's population is about evenly divided between indigenous Fijians ("ethnic Fijians") and Fijians of Indian descent ("Indo-Fijians"). Department of State, Country Reports on Human Rights Practices for 1990, S. Prt. No. 5, 102d Cong., 1st Sess. 882, 882 (1991). In May 1987, the ethnic Fijian dominated military "overthrew the [Indo-Fijian] dominated government of Prime Minister Timoci Bavadra, elected one month earlier." Stan Ritova, Fiji President Promulgates Constitution, Elections Next Year, Reuter Library Report, July 25, 1990. The overthrown government, a parliamentary democracy, had been the first such government dominated by Indo-Fijians. Kevin Brown, Fijians Consolidate Political Power, Financial Times (London), July 26, 1990, at 4. The coup also abrogated the 1970 constitution. New Constitution Proclaimed in Fiji, Windsor Star, July 25, 1990 (final edition). The stated purpose of the coup was to "ensure the political supremacy of the indigenous Fijian people." Country Report at 887. Although the military eventually stepped down and turned power over to a civilian government, the coup leader, Major-General Rabuka, and the ethnic Fijian dominated military remained influential. Id.

In 1990, a new constitution was promulgated that "aims to guarantee political primacy for ethnic Fijians by reserving for them a disproportionate number of seats in the lower house of Parliament." Country Report at 882. The new constitution also guarantees an ethnic Fijian majority in the Senate and contains procedures designed to ensure an ethnic Fijian president and prime minister. The new constitution was "promulgated by an unelected interim government and was never approved by a national referendum." Id. at 886. The new constitution also guarantees to Major-General Rabuka, the coup leader, immunity from prosecution. Brown, supra, at 4.

Continued discrimination by ethnic Fijians against Indo-Fijians remains one of "[t]he principal human rights concerns" for Fiji. Country Report at 882. "Indians are subject to significant harassment and crime based on race, compounded by inadequate police protection. In 1989 five Indian temples and a mosque were subject to acts of arson or other desecration by a group of Fijian youths." Id. at 888. Although the Country Report indicates that, in this instance, the alleged perpetrators were brought to trial, only one received a prison sentence and the others received suspended sentences. See id. at 888. It is thus unclear, for those who are prosecuted for crimes against Indo-Fijians in high-profile cases, whether punishments are genuine or merely slaps on the wrists. See also id. at 883. Moreover, the Country Report also states that the perpetrators of crimes against Indo-Fijians "escape more often than not." Id.

The Country Report also states that, "[f]reedom of religion is provided for in the [new] Constitution and honored in practice. The constitution declares the importance of Christianity to the Fijian people but guarantees protection for all religions." Id. at 885.

As the facts are not in dispute, we accept as true Surita's testimony at her deportation hearing. Singh v. Ilchert, 69 F.3d 375, 378 (9th Cir.1995). Surita worked for more than ten years as an administrator and nurse for projects in Fiji funded by the U.S. Agency for International Development. She drove across a single lane bridge on the way to and from work every day and had to stop and wait for cars coming from the other direction before she could cross. On May 15, 1987, the day after the first coup, armed ethnic Fijians, some in military uniform, surrounded her car and demanded money while she was stopped at the bridge. Every time Surita subsequently crossed the bridge going to or coming from work, ethnic Fijians robbed her again. After the first robbery, Surita made sure she always carried money with her. She believes that the men would have beaten, arrested, or raped her if she had refused to give them money.

On one occasion, the men at the bridge pulled a woman and her daughter out of the car in front of Surita and forced them to sit on the street. Surita did not see what ultimately happened to the women; she gave the men the money they demanded and then drove away. Surita stopped going to work about one week after the coup because she was afraid of what the soldiers might do to her at the bridge. She was afraid that, even though she gave the soldiers money, they might beat or rape her.

Surita testified that she was subjected to these robberies because she is Indo-Fijian. She reported the robberies to the police but the police said they could not do anything and did not explain why.

On the evening of May 25, 1987, Surita and her son were at her parents' home, where she regularly stayed. Twelve ethnic Fijian soldiers armed with guns and knives broke down the door and entered the house. They pointed their weapons at Surita and her family and ordered them to sit on the sofa. They threatened to hurt the family with their weapons if they moved or said anything. The soldiers looted the house, taking all the family's belongings, including their shoes and clothing. The soldiers remained in the house for about an hour. The soldiers told Surita that the family's possessions belonged to ethnic Fijians, and that they should "go back home" to India because Fiji was for ethnic Fijians. The soldiers also threatened to rape and kill Surita if she reported the robbery to the police.

Despite these threats, Surita reported the robbery to the police the following day. The police officers with whom she spoke were ethnic Fijians. These officers said that they "cannot do anything right now," but that they would "see later on." The police never contacted Surita nor went to the family's home to investigate the robbery.

Indo-Fijian neighbors told Surita that soldiers had also broken into their homes and robbed them. Between the date of the robbery and the date Surita and her family left Fiji, the soldiers returned to Surita's family's home at least once. The soldiers looked around but apparently did not again enter the house.

In addition, the Hindu temple that Surita attended was desecrated one or two days after the coup. Ethnic Fijians damaged all the religious statues, tore up the religious books, and closed the temple. When Surita and her mother attempted to go to another temple, ethnic Fijians stopped them and stole Surita's mother's jewelry.

Surita left Fiji six or seven weeks after the May coup because she was frightened. Remaining in Fiji had become dangerous for Indo-Fijians. She could not go out of her house, could not go to work, and could not go to temple. The police would not protect her because she was Indo-Fijian. When she left, ethnic Fijian soldiers working security at the airport confiscated her school certificates and other documents. The soldiers did not tell her why they confiscated these documents.

Of Surita's eight brothers and sisters, five now live in the United States and are either U.S. citizens or lawful permanent residents, and two now live in Australia; only one brother remains in Fiji. This brother and other relatives wrote Surita that the Hindu temple she attended remained closed. These relatives also wrote Surita that Indo-Fijians were not allowed to practice their Hindu religion, go to any temple, or meet in a group. Surita has heard that ethnic Fijians now occupy her parent's house. She believes that her life would be in danger if she were to return to Fiji because Indo-Fijians continue to be harassed and beaten.

On August 20, 1991, the immigration judge ("IJ") denied Surita's application for asylum and withholding of deportation but granted her voluntary departure. The IJ found credible and consistent Surita's testimony regarding the treatment she received from ethnic Fijians before she left...