Yadegar-Sargis v. I.N.S.

• Decision Date: 22 July 2002
• Docket Number: No. 01-3693.,01-3693.
• Citation: 297 F.3d 596
• Parties: Nazani YADEGAR-SARGIS, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

297 F.3d 596

Nazani YADEGAR-SARGIS, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 01-3693.

United States Court of Appeals, Seventh Circuit.

Argued June 3, 2002.

Decided July 22, 2002.

COPYRIGHT MATERIAL OMITTED

Paula N. Harris (argued), Burbank, CA, for petitioner.

Blair T. O'Connor (argued), Department of Justice Civil Division, Immigration Litigation, Washington, D.C., for respondent.

Before BAUER, RIPPLE and KANNE, Circuit Judges.

RIPPLE, Circuit Judge.

Nazani Yadegar-Sargis, an Iranian, overstayed her visitor's visa, and, consequently, the INS instituted deportation proceedings against her. Ms. Sargis conceded deportability but sought asylum and withholding of deportation. After a hearing, the Immigration Judge ("IJ") issued a ruling in which he denied asylum and withholding of deportation but granted Ms. Sargis voluntary departure. The Board of Immigration Appeals ("BIA" or "Board") affirmed the IJ's decision. Ms. Sargis now seeks further review in this court. For the reasons given in the following opinion, we must deny the petition and affirm the decision of the Board.

I BACKGROUND

A.

We begin by setting forth the basic facts from the administrative record before us.¹ Ms. Sargis is a seventy-one year old native and citizen of Iran. An Armenian Christian, she first began to experience difficulties in Iran when the Ayatollah Khomeini came to power. According to Ms. Sargis, the new government forced her husband to retire from his job solely because he was Armenian. He found another job with a foreign construction company; however, that company eventually shut down. Ms. Sargis testified that her husband was unable to find other work because he was Armenian and Christian. The government, however, did give Ms. Sargis' husband his pension.

At the time that the Ayatollah overthrew the Shah, many Armenian schools were closed. Those that remained open were forced to teach Islam and to accept Moslem students. At that time, Ms. Sargis and her husband sent their only child, a son, to live in Italy where he could study in an Armenian school and would not have to learn the Islamic faith.

After Ms. Sargis and her husband sent their son abroad, government soldiers came to their home in Tehran looking for him. Several times government agents interrogated her and her husband and took her husband to the Komiteh² for further questioning. Ms. Sargis believes that these intrusions aggravated her husband's heart condition — a condition of which the agents were aware. Ms. Sargis' husband died from his heart condition in 1988, and the government stopped sending agents to her home after his death. After her husband's death, Ms. Sargis did continue to receive his pension.

Ms. Sargis stated that she suffered other hardships because she was Armenian. Specifically, she had difficulty obtaining food. After waiting hours in food rationing lines, she often was forced to the end of the line or told there was nothing for her because she was Armenian. When fellow Armenians objected to this treatment, they were beaten or told to leave the country. Ms. Sargis was forced to change her diet and obtain food through the black market because of these actions.

Ms. Sargis also was forced to wear the Islamic garb. Twice she was approached by the police and was cited for not following the Islamic dress code. Her niece, who lived with Ms. Sargis at the time, was spray painted by Islamic extremists when she went out in public without her scarf to cover her face.³ Although Ms. Sargis opposed the dress code, after this incident she complied out of fear for her safety.

Ms. Sargis also testified that government agents were stationed at the front gates of her church and hassled young girls and women as they entered church; specifically, they would "complain about your hair or something." A.R.82. When the women came out of church, government agents sometimes would take the women for questioning and "if you have a cross ... on you, and they'll just grab the cross and throw it or something." Id.

After Ms. Sargis' husband died, she left Iran and entered the United States as a visitor for pleasure on August 30, 1991. She has remained in the United States since that time and has resided with her niece outside Chicago.

Ms. Sargis' son now lives in Italy. She has one sister and two nieces who reside in Chicago. She no longer has relatives residing in Iran.

B.

Ms. Sargis was placed in deportation proceedings on July 2, 1993. At the hearing before the IJ, Ms. Sargis and her niece testified to the facts we have set forth. After hearing the testimony and reviewing the submitted documentation, the IJ denied Ms. Sargis' application for asylum.

The IJ characterized Ms. Sargis' claims as based on her religion and her gender:

The respondent's contention is that she has a gender-based claim, namely, she felt compelled to wear an Islamic or Moslem dress, the hedjab, because she feared the consequences if she did not, that wearing this dress was contrary to her religious beliefs and practices, particularly to her Armenian Christian faith, and as a result of this compulsion by the state and by society she was denied the free practice of her religion. A.R.34. The IJ further noted that "[t]he respondent in fact did wear the dress. She was never harmed on any occasion because of what she wore. She was never arrested or imprisoned or even harassed by non-governmental authorities at any time. She did attend church." Id. at 35. Consequently, the IJ concluded that Ms. Sargis' experiences did not rise to the level of persecution. The IJ, however, did grant Ms. Sargis voluntary departure.

The BIA affirmed the IJ's opinion in its entirety. The BIA characterized Ms. Sargis' claim as persecution "by fundamentalist Muslims in Iran due to her religious beliefs as a Christian Armenian, and due to her refusal to comply with the traditional Muslim dress code." A.R.2. The BIA first evaluated Ms. Sargis' claims of past persecution. The BIA characterized persecution as an "extreme concept" and stated that Ms. Sargis' experiences in Iran did not rise to this level. Id. at 3. In making its determination, the BIA acknowledged that Ms. Sargis had been forced to wear the Muslim garb for fear of being attacked, that she had suffered discrimination with respect to food rationing because she was Armenian, and that her son was forced to go abroad to study his native language and culture. Although "deplorable," these incidents constituted harassment, not persecution. Id.

The BIA also found that Ms. Sargis had not established a well-founded fear of future persecution. Again, the BIA acknowledged harassment and discrimination by the Iranian government against Christians, but held that it did not rise to the level of persecution. The BIA similarly rejected Ms. Sargis' argument that she would suffer persecution on account of her membership in a social group "consisting of Christian women who fear the threat of persecution for failing to conform to the dress code imposed by Islamic laws." Id. The BIA acknowledged that the women who shared this plight may qualify as a particular social group for the purposes of asylum law:

To the degree that the respondent and other women in her proposed group oppose the dress code because they feel it is an imposition of the Islamic religion on them, we would find the members of this group should not be required to change their opposition because it is fundamental to their individual identities or consciences.

Id. The BIA nevertheless rejected Ms. Sargis' argument that she would suffer persecution because of her membership in this group:

[W]e note that the respondent always complied with the dress code while living in Iran, and she has indicated that, if returned to Iran, she would continue to conform to the dress code. Despite the Islamic dress code, the respondent continued to practice her Christian religion in Iran. The respondent has not testified that she will willingly oppose the Islamic law by refusing to wear the required clothing. Thus, we do not accept that the respondent's actions reflect that her opposition to the Islamic law is fundamental to her individual identity or conscience. Therefore, the respondent has not established her membership in the particular social group.

Id. Ms. Sargis timely sought relief from this court.

II DISCUSSION

A.

"Asylum eligibility `is a factual determination which we review under the substantial evidence test.'" Petrovic v. INS, 198 F.3d 1034, 1037 (7th Cir.2000) (quoting Sivaainkaran v. INS, 972 F.2d 161, 163 (7th Cir.1992)). "We shall disturb the BIA's findings `only if the record lacks substantial evidence to support its factual conclusions.'" Ambati v. Reno, 233 F.3d 1054, 1059 (7th Cir.2000) (quoting Malek v. INS, 198 F.3d 1016, 1021 (7th Cir.2000)). This court may not reverse the BIA's determination simply because it would have decided the case differently. See Anton v. INS, 50 F.3d 469, 472 (7th Cir.1995).

Congress has given the Attorney General discretion to grant asylum if an applicant qualifies as a refugee under 8 U.S.C. § 1101(a)(42)(A). The Immigration and Nationality Act ("INA") defines "refugee" as

any person who is outside any country of such person's nationality ... and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that 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....

8 U.S.C. § 1101(a)(42)(A).

In order to qualify as a refugee, the asylum applicant must establish that he has a well-founded fear of future persecution based on one of the statutorily protected categories. An alien may establish fear of future persecution in one of two ways. See Marquez v. INS, 105 F.3d 374, 379 (7th Cir.1997). First, he may establish that he endured past persecution. See id. If he...