Zahedi v. Immigration & Naturalization Serv., 98-71179

• Decision Date: 07 August 2000
• Docket Number: No. 98-71179,98-71179
• Citation: 222 F.3d 1157
• Parties: (9th Cir. 2000) ABBAS ZAHEDI, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. Office of the Circuit Executive
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1157

222 F.3d 1157 (9th Cir. 2000)

ABBAS ZAHEDI, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 98-71179

Office of the Circuit Executive

U.S. Court of Appeals for the Ninth Circuit

Argued and Submitted August 7, 2000--Seattle, Washington

Filed September 6, 2000

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

On Petition for Review of an Order of the Board of Immigration Appeals, I&NS No.A-73-446-640

Nicholas Marchi (argued) & Michele Carney, Carney & Marchi, P.S., Seattle, Washington, for the petitioner.

Susan Houser (argued) & Carl H. McIntyre, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for the respondent.

Before: Betty B. Fletcher, Cynthia Holcomb Hall, and A. Wallace Tashima, Circuit Judges.

B. FLETCHER, Circuit Judge:

Abbas Zahedi, a citizen of Iran, petitions for review of the determination of the Board of Immigration Appeals ("BIA" or "Board) that he has not established asylum eligibility. Zahedi was involved in an endeavor with one other person to translate and informally distribute a Farsi edition of Salman Rushdie's banned novel The Satanic Verses. His partner in the project was arrested and apparently tortured by the Iranian authorities; death ensued. The Immigration Judge ("IJ") found Zahedi's testimony not credible, and the BIA adopted the IJ's decision. Zahedi appealed to this court, arguing that the IJ's credibility finding was in error and contrary to this court'sstandards guiding such findings. He asserted that he had made out a sufficient claim of asylum eligibility, and argued that he was also entitled to withholding of deportation. Because the evidence would compel any reasonable fact-finder to reach a conclusion contrary to that of the BIA, we grant the petition and find Zahedi eligible for asylum and entitled to withholding of deportation.

I.

The INS issued an Order to Show Cause on June 16, 1996, charging Zahedi with deportability under former INA S 241(a)(1)(B), 8 U.S.C. S 1251(a)(1)(B), for entering the country without inspection. The IJ rejected Zahedi's asylum claim in a decision dated May 1, 1997. The BIA entered its final order affirming the order of deportation on September 16, 1998. Zahedi timely filed his petition for review with this court on October 13, 1998.

This court has jurisdiction pursuant to section 106(a) of the INA, 8 U.S.C. S 1105a(a), as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA").¹ This case falls within IIRIRA's "transitional rules," which apply to deportation proceedings that were commenced before April 1, 1997 and resulted in final deportation orders issued after October 30, 1996. The transitional rules provide that, with certain exceptions not relevant here, the court of appeals has jurisdiction under old section 106(a) of the INA.²

A. Factual Background

Before he came to the United States, Abbas Zahedi was an independent business owner, operating an automobile parts store and an electronics store in Teheran, Iran. In 1994 or 1995, Zahedi heard about the book The Satanic Verses by British author, Salman Rushdie. His interest was piqued by the furor within his country concerning the book and the fatwa issued by the late Ayatollah Ruhollah Khomeini condemning Rushdie to death.³ Zahedi felt The Satanic Verses might have an important message for Iranians. At his asylum hearing, Zahedi explained his motivation this way:

I thought maybe [government officials] are trying to hide something from people, from us. Therefore, I was determined to find this book, no matter how expensive or dangerous it is, and find out what it is about and let the people know. It was very important to me and I was very curious of that -the people ruling . . . my country who claim that they are . . . the freedom fighter[s], and at the same time they have determined . . . so many million dollars for the -to kill this writer . . . who we all know everybody has a right to write freely, and I was really curious to find out what this book is all about.

Zahedi set out to find the book during the winter of 1996; he located a copy "with a lot of difficulty" in Turkey, purchased it and brought it back to Iran. Knowing that "the punishment of having possession of this book is very heavy, " Zahedi was circumspect in his planning. He contacted a friend who lived in his mother's neighborhood named Moshen; Moshen had been expelled from the university on the basis of his political beliefs. Zahedi presented his idea for a joint venture: Moshen would translate the book and Zahedi would distribute it. Moshen agreed; the two "swore that in case we were -any of us were captured" each man would not inform on the other.

Moshen began translating the book chapter by chapter. As soon as Moshen completed a Farsi version of a chapter, Zahedi duplicated the pages using a copy machine. Zahedi then distributed the chapters to individuals he knew who were critical of the government; they in turn gave copies away to others. Zahedi explained at his hearing that he chose recipients who he could trust, whose relatives had been targeted and killed by the government. Zahedi distributed multiple copies of four separate chapters to about twenty to twenty-five people each. Based on his estimates, Zahedi gave out at least fifty copies of each chapter.

Moshen and Zahedi did not get very far in their endeavor. The translation project was cut short when the security forces arrested Zahedi's colleague Moshen. Zahedi learned that Moshen had been arrested from his mother, who lives next door to Moshen's mother. Although Moshen and Zahedi had promised each other not to reveal the name of the other to the authorities, Zahedi was well aware that the authorities frequently tortured political suspects. Knowing the difficulty of keeping secrets under such abuse, Zahedi realized that he was in grave danger. As he explained at the asylum hearing, the "ultimate punishment is death" for anyone caught distributing The Satanic Verses. Zahedi immediately sought help to leave the country from a friend. The friend, a businessman with an import-export venture with ties to Canada, was able to obtain a Canadian visa for Zahedi. Zahedi left Teheran on April 14 and arrived in Canada on April 15, 1996.

Although the details of his death were not clear until later, Moshen died in detention.

On the same day he fled Teheran, the Iranian authorities attempted to serve a summons on Zahedi requiring his appearance in court. Finding that he was not home, the authorities returned repeatedly to serve summons at his mother's home. They also harassed and threatened Zahedi's mother, exhortingher to tell Zahedi that he should return home. The authorities harassed other members of his family also, even asking Zahedi's daughter if she knew where her father was. When Zahedi did not heed the summons, a notice was published in the official government paper stating that Zahedi must appear in court or face a default verdict. A letter marked "absolutely confidential" was written by the Bureau of Interrogation to the Islamic Revolutionary Court stating that Zahedi "has been active in reproduction and distribution of the misleading book of `Satanic Verses' " and explaining that the court should proceed with the case against him.⁴

B. The Immigration Judge's Decision

The IJ found that Zahedi was not credible. She stated that Zahedi had been "evasive," found that he testified "generally," and concluded that he was "inconsistent. " Based on this credibility determination, the judge also rejected the documentary evidence Zahedi offered, including copies of the summons requiring him to appear in court, the published notice concerning his case, the letter from the Bureau of Interrogation, and Moshen's death certificate. The IJ found that "respondent may face criminal charges when he returns to Iran," but stated that "[t]hat is a matter for the government of Iran to decide. This is not a basis for the grant of asylum." On appeal, the BIA adopted and affirmed the IJ's decision, dismissing the appeal. In his petition to this court, Zahedi urges us to find that the IJ erred in making its credibility finding, find him eligible for asylum and withholding of deportation, and reverse and remand for exercise of discretion.

II.

The BIA and IJ's factual determinations are reviewed under the substantial evidence standard. See INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992). We owe deference to legal decisions rendered by the BIA and IJ under the rubric of Chevron v. N.R.D.C., 467 U.S. 837 (1984). See INS v. Aguirre-Aguirre, 526 U.S. 415, 424 (1999). We may reverse if the evidence is such that any reasonable factfinder would conclude that a well-founded fear of persecution has been established. See Elias-Zacarias, 502 U.S. at 481; Singh v. INS, 134 F.3d 962, 966 (9th Cir. 1998). In cases like this, where the BIA did not review the case de novo, we review the decision of the Immigration Judge. See Lata v. INS, 204 F.3d 1241, 1244 (9th Cir. 2000).

A. General Standards for Asylum Eligibility

To be eligible for asylum, an applicant must show that he is "unable or unwilling" to return to his home country "be-cause 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. S 1101(a)(42)(A) (defining "refugee"). To establish a wellfounded fear of persecution, Zahedi must show that his fear is both objectively reasonable and subjectively genuine. See Fisher v. INS, 79 F.3d 955, 960 (9th Cir. 1996) (en banc). The objective component of this test requires showing "by credible, direct, and specific evidence in the record, that persecution is a reasonable possibility." Meza-Manay v. INS, 139 F.3d 759, 763 (9th Cir. 1998) (quoting Singh v. Ilchert, 63 F.3d 1501, 1506 (9th Cir. 1995)). This showing may be made "by the production of...