*1 just practi- and tion for a new trial and REMAND for application retroactive proceedings. reverse. further cable. must therefore We a district court’s Recently, we reviewed earlier 33 and apply
decision to Rule jurisdiction over a motion for a
assume newly trial based on discovered evi-
new Ross, v.
dence. See United States (9th Cir.2004). 1097, 1105-06 & n. 6 Ross, motion for a the defendant’s new NAHRVANI, Petitioner, Hossein trial, Woods’s, like would have been un- timely filing require- if amended Rule 33’s applied.4
ments were GONZALES,* Attorney Alberto General, Respondent. directly did not address whether the We application retroactive of the amended No. 03-70586. just practicable Rule was in Ross. Appeals, United States Court of Instead, held that the court we district did Ninth Circuit. in deciding not abuse its discretion it was just practicable to apply Argued Aug. and Submitted 2004. Ross, retroactively. Rule amended March Filed 2005. (finding authority F.3d at 1106 n. 6 “no district suggest interpreta- court’s ‘just practicable’
tion of was an abuse discretion”). approach,
Consistent this we re- with provide
mand to the district court with the
opportunity to determine whether the ret- application
roactive of the amended Rule is
just practicable in this case.
III. CONCLUSION application
We hold the retroactive
of amended Rule 33 does not violate the Nevertheless,
Ex Post Facto Clause.
district court failed to determine whether
application of the amended Rule 33 to “just
Woods’s motion would be practi- Accordingly,
cable.” we REVERSE the denying
district court’s order Woods’s mo- jury 4. The years in Ross reached its verdict which allowed Ross two from final March 1996. Ross filed his motion for a new judgment September 1998 to file his mo- July trial in 1999. If the district court had tion. Rule, applied the amended Ross's motion * prede- Alberto Gonzales is substituted for his would have been barred because it was filed cessor, Attorney John General. years jury's more than three Rather, after the verdict. 43(c)(2). R.App. Fed. P. applied the court the earlier Rule *2 (BIA) Appeals’ summary
tion affirmance (IJ) the Immigration Judge’s denial of request from Iran and his *3 request withholding for of removal and protection Against under the Convention (CAT) Germany. Torture as to The IJ granted withholding of pro- removal and tection under the as to CAT Iran. Because the IJ’s supported determinations were evidence, deny petition. substantial we I.
BACKGROUND
Nahrvani entered the
on
United States
April
Approximately
or about
1999.
later,
year
one
Immigration
and Natu-
(INS)
ralization Service
issued
a
Nahrvani
Notice to Appear alleging that he was
237(a)(1)(B)
removable under Section
Immigration
Nationality
Act for
remaining in
longer
the United States
than
permitted.
was
Nahrvani conceded re-
movability, but
application
submitted an
asylum
for
withholding
In
removal.
alternative,
requested
Nahrvani
Gordon,
CA,
Angeles,
Louis A.
Los
for
the case be reviewed under the CAT.
petitioner.
support
application,
of his
Nahrvani
(briefed),
Daniel E.
B.
Goldman
Earle
that,
Iran,
living
testified
while
he was
(argued),
Immigration
Wilson
Office of
jailed
approximately
arrested and
for
two
D.C.,
Litigation, Washington,
for the re-
years
a
participation
result of his
in an
spondent.
anti-government
During
demonstration.
incarceration,
Nahrvani
repeatedly
tortured. He fled to
where he was granted political asylum and
FLETCHER, HANSEN,**
Before: B.
permanent residency.
RAWLINSON,
Judges.
Circuit
Nahrvani
approxi-
lived
RAWLINSON;
Opinion by Judge
mately
years.
time,
ten
During that
by Judge
Dissent
FLETCHER.
car,
Nahrvani owned a
and traveled and
RAWLINSON,
Judge:
Circuit
worked without restriction. Nahrvani con-
Nahrvani,
Iran,
Hossein
peti-
Christianity
native
verted to
married Ger-
tions for
Immigra-
review of the Board of
man
pastor.
sought
Lutheran
**
Hansen,
designation.
R.
Honorable David
Senior U.S.
Circuit,
Judge
Eighth
sitting by
Circuit
for the
informed that
II.
citizenship, but was
German
his Iranian citizen-
must first renounce
he
STANDARDS OF REVIEW
necessary
completed the
ship. Nahrvani
Because the BIA affirmed the IJ’s
at the Iranian Consulate to re-
paperwork
ruling
opinion,
without an
the IJ’s decision
citizenship, but never attained
nounce his
agency
purposes
is the final
action for
citizenship.
German
appeal.
this
See Falcon
Carriche Ash
(9th Cir.2003).
croft,
of his conversion to Chris-
As a result
The IJ’s determination
Ira-
tianity
his efforts to renounce his
ineligible
“can be reversed
*4
the tar-
citizenship,
nian
Nahrvani became
if
presented by
the evidence
[Nahrvani]
threats,
and his
get of harassment
was such that a reasonable factfinder
damaged.
car
He testi-
bicycle and
were
would have to conclude that
requisite
that officials from the Iranian Consu-
fied
persecution
fear of
existed.”
INS
Eli
stealing
him
“chasing”
late were
as-Zacarias,
478, 481, 112
502 U.S.
S.Ct.
in-
reported these
possessions. Nahrvani
(1992) (citation
812,
1153
requires
Although Nahrvani
objective component of this test
de-
direct,
several
credible,
scribed
incidents
by
specific
showing,
harassment, threats,
property damage,
record,
persecution
is
in the
evidence
the record reflects that he
suffered
de
v.
possibility.” Agbuya
a reasonable
property damage
anony-
minimis
(9th Cir.2001) (citation
F.3d
mous, ambiguous threats. Nahrvani suf-
omitted).
quotation
and internal
marks
physical
fered no
harm nor was he ever
showing may
pro-
“This
be made
detained.
specific documentary
duction of
evidence
persuasive
the credible and
testimo-
Nahrvani did receive a
couple
serious
(citation
Id.
ny
applicant.”
of the
call
phone
threats. One
stated: “It
omitted).
marks
quotation
internal
blood[,]”
your
Halal to shed
and one note
people
threatened that
who abandoned Is-
“persecu
We have characterized
lam would “have to die.”
by the
concept,
tion as an extreme
marked
“especially menacing
While
death
way
in a
suffering
infliction of
or harm
may
threats”
constitute
regarded
Ashcroft,
as offensive.” Li v.
Lim,
cases,”
“certain extreme
224 F.3d at
(9th Cir.2004) (en banc)
this is
such
extreme case.
(citation, alteration,
quotation
and internal
only telephone
Nahrvani received
or writ
omitted). Physical
marks
violence inflict
threats,
personal
had a
ten
never
con
ed
an individual often “meets the
any
people
frontation
of the
threaten
with
severity
that characterizes
requirement
(“Neither
ing
[petitioner]
him.3 See id.
persecution[.]” Hoxha
*6
touched, robbed,
family
nor his
was ever
(9th Cir.2003) (citation
1179,
n.
F.3d
1182 5
recruited, detained,
forcibly
imprisoned,
omitted);
v.
see also Duarte de Guinac
trespassed upon, or even
interrogated,
(9th Cir.1999)
INS,
1156,
179 F.3d
1161
confronted.”);
closely
compare Ruano v.
(“we
consistently
persecution
have
found
(9th
1155, 1160
Ashcroft, 301 F.3d
Cir.
where,
here,
petitioner
physi
2002) (finding persecution
petitioner
where
”)
omitted).
(citations
Al
cally harmed ...
by
“closely
had
was threatened
men who
though
death threats
an individual
pistols
him and drawn their
confronted”
may
persecution,
be sufficient to constitute
contrast,
presence).
his
threats
898,
903
Khup
see
v.
376 F.3d
anonymous,
received were
(9th Cir.2004), most threats do not rise to
and did not create a sense of imme
vague,
Hoxha, 319
persecution.
the level of
See
Lim, 224 F.3d
physical
diate
violence. See
at
unfulfilled
(characterizing
F.3d
1182
Additionally, while we have
at 936-37.
perse
threats as harassment rather than
threats of death are
acknowledged
I.N.S,
cution);
224
see also Lim v.
F.3d
typi
we
enough to constitute
(9th Cir.2000) (“Threats
929,
them
936
events,
surrounding
cally rely on all of the
and,
selves are sometimes hollow
while
threat,
in deciding
the death
including
uniformly unpleasant, often do not effect
persecution
whether
exists. See Salazar-
harm.”).
significant
suffering
actual
or
(9th
INS,
1069,
F.3d
Paucar v.
Cir.2002)
pivotal
(finding
in this case is
that death threats “com
issue
events,
including
multiple
in Nahrv
whether the incidents described
bined with”
family and mur
testimony
asylum application
applicant’s
harm to the
ani’s
counter-
applicant’s political
of the
high
required
prove
meet the
standard
to
ders
late,
regarding
provide any
did not
details
Although
he was
he
3.
testified that
by
Consu-
the incident.
chased
officials from
see n also
Although
persecution);
Nahrvani’s fear
parts, constituted
INS,
1241,
192 F.3d
Reyes-Guerrero
returning
sufficiently
v.
to
credi
Cir.1999)
(9th
(describing- re-
satisfy
subjective component
1243-44
ble
attempts, personal confronta-
peated bribe
persecution inquiry,
the future
the evi
threats);
tions,
Sangha
and death
v.
compel
finding
dence must also
that fu
(9th Cir.1997) (in-
1486-87
persecution
objectively
ture
is an
reason
petitioner’s family,
volving an attack on
Hoxha,
possibility.4
able
See
319 F.3d at
threats).
confrontation,
personal
and death
1182.
specific
threats de-
Other than
two
many
For
of the same reasons
above,
incidents Nahrvani
scribed
re-
above,
discussed
Nahrvani’s fear of future
significantly
perse-
lated
not
bolster his
do
persecution
speculative
is too
cution claim. “Because reasonable minds
support
asylum
Nagoulko
claim. See
as to whether
the threats
could differ”
(9th Cir.2003)
persecu-
received
Nahrvani constituted
(declining
speculative
to credit a
future
tion,
compel
the record
us to
does
claim).
persecution
Nahrvani did not sub
finding
make a
that the threats did consti-
regarding
stantiate his claim
the German
Khup,
tute
were compel finding per does not that future forces the is' either ‘unable or objectively secution is an possi reasonable Navas, unwilling’ to control.” Ernesto 217 bility. See id. at 655-56. Nahrvani'contends Because Nahrvani failed to establish eli police continually the German failed to in gibility he nec vestigate reports of mistreatment. essarily eligibility failed to demonstrate However, the record regarding these as withholding of removal. See Farah v. compelling. sertions is far 'from The Ger Ashcroft, 348 F.3d Cir. *7 police man took reports documenting 2003). Finally, sup substantial evidence n Nahrvani’svarious complaints. Nahrvani ports the IJ’s denial relief under the give police admitted that he did not the the CAT, presented as Nahrvani has no evi any suspects names of because he did not likely dence to demonstrate that it is more addition, any specific know names. than not that he will if be tortured re directly Nahrvani’s assertion is contradict Germany. Zheng turned to See v. Ash wife, by testimony ed the of his who stated (9th croft, 332 F.3d 1193-94 Cir. police investigated that the complaints, 2003). ultimately but were unable to solve the crimes. She also testified that racial is IV. way in no police’s
sues affected the willing help to ness Nahrvani. The evidence sim THE BIA’s SUMMARY AFFIRMANCE ply compel does not the conclusion thát the government German was unable or unwill need not argu- We address Nahrvani’s ing' to control those harassing individuals ment that BIA improperly streamlined Nahrvani. pursuant case 8 C.F.R. 4. past Because persecution Nahrvani cannot establish ture See was well-founded. Moli- he does not receive the benefit of na-Estrada v. Cir.2002). a presumption rebuttable that his fear of fu- 1003.1(a)(7)(ii). subjective component reached the of the well-founded Because we § decision, Similarly, dispute test. there is no it is “unneces- fear of the IJ’s merits government against that the Iranian acted for us to review sary duplicative” statutorily on the basis of a pro- Nahrvani Falcon Car- to streamline. BIA’s decision ground. tected riche, F.3d at 855. My disagreement majority with the
V. First, grounds. although arises on two expressly question IJ did not address the CONCLUSION government’s Iranian ac- of whether the supports the IJ’s evidence Substantial Germany in against tions Nahrvani consti- firmly was reset- conclusion that Nahrvani majority past persecution, tuted finds Germany ineligible thus tled in result, they majori- not. a did As Iran. evidence asylum from Substantial ty concludes that Nahrvani failed to show conclusion that supports the IJ’s also in persecution that his fear future Ger- asylum, with- is not entitled However, many objectively reasonable. removal, relief from holding of or CAT testimony Nahrvani’s credible and corrob- petition is DENIED. Germany. orating compel finding past a evidence Germany. persecution This would shift FLETCHER, Judge, B. Circuit the burden to the to rebut the dissenting. presumption of a fear of fu- wellrfounded respectfully I dissent denial ture asylum. compels The record eligibility for Second, asylum expressly the IJ denied experienced past finding that Nahrvani ground that Nahrvani failed to dem- on the political on account of his persecution the acts of which he com- onstrate religion reasonably fears opinion and “committed plains were if he is returned to persecution future is either unable or forces the granted Germany or Iran. Nahrvani was control,” majority unwilling and the perse- of his because However, agrees. this conclusion is not Although Nahrvani felt cution in Iran. safe evidence. supported substantial time, safety for some govern- Iranian compromised when the I. Facts ment discovered Nahrvani’s whereabouts. credibly specifically testi- campaign agents recommenced following facts. Nahrvani’s fa- fied to the Nahrvani, and the *8 during a official high-ranking ther was un- government unwilling was German father, Nahrvani, his and regime. Shah’s able to control them. siblings actively opposed the current his testimony re- The IJ found Nahrvani’s (cid:127) power. it regime Iranian after assumed in Iran and garding events both political literature Nahrvani distributed found Specifically, to credible. IJ be student activists. cooperated and with ... “forthright that Nahrvani was suf- at and his brother were arrested Nahrvani light in ficiently detailed and consistent imprisoned political a demonstration conditions, in his general During his years without a trial. for two country Iran of Ger- country of but his was tortured and imprisonment, Nahrvani many as well.” of fellow to watch the executions forced credible, that “his being warned prisoners found Nahrvani while Because the IJ Nahrvani and his turn” would come soon. disputes that Nahrvani satisfied no one prison ty, they their ordered him to leave the escaped from with Consu- brother Germany, processed fled to where late. The Consulate never his father’s aid and renunciation; instead, asylum. they began what the they granted were findings “reign IJ described his as a married a promi- Nahrvani terror.” to pastor and converted nent Christian to Christianity. eligible he became When declaration, to an According expert’s citizen, he learned that become a German provided by information that Nahrvani fill- him to government required the German ing citizenship out the renunciation forms Iranian himself to the Consulate present likely was most transmitted from the Ira- citizenship Iranian as a and renounce his nian gov- Consulate to the central Iranian naturalization. Nahrvani prerequisite to addition, expert ernment in Iran. In this protested. announcing He feared that his explained that information on citi- presence to the Iranian Consulate would zenship-renunciation gave forms the Irani- expose persecution him to additional government several different —and reasons to ultimately proved to this fear be well- First, target Nahrvani for founded. escaped political prisoner Nahrvani is an family actively opposes whose the current explained
Nahrvani to the German au- Second, regime. Iranian he asy- made an renouncing citizenship thorities that his lum a) claim Iran which is an act him endanger doing would because so government considered the Iranian to presence would announce his to the Irani- “counter-revolutionary” defamatory an government and enable the Iranian Third, whereabouts, of the State of Iran. he is a government Muslim to track his b) who Christianity. has converted to The religious background political his government’s position Iranian is that likely him Mus- target made Christianity lims who convert should be government. the Iranian The German death, actually sentenced to and Iran has nonetheless insisted that executed a number of individuals on that go Nahrvani to the Iranian Consulate to prominence basis. The citizenship. his Nahrvani’s Ger- renounce As Nahrvani wife, weekly man who has television predicted, immediately this act caused the show, heightens the risk perse- reinitiate its him, targeted would be rediscovered and Germany. again cution of time in this if Germany. he is returned to When Nahrvani went to the Iranian citizenship, “reign Consulate to renounce his he of terror” that required to fill out forms and waged against answer questions provided the Iranian gov- multiple included death threats regarding ernment with information his accompanied by acts of vandalism that es- residence, marriage First, address of his to a in severity calated over time. his prominent pastor, bicycle slashed, German and his conver- tires were then car sion Christianity. rock, After he submitted window was smashed with a then *9 forms, his kept Consulate him tires of both car his and his wife’s car were slashed, waiting interrogated for hours and then then his brother’s car’s tires were regarding first, him for renouncing reasons slashed as well. At accompa- *10 campaign against of terror government’s
1158
(9th Cir.2004). Here,
being
willingness-
carry
in addition to
and its
out
its
n the
“menacing
specific,”
multiple
against
asylees
threats
Iranian
in Eu
were ac-
against
death threats
rope. Similarly, the death threats must
by near-confrontations arid es-
companied
seriously
be taken much more
when
vandalism to Nahrvani’s
calating acts of
light
viewed in
of
the evidence
the
property, as well as his wife’s and his
government
views Muslims who
property.1
brother’s
convert
to Christianity
deserving
as
of
death sentences and has executed indi
Second,
determining whether mul-
when
Where,
here,
on that basis.
and incidents of harass-
viduals
tiple death threats
n
context
that a
indicates
threat
death
persecu-
constitute
ment and vandalism
Mashiri,
asylum-seeker
is “much more
tion,
cumulatively.
against
we view them
INS,
idle, threat,”
1120-21;
than an
we have found that
at
Surita v.
95
383 F.3d
Cir.1996).
(9th
814,
Here,
the death threat
persecution.
F.3d
819
the
constitutes
Mashiri,
1120;
against
death threats made
Nahrvani were
383 F.3d at
see also Kor
times,
repeated many
they
INS,
escalated
ablina v.
158 F.3d
1045
Cir.1998)
severity
in
over time.
(holding that where “evidence
a specific
of
threat on an
...
alien’s life
Third,
severity
have found that the
“[w]e
presented
conjunction
in
with evidence
compounded
of harm is
when incidents of
turmoil,
political
of
and social
the alien
occurred on
than
persecution have
more
has
in establishing
prima
succeeded
fa-
occasion, particularly
appli
one
where an
eligibility
asylum”).
cie
for
cant is victimized at different times over a
period
years.”
Ashcroft,
of
Baballah v.
In concluding that Nahrvani
not es
did
(9th Cir.2004) (internal
1067, 1076
367 F.3d
eligibility
asylum,
majority
tablish
omitted);
quotation -and citation
see also
likens
Ashcroft,
this case to Hoxha v.
Garcia-Martinez
v.
(9th Cir.2003),
F.3d 1179
and Lim v.
(9th Cir.2004)
(finding
it im
(9th Cir.2000).
In both Hox-
proper
petitioner’s
for the IJ to treat the
Lim,
ha and
we found that
the threats
personal
they
if
experiences “as
had oc
experienced by
applicant
did not rise
vacuum,”
in a
though
peti
curred
even
However,
to the
level of
experiences
tioner’s
of
personal
persecu
clearly
these cases are
distinguishable.
Here,
apart).
tion
a decade
occurred
Nahrvani,
prior
Unlike
Hoxha had no
ex
responsible
the death
perience of persecution by
group
Germany,is
threats and violent acts in
him,
was threatening
single
threat was
imprisoned
same
and tor
unaccompanied
acts,
by any other
and the
tured
Nahrvani and his brother
threat was
repeated
over time. Al
past namely,
government.
the Iranian
—
though Lim
multiple
received
death
Fourth,
the death threats
Na-
threats, he had never been attacked or
appear
rhvani do not
“hollow” when physically
making
harmed
those
threats
light
viewed in
of the evidence docu-
him;
contrast,
against'
Nahrvani has
menting
the number
times the Iranian
imprisoned
been
agents
and tortured
government has murdered Iranian exiles
past.
the Iranian
in the
nations,
residing
European
including
Germany;
sum,
previous
these
experience
murders demonstrate
Nahrvani’s
both
government’s ability
political imprisonment
and torture at
recognized
1. We
past persecution.”
have
that “evidence of harm
Salazar-Paucar
petitioner's
(9th Cir.2002).
family
supports
finding
[a
*11
vacuum; rather,
doing
so in a
government,
Iranian
the Irani-
the hands of the
practice
government’s
against
and
acts
Nahrvani
government’s pattern
Iranian
overseas,
Germany represent
and
in
living
Iranians
re-initiation of a
pursuing
of
campaign
of harassment and
of terror from which Nahrvani
escalating pattern
result,
Germany,
narrowly escaped.
make the death
had
As a
we
in
vandalism
threats,
much more than
cannot assume that
the death
against
threats
Nahrvani
vandalism,
as the
and harassment made no
uniformly unpleasant,”
and
“hollow
facts,
greater impact
on
than
Given these
similar
majority suggests.
on an
menacing death threats made
incidents would have made
individ-
specific and
compelling
imprisoned
evidence ual who had never been
and
against Nahrvani are
previously.
experi-
tortured
Narhvani
persecution.
of
enced these threats not
aas
surviv-
Trau-
Psychological
B.
and Emotional
or
imprisonment,
of torture and
but also
ma
in
reports
the context of numerous
of
violence,
state-sponsored
Iranian
includ-
INS,
In
407 F.2d
105-07
Kovac v.
murders,
ing
against Iranian political ex-
(9th Cir.1969),
persecu
explained
we
in
living
Europe
against
iles
and
Iranian
not
suffering,
harm or
but
requires
tion
compelling
Christians. These facts are
necessarily
harm.
See also
physical
the Iranian
evidence
Mashiri,
(discussing
at 1120
383 F.3d
subjected
Narhvani
in
psy-
psychological
or
infliction of emotional
chological and emotional
that ris-
trauma
persecution); Khup,
trauma as
form
es to the level of
(“
not
‘persecution’
at 903
is
376 F.3d
suffering”);
a)
Knezevic v.
physical
sum,
limited to
taking together
the death
1206, 1211
Ashcroft, 367 F.3d
threats,
harassment,
Cir.
repeated
near-con-
2004)
alia,
(noting,
inter
frontations,
escalating
and
and
multiple
threats,
may come in the form of
harass
gov-
Iranian
physical
acts of
vandalism
emotional,
ment, mental,
b)
psycholog
or
agents
Germany;
past
in
ernment
harm);
985, 987
ical
Li v.
physical
imprisonment
torture and
of Na-
(9th Cir.1996)
that “an arrest of a
(noting
by agents
rhvani
of the same
may
c)
family
provide
member at a church
Iran;
government’s pat-
in
the Iranian
petition
past persecution
the basis
against
Irani-
practice
tern and
violence
Kahss
family
religion”);
er’s
on account of
in
residing
Europe generally,
an exiles
(9th Cir.1994)
d)
ai v.
gov-
Iranian
particular;
curiam) (Reinhardt, J., concurring)
(per
pattern
practice
perse-
ernment’s
(“The
did not suffer
[petitioner]
fact that
convert
cuting
executing
Muslims who
e)
harm is not determinative of her
physical
Christianity;
Nahrvani’s mem-
other
persecution:
claim of
there are
bership multiple groups
that the
injury
equally
disfavors,
serious forms of
that result
I am com-
government strongly
persecution.”).
to conclude that Nahrvani suffered
pelled
Germany.
persecution in
Here,
suffered from se-
Nahrvani has
including physical tor-
vere
Inability
Unwillingness to Control
C.
ture,
govern-
at
hands of the Iranian
Nongovernmental Forces
ment. When
that,
pur-
It well-established
threats and commit-
began making death
can
asylum eligibility, persecution
poses of
ting acts of vandalism
governmental
either
perpetrated
it
family
and his
*12
inability
...
“nongovernmental groups
stop
to
elements of
ernment’s]
forces or
government is unable or unwill-
which the
ethnic
matters instead
What
Navas,
The the IJ’s conclusion plaint, him advising doing so would be eligible asylum that Nahrvani is not “very costly” to him. Nahrvani because he failed to nonethe- show that the acts of complains he which were committed filing complaint. less insisted on Accord- forces; however, such this conclusion is wife, ing to both Nahrvani and his Karen not supported substantial evidence. Boye, police responded by the trivializing ignoring According his claims. to Indeed, the IJ found that “[Nahrvani Boye, after car reported severely and his Nahrvani’s was wife] incidents to [the] police police the and the damaged, were able to do police continued to treat the very stop particular little to reign this if everyday case “as ... it[ an] crime finding directly terror.” This of fact con- maybe or like ... ... among [a] feud tradicts the IJ’s conclusion that “it has groups, problems ethnic they which have been govern- established that the German with each other.” While Nahrvani’s wife unwilling protect ment is or to unable police testified that séemed to take respondent any from of the or harms made complaints Nahrvani’s seriously more after threatened him.” involved, she became she also testified that police’s inability The German stop to change produced this in attitude no better persecution of Nahrvani is sufficient to results. support claim. enough N'ahrvani’s It is Thus, testimony of both Nahrvani show that is unable to compel his wife should us to conclude non-governmental control perse- forces of police the German were either unable cution, opposed as to unable unwilling. See, unwilling respond Avetova-Elisseva, adequately to e.g., 213 F.3d at (“It complaints. Nahrvani’s does not matter that financial There is no evi- may considerations gov- police account for dence that [the the German ever tried to case, 2. agents determining In this eligible are whether Nahrvani is technically governmental, they but because Germany, I treat governmental acting are Iranian forces extra- government agents "non-governmental.” territorially purpose for the controlling, discourage filing Nahrvani from a com control, succeeded much less any very plaint investigation and closed agents. (no quickly producing any without results majority attempts support to find *13 made and the campaign arrests were testimony in the contrary its conclusion unabated), harassment continued we would wife, asserting Boye that of Nahrvani’s still to conclude the compelled be German investigat- police that the German testified government was unable to control the Ira complaints. This statement ed Nahrvani’s Mashiri, agents. nian In we held that an substantially misrepresents Boye’s testi- applicant seeking consistently explained that mony. Boye police demonstrated that the German were nothing did thought police she the either unwilling nongovern unable or to control response to anything or couldn’t do where, here, “police mental forces as the only complaints. The state- Nahrvani’s ... quickly made no arrests closed [and] Boye made that could be construed ments investigation treating their after the attack testimony police that the German inves- as [petitioner’s] apartment on the com [a conjectural, as she tigated purely were crime], despite mon evidence that the at time. For exam- herself admitted at the tack was motivated ... hatred.” to maintain ple, expressing after her desire Mashiri, 1121-22; at see also Boye conjec- police, faith in the German Chitay-Pirir investigat- police tured that the could have (7th Cir.1999) (finding government that the Nonetheless, knowledge. her ed without unwilling nongov was unable or to control appeared that it she went on to reiterate government ernmental forces where the nothing to inves- police to her that the did quickly suspects). detained but released tigate apprehend perpetrators. or the Navas, by police, In held that “arrests we that each time Specifically, Boye testified more, may not sufficient to without complaint, her filed a she and husband government rebut claims that the unable ” weeks, police the them couple within a sent to Na unwilling stop persecutors.... or simply po- that noted that the “receipt” a (internal vas, 217 at n. 10 cita ... couldn’t lice “worked on but [the case] omitted). Here, failed to police tions the Boye that clear who it was.” also testified arrest. single make even a personal connec- even after she utilized that Nahrvani majority also notes po- attention of the tions to command the police with provide failed to the German it, lice, thought they but police] about “[the agents names of the who were specific the it, saw anything against couldn’t do so we However, fact is him. this persecuting any help no If I would have seen help. analysis. Singh, In we irrelevant to our the go ... I let [Nahrvani] [to wouldn’t police fact the commented on the light of the Especially States].” United even complaints to respond failed to discourage police’s attempt initial his assailants though Singh identified complaint, a lodging Nahrvani from even name; however, did not hold then —and we brevity investigatory periods the in order to held since—that we have never receipts indicate that and the form unwillingness of inability or demonstrate investiga- police adequate made less than non-governmen- to control tions. asylum appli- tal forces to assume he not went permitted prove Even if we were cant must police with police provided made some investi- but also police that the German his attackers. See exact names of gation complaints, into Nahrvani’s because Indeed, such F.3d at 1360. attempted Singh, 94 police the record shows that the omitted), given single make little sense tion of a requirement prosecu- would evidence persecution.3 this the nature of compel finding govern- tion does not ability willingness mental to control.4 testimony, Although Nahrvani’s credible by his wife’s especially as corroborated sum, Nahrvani demonstrated to' establish the testimony, 'is sufficient' unwilling German was either inability government’s German or unwill stop government’s or unable to campaign of ingness stop harass threats, vandalism, campaign of death ment, provided Nahrvani also evidence him, harassment and the con- IJ’s agents com that Iranian have *14 trary by not supported is conclusion sub- against similarly mitted acts of violence stantial evidence.5 in Germany situated individuals and have not been v. INS, we held prosecuted. that documentary Gomez-Saballos evidence H: # [*] # i\i general pattern about a of must step We back to look at Nahrvani’s against similarly situated individuals rea persecution,-not just experi- as his Iranian sonably supports contention that ence, or his experience, German but as a government is unable to control the forces complete picture. years After impris- two that persecution. behind See Gomez-Sa Iran, in onment and torture this man ballos v. 916-17 what government knows can Cir.1996). The fact that there -has been and will do Understandably, to him. esca- prosecution government one Iranian lating escalating physi- death threats and agents for the assassination of Iranian ex cal damage Germany in were frightening Germany iles in is not dispositive, for to him and They expected his wife. worse where,-as here, appears it perpe “that the Reluctantly, would follow. his wife decid- ... escape trators crimes more often not,” separation ed was better risking than than Surita v. (9th Cir.1996) (internal quotation "and. assassination 'of cita- her husband. ni, 3. This case not one in unfortunately, genie already which the this out applicant report coop- failed to incidents to or of the bottle. government. erate with the promptly reported police incidents to the troubling 5. There is also a side issue in this police continued to do so even after the dis- case: it happen is not clear what will couraged proved stop- him and ineffective at Germany. if he is removed to ping the threats and harassment. He also Nahrvani and his wife both testified that perpetrators, reported they described the that Nahrvani, asylee, supposed as an was not Consulate, were with the Iranian associated months, leave for more three .than threatening and furnished the notes. that he has remained States United time, beyond pass that and that his German telling
4. It is that the record establishes that Thus, port expired. has it is not clear government policy the German revoked its government permit German will him to re requiring asylees seeking Iranian to become .. possible enter and it is officially German citizens to renounce their German would return him in citizenship Iranian after Nahrvani had al- Meanwhile, concluded, stead to Iran. the IJ ready fled from to the United States. substantially supports and the record his con change policy suggests This' the German ' clusion, that if Nahrvani is forced to return recognizes policy itself that the Iran, probability he not faces a endangered clear asylees living Germany Iranian . likely and that but also is more than not the German was not Indeed, protect suggests certain that it to be tortured. asylees could IJ Iranian (cid:127) being govern- likely put harmed the -Iranian Nahrvani would to death ment if it policy.. government. continued the For Nahrva- reasons, Nahrva- I would find For these asylum and would remand
ni eligible to exercise discre- attorney general grant. to its
tion as KAROUNI, Mustapha
Nasser
Petitioner, *15 GONZALES,* Attorney
Alberto
General, Respondent.
No. 02-72651. Appeals, States Court
United
Ninth Circuit. 1, 2004.
Argued April and Submitted 7, 2005.
Filed March
*
43(c)(2).
R.App. P.
prede-
Fed.
is substituted for his
Alberto Gonzales
cessor,
Attorney
General.
John
notes
citizenship
his Iranian
religious
nying
asked,
and his
of
acts
vandalism
“Isn’t that
on,
conversion.
enough?”
After the Consulate officials
As time went
the death
realized that
a political asylee
he was
and
specific
threats became more
and severe.
told,
Muslim who had
example,
converted to Christiani- For
he was
“It Halal to
is
1157
comport
does not
with settled
explained
note
Nahrvani
Another
your blood.”
shed
principles
immigration
law.
enough for Muslims
punishment
that no
Christianity and
have converted
who
A. Death Threats
death
“must die.” These
people
that such
consistently
that
have
held
death
multiple phone
“We
repeated
were
threats
persecution.”
alone can constitute
threats
Nahrvani also noted sev-
and notes.
calls
(9th
INS,
646,
Navas v.
217 F.3d
658
Irani-
by
chased
times that he was
eral
Cir.2000);
Khup
see also
v.
376
Police.
an Secret
(9th
Cir.2004); Del
Carmen
report-
he
that when
Nahrvani testified
(9th
INS,
Molina v.