*1 1240 denied,
Cir.),
922,
cert.
495 U.S.
110 S.Ct.
(1990).6
1956,
IV. CONCLUSION
Appeals,
United States Court of
Eighth Circuit.
above,
For the reasons set forth
we VA-
imposed by
CATE the sentence
the district
9,
Submitted Jan.
1995.
resentencing
court and we REMAND for
opinion.
accordance with this
8,
Sept.
Decided
1995.
refusing
departure
6. After
to review
only
the district court’s de-
extent
is warranted can
be made
downward,
depart
cision to not
the Evidente
the courts.” U.S.S.G.
5K2.0.
In other
hypothetically
words,
court
stated:
concluding
upward depar-
after
that an
500,
Had the District Court somehow believed it
ture is warranted under Amendment
power
grant
to
required
lacked
exercise discretion to
district court is then
to determine a
departure
[the defendant] a downward
from
may
reasonable increase—an increase which
be
applicable guideline range,
a different case
higher or lower than the increase authorized
presented....
would have been
If we deter-
3Bl.l(a)-(c), depending upon
§§
under
the facts
sentencing
mined that the
court had
au-
par-
of the individual situation. The number of
thority, we would remand the case to that
ticipants
activity
involved in the criminal
is but
court and direct it to consider whether on the
analysis.
one factor in this
facts of the case the court wishes to exercise its
individually
departure
Once an
tailored
departure.
discretion in favor of a
effectuated,
subject
been
it
three-step
is then
to a
(citation omitted).
William appellant. for Sarko, Justice, Dept, Michell Y.F. (David DC, Kline, Washington, argued J. brief), appellee. LOKEN, Judge, Before Circuit GODBOLD,* Judge, and Senior Circuit ARNOLD, Circuit MORRIS SHEPPARD Judge.
LOKEN, Judge. Circuit family are Iranian citizens The Hamzehi in 1986 on a the United States who entered nonimmigrant ex- visa. The visa six-month Immigration and Naturaliza- pired, and the deportation pro- commenced this tion Service deporta- Hamzehis conceded ceeding. The asylum filed an bility, Shirin Hamzehi but husband, herself, application for hearing, daughters. Following a their two Immigration Judge denied the Hamzehis asylum withholding deportation either 1253(h). §§ 8 U.S.C. 1158 and to Iran. See (BIA) Appeals The Board of appeal, and the Hamzehis dismissed * cuit, GODBOLD, sitting by designation. JOHN C. Senior The HONORABLE Judge Cir- Circuit for the Eleventh United States petition judicial hearing. applicant’s now review. An See uncorroborated tes- believed, timony, may sup- objec- U.S.C. 1105a. Substantial evidence establish ports finding tively BIA that the Hamzehis lack reasonable fear of See Ghasemimehr, However, a well-founded fear of F.3d at 1391. should *3 Therefore, they Immigration Judge return to Iran. affirm. found that Mr. and Mrs. we credible, Hamzehi were not and the BIA Attorney may grant General agreed. credibility finding princi- This is the asylum deportable proves to a alien who “a pal appeal. focus of the Hamzehis’ We must fear well-founded on account credibility finding defer to a “when the immi- race, religion, nationality, membership in a gration judge specific, reason, cogent states a particular group, political opinion.” legitimate, or a articulable basis for the find- 1101(a)(42)(A). 8 U.S.C. A well-founded ing.” I.N.S., Hajiani-Niroumand v. 26 F.3d “subjectively genuine fear is one that is both (8th Cir.1994). 832, 838 objectively and reasonable.” Ghasemimehr pre-hearing Mrs. Hamzehi’s affidavits de- I.N.S., (8th Cir.1993). 1389, seemingly scribed a number of unrelated To overturn the BIA’s adverse determination significant events over a period of time. issue, heavy on this Mrs. Hamzehi bears a Taking order, chronological these events in burden. She must show that her evidence Mrs. Hamzehi first related numerous inci- compelling “was so that no reasonable fact- 1981, dents in early days 1980 and the requisite finder could fail to find the fear of regime, par- Khomeini such as the Hamzehis’ Elias-Zacarias, persecution.” I.N.S. v. ticipation in student demonstrations 478, 484, 112 812, 817, 117 U.S. S.Ct. L.Ed.2d violently dispersed; frequent question- (1992). ing regime’s and threats the Revolution- Mrs. Hamzehi pre-hearing submitted two Guards; ary Mr. Hamzehi’s arrest and de- support asylum applica- affidavits of her days tention following for three one such affidavits, tion. alleged those she a well- demonstration; student and atrocities visited political founded fear of both ethnic per- and neighbors during pe- relatives and secution, ethnic because “I be- of mob rule. riod The second series of long minority to the ethnic in Iran known as events, clearly which are the most relevant to Kurds,” the political persecution and fear-of-persecution claim, her involved Mrs. my family “various members of have been Hamzehi’s brother and his wife. Mrs. Hamz- against government.” active the Khomeini sister-in-law, explained ehi that her an activ- The affidavits went on to relate several inci- Mojahedeen ist in the Khalq opposition par- dents in Iran supporting political her claim of ty, was executed in 1983. This caused her opposition brother to increase his activities customary, As is INS referred Mrs. Hamz- eventually Iran in following flee application ehi’s supporting affidavits to which the repeatedly Department’s the State Bureau of Human invaded coercively the Hamzehis’ home and Rights and Humanitarian Affairs and re- questioned brother, them about her who quested advisory opinion. an Regarding eventually granted refugee was status in Mrs. Hamzehi’s fear of persecution, ethnic Germany. Finally, West Mrs. Hamzehi “[tjhere Department the State opined, is no religion averred that in ques- 1986 a teacher pattern persecution by of indiscriminate daughter tioned Bahareh Hamzehi at school regime against Islamic Kurds as such.” The regarding parents’ political opinions, rely Hamzehis did not alleged an fear of younger in late mysteriously 1987 a brother ethnic hearing ap- at the or on disappeared few months studying while Thus, peal. asylum issue turns on their University at the of Tehran. claim of a well-founded perse- fear of While this is a showing substantial on the cution. issue, fear-of-persecution the record also con- This claim supported by was Mrs. tains considerable evidence suggesting that pre-hearing Hamzehi’s affidavits and professed political per- Hamzehis’ testimony of Mr. and Mrs. reasonable, Hamzehi at the objectively secution is not as both hearing, Judge sought BIA noted. At the whenever Judge and the question Mr. or Mrs. Hamzehi about when members of Hamzehi are not and Mrs. Mr. occurred, occurred, why it event organization and have opposition political occurred, it or even where in the United how often active politically not been occurred, Ham- living at the time it family departed Iran on were Iran. The States Hamzehi, supply specific, they had zehis could not the kind to Mr. a visa issued tend to reassure a depart for a consistent details permitted to previously been credibility. Their country that factfinder as to a witness’s Germany, the in West vacation inability provide supporting details re- harboring fugitive brother. garding question, events in or even con- Mrs. Hamzehi leaving Iran in Before events, gave the sistently to describe those Iranian employed *4 Judge “legitimate, articulable Immigration a language lessons over state- giving German credibility finding. for his adverse Addressing Mrs. Hamz- basis” television. owned political persecution, the State claim of ehi’s appeal, complain the Hamzehis that the On com- advisory opinion letter Department Judge improperly emphasized Immigration mented: that, details, concluding in effect be- minor of Iranians are Hundreds of thousands Hamzehi was confused about cause Mrs. impris- persons have been related to who dates, lying all of must have been about “she oned, punished be- or otherwise executed horrors that have been visited the other activity. anti-regime political cause of their family.” But the ultimate issue her and her pattern persecution is no of There simply not whether the Hamzehis here is simply be- against persons such regime of the Iranian mistreated at the hands were family relationship to such cause of Rather, they Iran. government before left applicant, she case of the people. injuries inflicted the issue is whether passport for get to a valid Iranian was able past in the were so selective upon them very much to the U.S. We doubt travel that provide a well-founded fear severe as to permitted such regime would have that the they persecuted political enemies will be singled out for in fact been travel had she at the they if return to Iran of the state word, assertions In a persecution. present time. re- applicant simply do not made rely heavily example, the Hamzehis on For in Iran. the current situation flect Country Report Department’s 1990 the State evidence, the conflicting Given this Iran, gov- the Iranian which states that hearing credibility testimo of the Hamzehis’ fugi- relatives of is known to harass ernment asylum. To request for ny is critical to their suspects suspects to induce the political tive political of present, well-founded fear prove a State, Department give up. themselves enough to that the persecution, it is not show Rights Prac- Country Reports on Human demon were harassed as student Hamzehis (1990). accepting But 1989 1401 tices for in or that strators remain, true, questions relevant that as hounded their home and invaded in harassed the Hamzehis were as whether fugi looking for Mrs. them while agents the mid-1980s Hamz in the mid-1980s. Mrs. tive brother fugitive broth- seeking Mrs. Hamzehi’s why rather dated events ehi must show these and, so, of familial if that sort whether er for a objectively reasonable basis provide an that her continue now would harassment persecution “particularized fear of present in granted asylum Germa- has been brother personally on the basis of her at her directed hear- vague, inconsistent ny. The Hamzehis’ I.N.S., 25 F.3d opinion,” political testimony light no on these ing simply shed Safaie (8th Cir.1994), or, in would add we questions. important focus on the of the dissent’s extended view confusion, and incon- vagueness, Because of her family question, on the basis nuclear testimo- the Hamzehis’ permeated sistencies family’s opinions. political objectively an ny, they failed to establish link the mistreatments between light, the reasonable in this Viewed present, well- their claim of past credibility finding must be sustained. Judge’s Thus, political persecution. race, founded fear of persecution religion, on account of might while inconsistencies of this nationality, membership nature not in a justify supported by the denial of claims group, political opinion. evidence, more substantial in this case the A well-founded fear of in testimony weaknesses the Hamzehis’ are subjective objective both a compo- fatal claim to their because we left with are questioned nent. It is petitioners compelling no evidence of a well-founded fear subjective have a fear of political persecution. return objective To Iran. meet the com- Accordingly, uphold we must the BIA’s ponent it applicant is sufficient if the shows determination that the Hamzehis are not en- person a reasonable circum- his/her asylum withholding titled to deporta- stances would fear for one that, agree tion. We with the Hamzehis 1101(a)(42)(A). grounds specified five standards, today’s our living conditions Mogharrabi, Matter I19 & N Dec. 439 inhospitable Iran are or worse for women (BIA 1987). found, Immigration Judge prefer those who would different it, put “essentially my as he credibility However, order. they have not determination,” petitioners had faded to particularized shown the sort of threat of establish a well-founded harm support that would severe well-found- *5 Immigration The Board Appeals accepted of ed of Safaie, fear 25 F.3d at credibility-based that determination. 640. The IJ’s decision of lack of credibility was
The decision of the BIA is affirmed. upon fragment based of the evidence con- cerning persecution petitioners’ fear of of GODBOLD, Judge, Senior Circuit “particular group.” respect social With dissenting: parts substantial of group the social evidence a deeply troubling This case. The immi- comply he did not with standards for credi- gration system, judicial system, and the of bility findings. He was part dubious of one country our can do better than this. of that evidence so swept he out all of it. Immigration The Board petitioners Appeals I hold that of would erred in met their accepting proving credibility findings. of refugees burden his asylum, entitled to upon based a well-found- appeal On erroneously this court sustains persecution ed fear of because of the activi- credibility findings. rulings The of family ties of their “particular as a social IJ and the Board have removed from the that, group.” minimum, Short of at a I greater ease part of the evidence of would reverse and remand the case for fur- petitioners’ of family activities proceedings ther before the persecution the appalling of them. With the Judge, with directions to all evi- consider evidence thus emasculated this court ap- has dence under correct standards for determin- plied proof the burden of for a case based ing credibility, proof, for burden of and un- upon particularized persecution at directed regulations. I, therefore, der current re- applicant individually and finds it spectfully dissent from the affirmance of the Moreover, been met. doing in so it has decision the Board of Immigration Ap- ignored the effect of regulation. a 1990 peals. application Petitioners’ sets fear of out I. The nature of the case persecution upon based peti- the activities of family “particular tioners’ as a group,” social petitioners The raised the issues of fear of pursuant 1101(a)(42)(A): to 8 U.S.C. persecution at directed them individually and (A) “refugee” The term any person means based their mem- any country who is outside person’s bership in particular group. social The nationality ... and who is or un- unable issue was dealt with willing country to return to ... by be- the IJ and the Board. In her I- Form cause of or a well-founded fear Request Asylum, For question Mrs. government. They are as the Khomeini if she would return asked Hamzehi was added.) (Emphasis follows: country. She answered: home her I and I am certain fear No. Because Hamzehi then set out the by government persecuted family I would be members. herself and country if to return. I were my home sister-in-law, Mohamadi, Parvin was —Her in fully explanation contained a more See baby prison. in imprisoned, and her was born my attached statement. Subsequently she was executed. supple- was a “attached statement” (the brother, —Her Behrooz Aram husband she filed a second affidavit. Later mental Parvin), carried on anti-Khomeini activi- both as evi- The IJ considered affidavit. family home was invaded ties. dence. searching for him. He Guards Germany. fled to 1-589 Mrs. Hamz- question 31 of Form happen she what would ehi was asked Aram, sister, Mrs. Hamzehi’s fled —Shahin country. an- her home She returned to was accused the Khomeini because she swered: participating in the anti-Kho- interrogated that I would be I am certain meini war Kurdistan my Please see attached imprisoned. (Mrs. husband Hamzehi’s broth- —Shahin’s statement. er-in-law) arrested, being accused of you any “Have Question 34 asked: impris- agent government, Israeli for the your ever be- immediate member oned. your home any organization in longed to 1980, 1981, —Mr. Hamzehi was arrested country?” responded: She in 1981. and beaten and 1984 Aram, brother, Par- my Yes. Behrooz by pro- Hamzehi’s cousin was killed —Mrs. *6 wife, Mohamadi, of were members his vin Khomeini mob. Mojahadin Kahlq. Parvin was a mem- the imprisoned tortured nephew was and —Her in until her execution prior to 1982 ber participate in for failure to until his joined in 1983 1983. Behrooz programs. Guard (sic) Germany in 1985. also excape See my attached statement. sister was active —Her brother-in-law’s activities, pam- passed out Question anti-Khomeini 37 was: against govern- the phlets, and demonstrated asylum on cur- your claim for you If base arrested, imprisoned for five was ment. She country, these your do rent conditions family disappeared. The years, and now has than your freedom more conditions affect she has been executed. believes country’s population? rest of that the daughter eight-year-old —Mrs. response was: Her interrogated by teachers at school con- Kurdish, I of an I am a member am Since political religious activities cerning a minori- minority and a member of ethnic family. My family members have ty religion. imprisoned, executed interrogated, been brother, Aram, younger refused —Her Said political and reli- murdered no one country because there was to flee the my also attached gious positions. See disappeared parents. for his He else to care added.) (Emphasis statement. subsequently reap- years about two but peared. briefly to affidavit referred The attached religious Kurds on ethnic
persecution of Mrs. Hamzehi sum- In her first affidavit layI The more an issue that aside. grounds, [our] no secret that whole marized: “It is portion followed: significant animosity expressed their family openly In R. 277. government of Iran.” However, suspected toward the not be 4. I would out that she and Kurdish, affidavit she her second set that I am solely grounds on the participated in anti-Khomeini mem- her husband grounds that various but also on the up by Rev- that were broken against demonstrations my family been active have bers of olutionary using chains and some- She stated that her husband was arrested detained, times interroga- firearms. She was several times without (Emphasis reason. ted, sign and forced to a statement denounc- added.) ing anti-Khomeini activities and threatened R. 003. At R. 004 again the Board referred with against harm she demonstrated necessity proof to the “membership in a government. particular group.” social petitioners Thus it is clear that the assert- ed a persecution well-founded fear of based petitioner In this specifically court raised political opinions and activities of political activities and beliefs of her fami- Mrs. Hamzehi and other members of their ly members: politically family. active In application, the [1-589] the Petitioner oral decision Judge his swears that she fears that should she and recognized the persecution issue of fear of Iran, her be forced to return to based membership group. in a social subject persecution would be because persecution [Mrs. Hamzehi] claims on the petitioner is an ethnic Kurd but more race, religious, political opinions basis importantly political because activi- and membership political in a social ties and Petitioner and her hus- beliefs of group because she is Kurd and also political band activities and be- relationship brother, to her family. Petitioner’s (Emphasis Aram, Behrooz recognized who is as a liefs of added.)
refugee Germany. in West R. proof 076. He described the burden of p. Again, p. Brief petitioners at re- follows: necessity ferred to showing a well- applicant [A]n must show either that he or founded fear of on account of she has been the victim of or a race, religion, nationality, membership in a well-founded fear of because of particular group, social opinion. race, religion, nationality, membership group. II. governing membership law on R. After discussing probative 076-077. in a social group petitioners effect having pass- obtained *7 ports Turkey, Germany and visas to visit The Board construes “membership in a States, the United the IJ concluded: particular group” persons social to refer to facts do not These indicate the Irani- that who hold an immutable characteristic com- any an pursu- interest sex, color, mon trait kinship such as or in ing added.) family. this (Emphasis past some cases experiences shared as R. 079. ownership military land service. Matter recognized Board that Acosta, Mrs. Hamzehi (BIA 211, I 1985), 19 & N Dec. 233 had raised the fear of upon based grounds overruled other on Matter of family the actions of members: (BIA Mogharrabi, 1987). I19 & N Dec. 439 1-589, In her submitted Form the re- INS, In Sanchez-Trujillo 1571, v. 801 F.2d spondent stated that persecut- she will be (9th Cir.1986), 1576 the Ninth sought Circuit ed if she is returned to Iran because she is give to meaning “particular workable to so- a Kurd. She also based upon her claim cial group”: many circumstance that family phrase ‘particular [T]he group social’ im- members had taken against actions plies a people closely collection of affiliated
Khomeini respondent Government. The other, with each who are actuated some stated her brother fled from Iran in impulse common or interest. Of central 1985 and that her sister-in-law was there- concern after is the existence of voluntary executed because she a a member Mojahadin Kahla. respondent relationship associational among pur- also stated that her sister ported members, fled from Iran. imparts which com- some (1st Cir.1993), 28, First Circuit F.3d to that is fundamental characteristic mon held: of that discrete identity a member group. social can, fact, plainer example no be There common, identifi- group based on a social omitted). (footnote inquiring In at 1576 Id. able, than immutable characteristics group particular social membership in a into family. nuclear that of the to decide whether purpose is ultimate our this seems at Without more sufficiently group will be membership in the may Kin depends. It all me overbroad. fear or well-founded probative scattered, too interests their common be too proof of be no there need persecution that diverse, giving possible rise to their acts I.e., individual member. at the acts directed remote, so a factfinder persecution too of, of, inferred persecution be or risk can fear may reliably infer fear of membership? from analysis accords kinship alone. This from broad group can be so that a It is obvious relationship requirement of causal with the supply the alone membership cannot v. political opinion.” INS “on account of Sanchez-Trujillo an In necessary inference. Elias-Zacarias, 478, 112 502 U.S. S.Ct. urban, working-class young, group of alleged (1992). 117 L.Ed.2d overbroad. males was held evidentiary my this met view class, working urban young, class of [T]he group social requirements exemplify military age does not males of perse- membership to infer sufficient group’ for which type of ‘social must, reaching I howev- this cution. Before from provide protection immigration laws er, rejection of evidence on the IJ’s examine falling Individuals within grounds. credibility sweeping demographic parameters of naturally plethora manifest division credibility findings on III. The interests, di- lifestyles, varying different out, and the pointed the IJ I have As cultures, contrary political lean- verse “particular recognized that this was Board ings. based, decision was group” case. The that a This court has held at 1576-77. Id caused however, credibility grounds that not, composed of all Iranian women persecution of reject evidence them harsh restrictions gender and by virtue of anti-government for their family members women, group. particular social based The IJ found: activities. Cir.1994). (8th INS, F.3d 636 Safaie my essentially on My is based conclusion inquiry to the ultimate That decision referred I the re- think credibility determination. I mentioned above: I found is dubious.... account spondents’ very to be respondent’s account the female overbroad, category is be- believe this We en- rests almost contradictory. The case reasonably con- *8 could cause no factfinder testimony, yet respondents’ tirely on the a well- Iranian women had clude that all concerning repeatedly changed her account solely on persecution based founded fear of when and which occurred the incidents gender. they occurred, [sic] the number of they and However, Iranian Id. at 640. Be- they occurred. where occurred and rights women’s women who advocate in and conflicts of the contradictions cause relat- Iranian customs comply with refuse to state possible to testimony, it’s not her opposi- behavior whose ing to dress and where, when, certainly any degree with “may consequences might bring severe tion in contact came many times she [sic] how ‘particular social satisfy definition of well in Iran. revolutionary guard with the ” group.’ Id. that she Furthermore, explanation revolutionary interest of the gives for family “partic- is that a have Courts said implausible. She INS, family is in her guards Sanchez-Trujillo v. group.” ular social repeatedly they her INS, visited testified Gebremichael supra. they brother, looking were for her accepts Even one that Mrs. Hamzehi Behrooz, procured refugee who evidence, status in inflated the it disputed Guard is not Germany. However, West she family testified the Guards did invade the home that he fled Iran in 1983. physically Yet she claimed and did abuse her and her hus- revolutionary guards visited her band. Both impressed IJ and Board by were regular on a years, basis for three from Mrs. response Hamzehi’s affirmative to INS 1983 until April she left Iran in 1986 be- suggestion counsel’s of 200 visits they looking cause for her brother. two-year Guards over a span. R. 128. In argument oral apologized counsel for INS Fairly read, R. only 077-078. refers to the IJ for what he labeled as his “trick” of evidence of invasions the Hamzehi home possibly misleading Mrs. Hamzehi to commit by Revolutionary Guards —how in- often the large to so a number of invasions. Then he occurred, when, where, vasions and for what withdrew the word “trick” and substituted purpose, and the interest the Guards had “procedure.” government R. 224. Our can- that caused them to invade the home. proud not be of this revelation or of its This court will defer to the emphasis upon continued anas unbeliev- Judge’s findings that testimony an alien’s figure. able credibility lacks specif- when the IJ “states a The accepted Board the IJ’s characteriza- ic, reason, cogent legitimate, or a articulated “implausible” tion of for Mrs. Hamzehi’s ex- findings.” basis for Hajiani-Nirou- planation of the interest of the Guards in the INS, (8th Cir.1994). mcmd v. family. questioned Yet it is not that Mrs. Mrs. Hamzehi did exhibit confusion and un- Hamzehi’s older brother had fled country certainty about dates —when she moved from after his wife imprisoned, had been had Kermanshah, Tehran, Tehran to back to baby borne her in prison, and then had been Kermanshah, back to and the number and logical executed. The inference is that the frequency of invasions the Guards of each searching Guards were for the brother be- week, place per month, per finally she — cause had not been able to find him. responded affirmatively coun- suggests No evidence that the invasions suggestion sel’s of 200 visits over one two- mindless, coincidental, Guards were year span. The IJ was concerned about the random.1 number, dates, locations, spans and time
the invasions. The IJ did not specific address the other evidence set out in affidavits,
Both IJ and Board focused on Mrs. Hamz- I, testimony ehi’s described about above Part which detailed Guards as “implausible.” “dubious” and activities and other Ninth Circuit members of family. has addressed her this kind of The fate of the rejection testimony sister-in-law, by vague imprisoned label: and then executed born, after baby was not mentioned. important this, [O]n matter as if an flight husband, of her Mrs. Hamzehi’s asylum applicant’s plea rejected is to be brother, acknowledged, accepted, fact and he is to be returned possibly to home — recognized by but not the IJ as an element of face renewed threats to his simply life— familial Not mentioned are the
because an IJ credibility, doubts his the IJ imprisonment of the brother-in-law as an al- must make a explicit more and direct find leged Israel, agent of flight and the of his ings that he is untruthful than was made *9 wife; imprisonment and torture of Mrs. here. The mere petition statement that a nephew, Hamzehi’s believed to have been entirely er is ‘not enough. credible’ is not executed; disappearance of Mrs. Hamzehi’s Aguilera-Cota I.N.S., v. U.S. younger brother, F.2d who refused to flee the (9th Cir.1990). country because there was no one else to 1. says The Board's decision that "the mere fact mind physical that the fact of invasions and the respondent’s that the home was searched does abuse inflicted on wife and husband are not persecution.” not constitute Bearing R. disputed, 006. astonishing this is an statement. it noth- arrest because “had of the husband’s interrogation parents; his for
care by invasions the ing to do with” the Revolu- daughter. No evi- old eight-year claimed that the tionary It was not Guards. did any of these events indicates that dence hold- brought on the invasions. This involv- arrests events are discrete These not occur. fascination with Rev- subject- ing the IJ’s the those reveals than other ing members controlling olutionary All evidence Guards’ Revolutionary intrusions. Guards’ ed to from con- removed the ease. has been evidence of this that Mrs. IJ felt the because sideration address, and the Board re- The IJ did of Revo- “account” had inflated Hamzehi to, piece of evidence specific one other ferred does not This invasions. lutionary Guards’ inconsistency Mrs. between as an described cogent specific, requirements of the meet concerning the her husband Hamzehi and for an basis reason, legitimate, articulable IJ that was arrested. number of times he nar- credibility. is too finding It adverse At the hear- the Board record. misread avoid facile, easy to row, a means too too about the de- was asked ing Mrs. Hamzehi and evidence. wrestling with issues he arrest in when of her husband’s tails similarly by demonstration, Board is jail review held in The arrested at was It pp. held: flawed. released. R. days, and then for three only asked about Hamzehi was 174-81. Mr. the ev- judge recounted immigration The arrest: the 1981 by respondent set forth idence statu- to establish failed that she concluded things that was Now, Q. one of the so it was the relief tory eligibility ... up on direct examination brought not judge did immigration The denied. Judge’s had examination or on the testimony persuasive respondent’s find your fact arrest. with the do dubious. it as and characterized or credible A. Yes. that the re- judge noted immigration The changed repeatedly spondent’s account that? Q. you remember Do occurred. concerning incidents when A. Yes. implausible found it immigration judge also seek Revolutionary would that oc- you when that Q. Okay do remember for 3 her brother regarding information curred? Iran. from departure following his years A. 1981. evi- not “recounted The IJ had R. 004. brought out had that been The matter hadHe by respondent.” set forth dence arrest. the 1981 had been direct examination of mistreat- evidence area of targeted one followed, on cross-examination There too Board rejected all. The and then ment the INS: counsel for inva- Guards’ on the focused about confusion Mrs. Hamzehi’s and on sions dem- you were arrested Q. When It add- they occurred. which over the dates 1981_ spring in the onstration was arrested husband ed conclusions was Mr. Hamzehi no time p. At R. following mass demonstrations he been the times had to enumerate taken asked actions “specific a result and not as His arrested, other arrests. dates of or the petitioners’ him,” and 1981 arrest. to the limited questioning was Other evidence minor. activities husband between contradiction There was no addressed. was not family persecution and wife.2 Moreover, rejected the evidence had the IJ school, qualified to attending and was was con- band The IJ deserves comment. issue 2. Another give approached standards, She was that, teach German. by objective measured sidered explained She on television. German lessons a fear of not have had could Hamzehi accept- position but initially she refused the employed a time she her univer- at being teachers advised ed after She station. government-owned television by a IJ did *10 not refuse. Germany sity that could she had lived German had studied employment, nature the of her question fact the hus- attending and while her there school while IV. The decision this court appeal On RUMSEY accepted this court has INDIAN the IJ’s RANCHERIA OF credibility findings and approval the Board’s INDIANS; WINTUN Table Mountain of them. With the evidence thus emasculat- Rancheria; Heights Cher-Ae Indian ed the court applied has then the burden of Community Rancheria; the of Trinidad proof applicable persecution, to individual re- San Manual Band Indians, of Mission quiring Mrs. “provide objec- Hamzehi to Viejas Reservation of Capitan the tively present reasonable basis for a Diegueno Grande Band of Mission Indi particularized persecution directed at her Hopland ans and Indians; Band of Porno personally on basis political the of opin- ion,” Barona citing INS, Indians; Sy Band of 636, Mission v. Safaie (8th Cir.1994). Once the particular social cuan Indians; Band Agua of Mission group properly evidence is considered this Caliente Indians, Band of Cahuilla particularized
burden of persecution inap- Plaintiffs-Appellees, plicable. Moreover, by regulation requirements proof of of fear of based on social WILSON, Governor; Pete State group membership have been softened. A California, of
regulation Defendants- provides: effective October Appellants. Asylum
[T]he Officer Judge require shall applicant provide evidence that he would be singled RUMSEY INDIAN RANCHERIA OF out individually if: INDIANS; WINTUN Table Mountain (A) He establishes there pat- is a Rancheria; Heights Cher-Ae Indian practice
tern or in his country ... of per- Community Rancheria; of Trinidad groups secution of similarly situated to the San Manual Band of Indians, Mission applicant ...; Viejas Reservation Capitan of (B) He establishes his own inclusion in Diegueno Grande Band of Mission with Indi identification of per- sons such that Hopland his fear ans Indians; Band of Pomo return is reasonable. Indians; Wintun San Manual Band of 208.13(b)(2)(i) (1995). 8 C.F.R. Indians; Mission Cabazon Band of Mis hearing petitioners The Indians; sion The conducted Santa Ynez Band of 4, 1990, June and the IJ’s given oral decision Chumash Mission Indians of the Santa day. The decision of the Board was Reservation, Ysabel California; Viejas May entered 1994. It seems to me that Capitan Reservation Grande Band regulation should have retroactively been Diegueno Indians; Mission San Man applied to the hearing. It should have ual Band Indians; of Mission Hop The been applied by the Board in its 1994 deci- land Band Indians; of Pomo Sy The sion. It applied should be by this court. cuan Band Indians; of Mission The I respectfully dissent from the decision to Morongo Indians; Band of Mission affirm. Santa Rosa Indians; Band Tache Dehe
Cachil Band of Wintun Indians Community; the Colusa Indian The So Band boba Indians; Cahuilla Mission it,of or the of it probative duration but rather its might It be self political evident enemy that a respect with value to fear of employed would not be to telecast on Hamzehi testified job that she subjects took spread pro-West- current news or to only evidentiary fear. The basis for the propaganda. IJ's ern But the IJ did not consider—or was a conclusion statement Country Report even reveal—that Mrs. Hamzehi's role towas tightly controls the media. language conduct German lessons.