Azad v. INS

• Court: Court of Appeals for the Fifth Circuit
• Decided: October 13, 1999
• Docket: 98-60564
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

__________________

No. 98-60564 Summary Calendar __________________

TOORAGE RAHBAR AZAD,

Petitioner,

versus

IMMIGRATION AND NATURALIZATION SERVICE,

Respondent.

--------------------

Petition for Review of an Order of the Board of Immigration Appeals BIA No. A 75 219 471

October 13, 1999

Before JOLLY, JONES, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Toorage Rahbar Azad, a citizen of Iran, petitions for review

of an order of the Board of Immigration Appeals (BIA) dismissing

his petition for asylum. He argues that the BIA’s decision fails

to indicate that it gave meaningful consideration to his evidence

showing that his fear of return is well-founded. He also argues

that the BIA erroneously applied the legal standard governing

asylum claims.

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 98-60564 -2-

“While we do not require that the BIA address evidentiary

minutiae or write any lengthy exegesis,” we do require that the

BIA’s decision reflect that it gave meaningful consideration to

all the relevant evidence regarding the fear of future

persecution. Abdel-Masieh v. INS, 73 F.3d 579, 585 (5th Cir.

1996). The BIA’s opinion must “‘reflect that it has heard and

thought and not merely reacted.’” Opie v. INS, 66 F.3d 737, 740

(5th Cir. 1995) (citation omitted).

The BIA did not adopt the findings of the immigration judge,

and its own findings were especially limited. In particular, the

BIA failed to discuss the factor that precipitated Azad’s flight

from Iran, the authorities’ arrest of a Mojahedin operative with

whom Azad had links. Azad testified that he had aided the

operative by renting her an apartment in his own name and that

the operative was a frequent visitor to his shop. Likewise, the

BIA’s decision reflects no consideration of the danger someone

such as Azad would face in Iran once he had been linked with the

Mojahedin. Thus, even though the BIA assumed that Azad’s

testimony was credible, it rejected his application without any

indication that it had considered the substance of his claim.

The BIA’s decision mentioned only one fact, that Azad’s father

had been detained after his son fled from Iran, and there is no

indication that even that particular fact was considered as

corroboration of Azad’s other testimony (including testimony that

Azad was denied admission to a university because he was

suspected to be a dissident and that two of his friends were

arrested and executed for Mojahedin membership). The BIA’s No. 98-60564 -3-

decision does not “reflect that it has heard and thought and not

merely reacted.” Opie, 66 F.3d at 740.

Citing INS v. Aguirre-Aguirre, 119 S. Ct. 1439, 1449 (1999),

and Sanchez v. INS, 755 F.2d 1158, 1161-62 (5th Cir. 1985), the

INS insists that the BIA’s decision was sufficient. In Aguirre-

Aguirre, the Supreme Court noted that the alien had failed to

submit a brief to the BIA. 119 S. Ct. at 1449. In language that

the INS now quotes in part, the Court stated that “[i]n these

circumstances, the rather cursory nature of the BIA’s discussion

does not warrant reversal.” Id. In contrast, Azad did brief the

issue of whether he had shown a credible fear of persecution.

Aguirre-Aguirre does not authorize “cursory” consideration by the

BIA in these circumstances. Our decision in Sanchez is also

inapposite, because there we concluded that “there [was] language

in the record” indicating that “all of Sanchez’s arguments” had

been considered. 755 F.2d at 1162. Accordingly, Sanchez is

consistent with our cases requiring the BIA to show in its

decisions that it has given meaningful consideration to an

alien’s application. Abdel-Masieh, 73 F.3d at 585; Ganjour v.

INS, 796 F.2d 832, 839 (5th Cir. 1986); Ramos v. INS, 695 F.2d

181, 186 (5th Cir. 1983).

Azad also argues that the BIA erroneously applied the legal

standard governing asylum claims by requiring that he prove

likely persecution in Iran. He notes that the BIA’s order

indicated that it was denying relief because he had not

“establish[ed] that [he] is wanted by any authority in that No. 98-60564 -4-

country on the basis of his political opinion.” The INS

characterizes this statement as “loose language.”

Our decision in Mikhael v. INS, 115 F.3d 299, 305 (5th Cir.

1997), controls. There, the order adopted by the BIA required

the alien to prove that “‘he would be subject to persecution if

deported.’” Id. The remainder of the order “dispelled any

doubts about the soundness of [its] analysis” when it concluded

that Mikhael “‘must still show that he will be persecuted.’” Id.

We vacated the order of deportation and remanded for

reconsideration under the proper analysis. Id. at 306. Azad’s

case is indistinguishable. As in Mikhael, the BIA’s order

correctly identified that the issue was whether Azad could show a

“well-founded fear of persecution.” Nevertheless, the BIA

“abandoned” this course when it analyzed the evidence. Mikhael,

115 F.3d at 305. At that time, the Board indicated that Azad’s

evidence “[did] not establish that [he] is wanted by any

authority in that country on the basis of his political opinion.”

Further, the BIA “dispelled any doubts about the soundness of

[its] analysis,” Mikhael, 115 F.3d at 305, when it concluded that

“[h]aving failed to establish that point, the respondent’s

request for relief will be denied.” As in Mikhael, we must

vacate the BIA’s order and remand for reconsideration.

For the foregoing reasons, Azad’s petition for review is

GRANTED, and the order of the BIA is VACATED. We REMAND the

matter to the BIA for further proceedings consistent with this

opinion. We do not, however, intimate what conclusion the BIA

should reach on remand.