Hossein Nahrvani v. Alberto Gonzales, Attorney General

399 F.3d 1148, 2005 WL 517770

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 7, 2005
• Docket: 03-70586
• Status: Published

Opinions

Opinion by Judge RAWLINSON; Dissent by Judge FLETCHER.

RAWLINSON, Circuit Judge:

Hossein Nahrvani, a native of Iran, petitions for review of the Board of Immigration Appeals’ (BIA) summary affirmance of the Immigration Judge’s (IJ) denial of his request for asylum from Iran and his request for withholding of removal and protection under the Convention Against Torture (CAT) as to Germany. The IJ granted withholding of removal and protection under the CAT as to Iran. Because the IJ’s determinations were supported by substantial evidence, we deny the petition.

I.

BACKGROUND

Nahrvani entered the United States on or about April 15, 1999. Approximately one year later, the Immigration and Naturalization Service (INS) issued Nahrvani a Notice to Appear alleging that he was removable under Section 237(a)(1)(B) of the Immigration and Nationality Act for remaining in the United States longer than was permitted. Nahrvani conceded re-movability, but submitted an application for asylum and withholding of removal. In the alternative, Nahrvani requested that the case be reviewed under the CAT.

In support of his application, Nahrvani testified that, while living in Iran, he was arrested and jailed for approximately two years as a result of his participation in an anti-government demonstration. During his incarceration, Nahrvani was repeatedly tortured. He fled to Germany in 1989, where he was granted political asylum and permanent residency.

Nahrvani lived in Germany for approximately ten years. During that time, Nahrvani owned a car, and traveled and worked without restriction. Nahrvani converted to Christianity and married a German Lutheran pastor. Nahrvani sought German citizenship, but was informed that he must first renounce his Iranian citizenship. Nahrvani completed the necessary paperwork at the Iranian Consulate to renounce his citizenship, but never attained German citizenship.

As a result of his conversion to Christianity and his efforts to renounce his Iranian citizenship, Nahrvani became the target of harassment and threats, and his bicycle and car were damaged. He testified that officials from the Iranian Consulate were “chasing” him and stealing his possessions. Nahrvani reported these incidents to the German police without providing the police with specific names of individual perpetrators. Nahrvani’s wife testified that the German police investigated the complaints, but were ultimately unable to solve the crimes.

The IJ found Nahrvani’s testimony to be credible. Based on Nahrvani’s testimony, the IJ determined that, due to his Christian beliefs, Nahrvani would face persecution if returned to Iran. Although the IJ denied Nahrvani’s asylum claim because he was firmly resettled in Germany, the IJ granted Nahrvani’s request for withholding of removal and CAT relief from Iran.

The IJ denied Nahrvani’s request for asylum from Germany on the basis that Nahrvani had failed to establish a well-founded fear of future persecution in Germany. Specifically, the IJ determined that Nahrvani had not established that the German government was unwilling or unable to protect him from the alleged persecution. For similar reasons, the IJ denied Nahrvani’s requests for withholding of removal and CAT relief.

The BIA affirmed the IJ’s denial of asylum without opinion. Nahrvani filed a timely petition for review.

II.

STANDARDS OF REVIEW

Because the BIA affirmed the IJ’s ruling without an opinion, the IJ’s decision is the final agency action for purposes of this appeal. See Falcon Carriche v. Ashcroft, 350 F.3d 845, 851 (9th Cir.2003). The IJ’s determination that Nahrvani is ineligible for asylum “can be reversed only if the evidence presented by [Nahrvani] was such that a reasonable factfinder would have to conclude that the requisite fear of persecution existed.” INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (citation omitted). To reverse the IJ’s finding, we “must find that the evidence not only supports that conclusion, but compels it[.]” Id. at 481 n. 1, 112 S.Ct. 812. To that end, “[t]he [IJ’s] decision need only be supported by substantial evidence.” Gonzalez-Hernandez v. Ashcroft, 336 F.3d 995, 998 (9th Cir.2003) (citation omitted). “This is a highly deferential standard of review.” Marcu v. INS, 147 F.3d 1078, 1080-81 (9th Cir.1998).

III.

DISCUSSION

A. Iran

Nahrvani bears the burden of proof with respect to his eligibility for asylum from Iran. 8 C.F.R. § 1208.13(a). An application for asylum must be denied if the alien has firmly resettled in another country. 8 C.F.R. § 1208.13(c)(1); 8 U.S.C. § 1158(b)(2)(vi). “Firm resettlement” is defined in 8 C.F.R. § 1208.15 as follows:

An alien is considered to be firmly resettled if, prior to arrival in the United States, he or she entered into another country with, or while in that country received, an offer of permanent resident status, citizenship, or some other type of permanent resettlement unless he or she establishes:

(a) That his or her entry into that country was a necessary consequence of his or her flight from persecution, that he or she remained in that country only as long as was necessary to arrange onward travel, and that he or she did not establish significant ties in that country; or

(b) That the conditions of his or her residence in that country were so substantially and consciously restricted by the authority of the country of refuge that he or she was not in fact resettled. In making his or her determination, the asylum officer or immigration judge shall consider the conditions under which other residents of the country live; the type of housing, whether permanent or temporary, made available to the refugee; the types and extent of employment available to the refugee; and the extent to which the refugee received permission to hold property and to enjoy other rights and privileges, such as travel documentation that includes a right of entry or reentry, education, public relief, or naturalization, ordinarily available to others resident in the country.

The IJ did not err in denying Nahrvani’s request for asylum from Iran. The evidence substantially supports the IJ’s conclusion that Nahrvani established deep and significant ties to Germany during his ten-year residence in the country. Nahrvani was granted permanent residency in Germany and renounced his Iranian citizenship in an attempt to gain German eitizenship. See Andriasian v. INS, 180 F.3d 1033, 1043 (9th Cir.1999) (stating that an alien has firmly resettled “if a third country in which the alien has resided after becoming a refugee offers him permanent resettlement!.]”). Nahrvani married a German citizen, worked and traveled freely throughout the country, and practiced Christianity openly. Nahrvani made no showing that the conditions of his ten-year residence in Germany were so “substantially and consciously restricted by[the German authorities] that he ... was not in fact resettled.” 8 C.F.R. § 1208.15(b). As the IJ’s finding of firm resettlement in Germany is supported by substantial evidence, Nahrvani’s request for asylum from Iran must be denied.

B. Germany

Nahrvani requested asylum from both Iran and Germany, and the IJ addressed the issue of asylum from both countries.¹

“[T]o be eligible for asylum, an applicant must establish either past persecution or a well-founded fear of present persecution on account of a protected ground.”² Singh v. Ashcroft, 362 F.3d 1164, 1170 (9th Cir.2004) (citation, alteration, and internal quotation marks omitted).

To establish a well-founded fear of persecution, an applicant must show that his fear is “both subjectively genuine and objectively reasonable.” Gormley v. Ashcroft, 364 F.3d 1172, 1180 (9th Cir.2004) (citation omitted). “The subjective component may be satisfied by credible testimony that the applicant genuinely fears persecution.” Id. (citation omitted). “The objective component of this test requires showing, by credible, direct, and specific evidence in the record, that persecution is a reasonable possibility.” Agbuya v. INS, 241 F.3d 1224, 1228 (9th Cir.2001) (citation and internal quotation marks omitted). “This showing may be made by the production of specific documentary evidence or by the credible and persuasive testimony of the applicant.” Id. (citation and internal quotation marks omitted).

We have characterized “persecution as an extreme concept, marked by the infliction of suffering or harm in a way regarded as offensive.” Li v. Ashcroft, 356 F.3d 1153, 1158 (9th Cir.2004) (en banc) (citation, alteration, and internal quotation marks omitted). Physical violence inflicted against an individual often “meets the requirement of severity that characterizes persecution[.]” Hoxha v. Ashcroft, 319 F.3d 1179, 1182 n. 5 (9th Cir.2003) (citation omitted); see also Duarte de Guinac v. INS, 179 F.3d 1156, 1161 (9th Cir.1999) (“we have consistently found persecution where, as here, the petitioner was physically harmed ... ”) (citations omitted). Although death threats against an individual may be sufficient to constitute persecution, see Khup v. Ashcroft, 376 F.3d 898, 903 (9th Cir.2004), most threats do not rise to the level of persecution. See Hoxha, 319 F.3d at 1182 (characterizing unfulfilled threats as harassment rather than persecution); see also Lim v. I.N.S, 224 F.3d 929, 936 (9th Cir.2000) (“Threats themselves are sometimes hollow and, while uniformly unpleasant, often do not effect significant actual suffering or harm.”).

The pivotal issue in this case is whether the incidents described in Nahrvani’s testimony and asylum application meet the high standard required to prove persecution. Although Nahrvani described several incidents in Germany of harassment, threats, and property damage, the record reflects that he suffered only de minimis property damage and anonymous, ambiguous threats. Nahrvani suffered no physical harm nor was he ever detained.

Nahrvani did receive a couple of serious threats. One phone call stated: “It is Halal to shed your blood[,]” and one note threatened that people who abandoned Islam would “have to die.”

While “especially menacing death threats” may constitute persecution in “certain extreme cases,” Lim, 224 F.3d at 936, this is not such an extreme case. Nahrvani received only telephone or written threats, and never had a personal confrontation with any of the people threatening him.³ See id. (“Neither [petitioner] nor his family was ever touched, robbed, imprisoned, forcibly recruited, detained, interrogated, trespassed upon, or even closely confronted.”); compare Ruano v. Ashcroft, 301 F.3d 1155, 1160 (9th Cir.2002) (finding persecution where petitioner was threatened by men who had “closely confronted” him and drawn their pistols in his presence). In contrast, the threats Nahrvani received were anonymous, vague, and did not create a sense of immediate physical violence. See Lim, 224 F.3d at 936-37. Additionally, while we have acknowledged that threats of death are enough to constitute persecution, we typically rely on all of the surrounding events, including the death threat, in deciding whether persecution exists. See Salazar-Paucar v. INS, 281 F.3d 1069, 1075 (9th Cir.2002) (finding that death threats “combined with” multiple events, including harm to the applicant’s family and murders of the applicant’s political counterparts, constituted persecution); see■ also Reyes-Guerrero v. INS, 192 F.3d 1241, 1243-44 (9th Cir.1999) (describing- repeated bribe attempts, personal confrontations, and death threats); Sangha v. INS, 103 F.3d 1482, 1486-87 (9th Cir.1997) (involving an attack on the petitioner’s family, personal confrontation, and death threats). Other than the two specific threats described above, the incidents Nahrvani related do not significantly bolster his persecution claim. “Because reasonable minds could differ” as to whether the threats received by Nahrvani constituted persecution, the record does not compel us to make a finding that the threats did constitute persecution. Khup, 376 F.3d at 903.

Nahrvani has also failed to-demonstrate that the acts of which he complains were “committed by the government or forces the government is' either ‘unable or unwilling’ to control.” Ernesto Navas, 217 F.3d at 655-56. Nahrvani'contends that the German police continually failed to investigate his reports of mistreatment. However, the record regarding these assertions is far 'from compelling. The German police took reports documenting ■Nahrvani’s various complaints. Nahrvani admitted that he did not give the police the names of any suspects because he did not know any specific names. In addition, Nahrvani’s assertion is directly contradicted by the testimony of his wife, who stated that the police investigated the complaints, but were ultimately unable to solve the crimes. She also testified that racial issues in no way affected the police’s willingness to help Nahrvani. The evidence simply does not compel the conclusion thát the German government was unable or unwilling' to control those individuals harassing Nahrvani.

Although Nahrvani’s fear of returning to Germany is sufficiently credible to satisfy the subjective component of the future persecution inquiry, the evidence must also compel a finding that future persecution is an objectively reasonable possibility.⁴ See Hoxha, 319 F.3d at 1182.

For many of the same reasons discussed above, Nahrvani’s fear of future persecution in Germany is too speculative to support an asylum claim. See Nagoulko v. INS, 333 F.3d 1012, 1018 (9th Cir.2003) (declining to credit a speculative future persecution claim). Nahrvani did not substantiate his claim regarding the German government’s inability or unwillingness to control the asserted persecution from which he suffered. Thus, the evidence does not compel a finding that future persecution is an objectively reasonable possibility. See id.

Because Nahrvani failed to establish eligibility for asylum from Germany, he necessarily failed to demonstrate eligibility for withholding of removal. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003). Finally, substantial evidence supports the IJ’s denial for relief under the CAT, as Nahrvani has presented no evidence to demonstrate that it is more likely than not that he will be tortured if returned to Germany. See Zheng v. Ashcroft, 332 F.3d 1186, 1193-94 (9th Cir.2003).

IV.

THE BIA’s SUMMARY AFFIRMANCE

We need not address Nahrvani’s argument that the BIA improperly streamlined his case pursuant to 8 C.F.R. (a)(7)(ii). Because we reached the merits of the IJ’s decision, it is “unnecessary and duplicative” for us to review the BIA’s decision to streamline. Falcon Car-riche, 350 F.3d at 855.

V.

CONCLUSION

Substantial evidence supports the IJ’s conclusion that Nahrvani was firmly resettled in Germany and thus ineligible for asylum from Iran. Substantial evidence also supports the IJ’s conclusion that Nahrvani is not entitled to asylum, withholding of removal, or CAT relief from Germany. The petition is DENIED.

1 . Neither the IJ or BIA addressed the issue of whether an alien may request asylum from a country of which he is not a citizen. At least one court has ruled that an alien may seek asylum from the country of resettlement. See Rife v. Ashcroft, 374 F.3d 606 (8th Cir.2004). We need not resolve this issue to decide this case.

2 . Nahrvani appeals the denial of asylum from Germany on the basis that he had a well-founded fear of future persecution.

3 . Although Nahrvani testified that he was chased by officials from the Iranian Consulate, he did not provide any details regarding the incident.

4 . Because Nahrvani cannot establish past persecution, he does not receive the benefit of a rebuttable presumption that his fear of future persecution was well-founded. See Molina-Estrada v. INS, 293 F.3d 1089, 1096 (9th Cir.2002).