Shirin Hamzehi Parviz Hamzehi Pantheha Hamzehi Bahareh Hamzehi v. Immigration and Naturalization Service

64 F.3d 1240
CourtCourt of Appeals for the Eighth Circuit
DecidedDecember 19, 1995
Docket94-2579
StatusPublished
Cited by31 cases

This text of 64 F.3d 1240 (Shirin Hamzehi Parviz Hamzehi Pantheha Hamzehi Bahareh Hamzehi v. Immigration and Naturalization Service) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Shirin Hamzehi Parviz Hamzehi Pantheha Hamzehi Bahareh Hamzehi v. Immigration and Naturalization Service, 64 F.3d 1240 (8th Cir. 1995).

Opinions

LOKEN, Circuit Judge.

The Hamzehi family are Iranian citizens who entered the United States in 1986 on a six-month nonimmigrant visa. The visa expired, and the Immigration and Naturalization Service commenced this deportation proceeding. The Hamzehis conceded deporta-bility, but Shirin Hamzehi filed an asylum application for herself, her husband, and their two daughters. Following a hearing, the Immigration Judge denied the Hamzehis either asylum or withholding of deportation to Iran. See 8 U.S.C. §§ 1158 and 1253(h). The Board of Immigration Appeals (BIA) dismissed their appeal, and the Hamzehis [1242]*1242now petition for judicial review. See 8 U.S.C. § 1105a. Substantial evidence supports the BIA finding that the Hamzehis lack a well-founded fear of persecution should they return to Iran. Therefore, we affirm.

The Attorney General may grant asylum to a deportable alien who proves “a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). A well-founded fear is one that is both “subjectively genuine and objectively reasonable.” Ghasemimehr v. I.N.S., 7 F.3d 1389, 1390 (8th Cir.1993). To overturn the BIA’s adverse determination on this issue, Mrs. Hamzehi bears a heavy burden. She must show that her evidence “was so compelling that no reasonable fact-finder could fail to find the requisite fear of persecution.” I.N.S. v. Elias-Zacarias, 502 U.S. 478, 484, 112 S.Ct. 812, 817, 117 L.Ed.2d 38 (1992).

Mrs. Hamzehi submitted two pre-hearing affidavits in support of her asylum application. In those affidavits, she alleged a well-founded fear of both ethnic and political persecution, ethnic persecution because “I belong to the ethnic minority in Iran known as the Kurds,” and political persecution because “various members of my family have been active against the Khomeini government.” The affidavits went on to relate several incidents in Iran supporting her claim of political persecution.

As is customary, INS referred Mrs. Hamz-ehi’s application and supporting affidavits to the State Department’s Bureau of Human Rights and Humanitarian Affairs and requested an advisory opinion. Regarding Mrs. Hamzehi’s fear of ethnic persecution, the State Department opined, “[tjhere is no pattern of indiscriminate persecution by the Islamic regime against Kurds as such.” The Hamzehis did not rely on an alleged fear of ethnic persecution at the hearing or on appeal. Thus, the asylum issue turns on their claim of a well-founded fear of political persecution.

This claim was supported by Mrs. Hamzehi’s pre-hearing affidavits and by the testimony of Mr. and Mrs. Hamzehi at the hearing. An applicant’s uncorroborated testimony, if believed, may establish an objectively reasonable fear of persecution. See Ghasemimehr, 7 F.3d at 1391. However, the Immigration Judge found that Mr. and Mrs. Hamzehi were not credible, and the BIA agreed. This credibility finding is the principal focus of the Hamzehis’ appeal. We must defer to a credibility finding “when the immigration judge states a specific, cogent reason, or a legitimate, articulable basis for the finding.” Hajiani-Niroumand v. I.N.S., 26 F.3d 832, 838 (8th Cir.1994).

Mrs. Hamzehi’s pre-hearing affidavits described a number of seemingly unrelated events over a significant period of time. Taking these events in chronological order, Mrs. Hamzehi first related numerous incidents in 1980 and 1981, the early days of the Khomeini regime, such as the Hamzehis’ participation in student demonstrations that were violently dispersed; frequent questioning and threats by the regime’s Revolutionary Guards; Mr. Hamzehi’s arrest and detention for three days following one such student demonstration; and atrocities visited upon relatives and neighbors during this period of mob rule. The second series of events, which are clearly the most relevant to her fear-of-persecution claim, involved Mrs. Hamzehi’s brother and his wife. Mrs. Hamz-ehi explained that her sister-in-law, an activist in the Mojahedeen Khalq opposition party, was executed in 1983. This caused her brother to increase his opposition activities and eventually flee Iran in 1985, following which the Revolutionary Guards repeatedly invaded the Hamzehis’ home and coercively questioned them about her brother, who eventually was granted refugee status in West Germany. Finally, Mrs. Hamzehi averred that in 1986 a religion teacher questioned daughter Bahareh Hamzehi at school regarding her parents’ political opinions, and in late 1987 a younger brother mysteriously disappeared for a few months while studying at the University of Tehran.

While this is a substantial showing on the fear-of-persecution issue, the record also contains considerable evidence suggesting that the Hamzehis’ professed fear of political persecution is not objectively reasonable, as both [1243]*1243the Immigration Judge and the BIA noted. Mr. and Mrs. Hamzehi are not members of an opposition political organization and have not been politically active in the United States or Iran. The family departed Iran on a visa issued to Mr. Hamzehi, and they had previously been permitted to depart for a vacation in West Germany, the country that is harboring Mrs. Hamzehi’s fugitive brother. Before leaving Iran in 1986, Mrs. Hamzehi was employed by the Iranian government giving German language lessons over state-owned television. Addressing Mrs. Hamz-ehi’s claim of political persecution, the State Department advisory opinion letter commented:

Hundreds of thousands of Iranians are related to persons who have been imprisoned, executed or otherwise punished because of their anti-regime political activity. There is no pattern of persecution by the regime against such persons simply because of their family relationship to such people. In the case of the applicant, she was able to get a valid Iranian passport for travel to the U.S. We doubt very much that the regime would have permitted such travel had she in fact been singled out for persecution. In a word, the assertions made by this applicant simply do not reflect the current situation in Iran.

Given this conflicting evidence, the credibility of the Hamzehis’ hearing testimony is critical to their request for asylum. To prove a present, well-founded fear of political persecution, it is not enough to show that the Hamzehis were harassed as student demonstrators in 1980, or that Revolutionary Guards invaded their home and hounded them while looking for Mrs. Hamzehi’s fugitive brother in the mid-1980s. Mrs. Hamzehi must show why these rather dated events provide an objectively reasonable basis for a present fear of “particularized persecution directed at her personally on the basis of her political opinion,” Safaie v. I.N.S., 25 F.3d 636

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64 F.3d 1240, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shirin-hamzehi-parviz-hamzehi-pantheha-hamzehi-bahareh-hamzehi-v-ca8-1995.