Zadesmaeil v. Holder ( 2012 )

FILED
NOT FOR PUBLICATION NOV 09 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MOZAFFAR ZADESMAEIL, No. 07-75139
Petitioner, Agency No. A095-177-103
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted November 5, 2012
Pasadena, California
Before: REINHARDT and THOMAS, Circuit Judges, and SEDWICK, District
Judge.**
Mozaffar Zadesmaeil petitions for review from the Board of Immigration
Appeals’ decision denying his application for asylum under the Immigration and
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable John W. Sedwick, District Judge for the U.S. District
Court for Alaska, sitting by designation.
Nationality Act, 8 U.S.C.§ 1158(a). Because the parties are familiar with the
history of this case, we need not recount it here. We grant the petition.
Zadesmaeil seeks asylum on the basis of (1) an imputed political opinion by
virtue of his work as a photographer and photo laboratory supervisor and (2) his
conversion to the Eckankar religion. We conclude that the record compels the
conclusion that Zadesmaeil has a well-founded fear of persecution because of his
conversion to the Eckankar religion if he returns to Iran. Therefore, we need not
reach the question of whether substantial evidence supports the BIA’s conclusion
concerning his political asylum claim.
The undisputed record shows that Zadesmaeil was a former Muslim who
converted to Eckankar. He testified about his conversion and offered third-party
evidence of it, which the government accepted. He also submitted a considerable
amount of documentary evidence as to his Eckankar beliefs, which the government
did not contest. There is no controversy over his subjective fear of future
persecution on the basis of religion.
The undisputed record also establishes that apostasy from the Islam religion
is punishable by death in Iran. The 2000 State Department Country Report in the
record states: “The Government does not ensure the right of citizens to change or
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recant their religious faith. Apostasy, specifically conversion from Islam, may be
punishable by death.”
The BIA did not dispute these facts, but denied the claim solely on the basis
that “in so far as the respondent fears harm in Iran because he converted to the
Eckankar religion in the United States, it does not appear that the authorities in Iran
are aware of that fact or are likely to learn thereof.” There is no factual support for
this statement in the record.
In addition, the salient question is not whether the Iranian government is
aware of Zadesmaeil’s conversion, but rather, whether he has a well-founded fear
that upon his removal to Iran his government will become aware of his conversion
and persecute him accordingly. See Matter of Mogharrabi, 19 I & N Dec. 439,
446 (BIA 1987) (explaining that an alien can demonstrate a well-founded fear by
showing that his government “‘could easily become aware[] that the alien possess
this belief or characteristic’” (citation omitted)), abrogated on other grounds by
Pitcherskaia v. INS, 118 F.3d 641 (9th Cir. 1997).1
The record is devoid of any evidence showing that Zadesmaeil could openly
practice Eckankar without being discovered in Iran. Indeed, the only evidence to
1
Zadesmaeil testified that he wrote letters to his wife describing his
conversion, and that some of these letters never arrived. He suggested that the
Iranian authorities seized these letters.
3
this point in the record is the State Department’s conclusion that “[r]eligious
activity is monitored closely by the Ministry of Intelligence and Security.”
Nothing in the record rebuts petitioner’s claim that his subjective fear is
objectively reasonable. Further, an asylum applicant still has a well-founded fear
of religious persecution if the only way for him to avoid persecution is by avoiding
the public practice of his religion: “to require [a petitioner] to practice his beliefs in
secret is contrary to our basic principles of religious freedom and the protection of
religious refugees.” Zhang v. Ashcroft, 388 F.3d 713, 719 (9th Cir. 2004) (per
curiam).
The government seeks to rely on the immigration judge’s finding that the
Iranian government would not persecute Zadesmaeil because the Eckankar religion
recognizes Mohammed as a spiritual leader, along with spiritual leaders of other
religions. The BIA did not adopt that determination, and when the BIA conducts
its own review of the evidence and law, our review is “limited to the BIA’s
decision, except to the extent the IJ’s opinion is expressly adopted.” Rodriguez v.
Holder, 683 F.3d 1164, 1169 (9th Cir. 2012) (internal quotation marks and citation
omitted). Regardless, nothing in the record supports the IJ’s speculation. Indeed,
the State Department Report states that members of the Baha’i faith are considered
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apostates in Iran “because of their claim to a valid religious revelation subsequent
to that of Prophet Mohammed.”
Although the IJ did not make an express adverse credibility finding, as
would normally be required to deny Zadesmaeil’s claim on credibility grounds, the
BIA affirmed what it thought to be the IJ’s adverse credibility finding. Regardless
of the propriety of the BIA’s action, it is not relevant to the question of well-
founded fear of future religious persecution.
Because Zadesmaeil applied for asylum prior to the passage of the REAL ID
Act, an inconsistency can only support an adverse credibility finding if it “relates
to the basis for the petitioner’s alleged fear of persecution and goes to the heart of
the claim.” Singh v. Gonzales, 439 F.3d 1100, 1108 (9th Cir. 2006) (internal
quotation marks, citation, and alterations omitted), superseded by statute, 8 U.S.C.
§ 1158(b)(1)(B)(iii) (2005). All of the issues that the IJ found troubling were
related to petitioner’s claim of persecution on account of imputed political opinion
and therefore do not go to the heart of his claim of fear of religious persecution.
Cf. Kamalthas v. INS, 251 F.3d 1279, 1283-84 (9th Cir. 2001) (BIA could not rely
on adverse credibility finding with respect to asylum claim in assessing claim for
protection under Convention Against Torture). The record is undisputed as to the
religious persecution claim.
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Because the undisputed record compels the conclusion that petitioner has a
well-founded fear of future persecution on account of his religious beliefs, remand
under INS v. Ventura, 537 U.S. 12 (per curiam), is unnecessary. We grant the
petition for review and remand this case to the BIA for the Attorney General to
exercise his discretion under 8 U.S.C. § 1158(b) as to whether to grant asylum.
See Fedunyak v. Gonzales, 477 F.3d 1126, 1130-31 (9th Cir. 2007) (finding
Ventura remand unnecessary but remanding for Attorney General to exercise his
discretion under § 1158(b)).
PETITION GRANTED and REMANDED.
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