Nahrvani v. Gonzales

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HOSSEIN NAHRVANI, 
Petitioner, No. 03-70586
v.
 Agency No.
A75-654-655
ALBERTO GONZALES,* Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
August 6, 2004—Pasadena, California
Filed March 7, 2005
Before: Betty B. Fletcher, David R. Hansen,** and
Johnnie B. Rawlinson, Circuit Judges.
Opinion by Judge Rawlinson;
Dissent by Judge B. Fletcher
*Alberto Gonzales is substituted for his predecessor, John Ashcroft, as
Attorney General. Fed. R. App. P. 43(c)(2).
**The Honorable David R. Hansen, Senior U.S. Circuit Judge for the
Eighth Circuit, sitting by designation.
2883
2886 NAHRVANI v. GONZALES
COUNSEL
Louis A. Gordon, Los Angeles, California, for the petitioner.
Daniel E. Goldman (briefed), Earle B. Wilson (argued),
Office of Immigration Litigation, Washington, D.C., for the
respondent.
OPINION
RAWLINSON, Circuit Judge:
Hossein Nahrvani, a native of Iran, petitions for review of
the Board of Immigration Appeals’ (BIA) summary affir-
mance of the Immigration Judge’s (IJ) denial of his request
for asylum from Iran and his request for withholding of
NAHRVANI v. GONZALES 2887
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 Nat-
uralization Service (INS) issued Nahrvani a Notice to Appear
alleging that he was removable under Section 237(a)(1)(B) of
the Immigration and Naturalization Act for remaining in the
United States longer than was permitted. Nahrvani conceded
removability, 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 repeat-
edly 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 Christian-
ity and married a German Lutheran pastor. Nahrvani sought
German citizenship, but was informed that he must first
renounce his Iranian citizenship. Nahrvani completed the nec-
essary paperwork at the Iranian Consulate to renounce his cit-
izenship, but never attained German citizenship.
As a result of his conversion to Christianity and his efforts
to renounce his Iranian citizenship, Nahrvani became the tar-
2888 NAHRVANI v. GONZALES
get of harassment and threats, and his bicycle and car were
damaged. He testified that officials from the Iranian Consul-
ate were “chasing” him and stealing his possessions. Nahrvani
reported these incidents to the German police without provid-
ing 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 Chris-
tian 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 opin-
ion. Nahrvani filed a timely petition for review.
II.
STANDARDS OF REVIEW
Because the BIA affirmed the IJ’s ruling without an opin-
ion, 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
NAHRVANI v. GONZALES 2889
would have to conclude that the requisite fear of persecution
existed.” INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992)
(citation omitted). To reverse the IJ’s finding, we “must find
that the evidence not only supports that conclusion, but com-
pels it[.]” Id. at 481 n.1. 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
[1] Nahrvani bears the burden of proof with respect to his
eligibility for asylum from Iran. 8 C.F.R. § 208.13(a). An
application for asylum must be denied if the alien has firmly
resettled in another country. 8 C.F.R. § 208.13(c)(2)(B).
“Firm resettlement” is defined in 8 C.F.R. § 208.15 as fol-
lows:
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, citi-
zenship, or some other type of permanent resettle-
ment unless he or she establishes:
(a) That his or her entry into that country was a
necessary consequence of his or her flight from per-
secution, 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
2890 NAHRVANI v. GONZALES
(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 immigra-
tion judge shall consider the conditions under which
other residents of the country live; the type of hous-
ing, whether permanent or temporary, made avail-
able 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 natural-
ization, ordinarily available to others resident in the
country.
[2] 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 Ger-
man citizenship. See Andriasian v. INS, 180 F.3d 1033, 1043
(9th Cir. 1999) (stating that an alien has firmly resettled
within the meaning of 8 C.F.R. § 208.15 “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.
§ 208.15(b). As the IJ’s finding of firm resettlement in Ger-
many is supported by substantial evidence, Nahrvani’s request
for asylum from Iran must be denied.
NAHRVANI v. GONZALES 2891
B. Germany
Nahrvani requested asylum from both Iran and Germany,
and the IJ addressed the issue of asylum from both countries.1
[3] “[T]o be eligible for asylum, an applicant must establish
either past persecution or a well-founded fear of present per-
secution on account of a protected ground.”2 Singh v. INS, 362
F.3d 1164, 1170 (9th Cir. 2004) (citation, alteration, and inter-
nal quotation marks omitted).
To establish a well-founded fear of persecution, an appli-
cant 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 com-
ponent may be satisfied by credible testimony that the appli-
cant genuinely fears persecution.” Id. (citation omitted). “The
objective component of this test requires showing, by credi-
ble, direct, and specific evidence in the record, that persecu-
tion 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 produc-
tion of specific documentary evidence or by the credible and
persuasive testimony of the applicant.” Id. (citation and inter-
nal quotation marks omitted).
[4] We have characterized “persecution as an extreme con-
cept, 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
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 resettle-
ment. 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.
2892 NAHRVANI v. GONZALES
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.”).
[5] 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 anony-
mous, 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.”
[6] While “especially menacing death threats” may consti-
tute 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 con-
frontation with any of the people threatening him.3 See id.
3
Although Nahrvani testified that he was chased by officials from the
Iranian Consulate, he did not provide any details regarding the incident.
NAHRVANI v. GONZALES 2893
(“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) (find-
ing 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 sur-
rounding 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 appli-
cant’s family and murders of the applicant’s political counter-
parts, 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 reason-
able 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 persecu-
tion. Khup, 376 F.3d at 903.
[7] 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 con-
trol.” 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 sus-
2894 NAHRVANI v. GONZALES
pects because he did not know any specific names. In addi-
tion, 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 sim-
ply does not compel the conclusion that the German govern-
ment was unable or unwilling to control those individuals
harassing Nahrvani.
Although Nahrvani’s fear of returning to Germany is suffi-
ciently 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 pos-
sibility.4 See Hoxha, 319 F.3d at 1182.
[8] For many of the same reasons discussed above,
Nahrvani’s fear of future persecution in Germany is too spec-
ulative to support an asylum claim. See Nagoulko v. INS, 333
F.3d 1012, 1018 (9th Cir. 2003) (declining to credit a specula-
tive 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.
[9] Because Nahrvani failed to establish eligibility for asy-
lum from Germany, he necessarily failed to demonstrate eligi-
bility 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
4
Because Nahrvani cannot establish past persecution, he does not
receive the benefit of a rebuttable presumption that his fear of future per-
secution was well-founded. See Molina-Estrada v. INS, 293 F.3d 1089,
1096 (9th Cir. 2002).
NAHRVANI v. GONZALES 2895
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.
§ 1003.1(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 Carriche, 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, with-
holding of removal, or CAT relief from Germany. The peti-
tion is DENIED.
B. FLETCHER, Circuit Judge, dissenting:
I respectfully dissent from the denial of eligibility for asy-
lum. The record compels a finding that Nahrvani experienced
past persecution on account of his political opinion and reli-
gion and reasonably fears future persecution if he is returned
to Germany or Iran. Nahrvani was granted asylum in Ger-
many because of his persecution in Iran. Although Nahrvani
felt safe in Germany for some time, that safety was compro-
mised when the Iranian government discovered Nahrvani’s
whereabouts. Iranian agents recommenced a campaign of per-
2896 NAHRVANI v. GONZALES
secution against Nahrvani, and the German government was
unwilling or unable to control them.
The IJ found Nahrvani’s testimony regarding events in both
Iran and Germany to be credible. Specifically, the IJ found
that Nahrvani was “forthright and . . . sufficiently detailed and
consistent in light of the general conditions, not only in his
country of Iran but in his country of Germany as well.”
Because the IJ found Nahrvani credible, no one disputes
that Nahrvani satisfied the subjective component of the well-
founded fear test. Similarly, there is no dispute that the Ira-
nian government acted against Nahrvani on the basis of a sta-
tutorily protected ground.
My disagreement with the majority arises on two grounds.
First, although the IJ did not expressly address the question of
whether the Iranian government’s actions against Nahrvani in
Germany constituted past persecution, the majority finds that
they did not. As a result, the majority concludes that Nahrvani
failed to show that his fear of future persecution in Germany
is objectively reasonable. However, Nahrvani’s credible testi-
mony and corroborating evidence compel a finding of past
persecution in Germany. This would shift the burden to the
government to rebut the presumption of a well-founded fear
of future persecution.
Second, the IJ expressly denied asylum on the ground that
Nahrvani failed to demonstrate that the acts of which he com-
plains were “committed by the government or forces the gov-
ernment is either unable or unwilling to control,” and the
majority agrees. However, this conclusion is not supported by
substantial evidence.
I. Facts
Nahrvani credibly and specifically testified to the following
facts. Nahrvani’s father was a high-ranking official during the
NAHRVANI v. GONZALES 2897
Shah’s regime. Nahrvani, his father, and his siblings actively
opposed the current Iranian regime after it assumed power.
Nahrvani distributed political literature and cooperated with
student activists. Nahrvani and his brother were arrested at a
political demonstration and imprisoned for two years without
a trial. During his imprisonment, Nahrvani was tortured and
forced to watch the executions of fellow prisoners while being
warned that “his turn” would come soon. Nahrvani and his
brother escaped from prison with their father’s aid and fled to
Germany, where they were granted asylum.
In Germany, Nahrvani married a prominent Christian pas-
tor and converted to Christianity. When he became eligible to
become a German citizen, he learned that the German govern-
ment required him present himself to the Iranian Consulate
and renounce his Iranian citizenship as a prerequisite to natu-
ralization. Nahrvani protested. He feared that announcing his
presence to the Iranian Consulate would expose him to addi-
tional persecution — and this fear ultimately proved to be
well-founded.
Nahrvani explained to the German authorities that renounc-
ing his citizenship would endanger him because a) doing so
would announce his presence to the Iranian government and
enable the Iranian government to track his whereabouts, and
b) his political and religious background made him a likely
target for persecution by the Iranian government. The German
government nonetheless insisted that Nahrvani go to the Ira-
nian Consulate to renounce his citizenship. As Nahrvani pre-
dicted, this act immediately caused the Iranian government to
reinitiate its persecution of him, this time in Germany.
When Nahrvani went to the Iranian Consulate to renounce
his citizenship, he was required to fill out forms and answer
questions that provided the Iranian government with informa-
tion regarding his address of residence, his marriage to a
prominent German pastor, and his conversion to Christianity.
After he submitted his forms, the Iranian Consulate kept him
2898 NAHRVANI v. GONZALES
waiting for hours and then interrogated him regarding his rea-
sons for renouncing his Iranian citizenship and his religious
conversion. After the Consulate officials realized that he was
a political asylee and a Muslim who had converted to Chris-
tianity, they ordered him to leave the Consulate. The Consul-
ate never processed his renunciation; instead, they began what
the IJ described in his findings as a “reign of terror.”
According to an expert’s declaration, the information that
Nahrvani provided by filling out the citizenship renunciation
forms was most likely transmitted from the Iranian Consulate
to the central Iranian government in Iran. In addition, this
expert explained that the information on the citizenship-
renunciation forms gave the Iranian government several dif-
ferent reasons to target Nahrvani for persecution. First,
Nahrvani is an escaped political prisoner whose family
actively opposes the current Iranian regime. Second, he made
an asylum claim against Iran which is an act considered by
the Iranian government to be “counter-revolutionary” and
defamatory of the State of Iran. Third, he is a Muslim who has
converted to Christianity. The Iranian government’s position
is that Muslims who convert to Christianity should be sen-
tenced to death, and Iran has actually executed a number of
individuals on that basis. The prominence of Nahrvani’s Ger-
man wife, who has a weekly television show, heightens the
risk that Nahrvani would be rediscovered and targeted again
if he is returned to Germany.
The “reign of terror” that the Iranian government waged
against Nahrvani in Germany included multiple death threats
accompanied by acts of vandalism that escalated in severity
over time. First, his bicycle tires were slashed, then his car
window was smashed with a rock, then the tires of both his
car and his wife’s car were slashed, then his brother’s car’s
tires were slashed as well. At first, notes accompanying acts
of vandalism asked, “Isn’t that enough?” As time went on, the
death threats became more specific and severe. For example,
he was told, “It is Halal to shed your blood.” Another note
NAHRVANI v. GONZALES 2899
explained that no punishment is enough for Muslims who
have converted to Christianity and that such people “must
die.” These death threats were repeated in multiple phone
calls and notes. Nahrvani also noted several times that he was
chased by the Iranian Secret Police.
Nahrvani testified that when he reported the first of these
incidents to the police, the police discouraged him from nam-
ing the Iranian Consulate in his complaint, advising him that
doing so would be “very costly” to him. As the campaign of
harassment continued, Nahrvani continued to file complaints
with the police. Although the police took notes, Nahrvani saw
no evidence of further investigation, and the campaign of
harassment continued unabated.
Although Nahrvani’s credible testimony is sufficient to
establish these facts without corroboration, the IJ noted that
“[Nahrvani’s] statements regarding his experiences with Mus-
lim fundamentalists in both Iran and Germany are corrobo-
rated by the State Department reports.” In addition,
Nahrvani’s testimony was corroborated by his wife’s testi-
mony, police reports, news articles, and expert declarations
and reports.
Nahrvani also testified and provided corroborative evidence
regarding the Iranian government’s pattern and practice of
denouncing, monitoring, attacking, and even killing Iranian
exiles living in Germany and other European nations.
Nahrvani provided similar evidence documenting the Iranian
government’s persecution of — and execution of — Iranian
Muslims who convert to Christianity.
II. Analysis
The majority’s treatment of the Iranian government’s cam-
paign of terror against Nahrvani does not comport with settled
principles of immigration law.
2900 NAHRVANI v. GONZALES
A. Death Threats
“We have consistently held that death threats alone can
constitute persecution.” Navas v. INS, 217 F.3d 646, 658 (9th
Cir. 2000); see also Khup v. Ashcroft, 376 F.3d 898, 903 (9th
Cir. 2004); Del Carmen Molina v. INS, 170 F.3d 1247 (9th
Cir. 1999); Garrovillas v. INS, 156 F.3d 1010, 1016 (9th Cir.
1998); Gonzales-Neyra v. INS, 122 F.3d 1293, 1296 (9th Cir.
1997); Gonzalez v. INS, 82 F.3d 903 (9th Cir. 1996); Gomez-
Saballos v. INS, 79 F.3d 912 (9th Cir.1996); Aguilera-Cota v.
INS, 914 F.2d 1375 (9th Cir. 1990).
The majority concludes that the death threats against
Nahrvani “were too vague to constitute persecution.” How-
ever, death threats such as “It is Halal to shed your blood” and
“People who leave Islam have to die” are clearly specific and
menacing. The IJ himself noted that “[Nahrvani] has suffered
from threats of imminent death for a prolonged period of
time.”
The majority also argues that, while “death threats against
an individual may be sufficient to constitute persecution,” the
threats made against Nahrvani were not surrounded by events
that are sufficient to support a finding that the death threats
constitute persecution. While I agree that the death threats
must be viewed in context, I find that an examination of the
death threats against Nahrvani in their surrounding context
compels a conclusion exactly opposite from the majority’s.
First, “[w]e have repeatedly held that threats may be com-
pelling evidence of past persecution, particularly when they
are specific and menacing and are accompanied by evidence
of violent confrontations, near-confrontations and vandalism.”
Mashiri v. Ashcroft, 383 F.3d 1112, 1119 (9th Cir. 2004).
Here, in addition to being “menacing and specific,” the multi-
ple death threats against Nahrvani were accompanied by near-
NAHRVANI v. GONZALES 2901
confrontations and escalating acts of vandalism to Nahrvani’s
property, as well as his wife’s and his brother’s property.1
Second, when determining whether multiple death threats
and incidents of harassment and vandalism constitute persecu-
tion, we view them cumulatively. Mashiri, 383 F.3d at 1120-
21; Surita v. INS, 95 F.3d 814, 819 (9th Cir. 1996). Here, the
death threats made against Nahrvani were repeated many
times, and they escalated in severity over time.
Third, “[w]e have found that the severity of harm is com-
pounded when incidents of persecution have occurred on
more than one occasion, particularly where an applicant is
victimized at different times over a period of years.” Baballah
v. Ashcroft, 367 F.3d 1067, 1076 (9th Cir. 2004) (internal
quotation and citation omitted); see also Garcia-Martinez v.
Ashcroft, 371 F.3d 1066, 1075 (9th Cir. 2004) (finding it
improper for the IJ to treat the petitioner’s personal experi-
ences “as if they had occurred in a vacuum,” even though the
petitioner’s personal experiences of persecution occurred a
decade apart). Here, the government responsible for the death
threats and violent acts in Germany is the same government
that imprisoned and tortured Nahrvani and his brother in the
past — namely, the Iranian government.
Fourth, the death threats against Narhvani do not appear
“hollow” when viewed in light of the evidence documenting
the number of times the Iranian government has murdered Ira-
nian exiles residing in European nations, including Germany;
these murders demonstrate both the Iranian government’s
ability and its willingness to carry out its threats against Ira-
nian asylees in Europe. Similarly, the death threats must be
taken much more seriously when viewed in light of the evi-
dence that the Iranian government views Muslims who con-
1
We have recognized that “evidence of harm to [a p]etitioner’s family
supports a finding of past persecution.” Salazar-Paucar v. INS, 281 F.3d
1069, 1075 (9th Cir. 2002).
2902 NAHRVANI v. GONZALES
vert to Christianity as deserving of death sentences and has
executed individuals on that basis. Where, as here, context
indicates that a death threat against an asylum-seeker is
“much more than an idle threat,” we have found that the death
threat constitutes persecution. Mashiri, 383 F.3d at 1120; see
also Korablina v. INS, 158 F.3d 1038, 1045 (9th Cir. 1998)
(holding that where “evidence of a specific threat on an
alien’s life . . . is presented in conjunction with evidence of
political and social turmoil, the alien has succeeded in estab-
lishing a prima facie eligibility for asylum”).
In concluding that Nahrvani did not establish eligibility for
asylum, the majority likens this case to Hoxha v. Ashcroft,
319 F.3d 1179 (9th Cir. 2003), and Lim v. INS, 224 F.3d 929
(9th Cir. 2000). In both Hoxha and Lim, we found that the
threats experienced by the applicant did not rise to the level
of persecution. However, these cases are clearly distinguish-
able. Unlike Nahrvani, Hoxha had no prior experience of per-
secution by the group that was threatening him, the single
threat was unaccompanied by any other acts, and the threat
was not repeated over time. Although Lim received multiple
death threats, he had never been attacked or physically
harmed by those making threats against him; in contrast,
Nahrvani has been imprisoned and tortured by agents of the
Iranian government in the past.
In sum, Nahrvani’s previous experience of political impris-
onment and torture at the hands of the Iranian government,
the Iranian government’s pattern and practice of pursuing Ira-
nians living overseas, and the escalating pattern of harassment
and vandalism in Germany, make the death threats against
Nahrvani much more than “hollow and uniformly unpleas-
ant,” as the majority suggests. Given these facts, the specific
and menacing death threats made against Nahrvani are com-
pelling evidence of persecution.
B. Psychological and Emotional Trauma
In Kovac v. INS, 407 F.2d 102, 105-07 (9th Cir. 1969), we
explained that persecution requires harm or suffering, but not
NAHRVANI v. GONZALES 2903
necessarily physical harm. See also Mashiri, 383 F.3d at 1120
(discussing the infliction of emotional or psychological
trauma as a form of persecution); Khup, 376 F.3d at 903
(“ ‘persecution’ is not limited to physical suffering”);
Knezevic v. Ashcroft, 367 F.3d 1206, 1211 (9th Cir. 2004)
(noting, inter alia, that persecution may come in the form of
threats, harassment, or mental, emotional, and psychological
harm); Li v. INS, 92 F.3d 985, 987 (9th Cir. 1996) (noting that
“an arrest of a family member at a church may provide the
basis for past persecution of petitioner’s family on account of
religion”); Kahssai v. INS, 16 F.3d 323, 329 (9th Cir. 1994)
(per curiam) (Reinhardt, J., concurring) (“The fact that [peti-
tioner] did not suffer physical harm is not determinative of her
claim of persecution: there are other equally serious forms of
injury that result from persecution.”).
Here, Nahrvani has suffered from severe persecution,
including physical torture, at the hands of the Iranian govern-
ment. When the Iranian government began making death
threats and committing acts of vandalism against Nahrvani
and his family in Germany, it was not doing so in a vacuum;
rather, the Iranian government’s acts against Nahrvani in Ger-
many represent a re-initiation of a campaign of terror from
which Nahrvani had narrowly escaped. As a result, we cannot
assume that the death threats, vandalism, and harassment
made no greater impact on Nahrvani than similar incidents
would have made on an individual who had never been
imprisoned and tortured previously. Narhvani experienced
these threats not only as a survivor of torture and imprison-
ment, but also in the context of numerous reports of Iranian
state-sponsored violence, including murders, against Iranian
political exiles living in Europe and against Iranian Chris-
tians. These facts are compelling evidence that the Iranian
government subjected Narhvani in Germany to psychological
and emotional trauma that rises to the level of persecution.
In sum, taking together a) the death threats, repeated
harassment, near-confrontations, and multiple and escalating
2904 NAHRVANI v. GONZALES
acts of physical vandalism by Iranian government agents in
Germany; b) the past physical torture and imprisonment of
Narhvani by agents of the same government in Iran; c) the
Iranian government’s pattern and practice of violence against
Iranian exiles residing in Europe generally, and Germany in
particular; d) the Iranian government’s pattern and practice of
persecuting and executing Muslims who convert to Christian-
ity; and e) Nahrvani’s membership in multiple groups that the
Iranian government strongly disfavors, I am compelled to
conclude that Nahrvani suffered persecution in Germany.
C. Inability or Unwillingness to Control Nongovernmental
Forces
It is well-established that, for the purposes of asylum eligi-
bility, persecution can be perpetrated by either governmental
forces or “nongovernmental groups . . . which the government
is unable or unwilling to control.” Navas, 217 F.3d at 656
n.10 (internal quotation and citations omitted); see also
Avetova-Elisseva v. INS, 213 F.3d 1192, 1197-98 (9th Cir.
2000); Singh v. INS, 94 F.3d 1353, 1360 (9th Cir. 1996).
To meet this requirement, Nahrvani need not show that the
government actually encouraged or aided the nongovernmen-
tal forces.2 As we explained in Navas, “[g]overnment action
is not necessarily required; instead, police inaction in the face
of such persecution can suffice to make out a claim.” Navas,
217 F.3d at 656 n.10 (internal citations omitted).
The majority adopts the IJ’s conclusion that Nahrvani is not
eligible for asylum because he failed to show that the acts of
which he complains were committed by such forces; however,
this conclusion is not supported by substantial evidence.
2
In this case, the agents of persecution are technically governmental, but
because they are Iranian governmental forces acting extra-territorially in
Germany, for the purpose of determining whether Nahrvani is eligible for
asylum from Germany, I treat the Iranian government agents as “non-
governmental.”
NAHRVANI v. GONZALES 2905
Indeed, the IJ found that “[Nahrvani and his wife] reported
[the] incidents to the police and the police were able to do
very little to stop this particular reign of terror.” This finding
of fact directly contradicts the IJ’s conclusion that “it has not
been established that the German government is unwilling or
unable to protect the respondent from any of the harms made
or threatened against him.”
The German police’s inability to stop the persecution of
Nahrvani is sufficient to support Nahrvani’s claim. It is
enough to show that the government is unable to control non-
governmental forces of persecution, as opposed to unable and
unwilling. See, e.g., Avetova-Elisseva, 213 F.3d at 1198 (“It
does not matter that financial considerations may account for
[the government’s] inability to stop elements of ethnic perse-
cution. What matters instead is that the government is unwill-
ing or unable to control those elements of its society
committing the acts of persecution.” (internal quotation and
citation omitted) (emphasis in original)).
Although it is not necessary for Nahrvani to show that the
police were unable and unwilling to control the Iranian
agents, Nahrvani need not rest solely on the inability-to-
control concept, for there is also evidence that the German
police were unwilling to investigate Nahrvani’s claims. When
Nahrvani first went to the police, the police actually discour-
aged him from naming the Iranian Consulate in his complaint,
advising him that doing so would be “very costly” to him.
Nahrvani nonetheless insisted on filing a complaint. Accord-
ing to both Nahrvani and his wife, Karen Boye, the police
responded by trivializing and ignoring his claims. According
to Boye, after Nahrvani’s car was severely damaged, the
police continued to treat the case “as if it[ was an] everyday
crime . . . or maybe like . . . [a] feud . . . among ethnic groups,
problems which they have with each other.” While
Nahrvani’s wife testified that the police seemed to take
Nahrvani’s complaints more seriously after she became
2906 NAHRVANI v. GONZALES
involved, she also testified that this change in attitude pro-
duced no better results.
Thus, the testimony of both Nahrvani and his wife should
compel us to conclude that the German police were either
unable or unwilling to respond adequately to Nahrvani’s com-
plaints. There is no evidence that the German police ever tried
to control, much less succeeded in controlling, the Iranian
agents.
The majority attempts to find support for its contrary con-
clusion in the testimony of Nahrvani’s wife, asserting that
Boye testified that the German police investigated Nahrvani’s
complaints. This statement substantially misrepresents Boye’s
testimony. Boye consistently explained that she thought the
police either did nothing or couldn’t do anything in response
to Nahrvani’s complaints. The only statements Boye made
that could be construed as testimony that the German police
investigated were purely conjectural, as she herself admitted
at the time. For example, after expressing her desire to main-
tain faith in the German police, Boye conjectured that the
police could have investigated without her knowledge. None-
theless, she went on to reiterate that it appeared to her that the
police did nothing to investigate or apprehend the perpetra-
tors. Specifically, Boye testified that each time she and her
husband filed a complaint, within a couple weeks, the police
sent them a “receipt” that simply noted that the police
“worked on [the case] but . . . couldn’t clear who it was.”
Boye also testified that even after she utilized personal con-
nections to command the attention of the police, “[the police]
thought about it, but they couldn’t do anything against it, so
we saw no help. If I would have seen any help . . . I wouldn’t
let [Nahrvani] go [to the United States].” Especially in light
of the police’s initial attempt to discourage Nahrvani from
even lodging a complaint, the brevity of the investigatory
periods and the form receipts indicate that the police made
less than adequate investigations.
NAHRVANI v. GONZALES 2907
Even if we were permitted to assume that the German
police made some investigation into Nahrvani’s complaints,
because the record shows that the police attempted to discour-
age Nahrvani from filing a complaint and closed any investi-
gation very quickly without producing any results (no arrests
were made and the campaign of harassment continued
unabated), we would still be compelled to conclude the Ger-
man government was unable to control the Iranian agents. In
Mashiri, we held that an applicant seeking asylum from Ger-
many demonstrated that the German police were unable or
unwilling to control nongovernmental forces where, as here,
the “police made no arrests . . . [and] quickly closed their
investigation after treating the attack on the [petitioner’s]
apartment as [a common crime], despite evidence that the
attack was motivated by . . . hatred.” Mashiri, 383 F.3d at
1121-22; see also Chitay-Pirir v. INS, 169 F.3d 1079, 1081
(7th Cir. 1999) (finding that the government was unable or
unwilling to control nongovernmental forces where the gov-
ernment detained but quickly released suspects). In Navas, we
held that “arrests by police, without more, may not be suffi-
cient to rebut claims that the government is unable or unwill-
ing to stop persecutors . . . .” Navas, 217 F.3d at 656 n.10
(internal citations omitted). Here, the police failed to make
even a single arrest.
The majority also notes that Nahrvani failed to provide the
German police with the specific names of the agents who
were persecuting him. However, this fact is irrelevant to our
analysis. In Singh, we commented on the fact that the police
failed to respond to complaints even though Singh identified
his assailants by name; however, we did not hold then — and
we have never held since — that in order to demonstrate
inability or unwillingness of the government to control non-
governmental forces of persecution, an asylum applicant must
prove that he not only went to the police but also provided the
police with the exact names of his attackers. See Singh, 94
2908 NAHRVANI v. GONZALES
F.3d at 1360. Indeed, such a requirement would make little
sense given the nature of this persecution.3
Although Nahrvani’s credible testimony, especially as cor-
roborated by his wife’s testimony, is sufficient to establish the
German government’s inability or unwillingness to stop the
campaign of harassment, Nahrvani also provided evidence
that Iranian government agents have committed acts of vio-
lence against similarly situated individuals in Germany and
have not been prosecuted. In Gomez-Saballos v. INS, we held
that documentary evidence about a general pattern of persecu-
tion against similarly situated individuals reasonably supports
a contention that the government is unable to control the
forces behind that persecution. See Gomez-Saballos v. INS, 79
F.3d 912, 916-17 (9th Cir. 1996). The fact that there has been
one prosecution of Iranian government agents for the assassi-
nation of Iranian exiles in Germany is not dispositive, for
where, as here, it appears “that the perpetrators of crimes . . .
escape more often than not,” Surita v. INS, 95 F.3d 814, 817
(9th Cir. 1996) (internal quotation and citation omitted), evi-
dence of a single prosecution does not compel a finding of
governmental ability or willingness to control.4
3
This case is not one in which the asylum applicant failed to report inci-
dents to or cooperate with the government. Nahrvani promptly reported
incidents to the police and continued to do so even after the police dis-
couraged him and proved ineffective at stopping the threats and harass-
ment. He also described the perpetrators, reported that they were
associated with the Iranian Consulate, and furnished the threatening notes.
4
It is telling that the record establishes that the German government
revoked its policy of requiring Iranian asylees seeking to become German
citizens to officially renounce their Iranian citizenship after Nahrvani had
already fled from Germany to the United States. This change in policy
suggests the German government itself recognizes that the policy endan-
gered Iranian asylees living in Germany and that the German government
was not certain that it could protect Iranian asylees from being harmed by
the Iranian government if it continued the policy. For Nahrvani, unfortu-
nately, this genie was already out of the bottle.
NAHRVANI v. GONZALES 2909
In sum, Nahrvani demonstrated that the German govern-
ment was either unwilling or unable to stop the Iranian gov-
ernment’s campaign of death threats, vandalism, and
harassment against him, and the IJ’s contrary conclusion is
not supported by substantial evidence.5
*****
We must step back to look at Nahrvani’s persecution, not
just as his Iranian experience, or his German experience, but
as a complete picture. After two years imprisonment and tor-
ture in Iran, this man knows what the Iranian government can
and will do to him. Understandably, escalating death threats
and escalating physical damage in Germany were frightening
to him and his wife. They expected worse would follow.
Reluctantly, his wife decided separation was better than risk-
ing the assassination of her husband.
For these reasons, I would find Nahrvani eligible for asy-
lum and would remand for the attorney general to exercise
discretion as to its grant.
5
There is also a troubling side issue in this case: it is not clear what will
happen to Nahrvani if he is removed to Germany. Nahrvani and his wife
both testified that Nahrvani, as an asylee, was not supposed to leave Ger-
many for more than three months, that he has remained in the United
States beyond that time, and that his German passport has expired. Thus,
it is not clear that the German government will permit him to re-enter Ger-
many, and it is possible that the German government would return him
instead to Iran. Meanwhile, the IJ concluded, and the record substantially
supports his conclusion, that if Nahrvani is forced to return to Iran, he not
only faces a clear probability of persecution, but also is more likely than
not to be tortured. Indeed, the IJ suggests that Nahrvani would likely be
put to death by the Iranian government.