Unpublished Disposition, 940 F.2d 668 (9th Cir. 1987)

No. 90-70283.

United States Court of Appeals, Ninth Circuit.

Before BRUNETTI and RYMER, Circuit Judges, and SHANSTROM^* , District Judge.

MEMORANDUM^** 

Dr. Reza Massoumi-Mohajer, a native and citizen of Iran, petitions for review of the Board of Immigration Appeals' ("BIA") decision denying his applications for asylum and withholding of deportation. We have jurisdiction pursuant to 8 U.S.C. § 1105a(a) and deny the petition.

The petitioners are citizens and natives of Iran. On April 21, 1983, Massoumi-Mohajer, accompanied by his wife and his children, entered the United States as nonimmigrant visitors authorized to stay until October 20, 1983. On February 4, 1985, Massoumi-Mohajer filed an application for asylum with the District Director of the Immigration and Naturalization Service ("INS"). The application was denied on June 4, 1985. On February 27, 1986, the INS issued orders to show cause ("OSC") charging Massoumi-Mohajer, his wife, and his children with remaining in the United States longer than authorized.

At the initial deportation hearing, the petitioners, represented by counsel, admitted the allegation in the OSC, conceded deportability, and indicated that they wished to apply for asylum and withholding of deportation. Massoumi-Mohajer subsequently submitted an application for asylum and withholding of deportation.

On August 10, 1987, the Immigration Judge ("IJ") found the petitioners deportable, denied Massoumi-Mohajer's requests for asylum or withholding of deportation, and granted them voluntary departure. The IJ gave no weight to a State Department opinion unfavorable to Massoumi-Mohajer because its conclusion was based on the lack of corroborating evidence as to Massoumi-Mohajer's specific situation.

On August 27, 1987, Massoumi-Mohajer filed a timely notice of appeal with the BIA. The BIA affirmed the IJ's denial of asylum and withholding of deportation. The BIA found that the IJ had erred in finding Massoumi-Mohajer's testimony not credible, but nevertheless found that Massoumi-Mohajer had not established past persecution or a well-founded fear of future persecution based on account of race, religion, nationality, membership in a particular social group, or political opinion. Massoumi-Mohajer filed a timely petition for review in this court.

We review the BIA's legal determinations de novo and its findings of fact under the substantial evidence standard. Aguilera-Cota v. INS, 914 F.2d 1375, 1378 (9th Cir. 1990). Under the substantial evidence standard, the BIA's denial of asylum, based on the evidence presented, must be substantially reasonable. Echeverria-Hernandez v. INS, 923 F.2d 688, 691 (9th Cir. 1991). We will "not reverse the Board simply because we disagree with its evaluation of the facts, but only if we conclude that the Board's evaluation is not supported by substantial evidence." Estrada-Posadas v. INS, 924 F.2d 916, 918 (9th Cir. 1991).

To establish eligibility for asylum, applicants must establish that they are refugees based on either past persecution or a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C. §§ 1101(a) (42) (A); 1158(a); Lazo-Majano v. INS, 813 F.2d 1432, 1434 (9th Cir. 1987). The burden is on the alien to establish eligibility for asylum. See Estrada-Posadas, 924 F.2d at 918. An alien's testimony alone, however, can be sufficient to establish a well-founded fear of persecution if the testimony is credible, persuasive, and specific. Id. at 918-19; Desir v. Ilchert, 840 F.2d 723, 726 (9th Cir. 1985).

Persecution "involves the infliction of suffering or harm upon those who differ (in race, religion or political opinion) in a way regarded as offensive." Desir, 840 F.2d at 727 (quotation omitted). The dangers faced by asylum applicants, however, must differ appreciably from dangers faced by fellow citizens. See Vides-Vides v. INS, 783 F.2d 1463, 1469 (9th Cir. 1986).

Past persecution alone can suffice to establish an asylum claim. Desir, 840 F.2d at 729. To establish entitlement to asylum based on a well-founded fear of future persecution, applicants must demonstrate both a subjective and an objective fear of persecution. Estrada-Posadas, 924 F.2d at 918. "The subjective component requires that the fear be genuine, while the objective component requires a showing by credible, direct and specific evidence" that the fear of persecution is reasonable. Rodriguez-Rivera v. INS, 848 F.2d 998, 1002 (9th Cir. 1988); See also Estrada-Posadas, 924 F.2d at 918.

Massoumi-Mohajer contends that the BIA erred in finding that he had failed to established past persecution or a well-founded fear of future persecution based on (1) his family relationship to former high ranking officials of the Iranian government under the Shah, (2) his military service under the Shah, and (3) the confiscation of his personal property after he left Iran.¹ 

1. Family Relationships to Former High Officials.

Massoumi-Mohajer contends that he faces persecution because he is a relative and friend of former high ranking officials in the Shah's government. Massoumi-Mohajer submitted the affidavits and declarations of three former high officials under the Shah, two former ambassadors and a former general, which support his contention that he and his family face persecution if they were to return to Iran.

In addition, Massoumi-Mohajer testified that several of his brothers were high ranking officials in the Shah's government. One brother, Nasrollah, a four-star general, has been repeatedly arrested and has not been allowed to leave Iran. Another brother, Hossein, was a colonel in the army and an assistant Minister of Agriculture. Massoumi-Mohajer testified that Hossein, who is now a permanent resident of the United States, had been in the United States for medical treatment at the time of the revolution and thus was saved from the new government but that Hossein's immediate superior, the Minister of Agriculture, had been executed shortly after the revolution. All of Hossein's property, however, has been confiscated. Massoumi-Mohajer also testified that a general who was a lifelong friend of Massoumi-Mohajer was assassinated in Paris, France and another had been imprisoned in Iran but now was released. Massoumi-Mohajer stated that after his arrival in the United States, he learned that Hossein's son (Massoumi-Mohajer's nephew), who still lives in Iran, had been arrested. Massoumi-Mohajer stated that his nephew had been detained because the government was seeking information about Hossein concerning his failure to return to Iran. Massoumi-Mohajer also stated that the nephew's property was confiscated even though he had not left the country. Massoumi-Mohajer also learned that since his departure from Iran, the government had confiscated his interest in a medical clinic and in real estate.

Massoumi-Mohajer testified that when he and his wife were still in Iran, they were harassed because of their family and personal relationship with former members of the Shah's regime and their pro-western tendencies. Massoumi-Mohajer's wife testified that she had been forced to resign from her position at the Ministry of Education and that she feared that her children would be persecuted in Iran as "elitists" because of their western upbringing. Massoumi-Mohajer contends that this evidence, at the very least, establishes a well-founded fear of persecution. We disagree.

In rejecting Massoumi-Mohajer's application for asylum, the BIA accepted Massoumi-Mohajer's testimony as credible, but found that he had failed to establish a well-founded fear of persecution. The BIA observed that Massoumi-Mohajer had remained in Iran for four years after the overthrow of the Shah's regime and that prior to his departure from Iran his life was not threatened in any way despite his close relationship to numerous high ranking officials in the Shah's government and despite the repeated detention of his brother, Nasrollah, a four-star general, who at the time of the asylum hearing was not imprisoned. The BIA also acknowledged that the government may have renewed its interest in his other brother, Hossein, as evidence by the arrest and questioning of Hossein's son. But given that the nephew had been arrested and released repeatedly even before Massoumi-Mohajer left Iran (while Massoumi-Mohajer was not arrested), it is reasonable for the BIA to conclude that the alleged persecutors' decisions whether or not to harass Massoumi-Mohajer are independent of arrests of his nephew.

The BIA's finding that family members of former high ranking officials generally are not subject to persecution is also supported by the record. First, much of Massoumi-Mohajer's testimony regarding acts of persecution involve the actual high ranking officials themselves, rather than their family members. Only the arrest and questioning of Hossein's son, arguably, shows evidence of persecution based on a family relationship to a former high ranking official. Second, the affidavits submitted by Massoumi-Mohajer, which assert that the family members of former high ranking officials are subject to persecution in Iran, are speculative and conclusory. See Haftlang v. INS, 790 F.2d 140, 144 (D.C. Cir. 1986) (letters from former high ranking Iranian officials stating that petitioner's family was closely connected to the Shah and that petitioner would likely be persecuted if returned to Iran were conclusory and insufficient to establish even a prima facie case of asylum); see also Shoaee v. INS, 704 F.2d 1079, 1084 (9th Cir. 1983) (petitioner failed to state a prima facie claim for asylum even though he alleged that his family's close connection to the Shah resulted in travel restrictions, loss of employment and pension, and other hardships; court held that petitioner had "only established that it is likely that his family's political fortunes have declined"). Accordingly, the BIA did not err in finding that Massoumi-Mohajer had failed to demonstrate that, in general, family members of former high ranking officials under the Shah have a well-founded fear of persecution. See Estrada-Posadas, 924 F.2d at 918.² 

2. Massoumi-Mohajer's Military Service.

Massoumi-Mohajer contends that he faces persecution because of his service in the Shah's military. Massoumi-Mohajer testified that prior to the Iranian revolution, he had been a medical doctor in the Shah's military and had held the rank of colonel. After the revolution, Massoumi-Mohajer continued with his medical practice both in the military, serving as a field doctor during the Iran-Iraq war, and in his own clinic. Massoumi-Mohajer voluntarily left the military three years after the revolution due to medical problems. Massoumi-Mohajer also testified that the Iranian medical union, on which Massoumi-Mohajer relied for protection from the government, had been disbanded.

The BIA found that (1) Massoumi-Mohajer's life was never threatened while in Iran, (2) his status as a physician is unchanged, even if the medical union has been disbanded, (3) his property was confiscated because he had left Iran, (4) Massoumi-Mohajer remained, without incident, in the military under the new regime for approximately three years, (5) Massoumi-Mohajer was allowed to travel abroad, with his family, albeit after bribing various government officials, and (6) Massoumi-Mohajer failed to demonstrate that officers of similar rank and position are subject to persecution in Iran. Given these circumstances, we conclude the BIA did not err in finding that Massoumi-Mohajer had failed to demonstrate a well-founded fear of persecution based on his military service under the Shah.

3. Confiscation of Massoumi-Mohajer's Property in Iran.

Massoumi-Mohajer contends that the confiscation of his property in Iran after he left constitutes both past persecution and a well founded fear of future persecution.

After his arrival in the United States, Massoumi-Mohajer learned from his sister in Iran that the government had confiscated his interest in his medical clinic and real estate holdings. The BIA found that Massoumi-Mohajer had failed to show any persecutory intent on the government's part in confiscating Massoumi-Mohajer's property after he failed to return to Iran. This finding is supported by substantial evidence. By Massoumi-Mojaher's own account, the property was confiscated because he failed to return to Iran. Moreover, Massoumi-Mohajer admitted that it was common for the government to confiscate private property of people who had left the country. Massoumi-Mohajer also stated that the other doctors, who owned shares in the clinic and were still in Iran, retained their ownership interests. Thus, the BIA reasonably concluded that the confiscation did not establish persecution or that Massoumi-Mohajer was treated any different than the general population. See Vides-Vides, 783 F.2d at 1469 (dangers faced by asylum applicants must differ appreciably from dangers faced by fellow citizens).

On appeal Massoumi-Mohajer argues that the confiscation of his nephew's property demonstrates the government's persecutory intent. This argument is without merit. Massoumi-Mohajer testified that the government had confiscated all of the property belonging to his brother, Hossein, after he left Iran. Massoumi-Mohajer went on to state that Hossein's son had been arrested and his property confiscated as part of the government's attempt to get information about Hossein. Given the timing of the confiscation of Massoumi-Mohajer's property, it was reasonable for the BIA to conclude that the property was taken as a result of his emigration. Accordingly, the BIA did not err in concluding that the confiscation did not establish Massoumi-Mohajer's eligibility for asylum. See Estrada-Posadas, 924 F.2d at 918.

To obtain withholding of deportation, applicants must show that, if deported, they face a clear probability of persecution if returned to their country of origin on account of race, religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C. § 1253(h); Lazo-Majano, 813 F.2d at 1434. An applicant who fails to meet the standard for asylum necessarily fails to meet the more stringent standard for withholding of deportation. Diaz-Escobar v. INS, 782 F.2d 1488, 1491 (9th Cir. 1986). Because we find that Massoumi-Mohajer failed to meet his burden of proof under the more lenient "well-founded fear" standard for asylum, we conclude that the BIA did not err in finding that Massoumi-Mohajer is not entitled to withholding of deportation under the more strict "clear probability of persecution" standard.

The petition for review is DENIED.