Wednesday, March 10, 2010
Court Declines Review of ‘Westernized’ Iranian’s Persecution Fears
By STEVEN M. ELLIS, Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday declined to reopen removal proceedings for a 60-year-old Iranian who has lived in the United States for 23 years and claims she would be subject to persecution in Iran as a “westernized woman.”
A panel ruled 2-1 that Farangis Najmabadi did not demonstrate a change in conditions in Iran since her initial pre-9/11 asylum hearing and failed to show how her predicament was appreciably different from that of fellow citizens.
Judge Milan D. Smith Jr., joined by Judge Jay S. Bybee, wrote that even if “westernized women” were a disfavored group, Najmabadi failed to provide evidence of an individualized threat and could not establish a well-founded fear of future persecution.
Judge Harry Pregerson, citing Iran’s “widely known” record of human rights violations, dissented that Najmabadi should have the chance “to provide evidence regarding the persecution of individuals returned from the West to Iran, including ‘torture, flogging, executions, beheadings, and lash[ings].’ ”
Najmabadi came to the United States in 1986, studied fashion design, established a dress-making business, and now designs Western-style clothing for Iranian women. However, she overstayed her tourist visa and the former Immigration and Naturalization Service sought her removal in 1998.
An immigration judge denied Najmabadi’s application for asylum, withholding and relief under the Convention Against Torture in 2000, concluding she lacked a well-founded fear of future persecution. The Board of Immigration Appeals affirmed and the Ninth Circuit denied review.
Najmabadi moved to reopen in 2004 based on the changed circumstances in Iran following Sept. 11, 2001, but the board held that while “the situation in Iran continues to be deplorable, and...tensions with the United States appear to be increasing,” the evidence did not “establish a level of change that is linked to [Najmabadi’s] particular circumstances.”
The board noted that the record from Najmabadi’s original hearing contained the 1999 Country Reports on Human Rights Practices, which listed “systemic abuses…includ[ing] extrajudicial killings, summary executions, disappearances, widespread use of torture and other degrading treatment (including rape), and arbitrary arrest and prolonged detention.”
The board characterized Najmabadi’s evidence as describing “general conditions which affect the population at large” and “in evidence at the prior hearing.” It also concluded that there was no evidence “outside the realm of speculation” to show “returnees from the United States will likely face persecution.”
On appeal, Smith agreed, writing that the 2003 Country Report on which Najmabadi relied did not show previously unavailable, material evidence because it was not “qualitatively different” than the 1999 report and described similar examples in “almost carbon copy form.”
He said that Najmabadi did not show enough “individualized relevancy,” and rejected her claim that she would be persecuted for being “active in trying to change Iran and the situation for women,” and for wanting “to make sure Iranian women get to wear [her clothing] one day.”
Smith also declined to address Najmabadi’s claim that she would be subject to persecution as a “westernized” woman, concluding that the BIA’s denial of the motion based on Najmabadi’s failure to introduce previously unavailable, material evidence meant that the court did not need to reach the question.
Pregerson, however, pointed to Amnesty International and U.S. State Department reports identifying risks to Iranians who are returned from the West or hold Western citizenship, and wrote that Najmabadi met the minimum threshold for relief because her evidence showed at least “a one in ten chance of persecution…based on her Western appearance and affiliation.”
The case is Najmabadi v. Holder, 05-72401.
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