Azad v. INS ( 1999 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 98-60564
Summary Calendar
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TOORAGE RAHBAR AZAD,
Petitioner,
versus
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
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Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A 75 219 471
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October 13, 1999
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Toorage Rahbar Azad, a citizen of Iran, petitions for review
of an order of the Board of Immigration Appeals (BIA) dismissing
his petition for asylum. He argues that the BIA’s decision fails
to indicate that it gave meaningful consideration to his evidence
showing that his fear of return is well-founded. He also argues
that the BIA erroneously applied the legal standard governing
asylum claims.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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“While we do not require that the BIA address evidentiary
minutiae or write any lengthy exegesis,” we do require that the
BIA’s decision reflect that it gave meaningful consideration to
all the relevant evidence regarding the fear of future
persecution. Abdel-Masieh v. INS, 73 F.3d 579, 585 (5th Cir.
1996). The BIA’s opinion must “‘reflect that it has heard and
thought and not merely reacted.’” Opie v. INS, 66 F.3d 737, 740
(5th Cir. 1995) (citation omitted).
The BIA did not adopt the findings of the immigration judge,
and its own findings were especially limited. In particular, the
BIA failed to discuss the factor that precipitated Azad’s flight
from Iran, the authorities’ arrest of a Mojahedin operative with
whom Azad had links. Azad testified that he had aided the
operative by renting her an apartment in his own name and that
the operative was a frequent visitor to his shop. Likewise, the
BIA’s decision reflects no consideration of the danger someone
such as Azad would face in Iran once he had been linked with the
Mojahedin. Thus, even though the BIA assumed that Azad’s
testimony was credible, it rejected his application without any
indication that it had considered the substance of his claim.
The BIA’s decision mentioned only one fact, that Azad’s father
had been detained after his son fled from Iran, and there is no
indication that even that particular fact was considered as
corroboration of Azad’s other testimony (including testimony that
Azad was denied admission to a university because he was
suspected to be a dissident and that two of his friends were
arrested and executed for Mojahedin membership). The BIA’s
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decision does not “reflect that it has heard and thought and not
merely reacted.” Opie, 66 F.3d at 740.
Citing INS v. Aguirre-Aguirre, 119 S. Ct. 1439, 1449 (1999),
and Sanchez v. INS, 755 F.2d 1158, 1161-62 (5th Cir. 1985), the
INS insists that the BIA’s decision was sufficient. In Aguirre-
Aguirre, the Supreme Court noted that the alien had failed to
submit a brief to the BIA. 119 S. Ct. at 1449. In language that
the INS now quotes in part, the Court stated that “[i]n these
circumstances, the rather cursory nature of the BIA’s discussion
does not warrant reversal.” Id. In contrast, Azad did brief the
issue of whether he had shown a credible fear of persecution.
Aguirre-Aguirre does not authorize “cursory” consideration by the
BIA in these circumstances. Our decision in Sanchez is also
inapposite, because there we concluded that “there [was] language
in the record” indicating that “all of Sanchez’s arguments” had
been considered. 755 F.2d at 1162. Accordingly, Sanchez is
consistent with our cases requiring the BIA to show in its
decisions that it has given meaningful consideration to an
alien’s application. Abdel-Masieh, 73 F.3d at 585; Ganjour v.
INS, 796 F.2d 832, 839 (5th Cir. 1986); Ramos v. INS, 695 F.2d
181, 186 (5th Cir. 1983).
Azad also argues that the BIA erroneously applied the legal
standard governing asylum claims by requiring that he prove
likely persecution in Iran. He notes that the BIA’s order
indicated that it was denying relief because he had not
“establish[ed] that [he] is wanted by any authority in that
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country on the basis of his political opinion.” The INS
characterizes this statement as “loose language.”
Our decision in Mikhael v. INS, 115 F.3d 299, 305 (5th Cir.
1997), controls. There, the order adopted by the BIA required
the alien to prove that “‘he would be subject to persecution if
deported.’” Id. The remainder of the order “dispelled any
doubts about the soundness of [its] analysis” when it concluded
that Mikhael “‘must still show that he will be persecuted.’” Id.
We vacated the order of deportation and remanded for
reconsideration under the proper analysis. Id. at 306. Azad’s
case is indistinguishable. As in Mikhael, the BIA’s order
correctly identified that the issue was whether Azad could show a
“well-founded fear of persecution.” Nevertheless, the BIA
“abandoned” this course when it analyzed the evidence. Mikhael,
115 F.3d at 305. At that time, the Board indicated that Azad’s
evidence “[did] not establish that [he] is wanted by any
authority in that country on the basis of his political opinion.”
Further, the BIA “dispelled any doubts about the soundness of
[its] analysis,” Mikhael, 115 F.3d at 305, when it concluded that
“[h]aving failed to establish that point, the respondent’s
request for relief will be denied.” As in Mikhael, we must
vacate the BIA’s order and remand for reconsideration.
For the foregoing reasons, Azad’s petition for review is
GRANTED, and the order of the BIA is VACATED. We REMAND the
matter to the BIA for further proceedings consistent with this
opinion. We do not, however, intimate what conclusion the BIA
should reach on remand.