Rahimzadeh v. Holder

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

CHANGIZ RAHIMZADEH, 
Petitioner, No. 08-73985
v.
 Agency No.
98-764-810
ERIC H. HOLDER JR., Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Argued and Submitted
March 9, 2010—Seattle, Washington

Filed July 26, 2010

Before: A. Wallace Tashima, Raymond C. Fisher, and
Marsha S. Berzon, Circuit Judges.

Opinion by Judge Berzon

10673
10676 RAHIMZADEH v. HOLDER
COUNSEL

Randy J. Tanner and Matthew B. Hayhurst, Boone Karlberg
P.C., Missoula, Montana, pro bono counsel for the petitioner.

Tony West, Terri J. Scadron, and Corey L. Farrell, Civil Divi-
sion, U.S. Department of Justice, Washington, DC, for the
respondent.

OPINION

BERZON, Circuit Judge:

Changiz Rahimzadeh (Rahimzadeh) testified that he was
persecuted first in Iran by the government on account of his
political activity and later in the Netherlands by Muslim
extremists on account of his conversion to Christianity. The
Immigration Judge (IJ) deemed Rahimzadeh’s testimony
credible and granted withholding of removal to Iran, but
denied asylum from, and withholding of removal to, the Neth-
erlands. The IJ concluded that Rahimzadeh had not suffered
past persecution in the Netherlands and that his fear of future
persecution was not objectively reasonable, because he did
not show that Dutch authorities were unable or unwilling to
control his attackers. After the Board of Immigration Appeals
(BIA) affirmed without opinion, Rahimzadeh petitioned this
court for review. We deny the petition, for reasons that will
duly appear.

I. BACKGROUND

A. Rahimzadeh’s Testimony

Rahimzadeh entered the United States on a B-1 visa on
September 6, 2006. He applied for withholding of removal to
Iran, and asylum from, and withholding of removal to, the
 RAHIMZADEH v. HOLDER 10677
Netherlands on November 6, 2007.1 In his removal hearing,
Rahimzadeh testified to the abuse he suffered in Iran because
of his political leanings and in the Netherlands because of his
religious beliefs. The IJ deemed Rahimzadeh’s testimony
credible, and the BIA did not find otherwise, so “we accept
as undisputed the testimony of the applicant.” Baballah v.
Ashcroft, 367 F.3d 1067, 1073 (9th Cir. 2004) (citation omit-
ted).

Rahimzadeh was born on April 19, 1964 to a Muslim fam-
ily in Tehran, Iran, where he lived until he turned sixteen. At
that time, his family moved to the nearby city of Karaj
because of difficulties arising from their pro-monarchy politi-
cal leanings. Rahimzadeh helped the Mujahedin movement
oppose the Islamic Republic, although he never became a
Mujahedin member. Police arrested him for involvement with
the Mujahedin and sent him to Evin prison, where guards
interrogated and tortured him for three to four days using
techniques such as beating his feet with cables and contorting
his body into positions so he could not breathe. Rahimzadeh
was convicted of aiding terrorists and held in prison for
approximately three years.

After he was released, police arrested Rahimzadeh twice
more for attempting to escape Iran without permission. On the
first occasion, they sent him to Evin prison, where he
attempted suicide; on the second, they held him for nineteen
days. At some point, a doctor in Iran prescribed medication to
Rahimzadeh to treat PTSD.

Rahimzadeh later traveled to Turkey and Japan. While in
Japan, he converted to Christianity and was baptized. After
two years, in 1992, Japanese officials ordered him deported to
Iran, but he went to the Netherlands instead and applied for
asylum, which was granted in 1996.
1
Although there were issues raised regarding the timeliness of the asy-
lum application, the IJ found the application timely.
10678 RAHIMZADEH v. HOLDER
While in the Netherlands, Rahimzadeh practiced Christian-
ity, proselytized to Muslims, including a visit to a Dutch
mosque, and in 1994 gave a televised interview during which
he discussed the torture and abuse he suffered in Iran. In
1999, unidentified people whom Rahimzadeh believed to be
Muslims from Morocco came to his home in Amersfoort, put
a knife to his throat, blindfolded him, laid him on the floor,
read the Koran, and beat his feet with cables, all while com-
plaining of his conversion to Christianity. The invaders threat-
ened to kill him if he reported the incident to the police. After
the incident, fearing for his safety, Rahimzadeh went to Can-
ada for three months and to the United States for five, on tour-
ist visas. He then returned to the Netherlands to be with his
brother, with whom he feels close. (Both his sister and brother
live in the Netherlands and remain Muslims.)

Rahimzadeh again experienced difficulties in the Nether-
lands in 2005, when he began to receive anonymous threaten-
ing calls to his cell phone. He believed the callers to be
fanatical Muslims based in the Netherlands. They threatened
to kill him because of his religious conversion and warned
that they would hurt or kill his sister if he reported the calls
to police. Rather than report the calls, Rahimzadeh traveled
again to the United States on a tourist visa for two to three
months. On his return to the Netherlands the phone calls
started again. Rahimzadeh did not buy a new cell phone
because of the cost and his belief that extremist Muslim
groups would find his new number.

Ultimately, while Rahimzadeh was still living in Amers-
foort, four people carrying guns forced him into a car for ten
to fifteen minutes. They threatened to kill him and harm his
family if he continued to attend his church and to kill his sis-
ter if he reported the incident to police.

Rahimzadeh did not report this incident — or any other of
the threats and attacks — to Dutch police. Instead, one month
after the last incident, he left again for the United States.
 RAHIMZADEH v. HOLDER 10679
Before his departure, he stayed briefly in Amsterdam, where
he felt unsafe because he perceived the Netherlands to be a
small country with a large Muslim population and approxi-
mately “280,000 fanatic[s]” from whom the authorities were
unable to protect him. Rahimzadeh fears for his life if he
returns to the Netherlands.

B. Other Evidence

Rahimzadeh presented expert testimony that he suffers
from PTSD arising from the torture in Iran and the kidnapping
in the Netherlands. He also presented documentary evidence
detailing Islamic radicalism in the Netherlands and death
threats to Muslims who convert to Christianity.

The government offered documentary evidence as well,
including the 2006 U.S. Department of State Country Reports
for the Netherlands, indicating that the Dutch government “at
all levels . . . did not tolerate [abuse of the right to freedom
of religion], either by governmental or private actors,” that the
Netherlands had taken “firm action against groups espousing
violence in support of an Islamic extremist agenda,” that the
law and the judiciary provide effective relief for abuses of
human rights, that police forces are “generally effective,” and
that the government takes steps to deal with any shortcomings
in its human rights record.

C. IJ and BIA Decisions

The IJ credited Rahimzadeh’s testimony; granted withhold-
ing of removal to Iran under section 241(b)(3) of the Immi-
gration and Nationality Act (INA); did not reach his
application for withholding of removal to Iran under CAT;
and denied asylum from, and withholding of removal to, the
Netherlands. Although the IJ found that Rahimzadeh suffered
abuse rising to the level of persecution in the Netherlands on
account of his religion, the IJ determined that the Muslims
who abused Rahimzadeh were neither government agents nor
10680 RAHIMZADEH v. HOLDER
individuals whom the government was unable or unwilling to
control. Noting that Rahimzadeh failed to report the incidents
to authorities, the IJ observed that recourse to the authorities
likely would not have been futile, because country reports
indicate that the Dutch government seeks to promote and pro-
tect religious liberty and that the law and judiciary provide
effective means of addressing individual instances of private
violence.

The BIA affirmed without opinion. Rahimzadeh timely
petitioned for review.

II. DISCUSSION

Where, as here, the BIA affirms without opinion, the IJ’s
decision is the final agency determination for purposes of this
court’s review. Renteria-Morales v. Mukasey, 551 F.3d 1076,
1081 (9th Cir. 2008). We review the IJ’s legal determinations
de novo, subject to established principles of deference.
Ornelas-Chavez v. Gonzales, 458 F.3d 1052, 1055 (9th Cir.
2006). We must uphold the IJ’s factual findings “if supported
by reasonable, substantial, and probative evidence on the
record.” Id. at 1056 (internal quotations omitted). Thus,
“[e]ven if we might have reached a conclusion different from
that reached by the [IJ], we may not reverse unless we deter-
mine that any reasonable factfinder would have been com-
pelled to reach that conclusion.” Lolong v. Gonzales, 484 F.3d
1173, 1178 (9th Cir. 2007).

[1] The Attorney General has discretion to grant asylum to
any alien who qualifies as a “refugee” within the meaning of
section 101(a)(42)(A) of the INA. See 8 U.S.C. § 1158(b)(1).
The applicant has the burden to establish his status as a refu-
gee, id. § 1158(b)(1)(B)(i), defined as a person “unable or
unwilling” to return to his home country “because of persecu-
tion or a well-founded fear of persecution on account of race,
religion, nationality, membership in a particular social group,
or political opinion,” id. § 1101(a)(42)(A); Navas v. INS, 217
 RAHIMZADEH v. HOLDER 10681
F.3d 646, 654 (9th Cir. 2000). Central to this case is the
requirement that, to demonstrate persecution within the mean-
ing of the Act, the applicant show that abuse was “committed
by the government or forces the government is either unable
or unwilling to control.” Knezevic v. Ashcroft, 367 F.3d 1206,
1211 (9th Cir. 2004); Navas, 217 F.3d at 655-56.

[2] Dutch officials did not participate in or sponsor the
attacks on Rahimzadeh, so Rahimzadeh must establish that
the Dutch government was unable or unwilling to control his
attackers. He has not done so. Rahimzadeh never reported the
abuse to police; instead, his evidence of the government’s
inability or unwillingness to stop the attacks consists solely of
a private threat of harm and the presence of what he estimates
to be 280,000 extremist Muslims in the Netherlands. In con-
cluding that Rahimzadeh failed to carry his burden to estab-
lish the Dutch government’s inability or unwillingness to
control his attackers, the IJ relied on the fact that Rahimzadeh
had never reported the abuse and on Department of State
country reports. Rahimzadeh claims that (1) the IJ errone-
ously imposed a reporting requirement for asylum, and (2) the
IJ erroneously relied on country reports in finding that the
Dutch authorities would have been able to control his attack-
ers. Given the record and the IJ’s reasoning, we cannot agree.

Where the persecutor is not a state actor, “we consider
whether an applicant reported the incidents to police, because
in such cases a report of this nature may show governmental
inability to control the actors.” Baballah, 367 F.3d at 1078;
see also Andriasian v. INS, 180 F.3d 1033, 1037, 1042-43
(9th Cir. 1999); Singh v. INS, 94 F.3d 1353, 1360 (9th Cir.
1996). The reporting of private persecution to the authorities
is not, however, an essential requirement for establishing gov-
ernment unwillingness or inability to control attackers. See
Ornelas-Chavez, 458 F.3d at 1057. A government’s inability
or unwillingness to control violence by private parties can be
established in other ways — for example, by demonstrating
that a country’s laws or customs effectively deprive the peti-
10682 RAHIMZADEH v. HOLDER
tioner of any meaningful recourse to governmental protection.
See, e.g., In re S-A-, 22 I. & N. Dec. 1328, 1330, 1332-33,
1335 (B.I.A. 2000).

In In re S-A-, a Moroccan woman suffered emotional and
physical abuse by her father because her liberal Muslim
beliefs clashed with his orthodox Muslim beliefs. 22 I. & N.
Dec. at 1329. He burned her thighs, beat her in the face with
a ring, and beat her at least once a week with his hands, feet,
and belt. Id. She never went to the police because her moth-
er’s previous attempts to get police protection had failed and
because under Muslim law, as enforced in Morocco, a father
has “unfettered” power over his daughter, including the abil-
ity to limit access to education and require her to stay at
home. Id. at 1330-31. In addition to being unproductive or
futile “in light of societal religious mores,” turning to the
police for protection also was “potentially dangerous.” Id. at
1332-33. The Country Report “corroborate[d] . . . testimony
concerning the futility and perils of seeking governmental
protection,” noting that few women report abuse because “do-
mestic violence is commonplace and legal remedies are gen-
erally unavailable to women” who, upon losing in court, “are
returned to the abusive home.” Id. at 1333. The BIA held that
“[a]lthough she did not request protection from the govern-
ment, the evidence convinces us that even if the respondent
had turned to the government for help, Moroccan authorities
would have been unable or unwilling to control her father’s
conduct.” Id. at 1335; cf. Castro-Perez v. Gonzales, 409 F.3d
1069, 1070-72 (9th Cir. 2005) (denying asylum to a Honduran
national who not only failed to report being raped twice by
her boyfriend but also failed to show otherwise the inability
or unwillingness of the Honduran government to control rape,
which is classified in Honduras as a crime and punishable by
imprisonment).

Prior interactions with the authorities also can establish a
government’s inability or unwillingness to provide protection.
See Ornelas-Chavez, 458 F.3d at 1054. In Ornelas-Chavez, a
 RAHIMZADEH v. HOLDER 10683
transgender Mexican national faced repeated abuse by private
and state actors. Id. His parents beat him, cousins and
acquaintances raped him, the police killed two of his homo-
sexual acquaintances, and, on one occasion, the police
arrested and detained him for several hours with the police
chief threatening to detain him longer in the future if he again
heard about him having sex with men. Id. His coworkers at
a state-run prison repeatedly beat and threatened him. Id. He
never reported abuse to police because “indifference and dan-
ger . . . characterized his dealings with government officials,”
and the police had inflicted the same type of abuse on him.
Id. at 1057. The court held that he “need not have reported . . .
persecution [at the hands of private parties] to the authorities
if he can convincingly establish that doing so would have
been futile or [would] have subjected him to further abuse.”
Id. at 1058.

[3] None of these cases, or any other we have found,
creates a freestanding reporting requirement to qualify for
asylum. The absence of a report to police does not reveal any-
thing about a government’s ability or willingness to control
private attackers; instead, it leaves a gap in proof about how
the government would respond if asked, which the petitioner
may attempt to fill by other methods. These methods, in addi-
tion to those already surveyed, might include showing that
others have made reports of similar incidents to no avail, see
Afriyie v. Holder, No. 08-72626, slip op. at p. 10662-63 (9th
Cir. July 26, 2010), or establishing that private persecution of
a particular sort is widespread and well-known but not con-
trolled by the government, see Avetova-Elisseva v. INS, 213
F.3d 1192, 1198 (9th Cir. 2000).

Rahimzadeh argues that the IJ did impose an absolute
reporting requirement and so erred. We disagree.

To establish that the IJ applied the wrong standard, Rahim-
zadeh cites the IJ’s statement of “disagree[ment] with
[Rahimzadeh’s] argument that he did not have to show that he
10684 RAHIMZADEH v. HOLDER
reported incidents in which he was harmed to government
authorities in order to establish past persecution in the Ninth
Circuit,” and also to the IJ’s subsequent determination of inel-
igibility for asylum from the Netherlands “due to [Rahim-
zadeh’s] failure to report incidents of harm to the police and
evidence that the Dutch authorities are responsive to reports
of religious extremism.”

[4] The objection is misplaced. While the IJ could have
crafted those sentences more artfully, in context it is clear that
the IJ treated the failure to report the persecution as merely
one factor in the assessment of the Dutch government’s will-
ingness and ability to control private extremists, not as a per
se bar to asylum. The IJ found that the reasons Rahimzadeh
gave for not reporting the abuse, namely the private threat of
retaliation and his perception of the Netherlands as being
home to thousands of fanatical Muslims, did not indepen-
dently satisfy his burden to establish that the Dutch authorities
would have been unable or unwilling to control his attackers,
particularly in light of Rahimzadeh’s failure to provide other
information about the record of the Dutch authorities in con-
trolling private extremists. On the record as a whole, the IJ
found, “circumstances strongly suggest that if [Rahimzadeh]
had sought help from the Dutch authorities, they would have
been willing and able to assist him” because the government
made “active efforts to address and control violence by radi-
cal religious groups.” Ultimately, the IJ concluded that
Rahimzadeh did not qualify for asylum “because he failed to
show that the harm he suffered occurred at the hands of his
government or an agent that his government was unwilling or
unable to control.”

[5] The IJ’s conclusion that the Dutch authorities in fact
would have been willing and able to control Rahimzadeh’s
attackers was supported by substantial evidence. The U.S.
Department of State’s 2006 Country Report on Human Rights
practices in the Netherlands notes that “[Dutch] law provides
for freedom of religion, and the government generally respec-
 RAHIMZADEH v. HOLDER 10685
t[s] this right in practice.” As noted above, “the law and judi-
ciary provide[ ] effective means of addressing individual
instances of [human rights] abuse” including “violence
against some religious and ethnic minorities,” and that “the
government [has taken] firm action against groups espousing
violence in support of an Islamic extremist agenda.” The 2006
U.S. Department of State International Religious Freedom
Report also indicates that “[t]he Government at all levels
sought to protect [the freedom of religion] in full and did not
tolerate its abuse, either by governmental or private actors.”

[6] Rahimzadeh contends that it was error to rely on the
State Department country profile of the Netherlands. Not so.
Even when an applicant is deemed credible, the IJ can rely on
other evidence in the record, including country reports, to
supplement the testimony. See, e.g., Castro-Perez, 409 F.3d
at 1072. Although general country-level information is ordi-
narily insufficient to contradict direct, specific, credited testi-
mony, see Afriyie, slip op. at p. 10664-65; see also Chand v.
INS, 222 F.3d 1066, 1078-79 (9th Cir. 2000), the IJ did not
use the country reports for that purpose. Instead, the IJ
accepted Rahimzadeh’s testimony regarding threats, incidents
of abuse, and all the other factual circumstances as to which
Rahimzadeh had direct knowledge. The IJ turned to the coun-
try reports only to assess the likelihood that government offi-
cials would control the persecution, as Rahimzadeh failed to
provide any useful evidence on that point through his testi-
mony. The IJ did not use the country reports to counteract
specific credible evidence of incidents inconsistent with the
country reports. Cf. Afriyie, slip op. at p. 10664-65.

Finally, that Rahimzadeh received private threats of retalia-
tion does not compel the conclusion that the Dutch govern-
ment is unable or unwilling to control private persecution. In
most cases of abuse by private actors, there will be at least an
implicit threat of retaliation for recourse to the authorities.
While private threats may explain an applicant’s reluctance to
go to the authorities, the question in an asylum case is
10686 RAHIMZADEH v. HOLDER
whether the police could and would provide protection. See
Lolong, 484 F.3d at 1178.

[7] In sum, substantial evidence in the record supported the
IJ’s conclusion that Rahimzadeh failed to carry his burden to
show the inability or unwillingness of police to provide that
protection. We thus cannot conclude that the record compels
the finding that Rahimzadeh is entitled to asylum.

III. CONCLUSION

Given that the burden was on Rahimzadeh to show that the
Dutch authorities were unable or unwilling to control his
attackers, we cannot say that the IJ erred in concluding that
he did not meet it. Because Rahimzadeh did not demonstrate
that he is eligible for asylum, his claim for withholding of
removal, governed by a more stringent standard, is also fore-
closed. Gomes v. Gonzales, 429 F.3d 1264, 1266 (9th Cir.
2005).

Petition DENIED.