Hossein Nahrvani v. Alberto Gonzales, Attorney General

B. FLETCHER, Circuit Judge,

dissenting.

I respectfully dissent from the denial of eligibility for asylum. The record compels a finding that Nahrvani experienced past persecution on account of his political opinion and religion and reasonably fears future persecution if he is returned to Germany or Iran. Nahrvani was granted asylum in Germany because of his persecution in Iran. Although Nahrvani felt safe in Germany for some time, that safety was compromised when the Iranian government discovered Nahrvani’s whereabouts. Iranian agents recommenced a campaign of persecution 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 Iranian government acted against Nahrvani on the basis of a statutorily 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 testimony 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 wellrfounded fear of future persecution.

Second, the IJ expressly denied asylum on the ground that Nahrvani 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 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 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 *1156brother escaped from prison with their father’s aid and fled to Germany, where they were granted asylum.

In Germany, Nahrvani married a prominent Christian pastor and converted to Christianity. When he became eligible to become a German citizen, he learned that the German government required him to present himself to the Iranian Consulate and renounce his Iranian citizenship as a prerequisite to naturalization. Nahrvani protested. He feared that announcing his presence to the Iranian Consulate would expose him to additional persecution — and this fear ultimately proved to be well-founded.

Nahrvani explained to the German authorities that renouncing 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 Iranian Consulate to renounce his citizenship. As Nahrvani predicted, 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 information 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 waiting for hours and then interrogated him regarding his reasons 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 Christianity, they ordered him to leave the Consulate. The Consulate 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 different 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 sentenced to death, and Iran has actually executed a number of individuals on that basis. The prominence of Nahrvani’s German 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 *1157shed your blood.” Another note 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 naming 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 “[Nahrva-ni’s] statements regarding his experiences with Muslim fundamentalists in both Iran and Germany are corroborated by the State Department reports.” In addition, Nahrvani’s testimony was corroborated by his wife’s testimony, 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 campaign of terror against Nahrvani does not comport with settled principles of immigration law.

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.” However, 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 compelling 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 *1158(9th Cir.2004). Here, in addition to being “menacing and specific,” ■ the multiple death threats against Nahrvani were accompanied by near-confrontations arid 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 persecution, 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 compounded 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 experiences “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 Na-rhvani do not appear “hollow” when viewed in light of the evidence documenting the number of times the Iranian government has murdered Iranian 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 Iranian asylees in Europe. Similarly, the death threats must be taken much more seriously when viewed in light of the evidence that the Iranian government views Muslims who convert 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 establishing a prima fa-cie 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 Hox-ha and Lim, we found that the threats experienced by the applicant did not rise to the level of persecution. However, these cases are clearly distinguishable. Unlike Nahrvani, Hoxha had no prior experience of persecution 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 imprisonment and torture at *1159the hands of the Iranian government, the Iranian government’s pattern and practice of pursuing Iranians living overseas, and the escalating pattern of harassment and vandalism in Germany, make the death threats against Nahrvani much more than “hollow and uniformly unpleasant,” as the majority suggests. Given these facts, the specific and menacing death threats made against Nahrvani are compelling 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 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 [petitioner] 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 government. 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 Germany 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 surviv- or of torture and imprisonment, 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 Christians. 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 acts of physical vandalism by Iranian government agents in Germany; b) the past physical torture and imprisonment of Na-rhvani 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 Christianity; 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 eligibility, persecution can be perpetrated by either governmental *1160forces 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 nongovernmental 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.

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 N'ahrvani’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 persecution. What matters instead is that the government is unwilling 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 Nahrva-ni 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 discouraged 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. According 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 séemed to take Nahrvani’s complaints more seriously after she became involved, she also testified that this change in attitude produced 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 complaints. There is no evidence that the German police ever tried to *1161control, much less succeeded in controlling, the Iranian agents.

The majority attempts to find support for its contrary conclusion 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 maintain faith in the German police, Boye conjectured that the police could have investigated without her knowledge. Nonetheless, she went on to reiterate that it appeared to her that the police did nothing to investigate or apprehend the perpetrators. 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 connections 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.

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 discourage Nahrvani from filing a complaint and closed any investigation 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 German government was unable to control the Iranian agents. In Mashiri, we held that an applicant seeking asylum from Germany 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 government detained but quickly released suspects). In Navas, we held that “arrests by police, without more, may not be sufficient to rebut claims that the government is unable or unwilling 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 F.3d at 1360. Indeed, such a *1162requirement would make little sense given the nature of this persecution.3

Although Nahrvani’s credible testimony, especially as corroborated 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 violence 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 persecution 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 assassination 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), evidence of a single prosecution does not compel a finding of governmental ability or willingness to control.4

In sum, Nahrvani demonstrated that the German government was either unwilling or unable to stop the Iranian government’s campaign of death threats, vandalism, and harassment against him, and the IJ’s contrary conclusion is not supported by substantial evidence.5

H: # * # i\i

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 torture 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 risking the assassination 'of her husband.

*1163For these reasons, I would find Nahrva-ni eligible for asylum and would remand for the attorney general to exercise discretion as to its grant.

. We have recognized that “evidence of harm to [a petitioner's family supports a finding of past persecution.” Salazar-Paucar v. INS, 281 F.3d 1069, 1075 (9th Cir.2002).

. 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.”

. This case is not one in which the asylum applicant failed to report incidents to or cooperate with the government. Nahrvani promptly reported incidents to the police and continued to do so even after the police discouraged him and proved ineffective at stopping the threats and harassment. He also described the perpetrators, reported that they were associated with the Iranian Consulate, and furnished the threatening notes.

. 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 . endangered 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 Nahrva-ni, unfortunately, this genie was already out of the bottle.

. 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 Germany 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 reenter Germany, 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.