holding that record did not compel finding of well-founded fear of future persecution where Indo-Fijian petitioner had been hit and kicked by ethnic Fijians and there was no evidence that rape of petitioner’s cousin’s wife and murder of cousin were tied to petitioner or perpetrated on account of race or political opinion
How later courts described this case
- holding that record did not compel finding of well-founded fear of future persecution where Indo-Fijian petitioner had been hit and kicked by ethnic Fijians and there was no evidence that rape of petitioner’s cousin’s wife and murder of cousin were tied to petitioner or perpetrated on account of race or political opinion
- holding that general evidence of “poor conditions for, and discrimination against, ethnic Indians” was not suffi- cient to make out an asylum claim, because “[p]articularized individual persecution, not merely conditions of discrimination in the country of ori- gin, must be shown before asylum will be granted”
- holding that "attacks on family members do not necessarily establish a well-founded fear of persecution absent a pattern of persecution tied to the [applicant]," and noting that the undisturbed presence of family members in the home country is relevant to the evaluation of the applicant's fear
- holding that, in the case of an Indo-Fijian member of the Labor party who was forced from a vehicle at gunpoint, jailed, hit, kicked, and coercively questioned and threatened about political affiliations, a factfinder could have found persecution but was not compelled to do so
Written by the judges who cited it.
The opinion
PREGERSON, Circuit Judge,
dissenting.
I dissent because Prasad established past persecution on account of his political beliefs. He therefore qualifies as a refugee eligible for asylum under 8 U.S.C. § 1101 (a)(42)(A).
As the majority correctly notes, because neither the immigration judge nor the Board of Immigration Appeals (BIA) challenged Prasad’s credibility, we must accept his testimony as true. Prasad established that he was an active member of the Labour Party which represents the interests of ethnic Indians on Fiji. Among the hostilities Prasad describes which ensued after the 1987 coup, one incident, in particular, supports Prasad’s claim that he has been persecuted. In September 1987, Prasad was arrested while driving his truck in his village. Eight to ten Native Fijians stopped him at a roadblock. At least two were in army uniforms. The Fijians ordered him out of his truck at gunpoint, punched him in the stomach, and kicked him in the back. They then loaded Prasad into another truck and took him to the police station. At the police station, his captors accused him of being a Labour Party member. They interrogated him about his support for the Labour Party and his work distributing pamphlets. Army personnel locked Prasad in a cell for four to six hours. When they released him, they warned him that if he worked for the Labour Party again, he would be arrested. When Prasad reported this incident to the police, they refused to respond because Prasad was a member of the Labour Party.
The majority’s conclusion that Prasad was not persecuted on account of his political beliefs is not supported by the facts of this ease or the law of this circuit. As the majority states, this court has defined persecution to be the “infliction of suffering or harm upon those who differ (in race, religion, or political opinion) in a way regarded as offensive.” Card oza-Fonseca v. INS, 767 F.2d 1448, 1452 (9th Cir.1985). The majority’s finding that Prasad was not persecuted flies in the face of this clear and accepted definition. The record shows that Prasad was clearly “harm[ed]” and made to “suffer[]” because of his political beliefs. Fijian army personnel and others punched, kicked, interrogated, and imprisoned Prasad specifically because he supported the Labour Party. The facts could not be more clear — Prasad was harmed and he suffered. The record would compel any reasonable fact-finder to conclude that Prasad was persecuted. See Elias-Zacarias, 502 U.S. 478, 483 , 112 S.Ct. 812, 817 , 117 L.Ed.2d 38 (1992); Shirazi-Parsa, 14 F.3d 1424, 1427 (9th Cir.1994).
The majority relies on Mendez-Efrain v. INS, 813 F.2d 279 (9th Cir.1987) for the proposition that a brief detention does not constitute persecution. Mendez-Efrain is inapposite. There we found no past persecution of a petitioner who was detained by the Salvadoran military for four days. We failed to find persecution, however, not because of the length of the detention, but because the detainee was let go unharmed and allowed to leave the country shortly after. Id. at 283 . Prasad, on the other hand, was beaten and threatened.
Prasad’s case is more akin to Del Valle v. INS, 776 F.2d 1407, 1412 (9th Cir.1985). In Del Valle , we found past persecution of an alien who was blindfolded, interrogated and beaten by security forces. As in Prasad’s case, the petitioner in Del Valle was hurt, but held for fewer than twenty-four hours.
While it is true that in Desir v. Ilchert, 840 F.2d 723, 729 (9th Cir.1988), the petitioner who we found had been “persecuted” reported more incidents of beating and detention than did Prasad, that does not preclude us from applying the plain definition of persecution to Prasad’s case and concluding that it was met. In the end, the majority relies on out of circuit law to support its conclusion that being beaten and detained does not amount to persecution.
I believe that we should reverse the BIA’s finding of no past persecution.