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Mashiri v. Ashcroft - 383 F.3d 1112 (9th Cir. 2004)


In order to be eligible for a grant of asylum, an alien must establish that she is unable or unwilling to return to her country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C.S. § 1101(a)(42)(A). The alien may meet her burden with evidence of (1) a past incident, or incidents, that rose to the level of persecution; (2) that was on account of one of the statutorily-protected grounds; and (3) that was committed by the government or forces the government was either unable or unwilling to control. Proof of past persecution gives rise to a presumption of a well-founded fear of future persecution and shifts the evidentiary burden to the government to rebut that presumption.


Zakia Mashiri and her husband Farid were natives of Afghanistan. The Mashiris moved to Germany, and settled there. Farid, who worked as a taxi driver, was beaten twice by passengers in his cab. Despite their German citizenship and the family's many years in Bergedorf, the Mashiris repeatedly experienced anti-foreigner threats and violence in Germany. Mashiris were forced to hide from an anti-foreigner mob in their neighborhood. The Mashiris decided that they had no choice but to leave Germany. They applied for asylum and withholding of deportation. The immigration judge denied their applications. The Board of Immigration Appeals (BIA) affirmed the denial of the asylum application. The petitioners sought the review of the order.


Were the petitioners entitled to asylum?




The United States Court of Appeals for the Ninth Circuit granted the petition for review and remanded the case so that the Attorney General could determine whether to grant relief. The court also remanded for further consideration of the alien's claim for withholding of deportation. The court held that Mashiri was entitled to asylum because her testimony compelled a finding of past persecution and because the government failed to rebut the presumption of a well-founded fear of future persecution. Mashiri testified that her family received a death threat, that their vehicle's tires were slashed, and that their apartment was ransacked. The alien was forced to run from an anti-foreigner mob, her husband was attacked twice while driving his taxi cab, and both of her young sons were attacked. The police made no arrests after the husband was attacked, and school officials refused to help the alien after her sons were attacked. The immigration judge erred by requiring Mashiri to disprove relocation within Germany as safe, as it was the government's burden to prove that relocation was safe. The immigration judge’s conclusion regarding relocation was not supported by substantial evidence.

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