Posted on September 28, 2004

Ninth Circuit Says Violence Against Foreigners in Germany Is Ground for U.S. Asylum

Kenneth Ofgang, Metropolitan News-Enterprise (Los Angeles), Sep. 23

Persistent violence against nonwhite immigrants in Germany is a valid basis for a grant of asylum, the Ninth U.S. Circuit Court of Appeals ruled yesterday, overruling immigration authorities.

The panel said the Board of Immigration Appeals was in error when it ruled that Zakia Mashiri could not qualify for asylum because she could be safely relocated in Germany. Substantial evidence does not support the BIA’s conclusion, Senior Judge Betty B. Fletcher wrote.

The case was remanded to the board for reconsideration.

Mashiri and her husband are natives of Afghanistan who moved to Germany in the 1970s. Mashiri became a citizen and raised her two children — also German citizens — in Bergedorf, where the family lived for many years.

Mashiri testified that she and her family were subjected to numerous incidents involving racist threats, harassment, discrimination and violence between 1990 and 1996. Her husband was attacked by passenger in his taxicab, who likened latter-day foreigners to Jews in Germany’s Nazi period, cursed him, and told him to leave the country and could not obtain work in the electronics field when he decided to quit driving a cab, she said.

The couple were in constant fear of local neo-Nazis who attacked other foreigners, were met with a death threat on their car’s windshield that included the words “Heil Hitler,’ had their tires slashed twice and their apartment ransacked, Mashiri said. And other foreigners in the neighborhood were attacked and beaten with sticks a day after a Nazi group distributed leaflets critical of foreigners, she told the immigration judge.

The above incidents, as well as harassment of their children at school, persuaded the couple they could not be safe unless they left Germany.

The immigration judge found Mashiri to be a credible witness, but said that not all of the incidents to which she testified appeared to be racially motivated. In any event, the IJ said, there was no showing that the problems she faced were nationwide and Mashiri failed to establish that she “could not have gone to any of the other 15 states in Germany and lived there.”

The BIA affirmed, but Fletcher said the decision was erroneous as a matter of law.

Mashiri’s testimony established that she and her family were persecuted on account of their ethnicity, and that the government was unwilling or unable to control the violence, the judge concluded.

“Zakia testified that the police made no arrests after [her husband[ Farid was beaten; that officials at [her son] Hadjir’s school flatly refused to help the Mashiris; that the police quickly closed their investigation into the attack on the Mashiris’ apartment as simple theft, despite evidence that the attack was motivated by anti-foreigner hatred; and that the police told the family after [her older son] Asil’s beating [by neo-Nazi youths who followed him from school] that such things happened all the time and that foreigners ‘better try to take care of [themselves], ‘” Fletcher wrote.

The testimony was bolstered, the judge added, by evidence of neo-Nazi influence in the German military and what Amnesty International called “a clear pattern of police ill-treatment of foreigners and members of ethnic minorities” in Germany.

Once Mashiri established past persecution by credible evidence, Fletcher explained, the burden shifted to the government to show that her fear of future persecution was not well-founded. The IJ erred in placing that burden on the applicant, the judge said, adding that the conclusion she could safely relocate within the country “rests on a mistake of law and is not supported by substantial evidence.”

Fletcher cited a State Department report suggesting that while anti-foreigner violence may be on the wane in Germany, it remains a problem “within society as a whole.” This contradicts the IJ’s suggestion that the problem is regional, rather than national, in scope, the appellate jurist declared.

Senior Judge Procter Hug Jr. and Kim McLane Wardlaw concurred in the opinion.

The case is Mashiri v. Ashcroft, 02-71841.