UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ABDUL GAFOOR; BIBI NURUN NISHA; No. 98-71201
FAYMEEZA NISHA; FARZANA NISHA;
INS Nos.
Petitioners,
A71-781-355
v. A71-781-356
A71-781-357
IMMIGRATION AND NATURALIZATION
A71-781-358
SERVICE,
Respondent. OPINION
On Petition for Review of an Order
of the Board of Immigration Appeals
Argued and Submitted
December 9, 1999--San Francisco, California
Filed November 3, 2000
Before: Diarmuid F. O'Scannlain, Michael Daly Hawkins,
and Sidney R. Thomas,1 Circuit Judges.
Opinion by Judge Hawkins;
Disssent by Judge O'Scannlain
_________________________________________________________________
1 Judge Thomas has been drawn to replace the late Circuit Judge Charles
E. Wiggins. He has read the briefs, reviewed the record, and listened to
the tape of oral argument held on December 9, 1999.
14035
COUNSEL
Jorge Rodriguez-Choi (argued) and Suzanne B. Friedman,
San Francisco, California, for the petitioners.
Alice E. Loughran, Office of Immigration Litigation, U.S.
Department of Justice, Washington, D.C., for the respondent.
_________________________________________________________________
OPINION
HAWKINS, Circuit Judge:
This is the latest in a long line of immigration cases involv-
ing claims of racial and political persecution against people of
14039
Indian descent living on the South Pacific island of Fiji. Like
those asylum-seekers before him, Abdul Gafoor claims he
was persecuted by ethnic Fijians on account of his Indian
background and that he and his family will be harmed if
forced to return to Fiji. We have taken the claims of Indo-
Fijians very seriously because of the severe mistreatment they
have suffered in their adopted country. Recent years have
brought about improvements in Fiji, and consequently we
have held in one case that changed country conditions rebut-
ted the fears of an Indo-Fijian woman that she would be per-
secuted if sent home. See Kumar v. INS, 203 F.3d 931 (9th
Cir. 2000). But the underlying racial tension between ethnic
and Indo-Fijians has persisted, and in the past several months
conditions in the country have deteriorated to their lowest
point in 13 years.
It is in the context of these developments that we review
the BIA's decision that Gafoor is not eligible for asylum and
that he and his family must return to Fiji.2 We conclude that
the BIA's decision is not supported by substantial evidence,
and we remand the case for a determination of whether recent
events support Gafoor's fear that he will be persecuted if
forced to return to Fiji.
I. FACTS AND PROCEDURAL BACKGROUND
In 1874, when the British Empire assumed control of Fiji,
the country was populated primarily by indigenous Fijians.
Beginning in 1879, however, indentured workers from India
were brought to Fiji to farm the expanding sugar plantations.
When the importation of indentured workers stopped in the
1920s, a new wave of migrant workers began arriving from
India, and by the mid-1960s Indo-Fijians accounted for more
than half of the country's population.
_________________________________________________________________
2 Gafoor is the primary applicant for asylum; the claims of his wife and
two children are derivative of his application.
14040
Fiji gained independence from Britain in 1970 and insti-
tuted a system of parliamentary democracy under the leader-
ship of Prime Minister Ratu Sir Kamisese Mara, an ethnic
Fijian. Due to the emigration of Indo-Fijians and an increase
in ethnic-Fijian birth rates, the population shifted again so that
Indo-Fijians were slightly outnumbered by ethnic Fijians.
Despite their similar size, however, the two groups remained
rigidly separate. Indo-Fijians, overwhelmingly Hindu or Mus-
lim, dominated the economy and professions, while ethnic
Fijians, almost exclusively Christian, controlled the nation's
military and its political structures. Racial intermarriage was
virtually non-existent.
In 1987, after two decades of rule by ethnic-Fijians, the
voters of Fiji elected the first government dominated by Indo-
Fijians. The administration was short-lived, however; in May
and October, the Fijian military staged two coups that ousted
the Indo-Fijian government. According to the U.S. State
Department, the "stated purpose of the 1987 military coups
was to ensure the political supremacy of the indigenous Fijian
people and to protect their traditional way of life and commu-
nal control of land." U.S. Dep't of State, Country Reports on
Human Rights Practices for 1992, at 566 (1993). To achieve
that purpose, the military installed an interim government led
by Former Prime Minister Sir Kamisese. This "unelected,
interim government" then promulgated a new constitution,
which "was never approved by a national referendum" and
which "ensur[ed] political dominance by ethnic Fijians." Id.
at 565. The constitution effectively wrote Indo-Fijians out of
the government, reserving a majority of seats in Parliament
for ethnic Fijians, requiring the election of an ethnic Fijian
Prime Minister, and ensuring the selection of an ethnic Fijian
President. See id.
In addition to this structural discrimination, the coups
resulted in widespread abuse and violence against Indo-
Fijians. See U.S. Dep't of State, Country Reports on Human
Rights Practices for 1987, at 694-700 (1988)[hereinafter
14041
"Country Reports for 1987"]. The Department of State
received "numerous reports of physical abuse of detainees by
the military," some of whom "were forced to run barefoot on
blacktop roads in the hot sun for several kilometers or were
dumped in pit latrines or in the sewage treatment holding
plants." Id. at 695. "The most horrible reported attacks on
Indo-Fijians include women raped in front of their children,
political opponents brutally beaten, detainees forced to walk
naked in the streets while holding human excrement, people
forced to swim in sewage ponds, and children stripped and
beaten for Sunday curfew violations and forced to rub their
noses against a concrete floor until their noses bled." Singh v.
INS, 94 F.3d 1353, 1357 (9th Cir. 1996). "Ethnic Fijian youth
gangs . . . raided, stoned, and fire bombed Indo-Fijian homes.
In 1989, five Hindu temples were burned. In October 1990,
an Indian school was burned." Id. "Freedom of speech [was]
severely constrained," and "[p]olitical meetings and demon-
strations [were] banned." See Country Reports for 1987, at
696-97. Fearing for their safety, roughly 35,000 Indo-Fijians
fled the country. See U.S. State Department, Background
Notes: Fiji, May 1996 (last visited Sept. 8, 2000);
<http://www.state.gov/www/background_notes/
fiji_0596_bgn.html>
Abdul Gafoor was one of those. At the time of the coups,
he was a police officer in Fiji with eighteen years experience.
Born in Fiji to Indian parents, he was one of the few Indo-
Fijians on the country's police force. One day in October
1987, he was on patrol when he heard screams in a nearby
street and came upon a man in civilian clothing who was rap-
ing a 13-year-old girl. Gafoor arrested the man and escorted
him to the police station, but his supervisor, an ethnic Fijian,
explained that the man was a high-ranking army officer. The
man was then released without being charged, and the super-
visor warned Gafoor that his life was in danger.
The next night, the army officer he had arrested came to
Gafoor's house with seven or eight other men, all dressed in
14042
army uniforms. They beat Gafoor in front of his wife and chil-
dren and took him to an army camp in Nambala, where he
was locked up for one week. During his captivity, several sol-
diers came to his cell and hit him in the stomach. They asked
him why he had arrested an army officer, and they warned
him not to tell anyone about the rape or his beating. They also
accused him of opposing the army.
After he was released, Gafoor received treatment for his
injuries and was transferred temporarily to a job as a court
bailiff so that he could recover. Several nights later, he
resumed his regular patrol duties and was walking down the
street when a military van pulled up to the curb. The army had
become involved in police work following the coups, and
Gafoor thought the soldiers in the van had stopped to assist
him. But when they stepped out of the van, he recognized the
officer he had arrested among the group. The soldiers
approached, beat him with their rifles, and threatened to kill
him. They told him Fiji was their country and that he "should
go back to India." Then, they left him in a water ditch, bleed-
ing and unconscious. When he awoke the next morning, he
was in a hospital, where he remained for nine days.
Gafoor feared the soldiers would return to kill him, so on
November 15, 1987, he fled with his family to Canada. He
stayed there until February 1991, when he entered the United
States. The INS instituted deportation proceedings against
Gafoor and his family in January 1993. He then applied for
asylum and withholding of deportation. At his hearing before
the Immigration Judge ("IJ"), Gafoor testified about the
things that had happened to him. He also testified that ethnic
Fijians had since taken over his house in Fiji and that he
feared returning home.
The IJ denied Gafoor's application, finding that the abuse
he suffered "had nothing to do with any political motives,
racial motives, membership in any particular social group or
religious belief or any of the other items mentioned." Instead,
14043
the IJ concluded, the attacks against Gafoor were motivated
solely by revenge for the arrest of the army officer. The BIA
affirmed this decision in September 1998, finding "no nexus
between the incidents . . . and any ground protected by" the
Immigration and Nationality Act. The BIA also ruled that
even if Gafoor had been persecuted on account of a protected
ground, country conditions had changed sufficiently to rebut
the presumption of a well-founded fear. Gafoor then filed a
timely petition for review of the BIA's decision.
II. STANDARD OF REVIEW
"We must uphold the BIA's determination that an alien is
not eligible for asylum if it is supported by reasonable and
substantial evidence based on the record as a whole. " Maini
v. INS, 2000 WL 640352 (9th Cir. May 19, 2000)."Put differ-
ently, we will reverse its decision only if the petitioner can
demonstrate that the evidence is `such that a reasonable fact-
finder would have to conclude that the requisite fear of perse-
cution existed.' " Id. (quoting INS v. Elias-Zacarias, 502 U.S.
478, 481 (1992)).
III. ANALYSIS
A. Past Persecution
To establish eligibility for asylum, an applicant must show
a well-founded fear of persecution on account of race, reli-
gion, nationality, membership in a particular social group, or
political opinion. See 8 U.S.C. S 1158(b)(1); 8 U.S.C.
S 1101(a)(42)(A). If an applicant demonstrates past persecu-
tion on account of one of these protected grounds, there is a
presumption of a well-founded fear of future persecution. See
8 C.F.R. S 208.13(b)(1)(i); Garrovillas v. INS, 156 F.3d 1010,
1016 (9th Cir. 1997). The burden then shifts to the INS to
show by a preponderance of the evidence that country condi-
tions have changed to such an extent that the presumption of
14044
a well-founded fear is no longer valid. See Garrovillas, 156
F.3d at 1017.
[1] The BIA did not dispute that Gafoor was persecuted,
and we think it clear he was. Soldiers assaulted him in front
of his family, held him captive for a week, then beat him on
the street until he was bleeding and unconscious. Such appall-
ing treatment easily qualifies as persecution under our case
law. See e.g., Korablina v. INS, 158 F.3d 1038, 1044-45 (9th
Cir. 1998) (finding that applicant suffered persecution where
she witnessed a violent attack on her boss, was tied to a chair
with a noose around her neck, and was threatened with death);
Surita v. INS, 95 F.3d 814, 819 (9th Cir. 1996) (finding that
applicant was persecuted where soldiers robbed her every day
for a week, looted her family's house at gunpoint, and threat-
ened to kill and rape her if she reported the robbery to police).
The more pointed question is whether Gafoor was perse-
cuted on account of his race, religion, nationality, member-
ship in a particular social group, or political opinion. This
question goes to the motives of his persecutors, and as we
have long recognized, motives can be difficult to pin down.
See Ramirez-Rivas v. INS, 899 F.2d 864, 869 (9th Cir. 1990)
("Evidence of the motive of a persecutor is hard to come
by."). Persecutors do not always take the time to tell their vic-
tims all the reasons they are being beaten or kidnaped or
killed. Sometimes, they may not want their motives known
for fear of public condemnation; other times, the motives may
be so clear to both parties that no explanation is needed.
[2] Because it is so difficult to prove motives with any pre-
cision, the Supreme Court teaches that an applicant does not
have to provide direct evidence that his persecutors were
motivated by one of the protected grounds; instead, compel-
ling circumstantial evidence is sufficient. See Elias-Zacarias,
502 U.S. at 483. In addition, in Borja v. INS , 175 F.3d 732,
736 (9th Cir. 1999) (en banc), we held that an applicant need
not show that his persecutors were motivated solely by a pro-
14045
tected ground. Nor does an applicant have to prove that the
protected ground, by itself, would have led to the persecution.
Rather, an applicant need only "produce evidence from which
it is reasonable to believe that the harm was motivated, at
least in part, by an actual or implied protected ground." Id.
(internal citation omitted); see Hernandez-Montiel v. INS, No.
98-70582, 2000 WL 1199531, at *11 (9th Cir. Aug. 24, 2000)
(applicant "is not required to prove that his persecutors were
motivated by [a protected ground] to the exclusion of all other
possible motivations"); Singh v. Ilchert, 63 F.3d 1501, 1509
(9th Cir. 1995) ("[P]ersecutory conduct may have more than
one motive, and so long as one motive is one of the statutorily
enumerated grounds, the requirements [for asylum ] have been
satisfied.").
In this case, the BIA held that Gafoor was not persecuted
on account of his race, religion, nationality, membership in a
particular social group, or political opinion. Instead, it con-
cluded he was targeted solely because he arrested a high-
ranking army officer for the rape of a 13-year-old girl.
[3] BIA determinations enjoy a healthy measure of defer-
ence, see, e.g., Elias-Zacarias, 502 U.S. at 483, but we cannot
conclude that its decision here is supported by substantial evi-
dence. In his testimony before the IJ, Gafoor stated that when
he was locked up at Nambala, the soldiers asked him why he
had arrested an army officer and accused him of opposing the
army. Then, while they were beating him in the street, the sol-
diers told Gafoor that Fiji was their country and that he
"should go back to India." Gafoor's testimony, which was
accepted as true by the BIA, compels a conclusion that he was
persecuted not solely because he arrested a high-ranking army
officer, but also because of his race and the political opinion
imputed to him by the soldiers. See Sangha v. INS, 103 F.3d
1482, 1489 (9th Cir. 1997) (holding that applicant may estab-
lish eligibility for asylum on basis of imputed political opin-
ion).
14046
This conclusion is supported by Surita, 95 F.3d at 819, and
Prasad v. INS, 101 F.3d 614 (9th Cir. 1996). In Surita, we
held that an Indo-Fijian woman who was repeatedly robbed
by ethnic-Fijian soldiers had been persecuted on account of
her race. To support this finding, we noted that the soldiers
told Surita "they were looting her family's home because the
family was of Indian descent and that Surita and her family
should `go back home' to India." Surita , 95 F.3d at 819. In
Prasad, we held that an Indo-Fijian man who was jailed and
beaten by ethnic-Fijian soldiers had been persecuted on
account of his political opinion. There, we pointed out that the
soldiers had questioned the man about his political involve-
ment and warned him not to practice his religion in public.
See Prasad, 101 F.3d at 616.
[4] The evidence in this case is strikingly similar to the evi-
dence we relied on in Surita and Prasad . In particular, the sol-
diers' statement that Gafoor should "go back to India" is
nearly identical to the soldiers' statement in Surita that she
and her family should " `go back home' to India." Although
the soldiers in Surita went one step further and said they were
looting the house because her family was Indo-Fijian, that fact
is insufficient to distinguish the two cases. The soldiers made
clear to Gafoor that his race and imputed political opinion
contributed to their hatred of him and provided them with
additional motive for their actions.3 That they did not tell him
specifically that they were motivated by these factors is unim-
portant. As noted above, an applicant need not present direct
evidence of a persecutor's motives if there is circumstantial
_________________________________________________________________
3 The dissent separates these two elements, as if there was no relation
between the soldiers' hatred of Gafoor's race and the political opinion
they imputed to him. Of course, the two are intimately connected. The
1987 coups were staged by the ethnic Fijian military to ensure the domi-
nance of ethnic Fijians. To be Indo-Fijian was, by definition, to be
opposed to this political coup. The dissent is therefore mistaken when it
asserts that the soldiers' statement to Gafoor about his political opinion
must be "taken alone." (Dissent at 14063). To the contrary, the statement
must be taken together with the soldiers' statements about Gafoor's race.
14047
evidence. See Elias-Zacarias, 502 U.S. at 483; Chand v. INS,
2000 WL 1056081, at *9 (9th Cir. Aug. 2, 2000). And the sol-
diers' statements to Gafoor are unmistakable circumstantial
evidence that they were motivated by his race and imputed
political opinion. See Yazitchian v. INS, 207 F.3d 1164, 1167-
68 (9th Cir. 2000) (evidence that government agents accused
petitioner of providing weapons to opposition party, called
him a "Dashnak," and told him to leave Armenia compelled
conclusion that he was persecuted on account of an imputed
political opinion).
[5] The soldiers in this case were, to be sure, activated by
the arrest of the army officer. They specifically questioned
Gafoor about the arrest and warned him not to tell anyone
about the rape. As we explained in Borja and have repeated
in numerous cases, however, asylum may be granted if the
persecution "was motivated, at least in part, by an actual or
implied protected ground." Borja, 175 F.3d at 736; see e.g.,
Hernandez-Montiel, 2000 WL 1199531, at *11; Tarubac v.
INS, 182 F.3d 1114, 1119 (9th Cir. 1999); Singh, 63 F.3d at
1509-10. The evidence presented by Gafoor leaves no doubt
that the soldiers were motivated, at least in part, by his Indian
background and by his purported opposition to the army.
Their message to Gafoor was clear: he had, by simply doing
his job as a police officer, challenged the notion that ethnic
Fijians were above the law. The soldiers' statements were not
"off-the-cuff" remarks or "vague accusation[s]" uttered inci-
dentally.4 (Dissent at 14061, 14060). They were pointed and
_________________________________________________________________
4 Nor were the remarks merely "sarcastic derision," as the dissent sug-
gests. (Dissent at 14062 n.1). And the dissent's contention that we should
view these bigoted slurs in the same manner as a joke made by James
Bond while fighting a cigarette smoker is disturbing, to say the least. Mov-
ies -- especially of the James Bond type -- are made to entertain, and we
laugh at a remark by James Bond because we know we are watching a
movie. But even taking the analogy seriously, the reasoning is unpersua-
sive. While we might not construe Bond's comment about cigarette smok-
ing as evidence of his motive, if he called an Irish Republican a "mick,"
we might well think he was motivated, at least in part, by the race and pol-
itics of the Republican.
14048
specific statements made during two brutal beatings that
reveal much about the motivation of those who made them,
particularly when considered in the context in which they
were made.
The dissent disregards that context, reading the evidence
like a single scene torn out of a play. But if we are to under-
stand what motivated Gafoor's persecutors, we must consider
the entire story. The soldiers were ethnic Fijians engaged in
a military coup to depose an elected Indo-Fijian government,
to subordinate Indo-Fijians politically and culturally, and to
physically punish those perceived as standing in their way.
When Gafoor arrested a high-ranking officer for raping a 13-
year-old girl, they did not just warn him to mind his own busi-
ness. He was taken to a military camp, as were many other
Indo-Fijians, and held prisoner for a week while questioned
about the arrest and accused of opposing the army. Then, after
he was released, the soldiers came back to beat him some
more, telling him that Fiji was their country and that he
should "go back to India." They did all this in spite of the fact
that the officer had been released and was not charged with
any crime. When the case is viewed in this context, a reason-
able fact-finder could not conclude that Gafoor's persecution
was motivated solely by a personal vendetta. The evidence
compels a conclusion that he was persecuted, at least in part,
on account of his race and an imputed political opinion.
In light of the dissent's suggestion that our reasoning is not
"serious" (Dissent at 14062), we now explain why our reading
of Borja is correct and why we think Judge O'Scannlain, who
dissented from the en banc opinion in Borja as well, is incor-
rect.
Judge O'Scannlain argues that Borja does not relieve an
applicant of the burden of proving that a protected ground
"actually motivated" the persecution. (Dissent at 14065). In
other words, he appears to argue, if there is evidence of two
motives -- one that is related to a protected ground and one
14049
that is not -- the applicant must show persecution solely on
the basis of the former motive. Judge O'Scannlain says the
Borja court did not address this requirement, but that it did
not matter anyway because the petitioner's political opinion
was clearly "the sufficient and primary cause " of her persecu-
tion. (Dissent at 14066).
A careful reading of Borja undermines this argument. The
petitioner in Borja was approached by guerillas who asked
her to join their effort to overthrow the government. See
Borja, 175 F.3d at 734. She refused, telling them she was pro-
government and would not enlist. When they became angry
and pointed a gun at her, she quickly suggested that she pay
a revolutionary tax instead. The guerillas agreed, and for the
next three months, she paid a tax of 3,000 pesos. See id. at
735. But the guerillas soon demanded 6,000 pesos a month,
and when the woman explained that she could not afford that
amount, they beat her, put a gun to her head, and slashed her
with a knife. They also told her she would be killed if she did
not give them the money. Fearing for her life, the woman left
the country soon afterward. See id.
The BIA denied the petition for asylum in Borja , holding
that the petitioner there was persecuted solely because the
guerillas wanted to extort money. We reversed en banc,
acknowledging that the woman's beating was motivated
partly by economic factors, but concluding that "only by clos-
ing one's eyes to the escalating nature of this confrontation
could one see the ensuing events as strictly economic with no
political component." Id. at 737. We also stated that "[h]ad
she joined the NPA's cause, it is unreasonable to assume they
would have slashed her shoulder and drawn her blood when
she could not produce 6,000 pesos on demand." Id. at 736-37.
This examination of Borja makes clear that an applicant
need not show that a protected ground, standing alone, would
have led to the persecution. The guerillas in Borja had two
motives: they wanted money from the petitioner, and they
14050
wanted to punish her for a political opinion. But it was only
when she could no longer afford to pay the tax that they per-
secuted her. Thus, the woman could not prove -- and we did
not require her to prove -- that the guerillas would have per-
secuted her on the basis of her political beliefs alone. Instead,
we simply required her to show that her persecutors were
motivated, at least in part, by her political beliefs. It is only
Judge O'Scannlain, here and in his Borja dissent, who would
require more.
Judge O'Scannlain argues in essence that an action cannot
be "on account of" some factor unless the factor, by itself,
was sufficient to bring about the action. (Dissent at 14066).
But the Supreme Court has explicitly rejected such a rigid
approach to causation. For example, Title VII forbids an
employer from making an employment decision "because of"
an employee's race, color, religion, sex, or national origin.5
See 42 U.S.C. S 2000e-2(a)(1). Employees have never been
required to prove, however, that their race or sex, standing
alone, would have led to the adverse employment decision.
Instead, in Price Waterhouse v. Hopkins, 490 U.S. 228, 242-
44 (1989), the Supreme Court said that in mixed motive cases
an employee need only show that an employer would not have
made the same decision in the absence of the discriminatory
motive.
[6] The Civil Rights Act of 1991 changed the standard
adopted by Price Waterhouse, but only to make the plaintiff's
case easier. Under the Act, a plaintiff can prevail in a Title
VII case if he can show that "race, color, religion, sex, or
national origin was a motivating factor for any employment
practice, even though other factors also motivated the prac-
tice." 42 U.S.C. S 2000e-2(m). Evidence that an employer
would have taken the same action in the absence of the dis-
criminatory motive does not eliminate liability, but only limits
_________________________________________________________________
5 The dictionary defines "because of" as "on account of" and vice versa.
See The American Heritage Dictionary 72, 166 (2nd ed. 1991).
14051
the types of relief a court may order. See 42 U.S.C. S 2000e-
5(g)(2)(B); see also Washington v. Garrett, 10 F.3d 1421,
1433 n.15 (9th Cir. 1994); Pilditch v. Bd. of Education, 3 F.3d
1113, 1118 n.2 (7th Cir. 1993). Thus, Congress has made
clear that a person may act "because of" a discriminatory fac-
tor even though other factors also motivated the action, and
even if the action would have been taken in the absence of the
discriminatory factor.
Judge O'Scannlain offers no reason for imposing a higher
burden on asylum applicants than on employees in Title VII
cases. Indeed, the equities cut the other way. An employee at
least has the opportunity to gather evidence of the employer's
motive and to put the employer on the stand to explain the
reasons behind the employment action. The evidentiary obsta-
cles for asylum applicants, by contrast, are enormous. "Perse-
cutors," we have stated, "are hardly likely to provide their
victims with affidavits attesting to their acts of persecution."
Bolanos-Hernandez v. INS, 767 F.2d 1277, 1285 (9th Cir.
1985). Nor are they likely to submit declarations explaining
exactly what motivated them to act. And individuals fleeing
persecution do not usually have the time or ability to gather
evidence of their persecutors' motives. It is unreasonable,
therefore, to require asylum applicants to show that a pro-
tected ground, standing alone, would have led to their perse-
cution, or even to require a showing that the persecution
would not have occurred in the absence of a protected ground.
The reasonable approach is the one adopted by Borja: a peti-
tioner must show that his persecutors were motivated, at least
in part, by a protected ground. Because Gafoor has met that
burden overwhelmingly, the BIA's conclusion is not sup-
ported by substantial evidence.
B. Changed Country Conditions
The BIA ruled that even if Gafoor established a presump-
tion of a well-founded fear, this presumption was rebutted by
changed country conditions in Fiji. To support this finding,
14052
the BIA cited the Department of State country report for
1992, which reported that political killings had ceased, free-
dom of speech and religion had been restored, political partic-
ipation had been revived, and Indo-Fijians had been elected
to government offices. Although the report also noted that
Indo-Fijians are subject to occasional harassment and crime
on account of their race, it concluded that "there are no credi-
ble allegations of government involvement in such incidents."
[7] Ordinarily, we would accept the BIA's finding of
changed country conditions as long as it was not undermined
by evidence in the record. But recent events have rendered the
State Department's 1992 country report hopelessly out of date
and have made it impossible to ignore the dangers faced by
Indo-Fijians in Fiji. On May 19th, 2000, the one-year anniver-
sary of the election of the first Indo-Fijian prime minister, a
group of armed Fijian nationalists stormed the country's Par-
liament and seized the prime minister and his cabinet. See For
the Second Time: An Attempted Coup in Fiji, The Economist,
May 27, 2000, available in 2000 WL 8142168. Fiji's presi-
dent, Sir Kamisese, declared a state of emergency, and ethnic-
Fijians pillaged the city center, looting mainly Indian shops.
See id.
[8] Since that time, all progress made in Fiji toward elimi-
nating racial conflict has been undone. The commander of the
Fijian army declared martial law and conceded to the
demands of the Fijian nationalists, who are led by a disgrun-
tled former government official named George Speight. See
The Trouble Ahead: Fiji's Damaged Economy, The Econo-
mist, June 3, 2000, available in 2000 WL 8142201. The
elected Indo-Fijian government was ousted, the country's
1997 constitution, which gave increased rights to Indo-
Fijians, repealed, and the army commander, Frank Baini-
marama, installed himself as head of state. See id. Meanwhile,
the prime minister and thirty other government officials were
held hostage in Parliament, and the Indian business district
was closed down as a result of looting and arson. See id.;
14053
Fiji's Terrorists: Allow Them to Succeed, and It Could
Destroy the Country, The Economist, June 3, 2000, available
in 2000 WL 8142205.
International condemnation of the crisis was swift and
severe. Australia, Britain, New Zealand, and the United States
all threatened economic sanctions and recalled their ambassa-
dors. See That Man Again: No respite for Fiji , The Econo-
mist, July 22, 2000, available in 2000 WL 8142920. The
United Nations criticized the military for failing to crack
down on Speight and his allies. See The Trouble Ahead: Fiji's
Damaged Economy, The Economist, June 3, 2000, available
in 2000 WL 8142201.
[9] After several months of pressure, an agreement was
reached between Speight and the military. He released the
prime minister and other politicians in exchange for promises
of amnesty and a new constitution diminishing the rights of
Indo-Fijians. Speight was later arrested for failing to return
weapons he had stolen, but the new prime minister, Laisenia
Qarase, appears to support his agenda. See That Man Again,
The Economist, July 22, 2000, available in 2000 WL
8142920. Qarase says the new unelected government that was
installed by the ethnic Fijian military will remain in power for
the next three years. See Arresting: Fiji, The Economist, July
29, 2000, available in 2000 WL 8142959. And though the
military has restored some degree of stability, trouble persists.
Hundreds of Indo-Fijians were recently taken hostage on
the island of Vanua Levu, and "sporadic attacks on ethnic
Indians continue." See U.S. Dep't of State, Public Announce-
ment: Fiji, Aug. 11, 2000 (last visit Sept. 8, 2000)
<http://travel.state.gov/fiji_announce.html>. The State De-
partment has warned United States citizens that travel to Fiji
may be dangerous. See id.
[10] These dramatic events, remarkably similar to the 1987
coups that led to Gafoor's abuse, require a reevaluation of the
INS's claim that Gafoor will not face further persecution if
14054
returned to Fiji. While we do not doubt the government's
good faith in relying on the 1992 country report to support its
assertion, we cannot ignore the realities of the day. It is quite
obvious that conditions in Fiji for persons of Indian descent
are not only not improved, they are demonstrably worse. We
therefore remand to the BIA to consider whether recent events
in Fiji undermine the finding that Gafoor's well-founded fear
of persecution is rebutted by changed country conditions.
[11] We recognize that our review of BIA decisions is gen-
erally limited to the record and that it is unusual for this court
to take judicial notice of events outside of the administrative
record. In Fisher v. INS, 79 F.3d 955, 964 (9th Cir. 1996) (en
banc), we stated that out-of-record evidence may be consid-
ered only where (1) the BIA considers the evidence; or (2) the
BIA abuses its discretion by failing to consider such evidence
upon the motion of the applicant. But as we noted in Lising
v. INS, 124 F.3d 996, 998-99 (9th Cir. 1997), there are limits
to the general rule established by Fisher. In particular, Fisher
related to evidentiary material that could have been, but was
not, presented to the BIA. We made much of this in our opin-
ion in Fisher, stating that the petitioner had "ample opportu-
nity to request consideration" of the evidence before the BIA,
but that "she failed to do so." Fisher, 79 F.3d at 964. We then
refused to remand to the BIA "for it to consider evidence
Fisher failed to present." Id. Here, the out-of-record evidence
of Fiji's troubled political state was not available when the
BIA made its decision; indeed, the events themselves had not
occurred. Therefore, we do not believe the rule laid down in
Fisher precludes us from taking judicial notice of this evidence.6
_________________________________________________________________
6 In recent cases, we have made clear that on remand the BIA may not
look beyond the existing record to determine whether changed country
conditions rebut the presumption of a well-founded fear of future persecu-
tion. In fact, we have refused to remand where the petitioner is entitled to
a determination of eligibility on the existing record. See, e.g., Chand, 2000
WL 1056081, at *9; Navas v. INS, 217 F.3d 646, 662-63 (9th Cir. 2000).
The reason for this rule is that a petitioner who was eligible for asylum
14055
The dissent argues that by taking judicial notice of events
in Fiji, we have exceeded the bounds of this court's lawful
authority. (Dissent at 14069). However, our decision is well
supported by case law. As we have previously noted,"Ameri-
can courts generally will take judicial notice of a state of
uprising." Quinn v. Robinson, 783 F.2d 776, 797 n.18 (9th
Cir. 1986). In addition, "[t]he Sixth Circuit consistently takes
judicial notice of changed political circumstances in immigra-
tion cases." See Ivezaj v. INS, 84 F.3d 215, 219 (6th Cir.
1996) (taking judicial notice of persecution of Albanians by
Serbs); see also Palushaj v. INS, No. 93-3196, 1994 WL
198169, at *2 (6th Cir. 1994) (taking judicial notice of the
persecution of ethnic Albanians in Kosovo); Ivezaj v. INS, No.
90-3980, 1991 WL 151157, at *2 (6th Cir. 1991) (same);
Dalou v. INS, No. 89-4076, 1990 WL 140540, at *5 (6th Cir.
1990) (per curiam) (taking judicial notice of "recent events
unfolding in Iraq and the adjacent Arabian peninsula region");
Dawood-Haio v. INS, 800 F.2d 90, 91 (6th Cir. 1986) (taking
judicial notice of the Iran-Iraq war).
The Seventh and Fifth Circuits also have taken judicial
notice of political developments subsequent to the BIA's deci-
sion. See Kaczmarczyk v. INS, 933 F.2d 588, 594 n.4 (7th Cir.
1991) ("We exercise our discretion to take judicial notice of
further changes in Polish politics that occurred between the
time of the BIA's decision and our review."); Coriolan v. INS,
_________________________________________________________________
when the BIA considered his case does not lose that eligibility as a result
of the agency's failure to recognize it. Where the petitioner properly estab-
lished his eligibility on the record made before the BIA, that eligibility
must be accorded its proper legal effect.
However, the core purpose of our asylum law would be undermined
were we to bar petitioners from showing that as a result of changes that
have occurred while their cases were being reviewed, they face persecu-
tion or death. If an alien faces such a fate as a result of current conditions
in his country, we do not return him to that fate simply because conditions
at some earlier time might not have satisfied the requirements for estab-
lishing asylum eligibility.
14056
559 F.2d 993, 1002-04 (5th Cir. 1977) (relying on Amnesty
International report not part of administrative record to
remand for reconsideration). And in a habeas corpus proceed-
ing brought by an asylum applicant, we took judicial notice
of changes in Haiti that occurred after the applicant's hearing
before an immigration judge. See Desir v. Ilchert, 840 F.2d
723, 730 (9th Cir. 1988).
We do not exceed our authority by taking judicial notice of
dramatic foreign developments because our action does not
usurp the authority of the administrative agency. This is not
a situation where an agency provided the parties an opportu-
nity to place their evidence in the record, and we have under-
mined the agency's control over the case by allowing the
parties to supplement that record. Here, we have simply intro-
duced into the record facts that were not available earlier, a
step that in no way diminishes agency control over the case.
Indeed, we return the matter to the agency for it to determine
the impact of these dramatic recent events.
Contrary to Judge O'Scannlain's suggestion, we do not
hold that "any perceived change in country conditions" justi-
fies the court in taking notice of current events. (Dissent at
14069). We simply conclude that the events in Fiji are so
troubling, so well publicized,7 and so similar to the earlier
_________________________________________________________________
7 Contrary to the dissent's suggestion that everything we know about Fiji
was learned from The Economist, events in Fiji have been widely covered
and reported upon. See, e.g., Andrew West, Ousted Fijian Leader Enlists
Support, Christian Science Monitor, August 22, 2000, available in 2000
WL 4430421; Pattrick Smellie, Deposed Prime Minister Mahendra Chau-
dry: Democracy's Voice, Time International, August 21, 2000, available
in 2000 WL 25226847; George Wehrfritz, Fiji Takes a Step Backwards,
Newsweek International, August 7, 2000, available in 2000 WL 9728384;
New Fijian President Is Reported Ill, and Swearing-in Is Delayed, The
New York Times, July 19, 2000, at A5; Kevin Whitelaw, Troubles in Par-
adise, Guns in the Sun, U.S. News & World Report, June 19, 2000, avail-
able in 2000 WL 7718161; Sam Howe Verhovek, Burst of Ethnic Tension
in Fiji Threatens South Seas `Eden', N.Y. Times, June 7, 2000, available
in 2000 WL 23201800; Murray Mottrom, Speight Has Learned An Old
Lesson Well, Sydney Morning Herald, June 3, 2000, available in 2000 WL
21025630.
14057
coups that we would be abdicating our responsibility were we
to ignore the situation.
Judge O'Scannlain also criticizes us for failing to give the
INS an opportunity "to be heard as to the propriety of taking
judicial notice and the tenor of the matter noticed. " (Dissent
at 14069). However, the very case he cites for support states
that a "court may take judicial notice of facts without prior
notification to the parties, so long as the court subsequently
provides an opportunity to rebut the noticed facts .. . ."
Gomez-Vigil v. INS, 990 F.2d 1111, 1115 (9th Cir. 1993)
(Aldisert, J., concurring). The INS will have ample opportu-
nity to present evidence of the most current conditions in Fiji
and to demonstrate, if it is able, that Gafoor is not eligible for
asylum.
Finally, the dissent argues that we make no effort to evalu-
ate the relevance of these noticed facts to Gafoor's case. (Dis-
sent at 14070). But it should be obvious why we have not
undertaken this investigation. The BIA is better equipped to
conduct this factual inquiry than an appellate court. And if the
BIA determines that the troubles in Fiji pose no threat to Gaf-
oor, and if that determination is supported by substantial evi-
dence, we will not disturb it. But simply because the BIA is
in a better position to evaluate the relevance of recent events
to Gafoor's case, it does not follow that we should close our
eyes entirely. When a foreign crisis erupts that is as serious
and well-documented as the one in Fiji, we have a duty to
bring it to the BIA's attention.
PETITION GRANTED. REMANDED WITH INSTRUC-
TIONS.
_________________________________________________________________
O'SCANNLAIN, Circuit Judge, dissenting:
Under the Immigration and Nationality Act, Gafoor and his
family are eligible for asylum only if he has at least a "well-
14058
founded fear" that returning to Fiji would result in his "perse-
cution on account of race, religion, nationality, membership in
a particular social group, or political opinion. " 8 U.S.C.
S 1101(a)(42)(A). Because the motive of Gafoor's potential
tormentors is "critical" under the terms of the Act, "he must
provide some evidence of it, direct or circumstantial," in his
asylum application. INS v. Elias-Zacarias, 502 U.S. 478, 817
(1992). Indeed, as the Supreme Court has taken pains to
remind us, because Gafoor "seeks to obtain judicial reversal
of the . . . determination" of the Board of Immigration
Appeals ("BIA") that he has failed to show that he would risk
persecution on account of one of the five grounds enumerated
in the Act, he now "must show that the evidence he presented
[to the BIA] was so compelling that no reasonable factfinder
could fail to find" otherwise. Id. (emphasis added).
After a hasty acknowledgment of the formidable barriers to
granting Gafoor relief, the majority grants it nevertheless. In
doing so, the majority over-reads our decision in Borja v. INS,
175 F.3d 732 (9th Cir. 1999) (en banc), to effect exactly the
sort of judicial usurpation which the Supreme Court intended
to forestall in Elias-Zacarias. As if this did not constitute suf-
ficient arrogation of the Attorney General's province, the
majority also declares that this court can compel, sua sponte,
a reopening of an asylee's case whenever it concludes that
conditions in his home country may have changed subsequent
to the BIA's adverse decision. This novel assertion conflicts
with a plain holding of our court sitting en banc. I respectfully
dissent.
I
Gafoor is a police officer who arrested a man he caught in
the act of attempting to rape a thirteen-year-old-girl. The man
turned out to be a high-ranking officer in the Fijian army who
was, apparently as a result, promptly released. The next night,
the same officer invaded Gafoor's house with seven or eight
uniformed men. The men beat Gafoor and took him to a mili-
14059
tary compound where they questioned him over the ensuing
week about the arrest of the army officer and warned him not
to testify against the officer or tell anyone else about the
attempted rape. At some point in his incarceration, the army
officer's confederates also accused Gafoor of being "against
the army." Some time after Gafoor had recovered from his
beating and incarceration, the army officer whom he had
arrested led several men in another assault on Gafoor as he
patrolled a public street. During the assault, one of the men
told Gafoor that he "should go back to India."
This course of events, which represents the sum of Gaf-
oor's factual testimony, establishes fairly plainly that the
army officer orchestrated the attacks on Gafoor purely as
reprisals for his arrest and vivid warnings of what would
befall Gafoor if he ever disclosed the facts surrounding it.
This is, appropriately enough, precisely what the immigration
judge ("IJ") and the BIA concluded. There is no dispute that
this conclusion renders Gafoor ineligible for asylum under the
Act, for reprisal and intimidation are not among the five cog-
nizable grounds for persecution.
In granting Gafoor's petition for review, however, the
majority contends that these events establish that Gafoor's
assailants had motives other than reprisal and intimidation. In
particular, the majority asserts that the vague accusation that
Gafoor "opppos[ed] the army" and the slur to the effect that
Gafoor "should go back to India" "compel[ ] a conclusion that
he was persecuted not solely because he arrested a high-
ranking army officer, but also because of his race and the
political opinion imputed to him by the soldiers. " Supra at
14046. Given that the evidence fails on the whole to do any-
thing more than suggest that Gafoor's imputed political opin-
ion and race actually animated his assailants' attacks, I think
preposterous the majority's implicit contention that "a reason-
able factfinder would have to conclude" that the evidence
established as much. Elias-Zacarias, 502 U.S. at 481 (empha-
sis added).
14060
A
The majority argues that the off-the-cuff accusation and
slur emitted by Gafoor's assailants amount to proof of enu-
merated motives by analogizing Gafoor's case to those of the
successful petitioners in Surita v. INS, 95 F.3d 814 (9th Cir.
1996), and Prasad (Gaya) v. INS, 101 F.3d 614 (9th Cir.
1996). See supra at 14047. There are, however, important dis-
tinctions between those cases and Gafoor's.
In Surita, the petitioner, an Indo-Fijian woman, was robbed
twice daily by ethnic Fijians as she went to and from work.
Her house was also looted by ethnic Fijian soldiers who
"stated that they were looting the family's home because the
family was of Indian descent" and "told Surita that the fami-
ly's possessions belonged to ethnic Fijians." Surita, 95 F.3d
818, 819. On another occasion, the petitioner's Hindu temple
was desecrated and she and her mother were robbed attempt-
ing to worship at another place. Under these circumstances,
we concluded that a reasonable factfinder would have had to
conclude that the petitioner had "suffered past persecution on
account of race." Id. at 820.
Our holding in Surita cannot compel the conclusion that
Gafoor was persecuted on account of race. Unlike the peti-
tioner's case in Surita, Gafoor's assailants never declared that
Gafoor was being assaulted because he was Indo-Fijian--they
simply belittled him as an Indo-Fijian during their attack. The
majority holds that this difference is "insufficient to distin-
guish the two cases," because, with their derision, "[t]he sol-
diers made clear to Gafoor that his race and imputed political
opinion contributed to their hatred of him and provided them
with additional motive for their actions." Supra at 14047.
According to the majority, the fact that the soldiers "did not
tell him specifically that they were motivated by these factors
is unimportant." Surita differs from the present case, the
majority contends, merely because the petitioner in Surita
presented direct evidence of her persecutors' motivations,
14061
whereas Gafoor presented circumstantial evidence. See supra
at 14047-48.
The majority is simply wrong. The two cases fundamen-
tally differ with respect to the ultimate issue that the evidence
in question proves. In Surita, the petitioner presented unre-
futed evidence of an actual causal connection between her
race and her persecution. But for her race, her attackers would
have left her alone. Here, Gafoor has made no such showing.
He has merely presented evidence that the soldiers taunted
him with a racial slur during the course of an attack prompted
by a personal vendetta. Taunting or degrading an opponent by
referring to one or another of his traits hardly makes "clear"
that the trait has any causal significance--indeed, the trait
may be wholly irrelevant to any actual difference of opinion.1
The majority cannot be serious in holding that the utterance
of such a racial slur not only suggests that a contemporaneous
assault is racially motivated but compels that conclusion.
Nor does our decision in Prasad establish that a reasonable
factfinder would have to conclude that Gafoor was persecuted
on account of a political opinion imputed to him. The peti-
tioner in Prasad was a local delegate of the Hindu-dominated
Labor Party who was dogged by native Fijian military officers
following the 1987 coup. See id. at 616. He was twice incar-
cerated and, "during his detention[,] . . . was questioned about
his involvement with the ousted Labour Party." Id. The mili-
tary also attempted to prevent the petitioner "from meeting in
_________________________________________________________________
1 This principle is so self-evident and intuitive that Hollywood routinely
applies it for mass amusement: Sarcastic derision is frequently deployed
in the dialogue of action movies to insinuate comic relief into even the
most violent of confrontations between mortal enemies. For example, in
the opening scene of Tomorrow Never Dies, super-agent James Bond is
infiltrating a terrorist arms bazaar. He incapacitates a cigarette-smoking
henchman while superciliously muttering the line:"Filthy habit." Tomor-
row Never Dies (United Artists 1997). Despite the pointed reference, only
the hopelessly obtuse would maintain that Bond dispatched the gun-toting
smoker "on account of" his tobacco use.
14062
groups" with other Hindus. Id. We concluded that the peti-
tioner had "established past persecution on account of his
political activity." Id. at 617.
Compared to the petitioner in Prasad, Gafoor has presented
scant evidence that his political opinion (imputed or other-
wise) actually motivated his tormentors. The majority implic-
itly relies on the fact that at least one of Gafoor's jailers
accused him of being "against the army." See supra at 14046
("In his testimony before the IJ, Gafoor stated that when he
was locked up at Nambala, the soldiers asked him why he had
arrested an army officer and accused him of opposing the
army."). This fact is certainly suggestive , but taken alone--as
it must be, for in this regard it is alone--it can compel at most
the uninteresting conclusion that the accuser believed Gafoor
to be opposed to the army. This is particularly so because the
role of the unnamed accuser in the assaults on Gafoor is
unknown and may well have been entirely peripheral.
Simply put, the facts that Gafoor's assailants told him to go
back to India and that an officer in the jail accused him of
opposing the army do not compel the conclusion that Gafoor's
assailants were motivated by Gafoor's race or political opin-
ion. Nor would they be compelling even if we were to inter-
pret these facts, as the majority insists, within the political
"context" that the majority develops from sources wholly out-
side the administrative record, a "context" that Fisher v. INS,
79 F.3d 955, 964 (9th Cir. 1996) (en banc), in fact prohibits
us from considering. No decision of this court suggests other-
wise. The majority thus oversteps its bounds in reversing the
BIA's decision.
B
Reality is that policeman Gafoor was persecuted because he
caught a powerful military figure in flagrante delicto and
dared to arrest the officer whom he witnessed in the criminal
act of attempting to rape a young girl. No one thinks other-
14063
wise, not even the majority, which concedes that the soldiers
were "activated" by the arrest. The fundamental problem,
therefore, with the majority's conclusion that Gafoor was
indubitably persecuted "on account of" his race and imputed
political opinions is not really that the facts pointing thereto
are less informative in this case than they were in Surita and
Prasad. Indeed, at his hearing Gafoor himself unfailingly
attributed his persecution, in the final calculus, to his arrest of
the officer:
IJ: Did they tell you why they were beating
you up?
Gafoor: They thought, they thought that I had sent
some kind of enemy with them.
IJ: Some kind of what?
Gafoor: Enemy. Uh, they said that they were going
to kill me and, and they were going to kill
my family.
IJ: Why?
Gafoor: Because I arrested them.
* * *
IJ: Why? Wait a minute. Why did you think
they took you to the military camp? Why
do you think you were arrested?
Gafoor: They said that we have some kind of
enmity with each other but I -- They said
that we police officers, we don't like the
army but it was -- they said they were
going to kill me and destroy us and he
beat me.
14064
IJ: Did he tell you why they thought you,
there was some kind of enmity between
the Army and the police?
Gafoor: He said why I was arresting the Army
officer. I didn't know.
* * *
Hiester:2 As far as you know, he was never charged
with the crime?
Gafoor: If they would have charged him with the
crime, then nothing would have -- then
they wouldn't have done to me what, what
they did to me.
Hiester: If he was not charged with the crime, why
was the military so interested in you?
Gafoor: They were angry with me.
Hiester: About what?
Gafoor: Because I arrested an Army officer.
The majority implies that the undisputed fact that Gafoor's
arrest of the army officer caused his persecution is irrelevant
because we held in Borja "that asylum may be granted if the
persecution `was motivated, at least in part, by an actual or
implied protected ground.' " Supra at 14048 (quoting Borja,
175 F.3d at 736). The majority is mistaken. The fact that an
act of abuse may be "motivated" by two or more distinct con-
siderations does not dispense with the logical requirement that
any single factor actually "motivated " the conduct.
_________________________________________________________________
2 Thomas L. Hiester was the attorney of record for Gafoor.
14065
This requirement, I would be the first to acknowledge, is
not easily satisfied. Concluding that something actually "mo-
tivated" a human being to act is often not only speculative but
conceptually challenging. Is a situational factor that makes a
person's action more likely to occur than it otherwise would
be a "motive"? What if only infinitesimally more likely? Is a
factor a "motive" when it is sufficient to incite an action but
does not make that action more likely to occur at all (because
the action will certainly occur anyway)?
Answering these questions and marshaling evidence to cat-
egorize situational factors as precisely as the resulting
answers may demand requires a degree of inferential hair-
splitting that the majority in Borja did not, and indeed did not
need to, address. The majority concluded that there could be
little doubt that the petitioner's announced opposition to the
New People's Army ("NPA") was the sufficient and primary
cause that "triggered" the NPA agents' extortion and ensuing
attack on her. See Borja, 175 F.3d at 736, 737 ("Had she not
interjected her willingness to pay, the evidence strongly sug-
gests that the NPA would have taken her life as a response to
her political statement.").
Unlike the facts of Borja, the facts of this case plainly indi-
cate that the petitioner would not have been persecuted absent
a motive that is not enumerated in the Act--that is, Gafoor
would never have been persecuted if he had not arrested the
army officer. This case thus requires us to determine just how
causally significant a factor must be for us to conclude that it
is a "motive" for purposes of the Act. It is apparent that for
the majority, a motivating factor need not have any causal sig-
nificance at all. The majority claims that persecution may be
"on account of" a protected ground even if the protected
ground is neither a sufficient nor even a necessary cause of
the persecution. See supra at 14052 ("It is unreasonable,
therefore, to require asylum applicants to show that a pro-
tected ground, standing alone, would have led to their perse-
cution, or even to require a showing that the persecution
14066
would not have occurred in the absence of a protected
ground."). The majority's definition of "motive" remains elu-
sive, but it is apparent that it does not comprehend the concept
of causation.
In dispensing with a causation requirement, the majority
wilfully disregards the well-settled law of this court. We have
regularly rejected the proposition that persecutory conduct is
"on account of" a statutorily protected characteristic just
because the presence of that characteristic enhanced the prob-
ability that the persecutory conduct would occur. See, e.g.,
Singh v. INS, 134 F.3d 962, 970 (9th Cir. 1998) (acknowledg-
ing that ethnic Fijians were known to commit crimes against
Indo-Fijians because of their race but rejecting the petitioner's
allegation that crimes committed against her by persons who
may have been ethnic Fijians were "on account of " her race);
Sangha v. INS, 103 F.3d 1482, 1490 (9th Cir. 1997) (noting
that, even if guerrillas had imputed opposing political opinion
to petitioner, there was "no evidence" that the guerrillas' per-
secution of him was " `on account of' [his] political views").
The majority seemingly feels that it would be unfair to
require asylum applicants actually to demonstrate that they
were persecuted "on account of" a protected ground. Causa-
tion, after all, is a tricky business and can raise difficult evi-
dentiary obstacles. Congress has lowered the burden for Title
VII plaintiffs; why shouldn't we, the majority asks, lower the
burden for asylum applicants? In the face of the extravagance
and impertinence of this argument, is it too pedestrian to
explain that Congress has already weighed the relevant policy
choices and decided to require asylees to demonstrate that
they suffered persecution "on account of" a protected ground?
Of course, it is for Congress alone to decide whether to lower
the burden as it has done for Title VII plaintiffs, in contrast
to asylum applicants.
The evidence in this case and the history of Fiji developed
outside the record do nothing to suggest--much less conclu-
14067
sively establish--that Gafoor's race had anything to do with
the violence he suffered. The majority does not, and indeed
cannot, contend that he would have been treated any differ-
ently were he an ethnic Fijian. He has plainly failed to show
that his persecution was "on account of" his race or imputed
political opinion, as that term has been interpreted time and
again by this court.
II
In addition to reversing the BIA's determination that Gaf-
oor has not demonstrated past persecution on account of a sta-
tutorily enumerated ground, the majority proceeds to reject
the BIA's determination that a change in country conditions
refutes any supposition that Gafoor has a well-founded fear of
persecution in the future. The majority observes that country
conditions have changed yet again since the BIA made its
determination, see supra at 14053 ("Since that time, all prog-
ress made in Fiji toward eliminating racial conflict has been
undone."), and remands for the BIA to consider changes in
country conditions as of, one is left to imagine, right now. The
majority bases its disregard for the BIA's determination not
on anything in the record (because there is no support there)
but on post-hearing magazine articles. The majority acknowl-
edges but essentially disregards the fact that we have held
explicitly that "we are limited to reviewing the facts consid-
ered by the Board" and "are statutorily prevented from taking
judicial notice" of evidence from outside the administrative
record in reviewing asylum claims. Fisher v. INS , 79 F.3d
955, 963 (9th Cir. 1996) (en banc) (emphasis added).
The majority attempts to skirt our plainly controlling deci-
sion in Fisher by relying on a particularly broad dictum from
Lising v. INS, 124 F.3d 996 (9th Cir. 1997). See supra at
14055 ("In particular, Fisher related to evidentiary material
that could have been, but was not, presented to the BIA.")
(citing Lising, 124 F.3d at 998). Lising , given a fair reading,
stands only for the proposition that we may take judicial
14068
notice of extra-record INS forms that rest in official INS files.
See 124 F.3d at 998 ("Fisher does not treat the issue of a
court's taking judicial notice of the agency's own records--
and particularly of an official INS form that serves as the very
basis of the BIA's decision."); cf. id. at 999 (Boochever, J.,
concurring) ("While I agree that almost all rules may be sub-
ject to exceptions for unforeseen contingencies, I do not
believe that it is necessary in this case to carve even the nar-
row exception to Fisher v. INS proposed by the majority."
(citation omitted) (emphasis added)). Whatever the merit of Lis-
ing,3 it hardly supports the majority's claim that any perceived
change in country conditions nullifies the BIA's otherwise
valid determination.
In taking judicial notice of recent developments in Fiji as
reported in several magazine articles, matters entirely outside
the record, the majority has plainly exceeded the bounds of
this court's authority as a reviewing court under the law of
this circuit. See Fisher, 79 F.3d at 963; see also Gomez-Vigil
v. INS, 990 F.2d 1111, 1113 (9th Cir. 1993) (because " `this
court does not sit as an administrative agency for the purpose
of fact-finding in the first instance'," it "must reject petition-
ers' implied request that we consider news articles and other
materials appended to the briefs that were not part of the
administrative record.") (quoting Tejeda-Mata v. INS, 626
F.2d 721, 726 (9th Cir. 1980). But the majority does not stop
there. The majority relies upon articles that appeared six
months after this case was argued and submitted, let alone
almost two years after the BIA's decision was filed. Federal
Rule of Evidence 201(e), which governs judicial notice, pro-
vides that a party must be afforded "an opportunity to be
heard as to the propriety of taking judicial notice and the tenor
of the matter noticed." See also Gomez-Vigil , 990 F.2d at
1115 (Aldisert, J., concurring) ("A court may take judicial
_________________________________________________________________
3 This is slight, given that the analysis rested on the hoary jurisprudential
proposition that a precedent of this court is only as applicable as a later
panel cares to allow.
14069
notice of facts without prior notification to the parties, so long
as the court subsequently provides an opportunity to rebut the
noticed facts . . . .") The majority deprives the INS of any
opportunity to respond, before this court, to its unwelcome
excursus on recent developments in Fijian politics.
Even if one were to acknowledge the lawfulness of the
majority's proposed "recent events" new exception to the rule
in Fisher and the lawfulness of the majority's manner of tak-
ing judicial notice, one would nevertheless expect such "re-
cent events" to be at least facially relevant to the issue the
BIA was deciding--otherwise, there would be a new reason
to remand with every new day (or at least with every new
issue of The Economist). And yet, we are left disappointed.
Here, the majority makes almost no effort to evaluate the rele-
vance of the "recent events" to the issue of whether Gafoor
is more likely than he was in 1992 to face renewed persecu-
tion at the hands of the army officer and his personal posse,
who were the only Fijians who ever molested Gafoor, even at
the height of the 1987 coup. The "recent events, " as it turns
out, are not terribly germane.
I regret that I cannot endorse the majority's proposed "re-
cent events" exception to Fisher. It is plainly contrary to that
decision, and it invites precisely the sort of misapplication
that the majority has engaged in here. The net effect will inev-
itably be to frustrate and to obstruct the enforcement of our
immigration laws as judges of this court persist in attempting
to grant relief that Congress has delegated exclusively to the
Attorney General to grant.
III
The BIA's dismissal of Gafoor's appeal was supported by
substantial evidence and perfectly justified. Gafoor has
endured dreadful misfortune, but he has not been persecuted
on account of any statutorily enumerated ground. Even if he
had been, nothing in the record undermines the BIA's conclu-
14070
sion that conditions in Fiji are now such that Gafoor need no
longer fear persecution at the untrammeled hands of a venge-
ful army officer or any of his soulmates.
I respectfully dissent.
14071