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Case Name:
CHAND V INS

Case Number:

Date Filed:

98-70541

08/02/00



FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ASHOK CHAND; PREMILA MUDALIAR
CHAND,                                                No. 98-70541
Petitioners,
                                                     Agency Nos.
v.                                                    A72 135 003
                                                     A72 135 004
IMMIGRATION AND NATURALIZATION
SERVICE,                                              OPINION
Respondent.

Petition for Review from the Board of Immigration Appeals

Argued and Submitted
March 17, 2000--San Francisco, California

Filed August 2, 2000

Before: Henry A. Politz,1 Stephen Reinhardt, and
Michael Daly Hawkins, Circuit Judges.

Opinion by Judge Reinhardt

_________________________________________________________________

1 Honorable Henry A. Politz, Senior Circuit Judge for the Fifth Circuit
Court of Appeals, sitting by designation.


COUNSEL

Miguel D. Gadda, San Francisco, California, for the peti-
tioner.

Nancy E. Friedman, Office of Immigration Litigation, U.S.
Department of Justice, Washington, D.C., for the respondent.

_________________________________________________________________

OPINION

REINHARDT, Circuit Judge:

Petitioner Ashok Chand seeks review of the BIA's decision
denying his claim for asylum and withholding of deportation.
We grant Chand's petition for review and hold that he is eligi-
ble for asylum.2

I.

Chand is a Hindu Indian from Fiji who worked as a fore-
man in a shop of cabinet makers; he was not politically active.
He lived in a small village on the island of Latouka. Two-
thirds of the people in the village were ethnic Fijians while
the other one-third were Indian Fijians. The village was run
_________________________________________________________________
2 Chand's wife, Premila Mudaliar Chand, filed an asylum claim deriva-
tive of her husband's. The IJ and BIA treated their cases together, and we
do the same. Because we hold that Ashok Chand is eligible for asylum,
we hold that Premila Chand is also eligible for asylum.

                               9384


by a chief who was a good friend of Chand's father. The chief
afforded Chand's family a measure of security in the village.
Chand stated that there were no problems between the Indian
Fijians and ethnic Fijians prior to 1987, but that the situation
changed dramatically following the coups.3  During the period
immediately after the military takeover, the Fijian army
raided and robbed the homes and businesses of Indians in the
village, and also burned the temple which Chand and other
Indians used.

However, Chand's problems were not limited to the months
following the coups. He continued to suffer acts of persecu-
tion on account of his race and religion in the years between
1987 and his departure from Fiji in February of 1993. Chand
was the victim of violent attacks on several occasions. One
day (in 1988) Chand was playing soccer on a Sunday. A
group of soldiers approached the players and broke up the
game, forcing the players to run barefoot on a hot coal tar
highway. The soldiers also beat Chand on his left leg with the
butt of a rifle.

Chand was attacked by Fijian soldiers again, in 1991. On
that occasion, Chand was cutting firewood with his father in
preparation for Chand's wedding. Soldiers approached them
and asked Chand's father if they had paid the royalty for the
wood. His father responded by noting that the soldiers asked
_________________________________________________________________
3 The ugly events surrounding the coups in Fiji, including the rapes and
beatings of Indian citizens and the fire bombings of their houses, have
been described in detail in this court's prior opinion in Singh v. INS, 94
F.3d 1353, 1356-57 (9th Cir. 1996) (hereinafter R.J. Singh). Sadly, at the
time of this writing, another military takeover is taking place in Fiji. It
appears that this one, like the prior coups, has succeeded in crushing a
democratically elected government composed in part of ethnic Indians.
See Fiji's Ethnic Indians Live in Fear, AP Online, June 1, 2000. For pur-
poses of this decision, however, we consider only the events that are
reflected in the record before the BIA.

                               9385


only Indians, and not ethnic Fijians, about the royalty. In
response, the soldiers started beating both Chand and his father.4

Soldiers attacked Chand on still another occasion, in 1992.
At that time, Chand was the secretary of a charitable youth
club that was running a bazaar during Easter -- Chand was
organizing the club's stand, which was run by teenagers. Sol-
diers attacked the stand, beat both Chand and the teenagers,
and took the group's money as well as the sweets and coffee
they were purveying.

On another occasion, ethnic Fijians assaulted Chand's
father while he was harvesting sugar cane. His father died
waiting for the bus to take him to the hospital. Chand did not
say where he was when his father was killed.

In addition to being the victim of direct physical attacks,
Chand suffered several incidents of economic persecution.
Chand was robbed by ethnic Fijians while going to or coming
from work on three different occasions in 1990. When he
complained to the police about these robberies, they took his
statement but never took any other action, saying that he
should talk to his village chief about his problems. In 1991,
while Chand was on a longer trip involving work, ethnic Fiji-
_________________________________________________________________
4 In the affidavit submitted as part of the asylum application, Chand
stated that this incident occurred in 1991. However, during his hearing
Chand stated that it occurred in 1992. In both the affidavit and the hearing,
Chand stated that his father died on March 8, 1991. At the hearing, neither
the IJ, the INS attorney, nor Chand's own attorney questioned him about
the inconsistency between his statement that his father died in 1991 and
that he was beaten while with his father in 1992, and the IJ did not men-
tion it in his decision. The BIA noted the inconsistency, but nonetheless
treated Chand's testimony as credible. We do so as well, for two reasons.
First, Chand has not been put on notice that his credibility is an issue in
this case. See Campos-Sanchez v. INS, 164 F.3d 448, 450 (9th Cir. 1999).
Second, minor inconsistencies and inconsistencies that do not go to the
heart of the asylum claim cannot support adverse credibility determina-
tions. See Akinmade v. INS, 196 F.3d 951, 954 (9th Cir. 1999); Martinez-
Sanchez v. INS, 794 F.2d 1396, 1400 (9th Cir. 1986).

                               9386


ans robbed him and a group of his co-workers of their equip-
ment. Finally, in early 1992, while his wife was alone at
home, soldiers came to the family's house and asked his wife
for money. When she replied that she did not have any, they
vandalized the outside of the house, damaging the walls.

The final acts which led to Chand's decision to flee Fiji
came at the end of 1992. Despite problems that many Indians
had experienced throughout the islands, Chand had remained
relatively safe while in his home village because the village's
chief had been a good friend of his father, and had provided
the family with a measure of protection. However, after the
chief died, Chand's protection evaporated. The Fijians who
owned the land he had lived on "raised his rent " from $100
per month to $3,000 per month. Chand was forced to leave
the land. After forcing him to leave, the Fijian landlords also
took his furniture and possession of the house, which
belonged to him.5 Chand and his wife took shelter with
friends for roughly one month after being displaced, and then
came to the United States.

In addition to the transcript of the hearing and Chand's
original application for asylum with the accompanying affida-
vit, the record also contains several secondary sources regard-
ing the situation in Fiji. The State Department's 1994 "Profile
for Asylum Claims and Country Conditions" for Fiji noted
that the Fijian Constitution assured the political dominance of
ethnic Fijians through a system of racially divided voting. The
profile also contained the following passage regarding racial
crime in Fiji:
_________________________________________________________________
5 Chand, like many Indians in Fiji, appears to have had a long-term lease
for his land, on which he built his house. Thus, he owned his house but
not the land on which it sat. Chand's testimony makes clear that the land-
lords did not foreclose on the land. Rather, Chand was forcibly evicted
from the land and was then unable to sell his house because it had been
taken from him.

                               9387


      Neither the Amnesty International 1992 annual
      report nor the Department of State's annual country
      report on Fiji has found evidence of widespread
      human rights violations in Fiji. Ethnic and commu-
      nal differences, however, do cause significant social
      tension in Fiji. In some instances, this tension results
      in the harassment and intimidation of ethnic Indians
      by ethnic Fijians. The police are sometimes either
      unable or unwilling to prevent such harassment,
      which is frequently at a personal level difficult for
      the authorities to control or prevent. Indo-Fijians are
      also sometimes the victims of crime based on race.
      Inadequate police protection contributes to the fre-
      quency and seriousness of these incidents.

The Profile also stated that the government effectively
upholds basic human rights, that there were no reports of
political killings, and that, "despite the flawed nature of the
Fijian political structure, we are not aware of any evidence
that the Government of Fiji takes action against or fails to
protect individuals solely because they are members of the
Indo-Fijian community." It concludes with the following
statement:

      There are acknowledged racial tensions in Fiji. Resi-
      dents of that country from both ethnic communities,
      however, are leading tranquil and productive lives
      throughout Fiji. Indo-Fijians of Moslem, Hindu,
      Sikh and Christian faiths are economically active
      and engage in business and professional activities.

The record also contains a letter from a desk officer sent to
the Immigration Judge at the INS's request. The letter stated
that, although there was considerable racial tension in Fiji and
"isolated incidents do occur," "there is no evidence that mem-
bers of the Indian community have been consistently mis-
treated in the manner claimed by this applicant. " The letter
acknowledged the problems in Fiji that occurred around the

                               9388


time of the coup, stating that "political developments in Fiji
in 1987 did result in some mistreatment but this was of short
duration and has not been repeated." It added that emigration
from Fiji "is prompted by economic considerations, not by
human rights abuses." The letter's analysis concluded with a
legal assessment. It stated that while the incidents described
by Chand "are unfortunate and show a high level of prejudice,
they do not appear to be the kind of mistreatment normally
associated with asylum."

In addition to the documents from the State Department,
the record contained a few articles from newspapers in Fiji.
One, from 1994, prophetically described how the Prime Min-
ister (who, as a military official, had led the coup in 1987) had
subtly threatened the Indian community by referring to the
possibility of another coup, "probably a bloody one." The
Prime Minister also stated that it was wrong, according to
Fijian custom, to imprison young men for crimes (other than
crimes involving battle). Another article described the Prime
Minister's statement that Fiji would be better off if the Indians
just went back to India.

II.

Chand and his wife entered the United States on temporary
visitor visas, but overstayed their time and then applied for
asylum and withholding of deportation.

After Chand's initial application for asylum was denied, he
was placed in deportation proceedings, and presented his
claim for asylum at a hearing before an Immigration Judge
(IJ). The IJ found Chand's testimony vague as to certain
dates, and suggested therefore that he had "some difficulty
with the credibility of the respondent" insofar as Chand stated
that the problems he faced occurred in 1992, rather than in
1991 or earlier.6 However, the IJ acknowledged that Chand's
_________________________________________________________________
6 Neither the BIA nor the IJ made an explicit adverse credibility finding.
See Hartooni v. INS, 21 F.3d 336, 342 (9th Cir. 1994). In fact, neither the

                               9389


testimony was substantiated by the fact that many Indians
leaving Fiji had testified to similar events in other cases, con-
ceded that there was "harassment, discrimination and signifi-
cant annoyances" in Fiji, and stated that Indians were the
victims of "severe criminal activity and that the police are not
in as good control as they should be." Yet, the IJ did not
believe that Chand had been or would be subject to persecu-
tion on account of a protected ground. He therefore denied
both asylum and withholding of deportation.

Chand appealed to the BIA. The BIA appears to have
reviewed the IJ's decision de novo, and in any event did not
explicitly adopt the IJ's decision.7 After describing the facts,
the BIA began its analysis with the conclusion that Chand's
testimony was "not sufficiently detailed" and too "vague and
general" to satisfy the burden of proof. The BIA then pro-
ceeded to analyze individually some, though not all, of the
events Chand recounted, in an effort to explain why no one
of the various incidents established eligibility for asylum or
withholding.8

The BIA stated that because Chand was playing soccer
with ethnic Fijians, the soldiers' attack on him at that time
could not have been on account of a protected ground,9 and
_________________________________________________________________
IJ nor the BIA even suggested that the events Chand described did not
happen to him; they only suggested that his account of when the events
happened may have been incorrect.
7 If the BIA had adopted the IJ's decision while adding its own reasons,
we would have to review both decisions. Where the BIA engages in de
novo review, we review only its decision. See Cordon-Garcia v. INS, 204
F.3d 985, 990 (9th Cir. 2000).
8 We find the omissions in the BIA's discussion of Chand's claim puz-
zling. For example, the BIA did not discuss the fact that Chand was dis-
placed from his home, despite having included that event in its description
of the facts.
9 Presumably the BIA had race in mind, and not religion. The soldiers
objected to Chand's playing soccer on the Sabbath.

                               9390


that it in any event did not rise to the level of persecution.10
Regarding the firewood incident, the BIA stated that the sol-
diers beat Chand and his father because they had questioned
the soldiers, and not because of a protected ground. The BIA
added that Chand's testimony about this event was too incon-
sistent to meet his burden of proof because he stated that the
event occurred in 1992, even though he later stated that his
father died in 1991.11 The BIA then stated that the theft of his
group's "money and merchandise" (presumably at the charity
event held during Easter) did not rise to the level of persecution.12
The BIA next added that the three robberies Chand suffered
did not rise to the level of persecution and were not on
account of a protected ground, and that Chand's testimony
about the burning of his temple also did not show that the
occurrence was on account of a protected ground, as opposed
to the product of "general conditions of violence."13

Chand timely appealed.

III.

Because Chand was placed in deportation proceedings prior
to April 1, 1997, and his deportation order became final after
October 30, 1996, his case is governed by the transitional
_________________________________________________________________
10 For the latter proposition, the BIA cited Prasad v. INS, 47 F.3d 336
(9th Cir. 1995) (K. Prasad). As we explain below, that case does not sup-
port the proposition for which the BIA cited it. Moreover, an event that
does not constitute persecution when viewed in isolation may contribute
to such a finding when viewed as part of a pattern of conduct.
11 It is apparent from the record that Chand was simply in error in identi-
fying the date of the event as 1992. It is clear that there was no attempt
at deception. In his affidavit, Chand had stated that the assault occurred
in 1991.
12 The BIA neglected to discuss Chand's testimony that he was beaten
during this incident. See also supra n.10.
13 The BIA also stated that Chand did not state who burned the temple.
This was incorrect, as Chand clearly stated that the Fijian military burned
it.

                               9391


rules of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA). Therefore, we have
jurisdiction to consider his petition for review under 8 U.S.C.
S 1105a as amended by IIRIRA S 309(c)(4).

Petitions for review from BIA decisions in asylum cases
are reviewed under the substantial evidence standard. We
review the BIA's legal determinations in accordance with the
principles outlined in Chevron USA, Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837 (1984). See INS v.
Aguirre-Aguirre, 119 S.Ct. 1439, 1445 (1999). We will
reverse the BIA's decision that an applicant is ineligible for
asylum only if "a reasonable fact-finder would have to con-
clude that the requisite fear of persecution existed." INS v.
Elias-Zacarias, 502 U.S. 478, 481 (1992).

[1] Because several recent decisions of this court have
exhaustively described the eligibility requirements for asylum
applicants, we will not describe those requirements in detail.
See Navas v. INS, _______ F.3d _______, _______, 2000 WL 780997, at *4-
5 (9th Cir. June 20, 2000); Ladha v. INS, _______ F.3d _______, 2000
WL 702887, at *5 (9th Cir. June 1, 2000); Mgoian v. INS, 184
F.3d 1029, 1034-35 (9th Cir. 1999). In the case before us,
Chand seeks to establish eligibility because he was persecuted
in the past. "In order to establish eligibility for asylum on the
basis of past persecution, an applicant must show: (1) an inci-
dent, or incidents, that rise to the level of persecution; (2) that
is `on account of' one of the statutorily-protected grounds;
and (3) is committed by the government or forces the govern-
ment is either `unable or unwilling' to control. " Navas, _______
F.3d at _______, 2000 WL 780997, at *4. For purposes of this
appeal, the central questions are whether Chand has shown
that the harm he suffered rises to the level of persecution, and
whether he has shown that he was persecuted on account of
a protected ground. If the answer to both these questions is
"yes", we must also consider whether the INS has established
a change in country conditions sufficient to rebut the pre-
sumption that arises of a well-founded fear of future persecu-

                               9392


tion. That presumption can be overcome only by an
individualized showing that because of the change that has
occurred, the particular individual no longer has reason to fear
that he would be subjected to persecution if he returned to the
country he fled.

IV.

[2] Despite the BIA's ruling, we think it evident that the
harm Chand suffered rises to the level of persecution, and
conclude that no reasonable fact-finder could have found oth-
erwise. Chand was the victim of violence on three occasions,
on all of which he was physically attacked by soldiers from
the Fijian military. Physical harm has consistently been
treated as persecution. See De Guinac v. INS, 179 F.3d 1156,
1161 (9th Cir. 1999). Where an applicant suffers such harm
on more than one occasion, and as in this case is victimized
at different times over a period of years, the harm is severe
enough that no reasonable fact-finder could conclude that it
did not rise to the level of persecution, particularly when the
incidents are considered along with the other acts to which
Chand was subjected. See Korablina v. INS, 158 F.3d 1038,
1044 (9th Cir. 1999) (cumulative effect of several instances
of violence and harassment compel finding of persecution).14

[3] Chand was also robbed repeatedly, and testified that the
police were not interested in dealing with this continuing
problem. In addition, Chand's house was attacked by Fijian
soldiers when his wife was at home alone, resulting in the
destruction of his property (and great terror for his wife). We
have treated persistent robbery under threatening conditions
as persecution in another case involving an Indian Fijian asy-
lum applicant, where there was evidence that the Fijian gov-
ernment was unable or unwilling to control such crime. See
_________________________________________________________________
14 We also think it significant that Chand's temple was burned. Cf. Sur-
ita, 95 F.3d at 818.

                               9393


Surita v. INS, 95 F.3d 814, 817-18 (9th Cir. 1996). Such evi-
dence exists here as well.

[4] Chand ultimately fled Fiji after his house and all the
furniture in it were taken from him when he and his wife were
forced to vacate their home by their ethnic Fijian landlords.
Upon being displaced, they were forced to stay with friends
because they had become, literally, homeless. We have recog-
nized that purely economic harm can rise to the level of perse-
cution where there is "a probability of deliberate imposition
of substantial economic disadvantage" upon the applicant on
account of a protected ground. Kovac v. INS, 407 F.2d 102,
107 (9th Cir. 1969); Gonzalez v. INS, 82 F.3d 903, 910 (9th
Cir. 1996). Economic persecution has been credited as an
important part of asylum claims on numerous occasions. See,
e.g., Korablina, 158 F.3d at 1045 (loss of job and substantial
career obstacles because of anti-Semitism); Gonzalez, 82 F.3d
at 910 (loss of ration card and business's inability to buy
inventory constitute economic persecution); Desir v. Ilchert,
840 F.2d 723, 727-28 (9th Cir. 1988) (finding persecution in
part because of petitioner's inability to earn livelihood
because of refusal to comply with corrupt government prac-
tices); cf. Samimi v. INS, 714 F.2d 992, 995 (9th Cir. 1983)
(holding that seizure of petitioner's father's land and liveli-
hood could contribute to a finding of persecution).

[5] When considering an asylum claim, we consider cumu-
latively the harm an applicant has suffered. An applicant may
suffer persecution because of the cumulative effect of several
incidents, no one of which rises to the level of persecution.
See Shirazi-Parsa v. INS, 14 F. 3d 1424, 1428 (9th Cir. 1994),
overruled on other grounds by Fisher v. INS, 79 F.3d 955 (9th
Cir. 1996).15 Here, the harm Chand suffered, including the
_________________________________________________________________
15 The BIA erred to the extent that it considered each incident Chand
suffered in isolation, without analyzing the cumulative harm Chand suf-
fered.

                               9394


economic injury, when considered cumulatively, clearly rises
to the level of persecution.

[6] It is difficult to know on what basis the BIA concluded
that Chand's suffering did not rise to the level of persecution,
because the BIA made no attempt to assess Chand's claim
cumulatively. Nonetheless, we discern two strands of argu-
ment that the BIA appears to have relied upon. First, the deci-
sion below suggests that Chand's testimony was too general
and vague to satisfy the burden of proof. Our review of the
record reveals no such problem. Chand's testimony was clear,
generally consistent, and sufficiently detailed. While it is true
that certain events could have been described in greater detail,
the absence of such detail is insignificant on the record before
us, particularly given that the IJ made no attempt to elicit a
more specific description from Chand. The IJ had a duty,
shared with Chand, to ascertain the information relevant to the
asylum claim and to aid in the development of the record. See
Jacinto v. INS, 208 F.3d 725, 732-33 (9th Cir. 2000). More-
over, neither the IJ nor the BIA ever contended that Chand's
testimony was generally lacking in credibility. Under such
circumstances, any reasonable fact-finder would be compelled
to conclude that the specificity of Chand's testimony was
more than adequate to support his claim.

The BIA also appears to have believed that the result in
Chand's case was foreclosed by our decision in Prasad v.
INS, 47 F.3d 336 (9th Cir. 1995) (K. Prasad ). In K. Prasad,
we denied an Indian Fijian asylum applicant's petition for
review where the applicant had suffered a relatively mild
beating in the immediate aftermath of the coups. We noted
that he was detained for a short period, was not threatened,
required no medical treatment, and presented no evidence that
the Fijian government retained a continuing interest in him.
See id. at 339-40.

Initially, we note that the BIA erred in its interpretation of
K. Prasad, citing it for the proposition that the harm in that

                               9395


case did not constitute persecution, whereas we held only that
the record did not compel the conclusion that the harm in the
case constituted persecution. We made clear in K. Prasad that
we would have upheld as reasonable a decision to grant asy-
lum based on the single incident of violence in that case. K.
Prasad, 47 F.3d at 340. Thus, the BIA was not bound by K.
Prasad to reach the conclusion it did, regardless of whether
or not the case, from our standpoint, is controlling.

In any event, K. Prasad is obviously distinguishable from
this case. There we placed emphasis on the fact that the beat-
ing at issue was a single, non-serious incident, and that no one
in Fiji had any "continuing interest" in persecuting Prasad
beyond that one event. Id. at 339. Any other reading of K.
Prasad would make it difficult to reconcile with our consis-
tent practice of finding persecution where the petitioner was
physically harmed. See De Guinac v. INS, 179 F.3d 1156,
1161 (9th Cir. 1999) (citing Borja v. INS, 175 F.3d 732 (9th
Cir. 1999) (en banc) and Korablina v. INS, 158 F.3d 1038
(9th Cir. 1998)); cf. Lata v. INS, 204 F.3d 1241, 1245 (9th
Cir. 2000) (finding no persecution where Indian Fijian woman
was once chased by ethnic Fijian youths who threw stones at
her and may have threatened her with assault).

Here, Chand suffered multiple incidents of physical harm,
as well as other kinds of hardship. Moreover, unlike in K.
Prasad, where the sole incident of persecution on account of
a protected ground occurred in September of 1987, in the
immediate wake of the coups in Fiji, Chand faced acts of per-
secution that occurred at various times during the period from
1987 until the time he left.16
_________________________________________________________________
16 The BIA, unlike the IJ, expressed no doubt as to Chand's claims that
he suffered harm as late as 1992. Even if the IJ was correct to doubt that
some of the events Chand described occurred in 1992, there can be no
doubt from Chand's testimony that he was forced to leave his house only
a month before he departed, in early 1993, and also no doubt that he suf-
fered harm in 1991, which was four years after the coups.

                               9396


When analyzed cumulatively, Chand's claim is stronger
than the claim we considered in Surita, 95 F.3d at 819, where
we granted an Indian Fijian's petition for review and found
her eligible for asylum. In that case, the petitioner was repeat-
edly robbed during one week and then threatened by soldiers
on one occasion. Surita, 95 F.3d at 817. Unlike Chand, Surita
was never physically harmed, and did not suffer for any
length of time, because she left Fiji a few weeks after these
incidents, which was only six or seven weeks after the first
coup. Id. at 818.

The BIA also appears to have concluded that the harm
Chand suffered did not rise to the level of persecution because
it was not different from the "general conditions of violence"
in Fiji. However, we have held, both in the context of Indian
Fijian asylum applicants and in other cases, that where the
petitioner establishes that many members of his or her group
are targeted for persecution, less of an individualized showing
is required to qualify for asylum, not more. See Avetova-
Elisseva v. INS, _______ F.3d _______, 2000 WL 575243, at *6 (9th
Cir. May 15, 2000); Singh v. INS (R. J. Singh), 94 F.3d 1353,
1359 (9th Cir. 1996); Kotasz v. INS, 31 F.3d 847, 853 (9th
Cir. 1994); see also 8 C.F.R. S 208.13(b)(2)(i). This does not
mean that all Indian Fijians are eligible for asylum. On the
contrary, an Indian Fijian who has suffered only a single iso-
lated incident of harm, or very little cumulative harm, cannot
prevail simply because many Indians face oppressive condi-
tions. See Lata, 204 F.3d at 1243; Kumar v. INS, 204 F.3d
931 (9th Cir. 2000); Singh v. INS, 134 F.3d 962 (9th Cir.
1998) (B. Singh); K. Prasad, 47 F.3d at 336. Nevertheless,
that other Indian Fijians have faced persecution similar to the
persecution Chand suffered strengthens, rather than weakens,
his claim. See Avetova-Elisseva, 2000 WL 575243, at *7
(holding that an applicant who is a member of a disfavored
group, i.e. a group that is subject to systematic mistreatment,
can establish eligibility for asylum without making the same
showing he would have to make were he from a group that
did not suffer such systematic mistreatment).

                               9397


There is no doubt that Chand has made a sufficient showing
of persecution. We hold that any reasonable fact-finder would
have to conclude that Chand suffered "persecution " within the
meaning of the asylum statute and governing regulations.

V.

[7] We think it equally clear that the BIA erred in conclud-
ing that the harm Chand suffered was not "on account of" a
protected ground. At the outset, it appears that the incidents
which were unquestionably on account of a protected ground,
which the Board did not mention in its decision, may well be
sufficient for Chand to establish eligibility for asylum. The
BIA did not dispute that the attack on Chand that occurred at
the bazaar during Easter was on account of race and religion,
and (as we noted earlier) the Board said nothing at all about
why it did not credit his testimony that he was displaced from
his home on account of his race.17 The violent Easter attack
coupled with the displacement of Chand from his home was
enough to satisfy the "on account of" requirement.

In addition, the BIA's analysis of other crucial incidents
was misguided. The Board held that the soldiers' attack on
Chand for playing soccer on a Sunday could not have been on
account of a protected ground because he was playing with
ethnic Fijians. However, it is apparent from Chand's testi-
mony that the persecution was on account of religion, not
race; the soldiers attacked the players for playing on a Sun-
day, which is a day of religious significance for Christian eth-
nic Fijians, but not for Hindus like Chand.18
_________________________________________________________________
17 Chand also testified that ethnic Fijians are trying to take land from
Indians as part of a general move to return land to ethnic Fijian control.
The testimony makes clear that Chand's displacement occurred in that
context.
18 Even if the ethnic Fijians with whom Chand was playing were Chris-
tian, Chand would still be able to make out a claim for religious persecu-
tion. The soldiers attacked Chand, and all the other players, for playing on

                               9398


The INS does not defend the BIA's argument, but instead
argues that there is no religious persecution in Fiji, citing a
portion of the State Department Profile, which suggests that
communities of different faiths happily co-exist in Fiji. First,
we will not infer that a petitioner's otherwise credible testi-
mony is not believable merely because the events he relates
are not described in a State Department document. Credible
testimony by itself is sufficient to support an asylum claim.
See Ladha, _______ F.3d at _______, 2000 WL 702887, at *7-9. Sec-
ond, while we have recognized that a State Department's
Country Report (and we do not have such a Report in the
record before us) is "perhaps the best resource " for country
conditions information, Kazlauskas v. INS, 46 F.3d 902, 906
(9th Cir. 1995), we have never assumed that all potentially
relevant incidents of persecution in a country are collected in
the State Department's documentation. As the Seventh Circuit
recently explained, State Department "reports are brief and
general, and may fail to identify specific, perhaps local, dan-
gers to particular, perhaps obscure, individuals. " Galina v.
INS, _______ F.3d _______, 2000 WL 656350, at *3-4 (7th Cir. May
22, 2000).19
_________________________________________________________________
a day that they considered to be a religious holiday. That some of the play-
ers were willing to play because they were Hindu (or Muslim or Sikh)
while others were willing to play because they did not believe in so rigid
a view of Christianity does not undermine the claim that the soldiers'
behavior was motivated by a desire to enforce religious conformity. Cf.
Maini v. INS, 212 F.3d 1167, 1175 (9th Cir. 2000) ("If an applicant can
establish that others in his group persecuted him because they found him
insufficiently loyal or authentic to the religious, political, national, racial,
or ethnic ideal they espouse, he has shown persecution on account of a
protected ground.").
19 In the present proceeding, we have a State Department Profile and an
individualized letter, neither of which carries as much weight as a Country
Report. Morever, we find the individualized letter from a State Depart-
ment official regarding Chand's case troubling. The letter's dismissal of
the events at the time of the coups as "some mistreatment," its assessment
that the motive for Chand's departure was economic based solely on his
asylum application, its failure to discuss any of the entrenched political

                               9399


[8] The BIA also erred when it held that the beating Chand
suffered at the hands of soldiers when he and his father were
cutting firewood was not on account of a protected ground.
The BIA stated that the attack occurred because Chand's
father questioned the soldiers. It is true that Chand's father's
question appears to have precipitated the beating. However,
Chand's father asked the soldiers why only Indians, and not
ethnic Fijians, were subjected to the royalty for wood collec-
tion -- his question was an attempt to challenge the discrimi-
natory enforcement of the royalty. Had Chand's father not
been Indian he would not have challenged the discriminatory
enforcement, and might not have been asked to pay the roy-
alty in the first place. Thus, it is clear that the soldiers' attack
on Chand and his father was motivated in part by the Chands'
resistance to a racially discriminatory royalty, or at least by
their assertion, as Indians, that they were the victims of dis-
criminatory law enforcement. This constitutes persecution
that was, at least in part, "on account of" race. See Borja, 175
F.3d at 735, 736 (holding that protected ground need only
constitute a motive, not the sole motive, of persecution).

[9] We have held in other contexts that resistance to dis-
criminatory government action that results in persecution is
persecution on account of a protected ground. For example,
we found that the applicant had suffered persecution in Desir,
840 F.2d at 727-28, where he refused to pay money to corrupt
quasi-governmental forces because he was opposed to the
government, and then was punished as a result of his refusal
to pay the money. Although having to pay the money might
not have amounted to persecution, resisting the payment for
political reasons and being beaten as a result was persecution
on account of a political opinion. Cf. Barraza-Rivera v. INS,
_________________________________________________________________
discrimination and racial violence described in the Department's own Pro-
file, and its explicit legal conclusion that Chand was not eligible for asy-
lum, when taken together, serve to undermine our confidence in the
objectivity of the letter itself.

                               9400


913 F.2d 1443, 1451 (9th Cir. 1990) (finding cognizable per-
secution where applicant resisted conscription for religious
and moral reasons, and therefore faced punishment). In the
case before us, Chand and his father resisted racial discrimi-
nation, real or perceived, which in turn led to their persecu-
tion. This was persecution on account of a protected ground.

[10] Finally, the BIA stated that the robberies Chand suf-
fered could not support his claim because they were not on
account of a protected ground. It is true that, according to
Chand's testimony, the robbers never made their motive for
robbing him entirely clear, and furthermore that Chand never
explicitly alleged that he was robbed because of his race,
although he noted that the robbers were ethnic Fijians, and at
other places in his testimony described the general racial ten-
sion and discrimination faced by Indians in Fiji. Similarly,
Chand did not state in so many words that the police did not
protect him because of his race.

[11] However, as the Supreme Court made clear in its sem-
inal case on the subject, direct evidence of a persecutor's
motives is not required to show persecution on account of a
protected ground, only some evidence must be shown. See
INS v. Elias-Zacarias, 502 U.S. 478, 483 (1992). Here, the
record is replete with evidence that Indians are the victims of
racially motivated assaults and other crimes committed
against them by ethnic Fijians, and that the Fijian police are
sometimes either unwilling or unable to control such crime.
The State Department's Profile says almost exactly that:

      [Ethnic difference] results in the harassment and
      intimidation of ethnic Indians by ethnic Fijians. The
      police are sometimes either unable or unwilling  to
      prevent such harassment . . . Indo-Fijians are also
      sometimes the victims of crime based on race. Inade-
      quate police protection contributes to the frequency
      and seriousness of these incidents.

                               9401


(emphasis added). In addition, the articles Chand submitted
strongly suggest that the government of Fiji and even the
Prime Minister implicitly condone crime against Indians. This
information is more than sufficient to constitute "some evi-
dence" that the crimes against Chand were at least in part
racially motivated. See Borja, 175 F.3d at 735-36.

In this case, the evidence that Chand suffered harm because
of his race and religion is simply overwhelming. We conclude
that no reasonable fact-finder could find that he was not per-
secuted on account of a protected ground.

VI.

[12] As a result of Chand's having shown that he suffered
past persecution, he is entitled to a presumption that he will
be persecuted in the future. See 8 C.F.R.S 208.13(b)(1)(i);
Vallecillo-Castillo v. INS, 121 F.3d 1237, 1240 (9th Cir.
1996). However, because neither the IJ nor the BIA found that
the harm Chand suffered rose to the level of persecution, they
did not accord Chand the presumption, and therefore did not
consider whether changed conditions in Fiji were sufficient to
rebut it. In some cases in which the BIA failed to analyze the
record regarding country conditions because it did not find the
harm necessary to give rise to the presumption, we have
remanded to allow it to do so. See Del Carmen Molina v. INS,
170 F.3d 1247, 1250 (9th Cir. 1999). We have held, however,
that such a remand is not appropriate where the record clearly
shows that the country conditions material in the record will
not serve to rebut the presumption. Navas, _______ F.3d at _______,
2000 WL 780997, at *9; Maini, 212 F.3d at 1177; Vallecillo-
Castillo, 121 F.3d at 1240; Prasad v. INS  (G. Prasad), 101
F.3d 614, 617 (9th Cir. 1996).

The evidence in this case compels the conclusion that con-
ditions have not changed sufficiently to rebut the presumption
that arose with respect to Chand. While the evidence in the
record suggests that, in general, conditions had improved in

                               9402


Fiji between the time of the 1987 coup and the time described
in the State Department's Profile, they obviously did not
improve enough to save Chand from several attacks by Fijian
soldiers and ethnic Fijians or from his eviction from his land
and the seizure of his home. Most important, the Profile
quoted above makes clear that racially motivated crime of the
type Chand faced remains a problem for some Indians, and
that in some cases police are unable or unwilling to stop such
crime.

We recently denied a petition for review filed by an Indian
Fijian on the ground that even if she had suffered persecution,
country conditions had changed sufficiently to rebut the pre-
sumption to which she may have been entitled. See Kumar v.
INS, 204 F.3d 931, 934 (9th Cir. 2000). Kumar, however, can-
not be read to stand for a general proposition that no Indian
Fijian can any longer have a reasonable fear of future persecu-
tion because conditions in Fiji had improved.

First, we have long held that the determination of whether
or not a particular applicant's fear is rebutted by general coun-
try conditions information requires an individualized analysis
that focuses on the specific harm suffered and the relationship
to it of the particular information contained in the relevant
country reports. As we stated in Garrovillas v. INS, 156 F.3d
1010, 1017 (9th Cir. 1997), "our cases hold that`individual-
ized analysis' of how changed conditions will affect the spe-
cific petitioner's situation is required. Information about
general changes in the country is not sufficient. " Id. (citing
Osorio v. INS, 99 F.3d 928, 933 (9th Cir. 1996); Berroteran-
Melendez v. INS, 955 F.2d 1251, 1257 (9th Cir. 1992) (stating
that "blindly" applying country conditions information to
deny claims would be error).

The reason for the requirement of individualized analysis is
clearly demonstrated by the differences between Kumar and
the case before us. Whereas in that case the petitioner suffered
no harm beyond that which "took place in the aftermath of the

                               9403


1987 coups," Kumar, 204 F.3d at 934, here Chand suffered
harm at the hands of the Fijian military and other Fijians that
the government would not control in 1988, 1990, 1991, 1992,
and immediately before he left in early 1993. Thus, regardless
of what may or may not be true as a general proposition, the
record before us clearly does not support the conclusion that
the presumption with respect to the persecution Chand suf-
fered has been rebutted because, "since [the coups], condi-
tions have improved significantly in Fiji, and any lingering
discrimination that may exist against Indo-Fijians certainly
does not rise to the level of persecution." Kumar, 204 F.3d at
934. On the contrary, Chand suffered several incidents of per-
secution well after the coup, and the record contains substan-
tial corroborating evidence, both in the form of articles from
Fiji and in the State Department's Profile, that racially moti-
vated crime in Fiji remains a problem for many individuals,
and that in some cases the police are unable or unwilling to
control that crime.

[13] It is not surprising that while racial or religious condi-
tions may have improved generally, a number of individuals
may continue to be subjected to acts of persecution on a regu-
lar basis. It may be true that in some regions of the country
conditions are better than in others, or even that there are
some villages in which persecution reigns and others in which
it is entirely absent. Conditions may also differ depending on
the social class or the political views of particular Indians.
The State Department's Profile itself states that Indians are
"sometimes" subject to harassment and that police are "some-
times" unable or unwilling to control it. Because Chand has
shown that he has continued to face significant problems in
the years after the coup, even after the general conditions
improved substantially, any reasonable fact-finder would be
compelled to conclude that the country conditions information
in the record is not sufficient to rebut the presumption of
future persecution in this case. Thus, there is no basis for a
remand on the country conditions question.

                               9404


VII.

For the foregoing reasons, we hold that Chand is eligible
for asylum and remand for the Attorney General to exercise
her discretion with respect to such relief. With respect to
withholding of deportation, Chand must meet a higher burden.
To qualify for withholding, Chand must "demonstrate that it
is more likely than not that [he] would be subject to persecu-
tion in the country to which he would be returned. " I.N.S. v.
Cardoza-Fonseca, 480 U.S. 421, 423 (1987) (citation omit-
ted). The reasons that compel our holding that Chand is eligi-
ble for asylum would also compel any reasonable fact-finder
to conclude that Chand is entitled to withholding of deporta-
tion. We therefore hold that Chand has demonstrated his enti-
tlement to withholding of deportation as well as his eligibility
for asylum.

We GRANT Chand's petition for review and REMAND
his case to the BIA for further action consistent with this
opinion.

                               9405


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