International Files
Comparing Women’s Rights in Afghanistan 30 Years Ago and Today As illustrated by the story of activist Delara Nasseri By Beth Persky
Beth Persky is a certified specialist in immigration and nationality law with the California Board of Legal Specialization. She practices immigration law nationwide. She is the immediate past chair of the FBA’s International Law Section and the current chair of the ECOSOC committee.
Judith Wood is an immigration litigator with a number of published landmark decisions in the area of political asylum. In 1994, she won a case before the Ninth Circuit, Nasseri v. Moschorak, 34 F.3d 723 (Ninth Circuit, 1994), in which a Ninth Circuit panel reversed the district court’s decision and granted asylum to a teacher from Afghanistan who was apprehended by the Immigration and Naturalization Service upon attempting to enter the United States. The story was the basis for the 2018 film St. Judy, produced by Cannonball Productions. The author interviewed Wood about the case and its relevance to the current legal framework for Afghan asylum cases. Delara Nasseri was a teacher in a public elementary school in Kabul and had been an active member of a group in Afghanistan that opposed both the communist regime and the fundamentalist factions of the mujahidin who had seized power in Afghanistan—the National Islamic Front for Afghanistan (NIFA). Nasseri attempted to enter the United States on June 14, 1992, to seek asylum and was detained and placed in exclusion proceedings.1 Persky: Judy, in 1994 you won the Nasseri case before the Ninth Circuit. Who was Delara Nasseri, and why is her case important for the development of asylum law in the United States? Wood: Delara Nasseri was an elementary schoolteacher at the time when the country was under communist control and the fundamentalist forces were organizing a rebellion. She was also a political activist and favored the return of the constitutional monarchy. She was opposed to the communist regime and also opposed the mujahidin. This case is important because it gives a detailed opinion on the issue of credibility. Nasseri was found credible by the immigration judge (IJ), but the IJ considered her story to be implausible. The Board of Immigration Appeals (BIA) then found her not to be credible. The Ninth Circuit found that the BIA was absolutely wrong and went into great detail explaining why Nasseri was credible and why her story was plausible. So, the case goes beyond Nasseri’s own and washes over to the broader issue of credibility.
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In 1990, Nasseri was kidnapped and imprisoned by the mujahidin. She was eventually released, after having been tortured. She then escaped to India after her parent’s house was bombed. In India, she was pursued by mujahidin rebels. She then left India and came to the United States. Persky: Why did the IJ deny her asylum claim in August 1992? Wood: The IJ found that Nasseri did not explain why rebels would follow her to India. She never said that they followed her. Rather they “tracked her down” there. Persky: What did the BIA use as its basis for denying her claim in exclusion proceedings? Wood: The BIA, although finding that Nasseri testified in an honest and forthright manner, held that her testimony was not plausible based on its analysis of the political situation in Afghanistan. On appeal to the BIA, Nasseri submitted further evidence establishing her membership in the NIFA and a letter from a former U.S. assistant to the U.S. Embassy in Kabul stating that Nasseri was well known as an opponent of both the communist regime, which was in power at the time, and the mujahidin. She also submitted a letter from her husband stating that she was a member of the NIFA and proof of her membership. Persky: The Ninth Circuit found that Nasseri’s persecution was on account of political opinion. What led to their conclusion? Wood: The Ninth Circuit really slammed the BIA on credibility. The court cited Turcios v. INS, 821 F2d 1396, 1300 (9th Cir. 1987), stating that negative credibility finding must be based on substantial reason and must bear a legitimate nexus to the finding. The court also cited Aguilera-Cota v. INS, 914 F.2d 1375, 1381 (9th Cir. 1990), stating that the reasons for a negative credibility finding must be based on valid grounds for determining that the witness is not credible. Persky: At the time that Nasseri was apprehended, there was a separate “exclusion proceeding.” You
