Toufighi v. Mukasey, (9th Cir. Aug. 18, 2008)

Petitioner's motion to reopen to apply for adjustment of status was rightly rejected because it was barred by the usual ninety-day deadline under 8 CFR §1003.2(c)(2) and INA §240(c)(7)(C)(I). The BIA did not err as a matter of law when it concluded that Petitioner failed to establish that he would be persecuted for being a Christian. We find that we lack jurisdiction to review the IJ's original determination because Petitioner's opportunity to appeal that decision lapsed ninety days after the BIA's order. The BIA reasonably interpreted the IJ's decision as an express rejection of Petitioner's claim to have converted to Christianity. 

Petitioner, a citizen of Iran, sought as asylum, withholding of removal and Convention Against Torture (CAT) relief claiming that he had converted from Islam to Christianity and that he feared he would be persecuted upon return to Iran for committing apostasy. In support of his claim, Petitioner submitted several unauthenticated official documents translated from Farsi, and two letters from a Christian pastor attesting to his conversion.

At the asylum hearing, the immigration judge refused to consider the two unauthenticated documents, finding that Petitioner had been given sufficient time to properly authenticate them. The letters from the pastor were admitted, but discounted by the IJ, because they were not from the pastor of Petitioner's home church and the pastor was not their to testify. The IJ found Petitioner's testimony was generally credible, but stated that he had "very deep concern as to the genuineness of [Petitioner's] conversion." The IJ noted that Petitioner knew very little about the Bible and could not name the 12 apostles. The IJ found that his conversion was "basically a vehicle for him to apply for political asylum in the United States." The IJ concluded that Petitioner had not established past persecution or a well-founded fear of persecution. The IJ also found that Petitioner had not met his burden for withholding of removal or CAT relief, but granted him voluntary departure. Petitioner filed a timely appeal with the BIA, but failed to file a brief and, as a result, his appeal was dismissed by the BIA under 8 CFR §1003.1(d)(2)(i)(E). The BIA's dismissal also advised Petitioner that he had 30 days to voluntarily depart the United States and the consequences of the failure to depart.

Petitioner did not depart the United States. Instead, over one year later he filed a motion to reopen to adjust his status based on his recent marriage to a United States citizen. In the alternative, Petitioner also based his motion on changed conditions in Iran. The BIA denied the motion finding that Petitioner was ineligible to adjust status because he had failed to voluntarily depart. The BIA also found that the motion was barred as untimely under 8 CFR §1003.2(c)(2). The BIA denied the motion based on changed circumstances in Iran because it was not supported by evidence that Petitioner would be directly affected by the changes. The BIA found that, to the extent any of the new information related to the persecution of Christians in Iran, Petitioner had already failed to establish that he would be affected.

On review, the Ninth Circuit held that it need not determine whether Petitioner was ineligible for adjustment due to his failure to depart. The court held that the BIA rightly rejected the motion to reopen for adjustment as time barred because it was not filed within ninety days.

The court also held that the BIA did not err as a matter of law when it concluded that Petitioner failed to establish that he would be persecuted for being Christian. The court found that the IJ had rejected Petitioner's assertion that he had converted to Christianity. The court then found that it lacked jurisdiction to review the IJ's original determination because Petitioner's opportunity to appeal that determination lapsed ninety days after the BIA's final order from the original appeal.

The court also rejected Petitioner's contention that the IJ found him credible, but found that he could avoid persecution by practicing his faith in hiding in Iran. The court found that the BIA's interpretation of the IJ's words was reasonable and that the IJ did make an express adverse credibility determination.

The court also held that it did not have jurisdiction to review the IJ's conclusions at the asylum hearing, but only had jurisdiction to review the BIA's denial of the motion to reopen. The court rejected Petitioner's argument that the court had jurisdiction to review the IJ's conclusions because the BIA rested its decision on the IJ's conclusions of fact. The court distinguished Petitioner's case from Ma v. Ashcroft, 361 F.3d 553 (9th Cir. 2004) because Ma involved a motion to reconsider, not a motion to reopen.

The court held that the BIA did not abuse its discretion in denying Petitioner's motion to reopen. The court reasoned that because the IJ found the conversion was not genuine, and that apostasy would not be imputed to Petitioner, the BIA did not abuse its discretion in concluding that the evidence of changed conditions was not material to his claim and that he failed to establish a prima facie case for asylum.

In conclusion, the court held that the BIA did not err in failing to consider other possible bases for reopening, such as Petitioner's association with the United States, his pro-American opinion, and that his new wife and children are United States citizens. The court found that the BIA is not required to search the record and tease out claims and that the BIA did not act unreasonably in not addressing such claims.

The petition for review was denied.

One judge, Berzon, dissented. The dissent opined that the BIA misunderstood what the IJ actually said about Petitioner's conversion and then failed to consider whether the conditions in Iran have changed for apostates. The dissent stated that the question for asylum purposes is not what Petitioner believed in his heart of hearts, but whether he would be perceived as having renounced Islam. The dissent concluded by stating that the majority reached an "unjust" result.