Daneshvar v. INS

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206 2 Daneshvar v. Ashcroft No. 02-3653

ELECTRONIC CITATION: 2004 FED App. 0027P (6th Cir.)

File Name: 04a0027p.06 _________________

COUNSEL

UNITED STATES COURT OF APPEALS

ARGUED: Behzad Ghassemi, E. Lansing, Michigan, for

FOR THE SIXTH CIRCUIT Petitioner. Lyle D. Jentzer, UNITED STATES

_________________ DEPARTM E N T OF J U S T I C E , OFFI CE OF

IMMIGRATION LITIGATION, Washington, D.C., for

MOHAMMAD REZA X Respondent. ON BRIEF: Behzad Ghassemi, E. Lansing,

DANESHVAR, - Michigan, for Petitioner. Ethan B. Kanter, Michael P.

Lindemann, UNITED STATES DEPARTMENT OF

Petitioner, - JUSTICE, OFFICE OF IMMIGRATION LITIGATION,

- No. 02-3653

- Washington, D.C., for Respondent.

v. >

, KENNEDY, J., delivered the opinion of the court, in which

- ALDRICH, D. J., joined. GIBBONS, J. (pp. 23-30),

JOHN ASHCROFT , Attorney - delivered a separate opinion concurring in part and dissenting

General of the United States, - in part.

Respondent. -

- _________________

N

On Appeal from the Board of Immigration Appeals. OPINION

No. A72 174 409. _________________

Argued: October 23, 2003 KENNEDY, Circuit Judge. This case presents an appeal

from the Board’s order denying Petitioner’s application for

Decided and Filed: January 20, 2004 asylum and denying his petition for adjustment of status. We

grant but stay the enforcement of the order denying the

Before: KENNEDY and GIBBONS, Circuit Judges; application for asylum. We reverse the Board’s denial of his

ALDRICH, District Judge.* petition for adjustment of status and remand that petition for

further proceedings.

BACKGROUND

Petitioner is a thirty-nine-year-old native and citizen of

Iran, born on March 25, 1964. He was admitted to the U.S.

on June 17, 1994 as a visitor. Petitioner violated his non-

immigrant status by overstaying his visa, and as a result, was

* placed in deportation proceedings. On October 19, 1995,

The Honorab le Ann Aldrich, United States District Judge for the

Northern District of Ohio, sitting by designation. Respondent ordered Petitioner to show cause why it should

1

No. 02-3653 Daneshvar v. Ashcroft 3 4 Daneshvar v. Ashcroft No. 02-3653

not deport him for remaining in the United States longer than Secretary of State as a Foreign Terrorist Organization under

authorized by his visa. Appearing before an immigration INA section 219. Press Release, Dep’t of State, 2001 Report

judge, Petitioner admitted the factual allegations in the order on Foreign Terrorist Organizations (Oct. 5, 2001), at

to show cause and conceded deportability. Petitioner asked http://www.state.gov/s/ct/rls/rpt/fto/2001/5258.htm.

for asylum, withholding of deportation, and, in the alternative, Petitioner’s stated reason for affiliating was the religious

for voluntary departure. nature of the organization that corresponded with his personal

upbringing. Petitioner asserts that he was never a formal

In the aftermath of the Iranian Revolution (after the Shah member of MEK. However, he distributed flyers in support

was overthrown and the U.S. hostages were taken, but prior of an MEK senatorial candidate2 and sold MEK’s

to their release), Petitioner, who was 16 years old at the time, newspapers. He personally only knew about 15 MEK

became attracted to the Mujahedin-e Khalq Organization members (the organization at the time had thousands of

(MEK) in the city of Ghom.1 The Department of State members). J.A. at 400. Petitioner discontinued his

describes MEK as follows: association with MEK approximately a year later, upon his

discovery that MEK began resorting to violence. Petitioner

Formed in 1960s by the college-educated children of was arrested in Ghom, a year later as part of the widespread

Iranian merchants, the MEK sought to counter what it campaign by the Islamic government against MEK. He was

perceived as excessive Western influence in the Shah’s charged with possession of a gun and a hand grenade during

regime. Following a philosophy that mixes Marxism and a demonstration and sentenced to life in prison after a thirty-

Islam, has developed into the largest and most active

armed Iranian dissident group. Its history is studded with

anti-Western activity, and, most recently attacks on the

interests of the clerical regime in Iran and abroad. . . .

Worldwide campaign against the Iranian Government

stresses propaganda and occasionally uses terrorist

violence. During the 1970s the MEK staged terrorist 2

There was a confusion during Petitioner’s testimony about what type

attacks inside Iran and killed several US military of an election he participated in. Petitioner did explicitly clarify that he

personnel and civilians working on defense projects in was mistaken when he first said he participated in a Pre sidential election

Tehran. Supported the takeover in 1979 of the US and that he, indeed, participated in a Senatorial race. Dissent emphasizes

that this inconsistency further supports the IJ’s adverse credibility finding.

Embassy in Tehran. W e disagree. For the purposes of his asylum claim, it was irrelevant what

type of the election he participated in. An d as we exp lain later in this

Press Release, Dep’t of State, Background Information on opinion, an adverse credibility judgment cannot be based on an irrelevant

Foreign Terrorist Organizations (Oct. 8, 1999), at inconsistency. On the other hand, for the purposes of his petition for

http://www.state.gov/s/ct/rls/rpt/fto/2801.htm#mek, J.A. at adjustment of status (which was not even filed at the time of his

22. MEK is a terrorist group currently designated by the testimony), the distinction between a Presidential and a Senatorial election

is significant because, even today, we know nothing about the platform

of the Senatorial candidate in question. Wherea s it would be fair to

impute the beliefs of a national party (lik e M EK) to its Presidential

1

candidate, we have seen enough diversity in viewpoints among the

This Court takes judicial notice of the fact that today Ghom is a city legislators of the same party in this country to doubt that every MEK

of approximately 800,000 people located 100 miles southwest of Tehran Senatorial candidate shared the same viewpoint as the MEK organization

(pop. 8 million). itself.

No. 02-3653 Daneshvar v. Ashcroft 5 6 Daneshvar v. Ashcroft No. 02-3653

minute trial in front of a Court of Islamic Justice.3 Petitioner residents. He is a beneficiary of an approved immediate

vigorously denies these accusations and maintains that he was relative visa petition filed by his U.S.-citizen sister on

arrested on a trumped-up charge designed to punish him for September 13, 1998. He is currently employed.5 Based on

his earlier affiliation with MEK.4 Originally given a life this approved visa petition, Petitioner is now eligible to apply

sentence, Petitioner was released on probation after serving to adjust his status and to become a permanent resident of the

five years in various Iranian jails. He completed his probation U.S.

without any major accidents, served in the army for two

years, and was able to obtain some employment. Petitioner After hearing all testimony, the immigration judge, on

testified that the Iranian government did not allow him to February 18, 1997, denied his asylum, withholding, and

complete his high school education and barred him from ever voluntary departure applications. The immigration judge

working for the government. There is no evidence to found that (1) Petitioner lacked credibility based upon his

contradict that testimony. demeanor, lack of responsiveness, and contradictions within

his testimony and between his testimony and his application

In March of 1994, Petitioner, through the assistance of a for asylum, (2) Petitioner’s claimed fear of persecution was

family friend, secured a passport and an exit permit. He “considerably weakened” by his own testimony, including his

traveled to Germany and stayed with a sister there for three statements that his life sentence was reduced to five years,

months prior to obtaining a visitor’s visa to enter the U.S. that he successfully completed a subsequent five-year

Petitioner came to the U.S. on June 17, 1994. His immediate probation, that he was able to find employment, and that he

family in the U.S. includes his mother, two brothers and one completed his military service without incident, (3) Petitioner

sister, all of whom are either U.S. citizens or permanent has not suffered past persecution, did not have a well-founded

fear of future persecution, and thus was ineligible for either

asylum or withholding of deportation, and (4) Petitioner

would not be granted asylum as a matter of discretion even

3

The State Departm ent Re port stated tha t: assuming statutory eligibility because of Petitioner’s support

Defendants tried in the Revolutionary Courts are not granted fair for MEK’s tough policy toward the American hostages, and

trials. Th ey are often held in prolonged pretrial detention his “raising of funds to support and further these policies”

without access to attorneys, and their attorne ys are rarely

afforded sufficient time to prepare their defense. Defendants are during “a critical period in the detention of the hostages.”

often indicted for such va gue offenses as “moral corruption,” Daneshvar, No. A72-174-409 (Feb. 18, 1997) (decision of the

“antirev olutionary behavior,” and “siding with global IJ).

arrogance.” Defendants do not have the right to confront their

accusers or the right to appeal. Summary trials of 5 minutes are Petitioner appealed to the Board on March 24, 1997.

com mon , and so me trials a re conduc ted in secret.

D EP ’T OF S TATE , 104 T H C O N G ., C O U N T RY R E P O RT S O N H UMAN R IG H TS

During the pendency of the appeal, on May 23, 2001, he filed

P RACTICES FOR 1995 1154 (Jo int Comm. Print 1996). a motion to “reopen/remand” for consideration of his

4

This Court does not have b efore it any evidence that led to

Petitioner’s conviction in Iran. W e do, howe ver, no te that it is a common 5

occurrence for the Iranian government to arrest “persons on trumped-up In the Application to Register Permanent Resident or Adjust Status,

criminal charges when their actual ‘offenses’ are political.” D EP ’T O F Petitioner is listed as a medical biller. J.A. at 100. During the oral

S TATE , 104 T H C O N G ., C O U N T RY R E P O RT S O N H U M A N R IGHTS P RACTICES argum ent, Petitioner’s counsel indicated that Pe titioner is currently

FOR 1995 1154 (Jo int Comm. Print 1996). emp loyed as a physical thera pist.

No. 02-3653 Daneshvar v. Ashcroft 7 8 Daneshvar v. Ashcroft No. 02-3653

application for the discretionary relief of adjustment of status affirmed by the Board is erroneous and not supported by the

under INA section 245. On May 13, 2002,6 the Board record. Third is whether the Board’s decision denying

affirmed the immigration judge’s deportation order and Petitioner’s application for asylum and withholding of

asylum and withholding denials, denied Petitioner’s motion deportation is manifestly contrary to the law, an abuse of

to reopen and to remand to apply for adjustment of status, and discretion and not supported by the record. Fourth is whether

dismissed the appeal. The Board agreed with the immigration the Board’s decision denying Petitioner’s motion to reopen to

judge’s credibility determination, noting that her finding is apply for adjustment of status (permanent residency) based on

given significant weight due to her observational advantages. the provisions of 8 U.S.C. §1182(a)(3)(B)(i)(I) is erroneous,

The Board also agreed with the immigration judge’s denial of an abuse of discretion and not supported by the record.

asylum and withholding, finding that even if Petitioner’s

testimony regarding political imprisonment were true, 1. Constitutional Right to a Full and Fair Asylum

“conditions in Iran have changed to such an extent that he no hearing.

longer has a well-founded fear of being persecuted in that

country.” Daneshvar, No. A72-174-409, slip op. at 2 (BIA Petitioner argues that non-responsiveness and evasion noted

May 13, 2002). The Board also agreed that it was appropriate by the IJ in his testimony was due to failure of the interpreter

to deny Petitioner asylum in the exercise of discretion based at the hearing on February 5, 1997 to adequately

upon his past involvement with MEK. Finally, the Board communicate with either Petitioner or the IJ. Petitioner relies

denied Petitioner’s motion to remand the proceedings to allow on this Court’s earlier finding that an asylum applicant whose

him to apply for adjustment of status. The Board observed testimony was subjected to questionable translation by an

that Petitioner was inadmissible under 8 U.S.C. interpreter was deprived of his constitutional right to a full

§ 1182(a)(3)(B)(i)(I) for having engaged in terrorist activity, and fair asylum hearing where the IJ grounded his adverse

including solicitation for membership in the MEK. The credibility solely on the applicant’s testimony. Amadou v.

Board concluded that the record provided “little apparent INS, 226 F.3d 724 (6th Cir. 2000). We review de novo the

positive factors in this case” and that the motion should also Board’s legal determinations. Hamama v. INS, 78 F.3d 233,

be denied “in the exercise of discretion.” Daneshvar, No. 235 (6th Cir. 1996).

A72-174-409, slip op. at 3 (BIA May 13, 2002).

In Amadou, this Court was confronted with a situation

ANALYSIS where the asylum petitioner and the interpreter spoke

different dialects of a West African language, Fulani.

Petitioner presents four issues on this appeal. First is Amadou, 226 F.3d at 725. The immigration judge in that case

whether Petitioner was deprived of his constitutional right to found that Amadou was not credible, citing several

a full and fair asylum hearing due to questionable translation inconsistencies in his testimony. Id. The Board agreed with

by the interpreter where the IJ based her adverse credibility the immigration judge. This Court, however, noted that both

determination on Petitioner’s testimony. Second is whether the immigration judge and the Board were on notice that there

the adverse credibility determination made by the IJ and was a problem with the interpreter. Id. at 727. The Court

went on to say that the “record indicates that the interpreter’s

faulty translation directly prejudiced Amadou because the

6 judge and Board denied his application based on the

The record is silent as to why the Board took over 5 (five) years to testimony at the hearing.” Id. The Court concluded that since

decide P etitioner’s appeal.

No. 02-3653 Daneshvar v. Ashcroft 9 10 Daneshvar v. Ashcroft No. 02-3653

“[t]he immigration judge based her decision to deny credibility findings in this particular case is unwarranted in

Amadou’s applications for asylum, withholding of light of the questionable quality of the interpreters, and that

deportation, and voluntary departure solely on her these findings should be reexamined before forming a basis

determination that Amadou’s responses were not credible” for a discretionary ruling.8 See, e.g., Abadi v. INS, 2002 WL

and since “the Board of Immigration Appeals deferred to the 31856127, at *2 (9th Cir. 2002) (granting a petition of an

judge’s adverse credibility finding...Amadou was denied his Iranian asylum seeker and remanding to BIA after observing

right to a full and fair hearing...” Id at 728. that “Moreover, ‘untrue statements by themselves are not

reason for refusal of refugee status.’”); Garrovillas v. INS,

Respondent argues that Petitioner’s claim is legally 156 F.3d 1010, 1013 (9th Cir. 1997) (quoting Tucious v. INS,

irrelevant because the Board denied asylum and withholding, 821 F.2d 1396, 1400 (9th Cir. 1987) (finding error in the

even assuming the truth of Petitioner’s testimony, because he BIA’s adverse credibility determination where the petitioner’s

failed to demonstrate a well-founded fear of persecution. application stated that he had been shot at, but the petitioner

Since, as discussed below, we agree that the Board correctly testified at his hearing six years later that he had never been

denied asylum on the basis that Petitioner failed to shot at)). “If discrepancies ‘cannot be viewed as attempts by

demonstrate a well-founded fear based on present conditions the applicant to enhance his claims of persecution, they have

in Iran, we do not address here Petitioner’s argument that no bearing on credibility.’” Shah v. INS, 220 F.3d 1062, 1068

inadequate translation caused the adverse credibility ruling. (9th Cir. 2000) (noting that the adverse credibility finding will

not be upheld unless the IJ or BIA specifically explains the

2. Adverse credibility determination significance of the discrepancy) (quoting Damaize-Job v. INS,

787 F.2d 1332, 1337 (9th Cir. 1986)). See also Bandari v.

Petitioner next argues that a detailed review of the record

would not support an adverse credibility determination made

by the Immigration Judge and affirmed by the Board.

Although we think that Petitioner may have a valid claim that Ahmad v. INS, 1998 WL 4 15975, at *4 (6th Cir. 1998) (Cole, Jr., J.,

the IJ’s adverse credibility determination was erroneous, we concurring)

nevertheless choose not to resolve this issue because we are

8

satisfied that Petitioner failed to establish that he has a well- For exam ple, the ALJ based her adve rse credibility determination,

founded fear of persecution. Since on remand BIA will in part, on the testimony about the number of brothers that Petitioner has.

exercise its discretion in whether to grant Petitioner’s motion According to the A LJ, “[t]he respondent testified that he had three

brothers. His own brother testified that the respo ndent had six brothers.”

to reopen, we note that a blind acceptance7 of the IJ’s adverse Daneshvar, No . A72 -174 -409 , slip op. at 16 (Feb. 18, 1997) (decision of

the IJ). In fact, when Petitioner wa s asked how m any relatives he had in

Iran, he answered that he had one. J.A. at 385. And when he was asked

7

how many family members lived in the United States, he answered that

As Judge Cole noted in an earlier case: he had two brothers and a sister. Id. Petition er’s bro ther testified that

I see it as particularly impo rtant that the IJs put their adverse there were seven brothers altogether (he also said that Petitioner was

credibility determinations on the record. Such a record would unrelated to one of them). J.A. at 423-2 4. Instea d of attempting to

enab le us to conduct a more effective, and even m ore efficient, reconcile the discrepancies, the ALJ simply, and unjustifiably, assumed

review and it wou ld allow us to determine if an IJ's or the B IA's that there was an inc onsisten cy betw een the two testim onies. W e

inferences are reasonable. Othe r circuits require that specific disagree. Since he has at least one sister living in G erma ny, it is entirely

reasons be given for a determination that a witness is not possible that Petitioner has three brothers who live outside of the United

credible, and I also view such a practice as desirable. States and Iran.

No. 02-3653 Daneshvar v. Ashcroft 11 12 Daneshvar v. Ashcroft No. 02-3653

INS, 227 F.3d 1160, 1166 (9th Cir. 2000) (granting a petition under the substantial evidence standard. INS v. Elias-

from an Iranian applicant and remanding to BIA for a Zacarias, 502 U.S. 478, 481 (1992).

discretionary ruling on the grant of asylum and withholding

of deportation after noting that “[a]ny alleged inconsistencies Petitioner argues that his five-year imprisonment from 1981

in dates that reveal nothing about a petitioner’s credibility to 1986 in Iran establishes that he suffered past persecution,

cannot form the basis of an adverse credibility finding.”); giving rise to the presumption under 8 C.F.R. § 208.13(b) that

Zahedi v. INS, 222 F.3d 1157, 1168 (9th Cir. 2000) (finding he possesses a well-founded fear of persecution making him

that IJ’s adverse credibility finding was not supported by eligible for asylum. Respondent argues that even if the claim

substantial evidence in a case of an Iranian applicant for of imprisonment is assumed to be credible, a preponderance

asylum, in part, because it was “clear that there were of the evidence establishes that since Petitioner’s

significant communication and translation problems imprisonment, conditions in Iran have changed enough to

concerning dates during the asylum hearing.”). where he no longer has a well-founded fear of being

persecuted in that country on the basis of his past involvement

3. Asylum claim with MEK. 8 C.F.R. § 208.13(b)(1)(i)(A). We agree with

Respondent.

A deportable alien is eligible to seek asylum at the

discretion of the Attorney General upon proof of a “well- As Petitioner testified, his original life sentence was

founded fear of persecution on account of race, religion, eventually reduced to five years. He thereafter served for two

nationality, membership in a particular social group, or years in the Iranian military without any incidents. Between

political opinion.” 8 U.S.C. § 1158(b); 8 U.S.C. 1986, when he was released, and 1994, when he left Iran, he

§ 1101(a)(42)(A). A well-founded fear must be both was only questioned four times and was never physically

subjectively genuine and objectively reasonable. mistreated during these encounters with the government.

Mikhailevitch v. INS, 146 F.3d 384, 389 (6th Cir. 1998) Petitioner was also able to obtain employment, although his

(stating that “[a]n applicant must therefore actually fear that options were limited by his inability to work for the

he will be persecuted upon return to his country, and he must government.9 Petitioner strenuously argues that the human

present evidence establishing an objective situation under

which his fear can be deemed reasonable.”) (citations

omitted). The applicant need not, however, show “that he 9

Eco nom ic deprivation constitutes persecution only when the

probably will be persecuted if he is deported; one can resulting cond itions are sufficiently severe. Matter of Ac osta, 19 I&N

certainly have a well-founded fear of an event happening Dec. 211, 222 (BIA 19 85). See also Tarevski v. INS, 19 94 W L 276886,

when there is less than a 50% chance of the occurrence taking at *2 (6th Cir. 1994) (citing Zalega v. INS, 916 F.2d 12 57, 1260 (7th Cir.

place.” Id. (citations omitted). This Court has held that 1990) (review ing decisions from severa l circuits and holding that one’s

“‘persecution’ within the meaning of 8 U.S.C. inability to ob tain his preferred government job is not sufficient evidence

to establish persecution)); Youssefinia v. INS, 784 F.2d 125 4, 12 61 (5th

§ 1101(a)(42)(A) requires more than a few isolated incidents Cir. 1986) (in a case involving an Iranian applicant for asylum, observing

of verbal harassment or intimidation, unaccompanied by any that “[w]hile Youseffinia argues that a total withdra wal of all economic

physical punishment, infliction of harm, or significant opp ortunity may support a well-founded fear of persecution, he has not

deprivation of liberty.” Id. at 390. This Court reviews the met the burden of proof for such a showing. The record indicates that

Board’s denial of asylum and withholding of deportation Yo ussefinia’s brothers have obtained employment and are able to support

the family. . .Youssefinia’s status upon return wo uld be close r to his

brothers’ than to his father’s.”)

No. 02-3653 Daneshvar v. Ashcroft 13 14 Daneshvar v. Ashcroft No. 02-3653

rights conditions in Iran have continuously deteriorated, citing persecuted in Sri Lanka. Neither the relief of asylum nor

country reports published by the U.S. Department of State. of withholding of deportation provides for refuge on

Although we accept as true the allegations of widespread account of human rights abuses unconnected to the

human rights abuse by the Iranian government, we are grounds enumerated in the Act, i.e., race, religion,

nevertheless constrained by the statute to reject Petitioner’s nationality, membership in a particular social group, or

claim for asylum because he failed to show a well-founded political opinion.

fear of persecution based on his political opinion. See, e.g.,

Hamzehi v. INS, 64 F.3d 1240, 1244 (8th Cir. 1995) (“We Matter of T, 20 I&N Dec. 571, 577 (BIA Oct. 13, 1992)

agree with the Hamzehis that, by our standards, today’s living (citations omitted) (emphasis added).

conditions in Iran are inhospitable or worse for women and

those who would prefer a different political order. However 4. Withholding of Deportation

[petitioners] have not shown the sort of particularized threat

of severe harm that would support a well-founded fear of The United States Code provides that “[t]he Attorney

persecution.”); Ahmadi v. Board of Immigration Appeals, General shall not deport any alien . . . to a country if the

1992 WL 114386, at *3 (4th Cir. 1992) (“We have no doubt Attorney General determines that such alien’s life or freedom

that the conditions and human rights in Iran are deplorable. would be threatened in such country on account of race,

The Act, though, does not provide asylum eligibility for religion, nationality, membership in a particular social group,

anyone who may be subject to violence in his home or political opinion.” 8 U.S.C. § 1253(h)(1). As this Court

country.”) (citations omitted). We understand that many has previously noted, “[a]n application seeking withholding

Iranian citizens may live in fear of persecution by the Islamic of deportation faces a more stringent burden of proof than one

regime. However, the statute requires them to either be for asylum.” Mikhailevitch, 146 F.3d at 391 (citing INS v.

members of a particular race, religion, nationality, or social Cardoza-Fonseca, 480 U.S. 421, 431-32 (1987)). Because

group, or to have the fear based on a political opinion. If we substantial evidence supports the Board’s determination that

were to accept Petitioner’s theory of eligibility for political Petitioner is ineligible for asylum, it therefore follows that he

asylum, we would have to hold that every Iranian citizen has cannot satisfy the more stringent standard for withholding of

a well-founded fear of persecution solely by virtue of living deportation.

in Iran. Petitioner has enjoyed as close to a normal life during

his eight years in Iran after his release, as can be expected of 5. Motion to Reopen

a person living in a totalitarian Islamic state. He has The Attorney General, may in his discretion, adjust the

presented no credible evidence that he will be singled out for status of an alien “to that of an alien lawfully admitted for

different treatment if he is deported back to Iran. As the permanent residence if (1) the alien makes an application for

Board explained in an earlier opinion: such adjustment, (2) the alien is eligible to receive an

This Board in turn appreciates the awful circumstances immigrant visa and is admissible to the United States for

in which the Sri Lankan Government and large numbers permanent residence, and (3) an immigrant visa is

of the inhabitants of that country find themselves. But if immediately available to him at the time his application is

we were to accept the applicant’s assessment of human filed.” 8 U.S.C. § 1255(a). As the Supreme Court noted, the

rights violations as constituting persecution under the abuse-of-discretion standard applies to the judicial review of

Act, Tamils, Moslems, and Sinhalese alike would all be the Board’s determination of motions to reopen. INS v.

No. 02-3653 Daneshvar v. Ashcroft 15 16 Daneshvar v. Ashcroft No. 02-3653

Abudu, 485 U.S. 94, 96 (1988). The Board’s discretion is sister, the respondent is inadmissible to the United States

broad but it is not unlimited. It may not exercise its under section 212(a)(3)(B)(i)(I), for having engaged in

discretion in a way that is arbitrary, irrational or contrary to terrorist activity. Engagement in terrorist activities

law. Babai v. INS, 985 F.2d 252, 255 (6th Cir. 1993) includes solicitation for membership in terrorist

(quoting Mejia-Carrillo v. INS, 656 F.2d 520, 522 (9th Cir. organization. Section 212(a)(3)(B)(iii). As noted above,

1991)). Cursory, summary, or conclusory statements are the MEK is designated as a terrorist organization under

inadequate. Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 97 section 219 of the Act. . . Therefore the respondent is

(2nd Cir. 2001). As this Court has explained: inadmissible on this ground. Further, the record provides

very little apparent positive factors in his case and leads

In determining whether the Board abused its discretion, us to conclude that the request should be denied in the

this court must decide whether the Board’s decision was exercise of discretion.

made without a rational explanation, inexplicably

departed from established policies or rested on an Daneshvar, No. A72-174-409, slip op. at 3 (BIA May 13,

impermissible basis, such as invidious discrimination. . . 2002). We find that (1) the Board erred as a matter of law in

The scope of review is exceedingly narrow because a its statutory analysis and (2) that it abused its discretion in

lack of statutory standards provides the Attorney General rejection Petitioner’s motion to reopen by failing to

with unusually broad discretion. At least two courts have adequately consider all relevant factors.

held that it is only necessary that the Board hear,

consider and rationally decide the case before it. . . Section 1182 of Title 8 defines various categories of

Nevertheless, the BIA may be reversed if it fails to inadmissible aliens. 8 U.S.C. § 1182. One of those

actually consider the facts and circumstances respecting categories is involvement in terrorist activities. 8 U.S.C.

each petitioner’s claim of extreme hardship. . . Such a § 1182(a)(3)(B). The Board confined its analysis to the

decision would be reversed as arbitrary or capricious. provision that provides that any alien who has engaged in a

terrorist activity is ineligible to receive a visa and ineligible

Hazime v. INS, 17 F.3d 136, 140 (6th Cir. 1994) (citations to be admitted into the United States. 8 U.S.C.

omitted). Finally, the Board’s denial of relief may be § 1182(a)(3)(B)(i)(I). The Immigration Judge and the Board

affirmed only on the basis articulated in the decision and this held that MEK was a terrorist organization because it was so

Court may not assume that the Board considered factors that designated by the State Department. We agree that today

it failed to mention in its opinion. See, e.g., Casem v. INS, 8 MEK is a designated terrorist organization. However, MEK

F.3d 700, 702 (9th Cir. 1993); Anderson v. McElroy, 953 F.2d was not designated as a terrorist organization at the time of

803, 806 (2nd Cir. 1992). Petitioner’s involvement. The importance of this distinction

is explained below.

The Board disposed of Petitioner’s motion to reopen to

apply for adjustment of status in the following manner:

Due to his participation in these same activities, we will

deny the respondent’s motion to remand proceedings to

apply for adjustment of status. Although he has an

approved visa petition based on his relationship to his

No. 02-3653 Daneshvar v. Ashcroft 17 18 Daneshvar v. Ashcroft No. 02-3653

The Board found Petitioner to be statutorily ineligible for The statute does also provide that a terrorist organization is

“solicitation for membership in a terrorist organization.”10 a “group of two or more individuals, whether organized or

Daneshvar, No. A72-174-409, slip op. at 3. We review not, which engages in the activities described in

questions of statutory interpretation de novo but with due subclause (I), (II), or (III) of clause (iv).” 8 U.S.C.

deference to the interpretation by the Attorney General and § 1182(a)(3)(B)(vi)(III).12 Based on the evidence in the

the Board. Fieran v. INS, 268 F.3d 340, 344 (6th Cir. 2001) record, we think that BIA was correct in finding that MEK

(citing INS v. Aguirre Aguirre, 526 U.S. 415, 424 (1999); was a terrorist organization during the 1970s as defined by

Chevron, USA, Inc. v. Natural Res. Def. Council, Inc., 467 §1182(a)(3)(B)(vi)(III).13 Petitioner’s solicitation for

U.S. 837, 842 (1984)). The statute does prohibit solicitation membership in a clause (vi)(III) terrorist organization,

of any individual for membership in a terrorist organization however, only renders him ineligible if he cannot

described in clauses (vi)(I) or (vi)(II). 8 U.S.C. “demonstrate that he did not know, and should not have

§ 1182(a)(3)(B)(iv)(V)(aa) and (bb). Those clauses deal with

an organization that is designated as a “terrorist organization”

either under §1189 or by the Secretary of State. Id. As 12

discussed above, MEK was not a “terrorist organization” at As the Note to 8 U .S.C. § 11 82 exp lains:

Subparagraph (A) shall not be construed to prevent an alien from

the time of Petitioner’s conduct under either clause.11 being considered inadmissible or deportable for having engaged

in a terrorist activity...described in subclause (IV)(cc), (V)(cc),

or (VI)(dd) of section 212(a)(3)(B )(iv) of such Act (as so

10

amended) [subclause (IV)(cc), (V)(cc), or (VI)(dd) of subsec.

On remand, the B oard should explain in what way Petitioner’s (a)(3)(B)(vi)(III) of such Act (as so amended) [subsec.

conduct constituted “solicitation of memb ership.” W e see no evid ence in (a)(3)(B)(vi)(III) of this section].

the record to indicate that Petitioner actually attempted to convince 8 U.S.C. § 1182 note (2001) para. (3)(B) (Retroactive Application of

anyone to become a member of the MEK. Amendm ents).

11 13

Our reading is consistent with the Congressional intent as Because it is unnecessary for our ultimate disposition of the case,

illustrated by the following Note that accompanied the amend ments to the we do not decide whether MEK ’s behavior during the Iranian hostage

statute: crisis amounted to a terrorist activity within the meaning of

Notwithstanding paragraphs (1) a nd (2 ), no alien shall be § 118 2(a)(3)(B )(vi)(III). Nor do we decide whether or not such a

considered inadmissible under section 212(a)(3) of the determination is necessary. We merely note a certain degree of amb iguity

Immigration and Nationality Act (8 U.S.C. 1182 (a)(3)) [subsec. in the statute that the parties may wish to con sider on rem and. A “terrorist

(a)(3) of this section]...by reason of the amendments made by activity” is defined as an activity that would be unlawful, inter alia, in the

subsection (a) [amending this section], on the ground that the United States if it had been committed in the United States, and that

alien engaged in a terrorist activity described in subclause involves, inter alia, taking hostages. 8 U.S.C. § 1182 (a)(3)(B)(iii). The

(IV)(bb), (V)(bb), or (VI)(cc) of section 212(a)(3)(B)(iv) of such term “engage in terrorist activity” is defined, inter alia, as incitem ent “to

Act (as so amended) [subclause (IV)(bb), (V)(bb), or (VI)(cc) of com mit, under circumstances indicating an intention to cause death or

subsection (a)(3)(b)(iv) of this section] with respect to a group s e rious bod ily injury, a terr oris t activity.” 8 U .S.C .

at any time when the group was not a terrorist organization § 1182(a)(3)(B)(iv)(I). It is therefore unclear whether or not an act that

designated by the Secretary of State under section 219 of such would qualify as “engage in terrorist activity” must at the same time be

Act (8 U.S.C. 1189 ) or otherwise designated under section unlawful in the United States. In other words, the question is whether

212(a)(3)(B )(vi)(II) of such Act (as so amended) [subsect. MEK ’s cond uct during the hostage crisis, which is clearly in violation of

(a)(3)(B)(vi)(II) of this section]. 8 U.S.C. § 1182 (a)(3)(B)(iv)(I), ought to be evaluated in light of the more

8 U.S.C. § 1182 note para. (3)(A) (2001) (Retroactive Application of speech-friend ly First Amendment standard articulated by the Supreme

Amendm ents). Court in Bra nde nbu rg v. O hio, 395 U.S. 444 (1969).

No. 02-3653 Daneshvar v. Ashcroft 19 20 Daneshvar v. Ashcroft No. 02-3653

reasonably have known, that the solicitation would further the show otherwise. Since Petitioner’s affiliation with MEK was

organization’s terrorist activity.” 8 U.S.C. very brief, Respondent’s burden will be a heavy one. We

§ 1182(a)(3)(B)(iv)(V)(cc). We find that the Board note that the Board was under the misapprehension that

committed a legal error when it failed to consider Petitioner’s Petitioner remained a member of MEK until he was

evidence regarding his state of mind. imprisoned, and was unaware that Petitioner had actually

disassociated himself from MEK upon learning of MEK’s

Petitioner, at the age of 16, supported one of the numerous violent conduct a full year prior to his arrest. Respondent,

organizations that came to life in the aftermath of the Iranian and the Board, relied on the 1996 State Department Report

Revolution. We would be hard-pressed to classify any minor that stated: “[a]lthough the Mojahedin now deny a role in that

who sold newspapers for an organization that supported an crisis, they advocated a tough hostage policy in several issues

armed revolt against a tyrannical monarch as a terrorist. To of their own official newspaper “Mojahed,” published in

impute such political sophistication to a teenager that Persian in Tehran in 1980-81.” DEP’T OF STATE, BUREAU OF

apparently even the U.S. Congress failed to achieve,14 in our DEMOCRACY , HUMAN RIGHTS, AND LABOR, IRAN–PROFILE OF

minds, would amount to a manifest injustice. Furthermore, ASYLUM CLAIMS & COUNTRY CONDITIONS (June 1996), J.A.

we are persuaded that Petitioner’s voluntary disassociation at 171. Ordinarily, we defer to the executive branch in

from MEK merely a year after he joined it, is evidence that he matters affecting immigration. However, in light of the

did not originally know in what MEK was involved. Finally, significant factual and legal mistakes committed by the Board

Petitioner testified during the hearing before the IJ that he was in this case, as detailed above, we find that no such deference

unaware of MEK’s violent activities until the time he left the is warranted and that Respondent failed to establish that

group.15 There is no evidence that Petitioner himself engaged Petitioner knew or reasonably should have known about

in any violent acts of terrorism. Thus, there is substantial MEK’s activities.

evidence that Petitioner is not statutorily ineligible for

immigration relief. The burden then shifts to Respondent to Respondent also defends the Board’s decision on the

grounds that the Board did not abuse its discretion when it

found that “the record provide[d] very little apparent positive

14 factors in this case and leads us to conclude that the request

As Petitioner notes in his brief, a number of U.S. Congressmen

opposed the designation of MEK as a terrorist organization. See, e.g., should be denied in the exercise of discretion.” Daneshvar,

U.S. v. Rahmani, 209 F. Sup p.2d 104 5, 10 50-5 1 (C.D. Cal. June 21, No. A72-174-409, slip op. at 3. We disagree.

2002). See also National Council of Resistance of Iran v. Department of

State, 251 F.3d 192, 208-09 (D.C. Cir. 2001) (holding that the process by We find a number of factors in the record that may cause

which MEK was designated as a terrorist organization violated MEK ’s the Board to find that Petitioner’s motion to reopen should be

due process rights by not allowing it to present “such evidence as [it] may

be able to produce to rebut the administrative record or otherw ise nega te

granted.16 First, the Board inexplicably took 5 (five) years to

the proposition that [it is a] foreign terrorist organization.”)

15 16

Petitioner lived in Ghom, away from the center of the hostage In its opinion, the Board implies, without explicitly stating, that

crisis. Freedo m of the press did not exist in Iran. It is unlikely that he Petitioner was invo lved with MEK during the time of the murder of the

was aware of all of the events going on around the country during the U.S. citizens. We want to emphasize that the murder of the U.S. citizens

volatile period in question. Petitioner’s brother also testified that MEK took place prior to Petitioner’s involvement with the MEK and there is no

changed its public position so many times during the relevant period that evidence produced b y Respo ndent to sugge st that Petitioner was aware of

it was impossible to know what it actually advocated. J.A. at 418. those murd ers.

No. 02-3653 Daneshvar v. Ashcroft 21 22 Daneshvar v. Ashcroft No. 02-3653

decide his appeal. See generally Casem v. INS, 8 F.3d 700, adjustment of status and remand for proceedings consistent

702-03 (9th Cir. 1993) (reprimanding BIA for failure to with this opinion.

consider the effect of a five-year delay on the petitioner’s

son); Rodriguez-Barajas v. INS, 992 F.2d 94, 97 (7th Cir.

1993) (noting “unconscionable” seven-year delay between

petitioner’s appeal and BIA’s decision); Saywack v. Attorney

General, No. 91 Civ. 7797, 1993 WL 205121, at *1

(S.D.N.Y. June 9, 1993) (discussing BIA’s series of “lengthy

and unexplained delays.”) Therefore, Petitioner has now been

in this country for almost ten years. One should hesitate

before uprooting him after such a long delay. Second,

Petitioner has a number of his immediate family members in

this country, including his mother, a sister, and two brothers,

all of whom are either U.S. citizens or permanent residents.

See, e.g., Casem, 8 F.3d at 703 (noting the special regard that

Congress has for keeping families intact). Third, the record

indicates that the immediate members of Petitioner’s family

have become productive members of this society and

Petitioner himself is currently employed. Fourth, Petitioner

was an immature teenager when he was associated with

MEK; he lived in a country known for its suppression of all

political activity at the time of high political turmoil; he was

not in Tehran at the time of the Iranian hostage crisis; and he

quit MEK as soon as he found out about its violent activities.

Fifth, and last, although we found that Petitioner has not

established a valid claim for political asylum, we nevertheless

cannot ignore the ramifications of sending a man to what can

only best be described as a lawless country.

CONCLUSION

For the reasons stated above, we find that Petitioner is

ineligible for an asylum and/or withholding of deportation.

However, we stay the enforcement of the Board’s order as it

relates to asylum and/or withholding of deportation because

we find that the Board committed reversible legal error and

abused its discretion in denying Petitioner’s motion to reopen

his application for adjustment of status. Accordingly, we

reverse the Board’s order denying Petitioner’s motion for

No. 02-3653 Daneshvar v. Ashcroft 23 24 Daneshvar v. Ashcroft No. 02-3653

_____________________________________________ As the majority explained, this court reviews the BIA’s

denial of a motion to reopen for abuse of discretion. Ashki v.

CONCURRING IN PART, DISSENTING IN PART INS, 233 F.3d 913, 917 (6th Cir. 2000). This court has

_____________________________________________ described review under an abuse of discretion standard in the

following manner:

JULIA SMITH GIBBONS, Circuit Judge, concurring in

part and dissenting in part. I agree with the majority’s Abuse of discretion is a phrase which sounds worse than

conclusion to affirm the decision of the Board of Immigration it really is. All it need mean is that, when judicial action

Appeals with respect to denying Daneshvar’s petitions for is taken in a discretionary manner, such action cannot be

asylum and withholding of deportation. Daneshvar has failed set aside by a reviewing court unless it has a definite and

to satisfy the statutory requirements for these forms of relief. firm conviction that the court below committed a clear

error in judgment in the conclusion it reached upon a

I disagree, however, with the majority’s decision to reverse weighing of the relevant factors. There is no exact

and remand the BIA’s order denying Daneshvar’s motion to measure of what constitutes abuse of discretion. It is

reopen for adjustment of status. While the majority is correct more than the substitution of the judgment of one

that Daneshvar is not inadmissible to the United States for tribunal for that of another. Judicial discretion is

soliciting membership in a terrorist organization, as that term governed by the situation and circumstances affecting

is defined at 8 U.S.C. § 1182(a)(3)(B)(vi)(I), the definition of each individual case. Even where an appellate court has

terrorist organization relied on by the BIA, Daneshvar is power to review the exercise of such discretion, the

nonetheless inadmissible for soliciting membership in a inquiry is confined to whether such situation and

terrorist organization, as defined at 8 U.S.C. circumstances clearly show an abuse of discretion, that

§ 1182(a)(3)(B)(vi)(III). Compare 8 U.S.C. is, arbitrary action not justifiable in view of such

§ 1182(a)(3)(B)(vi)(I) (defining terrorist organization as an situation and circumstances.

organization “designated under section 1189 [8 U.S.C.

§ 1189]” by the Secretary of State) with 8 U.S.C. Balani v. INS, 669 F.2d 1157, 1160-61 (6th Cir. 1982)

§ 1182(a)(3)(B)(vi)(III) (defining terrorist organization as “a (internal quotation and citation omitted). In reviewing the

group of two or more individuals, whether organized or not, BIA’s decision to deny a motion to reopen, as the majority

which engages in the activities described in subclause (I), (II), notes, “this Court must decide whether the denial of

or (III) of clause (iv) [such as committing or preparing a Petitioner’s motion to reopen deportation proceedings was

terrorist activity or gathering information on potential targets made without a rational explanation, inexplicably departed

for terrorist activity]). Furthermore, even if Daneshvar is not from established policies, or rested on an impermissible basis

deemed inadmissible under either definition of terrorist such as invidious discrimination against a particular race or

organization, it was not an abuse of discretion for the Board group.” Id. at 1161.

to deny Daneshvar’s motion to reopen for the reasons stated

in the Board opinion – Daneshvar’s involvement with the The Supreme Court has commented that the Attorney

MEK “at a time when it was particularly strong in its General has “broad discretion” to grant or deny a motion to

opposition to the United States” and the existence of few reopen. INS v. Doherty, 502 U.S. 314, 323 (1992) (citing INS

positive factors in support of granting the motion. v. Rios-Pineda, 471 U.S. 444, 449 (1985)). Furthermore,

“[m]otions for reopening of immigration proceedings are

No. 02-3653 Daneshvar v. Ashcroft 25 26 Daneshvar v. Ashcroft No. 02-3653

disfavored for the same reasons as are petitions for rehearing original). The U.S. State Department characterizes the

and motions for a new trial on the basis of newly discovered MEK’s violence in this way:

evidence.” Id. “This is especially true in a deportation

proceeding, where, as a general matter, every delay works to During the 1970’s [sic], the Mojahedin organization was

the advantage of the deportable alien who wishes merely to at the forefront of opposition to the Shah and in this

remain in the United States.” Id. period assassinated several Americans in Iran. The

Mojahedin was in full support of the takeover of the US

The BIA denied Daneshvar’s motion to reopen his embassy and the holding of our hostages during the

deportation proceedings by finding that he is inadmissible to 1979-81 hostage crisis in Iran. Their own published

enter the United States under 8 U.S.C. § 1182(a)(3)(B)(i)(I) statements show that their anti-US position at that time

for having engaged in terrorist activity and because “the was much more hard-line than that of Iran’s leaders.

record provides very little apparent positive factors in his Although the Mojahedin now deny a role in that crisis,

case.” The BIA did not abuse its discretion in making this they advocated a tough hostage policy in several issues

determination. of their own official newspaper “Mojahed,” published in

Persian in Tehran in 1980-81.

I agree with the majority that the MEK was a terrorist

organization, as defined by § 1182(a)(3)(B)(vi)(III), during Iran – Profile of Asylum Claims and Country Conditions,

the 1970s. In a decision refusing to set aside the State June 1996, Dept. St. Report, at 5. Title 8 U.S.C.

Department’s designation of the MEK as a foreign terrorist § 1182(a)(3)(B)(i)(I) provides that an alien who has engaged

organization in the 1990s, the D.C. Circuit described the in terrorist activity is inadmissible to the United States. To

MEK’s activities in the years just prior to Daneshvar’s “engage in terrorist activity” means inter alia “to solicit any

involvement: individual for membership in a terrorist organization

d e s c r i b e d i n c l a u s e ( v i ) ( I II ) [ 8 U . S . C .

The MEK “collaborated with Ayatollah Khomeini to § 1182(a)(3)(B)(vi)(III)], unless the solicitor can demonstrate

overthrow the former Shah of Iran. As part of that that he did not know, and should not reasonably have known,

struggle, they assassinated at least six American citizens, that the solicitation would further the organization’s terrorist

supported the takeover of the U.S. embassy, and opposed activity.” 8 U.S.C. § 1182(a)(3)(B)(iv)(V)(cc) (emphasis

the release of American hostages.” “[In 1972] the MEK added).

exploded time bombs at more than a dozen sites

throughout Tehran, including the Iran-American Society, By Daneshvar’s own admission, his involvement with the

. . . and the offices of Pepsi-Cola and General Motors. MEK was by no means a passive pursuit. In his testimony

From 1972-75 . . . the Mojahedin continued their before the immigration court, Daneshvar stated that from

campaign of bombings, damaging such targets as the around 1978 or 1979 until 1980 or 1981 he sold the Mojahed,

offices of Pan-American Airlines, Shell Oil Company, the MEK newspaper that the State Department has stated

and British organizations.” advocated support for the taking of American hostages,

supported the MEK’s ideology, and was “active” in the

People’s Mojahedin Org. of Iran v. United States Dep’t of MEK’s election efforts. Daneshvar also testified that he was

State, 182 F.3d 17, 20 (D.C. Cir. 1999) (quoting a CIA part of a twenty member committee that produced and

Intelligence Research Paper dated July 1993) (alterations in

No. 02-3653 Daneshvar v. Ashcroft 27 28 Daneshvar v. Ashcroft No. 02-3653

distributed flyers in support of MEK political candidates.1 Mojahedin and my friend were talking to go against the

Therefore, the entire focus of Daneshvar’s involvement with government with our force. And at the time, I find out if we

the MEK – according to his own testimony – was aimed at go that it will like [sic] bloody war in the country. Right

soliciting individuals for membership in this terrorist before when they take the guns out, I separated from them.”

organization. Again, this evidence does not demonstrate that Daneshvar

was unaware that his actions furthered the MEK’s terrorist

Since Daneshvar’s actions constitute solicitation of activities. This testimony, if believed, only leads to the

membership in a terrorist organization, he is inadmissible to conclusion that Daneshvar left the MEK when he felt the

the United States unless he demonstrates that he did not organization was about to confront the Iranian government.

know, and should not reasonably have known, that his acts of Daneshvar’s testimony does not indicate that he lacked

solicitation would further the MEK’s terrorist activities. knowledge of the MEK’s terrorist activities prior to his

Daneshvar has wholly failed to meet this burden. While the departure from the group.

majority, citing factors such as Daneshvar’s age at the time of

participation and his solicitation over a one year period of Furthermore, even if this court were to believe that

time, concludes that “there is substantial evidence that Daneshvar did not know the effects of his solicitation for the

Petitioner is not statutorily ineligible for immigration relief,” MEK, declaring Daneshvar inadmissible to the United States

these factors do not demonstrate Daneshvar’s knowledge, or would nonetheless be appropriate. The statute requires the

lack thereof, concerning the contribution that his activities solicitor to demonstrate both that he lacked actual knowledge

made to the organization’s terrorism efforts. The statute does that his solicitation would further the organization’s terrorist

not craft an exception for persons that solicit membership in activities and that he should not reasonably have known of the

terrorist organizations based on the solicitator’s age or effects of his solicitation. As previously discussed, during the

duration of action. Rather, the statute only exempts persons very period that Daneshvar solicited members on behalf of the

under 8 U.S.C. § 1182(a)(3)(B)(iv)(V)(cc) for reasonably MEK in the late 1970s and early 1980s, the organization’s

lacking the knowledge that their efforts contributed to the own newspapers proclaimed the MEK’s support for the

organization’s terrorist activities. holding of American hostages. Therefore, it is extremely

difficult to accept that Daneshvar should not have known he

The majority also claims that Daneshvar learned of the was soliciting members for a terrorist organization, when he

MEK’s violent aims around the time that he left the willingly distributed literature proclaiming the organization’s

organization. On this point, Daneshvar testified, “at the time violent policies.

Although the majority initially states correctly that the

1 burden for demonstrating Daneshvar’s lack of knowledge

Interestingly Daneshvar first testified tha t he was part of a concerning the effect of his solicitation rests on him, the

committee aimed at electing the MEK ’s presidential candidate. He later

recanted this testimony, stating that he “didn’t participate in the election

majority ultimately places this burden on the INS by

of the president, but in the election of the Senate.” Inconsistencies such remarking that “Respondent failed to establish that Petitioner

as this instance belie the doubt expressed by the majority that the knew or reasonably should have known about MEK’s

immigration judge erred in ad versely assessing Daneshvar’s credibility. activities.” The statute clearly places the burden on the

Regard less of which candidate Daneshvar supported, however, his active solicitor – Daneshvar, in this case – to demonstrate that he

participation with the M EK ’s political operations bolsters the conclusion

that he solicited membership in the organization.

“did not know, and should not reasonably have known, that

No. 02-3653 Daneshvar v. Ashcroft 29 30 Daneshvar v. Ashcroft No. 02-3653

the solicitation would further the organization’s terrorist within his testimony.2 Consequently, the Board did not abuse

activity.” 8 U.S.C. § 1182(a)(3)(B)(iv)(V)(cc). Examining its discretion – even if Daneshvar was not statutorily

evidence offered by the INS is irrelevant to this court’s inadmissible to the United States – in deciding to deny his

consideration of whether Daneshvar solicited individuals for motion to reopen. I dissent from the majority’s decision to

membership in the MEK. reverse the BIA’s order denying Daneshvar’s motion to

reopen and to remand for proceedings consistent with the

Finally, the majority opinion lists several factors, such as majority opinion.

Daneshvar’s length of stay in the United States, in an attempt

to provide positive factors the Board could have used as

justification for granting Daneshvar’s motion to reopen.

While this court could consider these factors if applying de

novo review to this issue, under an abuse of discretion

standard of review, this court cannot substitute its judgment

for that of the Board. Balani, 669 F.2d at 1162 (“Congress

has entrusted to the Attorney General of the United States the

responsibility of exercising discretion in immigration matters.

The Courts will not substitute their discretion for that of the

Attorney General.”).

Therefore, I disagree with the majority’s apparent

conclusion that Daneshvar is not inadmissible to the United

States. Nevertheless, even if one were to decide that

Daneshvar was not inadmissible through his involvement

with the MEK, it is important to note that the Board also

based its decision to deny Daneshvar’s motion on his 2

W hile concluding that review of Daneshvar’s claim that the

participation in the MEK during the precise time that the immigration court erred in making an adverse credibility determination

organization not only opposed American interests but also about him is unnecessary, the majority nevertheless says that Daneshvar

“argu[ed] for a prolongation of the detention of the hostages.” “may have a valid claim that IJ’s adverse credibility determination was

erroneous.” The majority also creates a possible explanation, not

In addition, the Board concluded that there were “very little supported by the record, for one of Dane shvar’s inconsistent statements.

apparent positive factors” that favored granting Daneshvar’s Although we do not resolve this issue, my reading of the record provides

motion in the exercise of the Board’s discretion. In its no basis to question the credibility finding of the immigration judge . The

decision, which upheld the denial of Daneshvar’s petitions for immigration judge, who – unlike the present panel – had the opp ortunity

asylum and withholding of deportation as well as denied to witness first-hand the testimony of all the witnesses as well as the

demeanor exhibited by Daneshvar, pointed to six separate instances of

Daneshvar’s motion to reopen, the BIA also cited the inconsistent testimony and also based the adverse credibility finding on

immigration judge’s finding that Daneshvar lacked credibility Daneshvar’s demeanor and nonresponsiveness. Since the majority does

because of his demeanor during testimony and inconsistencies not undertake review of the immigration jud ge’s credibility determination,

its construction of hypothetical explanations for Daneshvar’s apparent

inconsistencies is superfluous. In addition, the development of such

explanations is inconsistent with our deferential appe llate role in this

context.