Toufighi v. Mukasey

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PEJMAN TOUFIGHI, 

Petitioner, No. 04-74010

v.

 Agency No.

A76-382-466

MICHAEL B. MUKASEY,* Attorney

General, OPINION

Respondent.



On Petition for Review of an Order of

the Board of Immigration Appeals

Argued and Submitted

August 9, 2007—Pasadena, California

Filed December 13, 2007

Before: Marsha S. Berzon and Sandra S. Ikuta,

Circuit Judges, and James K. Singleton, Jr.,**

Senior District Judge.

Opinion by Judge Singleton;

Dissent by Judge Berzon

*Michael B. Mukasey is substituted for his predecessor, Alberto R.

Gonzales, as Attorney General of the United States, pursuant to Federal

Rule of Appellate Procedure 43(c)(2).

**The Honorable James K. Singleton, Jr., Senior United States District

Judge for the District of Alaska, sitting by designation.

16371

16374 TOUFIGHI v. MUKASEY

COUNSEL

Theodore Whitley Chandler, Sidley Austin, San Francisco,

California, for the petitioner.

Adam M. Dinnel (argued) and Terri Scadron, United States

Department of Justice, Civil Division, Washington, D.C., for

the respondent.

OPINION

SINGLETON, Senior District Judge:

Pejman Toufighi, a native and citizen of Iran, petitions for

review of a decision of the Board of Immigration Appeals

(“Board”) which denied his motion to reopen his claims for

TOUFIGHI v. MUKASEY 16375

asylum and withholding of removal. Toufighi sought to

reopen the proceedings in reliance on his marriage to a United

States citizen, and what he contended were changed circum-

stances in Iran material to his claims. We have jurisdiction

over the final order denying Toufighi’s motion to reopen pro-

ceedings. 8 U.S.C. § 1252(a)(5). We deny the petition for

review.

BACKGROUND

Pejman Toufighi is a native and citizen of Iran. He was

admitted to the United States on or about March 16, 1996, as

a non-immigrant visitor with authorization to remain for six

months. Toufighi remained in the United States beyond his

six-month stay without authorization from the Immigration

Service (“Service”). In May of 1997, the Service instituted

removal proceedings.

On August 8, 1997, Toufighi appeared with counsel and

conceded that he was removable. The Immigration Judge

(“IJ”) granted additional time to consider available forms of

relief, and in anticipation of an asylum claim, directed parties

to file supporting documents by the hearing date of September

18, 1997. In September, Toufighi appeared with counsel and

received a further continuance to allow him time to obtain

additional documents.1 The IJ set the hearing for April 1,

1998, and gave Toufighi until March 2, 1998, to submit addi-

tional supporting documents.

Toufighi appeared with counsel at the hearing on April 1,

1998, and testified on his own behalf. Essentially, Toufighi

claimed that he had converted from Islam to Christianity, and

that he feared that he would be persecuted upon return to Iran

1

The documents presented in September 1997 included an Amnesty

International Report on Iran, unauthenticated translations of documents

written in Farsi, and a letter from the pastor of a Christian church serving,

inter alia, Persian immigrants.

16376 TOUFIGHI v. MUKASEY

for committing apostasy. In support of his claim, Toufighi tes-

tified that he was introduced to Christianity while in college

in Iran, but did not convert because he was afraid of the rami-

fications. He alleged that after arriving in the United States to

visit his sister he began regularly attending church and prayer

meetings and had become a Christian.

Toufighi also submitted in support of his claim several

unauthenticated official documents translated from Farsi, and

two letters from a Christian pastor attesting to his conversion.

The IJ, finding that Toufighi had been given sufficient time

to properly authenticate his documents, refused to consider

the unauthenticated documents translated from Farsi. The let-

ters from the pastor were admitted over the objection of the

Service, but the IJ discounted them because they were not

from the pastor of Toufighi’s alleged home church, and nei-

ther the pastor who wrote the letters, nor the pastor of Tou-

fighi’s alleged home church, were present to testify to their

knowledge of Toufighi’s religious beliefs.

The IJ found that Toufighi’s testimony was generally credi-

ble, but that Toufighi had not in fact converted to Christianity:

[T]he Court would note that he has very deep con-

cern as to the genuineness as [to] the respondent’s

claimed conversion from Muslim to Christianity.

The respondent testified that he attended church

every Sunday since he came to the United States in

1996, at least December 1996. The respondent, how-

ever, apparently knows very little about the “Bible”

that he studied. The respondent cannot even name

the 12 apostles of Jesus Christ. With the Court’s

understanding that Christianity begins with the life

and teaching of Jesus Christ in the New Testament,

the 12 apostles have some of the most important, if

not the most important, writings of Christianity. The

Court has serious doubt in the respondent’s conver-

sion to Christianity when he cannot even give the

TOUFIGHI v. MUKASEY 16377

names of the 12 apostles of Jesus Christ. The respon-

dent’s knowledge about Christianity [was presented]

to the Court in such general terms that any person of

any religion can come up with that description of

their religion, namely peace, tranquility, and love.

The respondent is not able to give any specific

knowledge that he has learned from attending Chris-

tian church every Sunday, for four hours each day,

for at least the last year-and-a-half, and also his

desire to become a Christian was so big that he had

to “escape” his home country and come to the

United States to learn and become a Christian. The

Court just would not believe that the respondent’s

claimed conversion is genuine in nature. The Court

would find that the respondent’s alleged conversion

from Muslim to Christianity is basically as a vehicle

for him to apply for political asylum in the United

States.

The IJ further found that Toufighi had not previously prac-

ticed Christianity in Iran, and implicitly found that he would

not practice it there in the future because his alleged apostasy

was simply a ruse to gain asylum. Based on these findings,

the IJ concluded that Toufighi had not established past perse-

cution, or a well-founded fear of persecution upon his return

to Iran.

The IJ therefore denied Toufighi’s claim for asylum, and

because the standard was higher, also denied the request for

withholding of removal.2 The IJ then granted Toufighi’s alter-

nate request for voluntary departure, giving him until May 31,

1998, to depart.

2

In order to obtain withholding of deportation on the basis of future per-

secution, an applicant must demonstrate a clear probability of persecution.

INS v. Stevic, 467 U.S. 407, 413 (1984). In contrast, an applicant seeking

asylum as a refugee, need only show a well-founded fear of persecution,

a lesser standard. See INS v. Cardoza-Fonseca, 480 U.S. 421, 428 (1987).

16378 TOUFIGHI v. MUKASEY

Toufighi challenged the IJ’s decision, filing a timely notice

of appeal with the Board. However, he failed to timely file a

brief in support of his appeal, and the Board accordingly dis-

missed it in May 2002, pursuant to 8 C.F.R.

§ 1003.1(d)(2)(i)(E) (formerly 8 C.F.R. § 3.1(d)(2)(i)(D)

(2002)).3 The Board’s dismissal permitted Toufighi to volun-

tarily depart within thirty days, and warned him that if he

failed to timely depart he would be removed, subjected to a

fine, and made ineligible for a period of ten years for any fur-

ther relief under certain sections of the Immigration and

Nationality Act.4

Toufighi did not depart as promised. On October 16, 2003,

he filed a motion to reopen his case to adjust his status to that

of a lawful permanent resident based upon his recent marriage

to a United States citizen. Alternatively, he asserted that

changed conditions in Iran warranted reopening his asylum

claim.5

3

Although the Board prefaced the dismissal with a statement that it had

reviewed the record and was not persuaded that the IJ’s ultimate resolution

was in error, we have held such dismissals to be procedural and not on the

merits. See, e.g., Garcia-Cortez v. Ashcroft, 366 F.3d 749, 752 (9th Cir.

2004). We have also held that summary dismissal for failure to timely file

a brief is improper if the notice of appeal is sufficiently specific to focus

the Board’s attention on the specific findings of fact and conclusions of

law that the alien contends were erroneous. Id. at 753. Here, Toufighi

included an “attachment sheet” with his notice of appeal setting out his

claims of error. However, Toufighi did not seek timely review of the dis-

missal of his appeal, and we do not review it here.

4

The Board’s Order, dated May 21, 2002, established a new departure

date thirty days thereafter and restarted the ten-year period of ineligibility.

Zazueta-Carrillo v. Ashcroft, 322 F.3d 1166, 1173-74 (9th Cir. 2003).

5

The changed conditions to which Toufighi referred did not address reli-

gion in general, or Christian-Muslim relations in particular, but sought to

show that since the latest Iraq war, Iran had been persecuting proponents

of liberal pro-Western or pro-American ideologies. Toufighi expressed

fear that if he and his family returned to Iran they would be perceived as

Americans or American sympathizers and persecuted on that basis. Tou-

fighi did not seek to challenge with new evidence the IJ’s finding that his

conversion to Christianity was a ruse.

TOUFIGHI v. MUKASEY 16379

The Board denied the motion on July 15, 2004. First, the

Board found that as a consequence of Toufighi’s failure to

voluntarily depart pursuant to the Board’s grant of voluntary

departure dated May 21, 2002, Toufighi was barred from

applying for adjustment of status for ten years in accordance

with 8 U.S.C. § 1229c(d). Second, the Board concluded that

the application for adjustment of status was barred as

untimely pursuant to 8 C.F.R. § 1003.2(c)(2). Third, the

Board rejected the motion to reopen based on changed cir-

cumstances in Iran because it was not supported by evidence

that Toufighi would be directly affected by the alleged

changes:

The respondent alternatively requests reopening of

his asylum and withholding of removal claims based

upon alleged changed conditions in Iran. To support

his motion, the respondent has submitted some gen-

eral news articles related to recent events in that

country. None of the submitted information, how-

ever, contains prima facie evidence that the respon-

dent would be directly affected by any changes noted

therein. Moreover, the Immigration Judge previously

rejected the respondent’s assertion that he had con-

verted to Christianity; the respondent’s religious

conversion was the basis of his claims. To the extent

this information [the materials submitted by Tou-

fighi] would relate to persecution of Christians in

Iran, the respondent has already failed to establish

that this would affect him. We are not in a position

to readjudicate the merits of his original appeal at

this point. Thus, none of the new evidence is mate-

rial with respect to the respondent’s claims.

In August 2004, Toufighi timely petitioned this Court for

review of the final order of the Board dismissing his motion

to reopen.

16380 TOUFIGHI v. MUKASEY

STANDARDS GOVERNING REVIEW

Denials of motions to reopen are generally reviewed for

abuse of discretion. INS v. Doherty, 502 U.S. 314, 323-24

(1992); INS v. Abudu, 485 U.S. 94, 104-05 (1988). This Court

defers to the Board’s exercise of discretion unless it acted

arbitrarily, irrationally or contrary to law. Caruncho v. INS,

68 F.3d 356, 360 (9th Cir. 1995); Lainez-Ortiz v. INS, 96 F.3d

393, 395 (9th Cir. 1996). The Board’s determination of purely

legal questions is reviewed de novo except to the extent that

deference is owed to its interpretation of the governing stat-

utes and regulations. Rodriguez-Lariz v. INS, 282 F.3d 1218,

1222 (9th Cir. 2002); Simeonov v. Ashcroft, 371 F.3d 532,

535 (9th Cir. 2004). Factual findings are reviewed for sub-

stantial evidence. Sharma v. INS, 89 F.3d 545, 547 (9th Cir.

1996).

DISCUSSION

A. Motion to Reopen based upon Marriage and the Birth of

Children

In reviewing Toufighi’s claims we must bear in mind that

motions to reopen, like motions for new trial based upon

newly discovered evidence, are disfavored. Doherty, 502 U.S.

at 323 (citing Abudu, 485 U.S. at 107-08). While the Board

has broad discretion in ruling on a motion to reopen, it must

show proper consideration of all factors, both favorable and

unfavorable, in determining whether to grant a motion to

reopen. Bhasin v. Gonzales, 423 F.3d 977, 983 (9th Cir.

2005).

In October 2003, Toufighi sought reopening to permit him

to apply for adjustment of status on the ground that he had

married a United States citizen and fathered children who are

also citizens. The Board declined to hear this argument for

two reasons. First, as a consequence of Toufighi failing to

depart as ordered in 2002, he was statutorily ineligible to

TOUFIGHI v. MUKASEY 16381

apply for adjustment of status for a ten-year period.6 See 8

U.S.C. § 1229c(d)(1)(B). Second, his application, made

nearly seventeen months after the final order of removal, was

untimely. See 8 C.F.R. § 1003.2(c)(2).

[1] Toufighi’s motion to reopen to apply for adjustment of

status was properly denied regardless of whether the ten-year

bar on discretionary relief for failing to voluntarily depart

applies to him. If the ten-year bar under § 1229c(d)(1)(B)

applies, it will not expire until 2012 and the motion here was

not available to him. If § 1229c(d)(1)(B) does not apply, Tou-

fighi was still bound by the usual ninety-day deadline for

motions to reopen, which ran long before he applied for a

change of status.7 See 8 C.F.R. § 1003.2(c)(2); 8 U.S.C.

§ 1229a(c)(7)(C)(I). The Board noted both grounds in its

opinion. We need not determine whether the former ground

is correct, because Toufighi’s motion was rightly rejected on

the latter ground, namely, it was barred by the usual ninety-

day deadline.8

6

Toufighi concedes that he was twice ordered to depart voluntarily and

twice warned that the civil consequences of failing to depart included a

ten-year bar on applying for an adjustment of status. He argues that, con-

struing the statutes and regulations in his favor, his failure to post the bond

required as a condition of voluntary departure relieved him of the civil

penalties for failing to depart. In Toufighi’s view, failure to post the

required bond terminates the right to voluntary departure, leaving the alien

under an order of removal, to which the civil penalties do not attach. An

alien in this situation may remain in the country with impunity subject

only to being removed if he is found. Toufighi relies upon In re Diaz-

Ruacho, 24 I. & N. Dec. 47 (BIA 2006). Our disposition of this petition

makes it unnecessary for us to determine whether In re Diaz-Ruacho is

entitled to deference.

7

We recognize that the ninety-day time limit is not jurisdictional and

that in a proper case equitable tolling might apply. See Socop-Gonzalez v.

INS, 272 F.3d 1176, 1193 (9th Cir. 2001) (en banc). Toufighi did not pre-

sent an equitable tolling claim to the Board and points to no facts in the

existing record that might support such a claim.

8

Toufighi also argues that the Board ignored his request to reopen sua

sponte. We lack jurisdiction to review the Board’s refusal to reopen

removal proceedings sua sponte. Ekimian v. INS, 303 F.3d 1153, 1160

(9th Cir. 2002).

16382 TOUFIGHI v. MUKASEY

B. Motion to Reopen based on Changed Circumstances

Alternatively, Toufighi argues that new and verified evi-

dence of changed conditions within Iran supports his claim of

a well-founded fear of persecution. This ground is not subject

to the ninety-day limitation discussed above. See 8 U.S.C.

§ 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii). Nor does the

ten-year bar apply, because it does not bar an alien from seek-

ing relief under 8 U.S.C. § 1231(b)(3) (withholding of

removal) or 8 U.S.C. § 1158 (asylum). 8 U.S.C.

§ 1229c(d)(1)(B). The Board was therefore permitted to con-

sider Toufighi’s changed circumstances claim filed well over

ninety days after the original order became final.

(1) The Board did not err as a matter of law when it

concluded that Toufighi failed to establish that he would be

persecuted for being a Christian.

[2] The Board found that the newly available evidence pre-

sented by Toufighi relating to persecution of Christians in

Iran was irrelevant because the IJ had already determined that

Toufighi had not converted to Christianity.9 Toufighi argues

that the Board’s determination was in error because the IJ

never rejected his assertion that he had converted to Christian-

ity, and if the IJ did, the rejection was legally and factually in

error. We find that the IJ did reject Toufighi’s assertion of

conversion, and that we now lack jurisdiction to review the

IJ’s original determination, because Toufighi’s opportunity to

appeal that determination lapsed ninety days after the Board’s

Order of May 21, 2002. The Board therefore did not err as a

matter of law in relying on this conclusion.

9

Toufighi did not present new evidence or arguments in support of his

alleged conversion with his motion to reopen. Rather, the evidence related

solely to the deteriorating conditions in Iran for those associated with the

United States or pro-Western ideology. See supra note 5.

TOUFIGHI v. MUKASEY 16383

a) The IJ made an express credibility finding rejecting

Toufighi’s assertion that he had converted to Christianity.

Toufighi asserts that the IJ did not make an express adverse

finding regarding his credibility, and that the Board therefore

erred in its reliance. In Toufighi’s view, the Board misunder-

stood the IJ’s decision. Toufighi submits that the IJ found him

generally credible, and that the IJ’s qualifying remarks10 do

not add up to a clear finding that Toufighi’s claim of conver-

sion was false. Toufighi asserts that the only fair conclusion

to be drawn is that the IJ had doubts, but resolved them on

balance in Toufighi’s favor, concluding that Toufighi had

converted to Christianity but could avoid persecution by prac-

ticing his faith in hiding in Iran.11

[3] We disagree. Words may not be interpreted in a vac-

uum. It is context that gives meaning to words. Given the IJ’s

qualifying remarks, we conclude that the Board reasonably

interpreted the IJ’s decision as an explicit or express rejection

of Toufighi’s claim to have converted to Christianity.12 On

10

The IJ expressed “deep concern” as to genuineness of conversion; “se-

rious doubt” as to conversion; and found the alleged conversion was

merely “a vehicle for him to apply for political asylum in the United

States.” The IJ further stated that “[t]he Court just would not believe that

the respondent’s claimed conversion is genuine in nature.” See supra p.

16376-77.

11

The law of this circuit is clear that a finding that an applicant would

have to practice her faith in hiding would support, not defeat, her applica-

tion for asylum. Zhang v. Ashcroft, 388 F.3d 713, 719-20 (9th Cir. 2004).

However, taken in context, the IJ’s questions and comments along this

vein were focused on imputed Christianity. The IJ merely intended to con-

vey that the Iranian authorities would not impute Christianity to Toufighi

because Toufighi had never practiced Christianity in Iran, and would cease

the ruse of practicing it in the United States with the closing of the asylum

proceedings. More importantly, as discussed infra, even if this had been

the basis of the IJ’s ultimate conclusion, we lack jurisdiction to review the

IJ’s decision.

12

There is no inconsistency between a finding of general credibility

where interest and bias were not significant, and partial non-credibility

16384 TOUFIGHI v. MUKASEY

this record we find that the IJ did make an express adverse

credibility determination as to Toufighi’s claim that he con-

verted to Christianity. See Rizal v. Gonzales, 442 F.3d 84, 89-

90 (2d Cir. 2006) (finding an express adverse credibility

determination on a similar record). The IJ did far more than

imply a negative credibility finding by concluding that the

applicant failed to satisfy the burden of proof. The IJ explic-

itly stated, “The Court just would not believe that the respon-

dent’s claimed conversion is genuine in nature. The Court

would find that the respondent’s alleged conversion from

Muslim to Christianity is basically as a vehicle for him to

apply for political asylum in the United States.” Cf. Mansour

v. Ashcroft, 390 F.3d 667, 671-72 (9th Cir. 2004) (holding

that an IJ’s statements that he was “troubled by [ ] certain

inconsistencies” and that the petitioner’s credibility was “sus-

pect” amounted only to “an implicit adverse credibility deter-

mination,” which the court “refused to recognize”); Kataria v.

INS, 232 F.3d 1107, 1114 (9th Cir. 2000) (holding that the

Board did not make an adverse credibility finding when it

“merely noted questions about [the petitioner’s] claim and

concluded that [the petitioner] failed to meet his burden of

establishing asylum eligibility”).

b) We do not have jurisdiction to review the IJ’s

conclusions.

Alternatively, Toufighi has argued that if the IJ did reject

his conversion to Christianity, the IJ’s finding was also in

error. Although we have jurisdiction to hear this petition, our

jurisdiction is limited to review of the Board’s Order of July

15, 2004, denying the motion to reopen. We are not permitted

about the central claim of conversion. It appears that Toufighi wants very

much to stay in this country. While Toufighi could have made a number

of claims in support of asylum, he elected to claim a religious conversion.

Stuck with that choice, he made the best effort he could to support it. The

IJ found his claim of conversion false.

TOUFIGHI v. MUKASEY 16385

to review the Board’s Order entered May 21, 2002, dismiss-

ing Toufighi’s appeal of the IJ’s decision, because Toufighi

failed to seek timely review of that order.

[4] The Supreme Court has held that a timely motion for

reconsideration does not toll the running of the ninety-day

period for review of final deportation orders. Stone v. INS,

514 U.S. 386, 405-06 (1995). By reasonable extension, a

motion to reopen would also not toll the ninety-day period.

See, e.g., Martinez-Serrano v. INS, 94 F.3d 1256, 1257-58

(9th Cir. 1996); Caruncho v. INS, 68 F.3d 356, 360 (9th Cir.

1995). Toufighi’s opportunity to appeal the original denial of

his application lapsed ninety days after the Board’s Order of

May 21, 2002.

[5] Because Toufighi’s motion to reopen was not filed until

October 16, 2003, the IJ’s factual determinations in the origi-

nal proceeding are conclusive. We consider only whether the

alien satisfied the procedures, and presented a prima facie

case for asylum based on the newly available evidence in light

of the evidence presented in the original proceedings. See

Bhasin, 423 F.3d at 984, 986 n.3.13

13

We have held that an alien may use a motion to reopen to present

newly available material evidence that challenges the original factual con-

clusions drawn by the IJ. Bhasin, 423 F.3d at 985-86. However, a court

may not directly review the original denial of asylum on a motion to

reopen. Id. at 986 n.3. The applicant must demonstrate that the new evi-

dence, when considered together with the evidence presented in the origi-

nal asylum proceeding, would establish a prima facie case for asylum. Id.

In Bhasin, the IJ based his conclusion that the applicant’s would-be perse-

cutors were not motivated by her membership in her familial social group

on evidence that her family members still residing in the country of origin

had not been persecuted. Id. at 985. In her motion to reopen, the applicant

presented evidence that since the hearing before the IJ, three or more of

her family members had been disappeared. Id. The court in Bhasin did not

directly review the fact finding in the original asylum proceeding, it

merely found that the facts had changed since the hearing. See id. at 985-

86. Toufighi did not present new evidence of his conversion.

16386 TOUFIGHI v. MUKASEY

Toufighi seeks to avoid this result, asserting that the origi-

nal decision of the IJ may be reviewed at this time because the

Board rested its decision to dismiss his motion to reopen on

the IJ’s conclusions of fact. Citing Ma v. Ashcroft, 361 F.3d

553 (9th Cir. 2004), Toufighi argues that the Board’s reliance

on the IJ’s original factual conclusion that Toufighi had not

converted to Christianity necessarily opened up the earlier

decision for review.

[6] Toufighi’s reliance on this case is misplaced. Ma dealt

with a motion for reconsideration of an earlier decision, not

a motion to reopen. Ma, 361 F.3d at 558 n.7. A motion to

reconsider necessarily reaches the prior decision because it

must “specify[ ] the errors of fact or law in the prior Board

decision.” See 8 C.F.R. § 1003.2(b)(1). In contrast, a motion

to reopen based on changed conditions is focused on “new

facts” showing changed conditions that now establish a prima

facie case for asylum. See 8 C.F.R. § 1003.2(c)(1) and

(c)(3)(ii); Bhasin, 423 F.3d at 984-86. While a motion for

reconsideration necessarily brings up the earlier order to be

reconsidered, a motion to reopen engages the earlier order

only to the extent the relevant available facts have since

changed. Id.

c) The Board did not abuse its discretion.

In order to prevail on his motion to reopen the proceedings

on the basis of changed country conditions, Toufighi needed

to clear four hurdles: (1) he had to produce evidence that con-

ditions had changed in Iran; (2) the evidence had to be “mate-

rial;” (3) the evidence must not have been available and

would not have been discovered or presented at the previous

proceeding; and (4) he had to “demonstrate that the new evi-

dence, when considered together with the evidence presented

at the original hearing, would establish prima facie eligibility

for the relief sought.” See 8 U.S.C. § 1229a(c)(7)(C)(ii); Bha-

sin, 423 F.3d at 984. The Board could thus deny the motion

TOUFIGHI v. MUKASEY 16387

to reopen for failing to meet any of these burdens. See Abudu,

485 U.S. at 104-05.

[7] In this case, the Board concluded that the evidence pro-

duced by Toufighi with his motion to reopen, did not “con-

tain[ ] prima facie evidence that the respondent would be

directly affected by any changes noted therein.” Even assum-

ing the newly available evidence presented by Toufighi dem-

onstrated a general increase in persecution of apostates in

Iran, Toufighi still failed to establish a prima facie case for

eligibility because it had already been conclusively deter-

mined that he was not an apostate, and that Iranian officials

would not impute this status to him because Toufighi would

never inform them of apostasy which never took place.14 The

IJ’s conclusive findings on this point also make the new evi-

dence regarding persecution of apostates immaterial.

[8] In conclusion, because the IJ found the conversion was

not genuine, and that apostasy would not be imputed to Tou-

fighi, the Board did not abuse its discretion in concluding that

his evidence of changed country conditions was not “materi-

al” to his claim, and that he failed to establish a prima facie

case for asylum.

14

The dissent argues that neither the IJ nor the Board considered

imputed group membership. Though he did not use the term “imputed,”

the IJ addressed this concern, concluding that Toufighi would not be

viewed as a Christian in Iran. The IJ noted that Toufighi had never been

persecuted in Iran; had never practiced Christianity in Iran; had almost no

ties to Christians in Iran; and would not communicate his alleged conver-

sion upon return to Iran because it was merely a ruse to gain asylum.

While the Department of Homeland Security apparently makes no effort

to conceal its deportation and asylum proceedings from foreign states, the

only thing Iran could learn from this deportation was that Toufighi falsely

claimed to be an apostate from Islam, cf. Bastanipour v. INS, 980 F.2d

1129, 1133 (7th Cir. 1992). Additionally, as discussed supra, we lack

jurisdiction to review the IJ’s decision.

16388 TOUFIGHI v. MUKASEY

(2) The Board did not err in failing to consider other

possible bases for reopening.

On appeal, Toufighi argues that the Board abused its dis-

cretion by confining his motion to reopen to issues of reli-

gious persecution. He argues that the Board should have

addressed a claim that Toufighi was exposed to persecution

based upon his association with the United States, pro-

American opinion, and his new wife and children who are

United States citizens. In Toufighi’s view, anyone identified

in the Iranian mind with the United States or pro-American

ideology will be at risk because of the recent escalation of

tensions brought on by war in Iraq and the tussle over Iran’s

plan to develop nuclear capability.

The Board did not recognize this as a separate claim. It was

not required to search the record to tease out claims that Tou-

fighi had not clearly made. The claims Toufighi had previ-

ously made were focused on his religious beliefs and how

those beliefs would be viewed in Iran. He does not contend

that he was active in pro-Western groups before coming to

this country. He never claimed to be affiliated with anti-

Iranian-government or pro-Western groups in this country.

We have never recognized pro-Western as a social group pro-

tected against persecution, and agree with the Seventh Circuit

that such a proposition “is debatable at best.” Sharif v. INS,

87 F.3d 932, 936 (7th Cir. 1996); see also Fisher v. INS, 79

F.3d 955 (9th Cir. 1996) (en banc).

[9] In sum, the Board did not act unreasonably in not sepa-

rately addressing a claim that Toufighi had a well-founded

fear that he would be persecuted based upon his political

opinions or membership in a pro-Western or pro-American

social group.

CONCLUSION

The Board denied Toufighi’s motion to reopen his case. It

held that Toufighi’s motion to reopen to adjust his status

TOUFIGHI v. MUKASEY 16389

based on marriage to a United States citizen and the birth of

their citizen children could not be considered because the

motion was untimely and barred by civil penalties assessed

against Toufighi for failing to depart as ordered. As to Tou-

fighi’s request to reopen in light of changed circumstances in

Iran, the Board, in reliance on the IJ’s conclusion that Tou-

fighi had not converted, and would not be identified as having

done so, concluded that the evidence presented was not rele-

vant, and that he failed to establish a prima facie case for asy-

lum. These decisions of the Board did not constitute an abuse

of discretion and were supported by substantial evidence.

PETITION DENIED.

BERZON, Circuit Judge, dissenting:

I respectfully dissent. The BIA misunderstood what the IJ

actually said about Toufighi’s conversion and, as a result,

entirely failed to consider whether circumstances have

changed with regard to how Iran treats apostates.1 The major-

ity opinion perpetuates the BIA’s error.

The BIA declined to consider Toufighi’s new evidence

because:

[T]he Immigration Judge [IJ] previously rejected the

respondent’s assertion that he had converted to

Christianity; the respondent’s religious conversion

was the basis of his claims. To the extent that this

information would relate to persecution of Christians

in Iran, the respondent has already failed to establish

that this would affect him.

1

Toufighi submitted documents demonstrating that the climate of

repression in Iran is worsening for Muslims who have renounced Islam.

Whether or not the evidence was adequate to support reopening is prop-

erly a question for the BIA on remand.

16390 TOUFIGHI v. MUKASEY

The majority upholds the BIA because it also concludes that

the IJ found that “the conversion was not genuine, and that

[therefore] apostasy would not be imputed to Toufighi.” Maj.

Op. at 16387.

But the IJ did not find that Toufighi had not converted, only

that his conversion was not spiritually genuine.2 The IJ found

“first of all, the respondent’s testimony to be generally credi-

ble,” but went on to “note that he has very deep concern as

to the genuineness as the [sic] respondent’s claimed conver-

sion from Muslim [sic] to Christianity” and that he “just

would not believe that the respondent’s claimed conversion is

genuine in nature.” (emphases added). Instead, he found, “the

respondent’s alleged conversion from Muslim [sic] to Chris-

tianity is basically a vehicle for him to apply for political asy-

lum in the United States.”

At the same time, however, the IJ credited Toufighi’s testi-

mony that he was a church member, “attending Christian

church every Sunday, for four hours each day, for at least the

last year-and-a-half” and that he attended a small prayer

group every Tuesday. The IJ also found that Toufighi would

continue to practice his Christian beliefs in Iran, as he cred-

ited Toufighi’s statement that “if he were to return to Iran, he

would only practice his religion in hiding.”3

2

The majority is correct that we lack jurisdiction to review the IJ’s deci-

sion. The IJ’s findings of fact cannot be disturbed at this point. But we do

not, of course, lack jurisdiction to read the opinion carefully to discern

what the IJ did and did not say.

3

To the extent the BIA relied on this finding to determine that changed

conditions would not affect Toufighi, its holding was, as the majority rec-

ognizes, improper. “[T]o require [a petitioner] to practice his beliefs in

secret is contrary to our basic principles of religious freedom and the pro-

tection of religious refugees.” Zhang v. Ashcroft, 388 F.3d 713, 719 (9th

Cir. 2004). On a more pragmatic level, “[a]s for the suggestion that the

Iranian authorities may not discover [Toufighi’s] aspostasy, . . . the INS

[and now the DHS] apparently makes no effort to conceal its deportation

and asylum proceedings from foreign states.” Bastanipour v. I.N.S., 980

F.2d 1129, 1133 (7th Cir. 1992).

TOUFIGHI v. MUKASEY 16391

So the IJ’s finding was only that the conversion might not

be “genuine” — that is, not spiritually in earnest. The BIA

elided the distinction between this finding and a finding that

there had been no conversion, in the sense of behavior and

practice, when it stated that “the [IJ] previously rejected the

respondent’s assertion that he had converted to Christianity.”

The BIA’s oversight is critically important. The question

for asylum purposes is not what Toufighi believes in his heart

of hearts, but whether he would be perceived as having

renounced Islam were he to return to Iran. The threat to the

petitioner upon return would stem not from what he really

believes, but from what his persecutors would understand him

to believe. By missing the distinction, the BIA failed to con-

sider whether changed circumstances bear upon this threat.

We have recognized the distinction between actual and

imputed belief in the political opinion context: “To establish

a likelihood of persecution on account of an imputed political

opinion, an applicant must show that his alleged persecutors

have imputed or would impute a political opinion to him,

‘rightly or in error,’ and have persecuted or would persecute

him for that opinion.” Al-Harbi v. I.N.S., 242 F.3d 882, 890

(9th Cir. 2001) (quoting Sangha v. I.N.S., 103 F.3d 1482,

1489 (9th Cir. 1997)); see also Mejia v. Ashcroft, 298 F.3d

873, 877-78 (9th Cir. 2002) (discussing imputed political

opinions). In Al-Harbi, for example, we upheld the BIA’s

conclusion that the Iraqi petitioner was not an anti-Hussein

activist, and had lied when he said he was. 242 F.3d at 889-

90. But given the circumstances in Iraq at the time, and his

involvement in an American-sponsored escape from Iraq, we

held he would be treated upon return as an American loyalist

The majority resolves this problem by arguing that the IJ really just “in-

tended to convey that the Iranian authorities would not impute Christianity

to Toufighi because he “would cease the ruse of practicing it in the United

States with the closing of the asylum proceedings.” The IJ did not say that.

16392 TOUFIGHI v. MUKASEY

and opponent of Hussein, even though he was not. Id. at 890-

94.

An imputed religious opinion is treated the same way, par-

ticularly in theocratic Iran where religion is politics. We have

recognized that the Iranian government may persecute people

for their “actually-held or perceived-to-be-held political or

religious beliefs.” Fisher v. I.N.S., 79 F.3d 955, 962 (9th Cir.

1996) (en banc) (emphasis added); see also Abedini v. U.S.

I.N.S., 971 F.2d 188, 192 (9th Cir. 1992) (discussing the pos-

sibility of persecution if Iranian government would “impute a

political or religious belief” to the petitioner) (emphasis

added). Other circuits have also so held in the religion con-

text. See Rizal v. Gonzales, 442 F.3d 84, 90 n. 7 (2nd Cir.

2006) (“Indeed, even an individual who does not subscribe to

a certain religion, but is nonetheless being persecuted on

account of others’ perception that he does, may well be able

to establish a religious persecution claim under a theory of

‘imputed religion’ analogous to the ‘imputed political opin-

ion’ theory . . . .”) (emphasis in original)4; Mezvrishvili v. U.S.

Attorney General, 467 F.3d 1292, 1296 (11th Cir. 2006)

(same); Ahmadshah v. Ashcroft, 396 F.3d 917, 920 n. 2 (8th

Cir. 2005) (holding that, in the case of a Muslim apostate

applying for asylum from religious persecution in Afghani-

stan, “[e]ven if [petitioner] did not have a clear understanding

of Christian doctrine, this is not relevant to his fear of perse-

cution. . . . If [petitioner] had shown that Afghans would

believe that he was an apostate, that is sufficient basis for fear

of persecution under the law.”).

As Ahmadshah and a line of earlier well-reasoned Seventh

4

Indeed, in Rizal the IJ found that the petitioner had “failed to persuade

the Court of the genuineness of his professed Christian faith,” 442 F.3d at

88 (emphasis added), much as in this case. While that case was resolved

on other grounds, Rizal endorsed a distinction between “genuine” faith

and the imputed religious opinions that may put asylum seekers at risk and

which threaten Toufighi here. Id. at 90 n. 7.

TOUFIGHI v. MUKASEY 16393

Circuit cases make clear, the BIA particularly missed the

point in the case of a Muslim apostate who fears persecution

under religious law. “The offense in Muslim religious law is

apostasy — abandoning Islam for another religion,” not the

sincerity of faith in the new religion. Bastanipour v. I.N.S.,

980 F.2d 1129, 1132 (7th Cir. 1992); see also Najafi v. I.N.S.,

104 F.3d 943, 948 (7th Cir. 1997) (IJ “treated the question of

whether [petitioner] is a Christian as dispostive of his claim

of religious persecution [but] . . . . [r]ather we must ask

whether the alien is an apostate.”).

In short, the question is not what Toufighi believes but

what Iran understands him to believe — or, more accurately,

not to believe. It is throughly plausible that because he attends

Christian services and belongs to a Christian church, Toufighi

will be taken to have renounced Islam. Neither the BIA’s nor

the IJ’s “opinion[s] . . . consider[ed] what could count as con-

version in the eyes of an Iranian religious judge, which is the

only thing that would count as far as the danger to [the peti-

tioner] is concerned.” Bastanipour, 980 F.2d at 1132 (empha-

sis in original). Even if his conversion is not “genuine,” he

remains at risk. “Whether [the petitioner] believes the tenets

of Christianity in his heart of hearts or, . . . is acting oppor-

tunistically (though at great risk to himself) in the hope of

staving off deportation would not . . . matter to an Iranian reli-

gious judge.” Id.; cf. Al-Harbi, 242 F.3d at 890-94.5

The IJ’s sincerity findings were therefore entirely unre-

sponsive to the critical question before the BIA on Toufighi’s

religious asylum ground. For these reasons, the BIA’s holding

on the religious persecution/change of country circumstances

question was unsupported. Because the majority, like the

5

For this reason, the IJ’s belief that Toufighi’s conversion was moti-

vated by a desire to seek asylum is largely irrelevant to the changed cir-

cumstances inquiry. If the external incidents of conversion were

sufficiently obvious as to suggest that he had left Islam, he could well be

in danger in Iran, even if his initial motivations were impure.

16394 TOUFIGHI v. MUKASEY

BIA, misreads the IJ as holding that Toufighi was not and is

not a Christian, in any sense, it concludes that he is therefore

“not an apostate” and so fails to recognize the BIA’s error.

Maj. Op. at 16387.

It is important to note, however, that, because of its misun-

derstanding of the IJ’s opinion, the majority does not hold that

imputed religious beliefs in general or apostasy in particular

are improper grounds on which to base an asylum claim.

Instead, it simply fails to grasp that the sincerity of Toufighi’s

beliefs has no direct bearing on the question whether he will

be persecuted based on imputed religious beliefs.

Starting from false premises, the majority reaches an unjust

result. A remand to reconsider Toufighi’s motion to reopen

upon proper legal standards would have been the appropriate

course.

I respectfully dissent.