stating that unless alleged facts in support of a motion to reopen are “inherently unbe- lievable,” corroborating evidence is generally not required to establish a prima facie case
How later courts described this case
- stating that unless alleged facts in support of a motion to reopen are “inherently unbe- lievable,” corroborating evidence is generally not required to establish a prima facie case
- finding that the BIA abused its discretion by weighing quality, rather than sufficiency of evidence, in a motion to reopen
- holding petitioner could establish well-founded fear of persecution on account solely of involvement in activities in opposition to Iranian government since arrival in U.S.
- petitioner “had produced evidence from which an inference can be drawn that Iranian government authorities might be aware of her anti-Khomeini activities.”
Written by the judges who cited it.
The opinion
JAMESON, District Judge,
concurring.
I concur in the conclusion that the evidence was sufficient to establish a prima facie case of a well founded fear of persecution and in most of Judge Beezer’s well considered opinion. I have some reservation, however, with respect to the holding that the determination of whether an alien has established a prima facie case is nondiscretionary.
I recognize that there is some confusion in the decisions with respect to the standard of abuse of discretion. As Judge Beezer has noted, in Larimi v. INS, 782 F.2d 1494, 1496 , the court held that review is limited to considering whether the BIA’s “determination concerning the prima facie case is correct.” On the other hand, the court also noted in Larimi that the BIA’s decision as to whether Larimi had established a prima facie case is reviewed for an “abuse of discretion,” citing Maroufi v. INS, 772 F.2d 597, 599 , and Vasquez v. INS, 767 F.2d 598, 601 .
The case most nearly in point factually is the recent case of Aviles-Torres v. I.N.S., 790 F.2d 1433, 1437 (9th Cir.1986), where the court said:
The Board also improperly concluded that Aviles-Torres did not establish prima facie eligibility for asylum. Because he presented a prima facie case for withholding of deportation, he also satisfied the more generous “well-founded fear” standard for asylum. See Bolanos-Hernandez v. INS, 767 F.2d 1277, 1288 (9th Cir.1984). Although the Board has broad discretion in considering petitions to reopen for discretionary relief, see INS v. Rios-Pineda, 105 S.Ct. at 2101, the Board in this case failed to articulate any legitimate concerns that would justify an exercise of discretion unfavorable to the petitioner. We have held that it should do so. See Hernandez-Ortiz, 777 F.2d at 518-19. Moreover, no factors similar to those which prompted denial of the petition in Rios-Pineda appear in the record in this case.
We hold that the petitioner should have the opportunity fully to establish his case and to receive thoughtful consideration of it. The BIA’s denial of reopening in view of the evidence presented was an abuse of discretion.
As in Aviles-Torres , the BIA’s denial of reopening in this case, in view of the evidence presented, was an abuse of discretion. The case should be remanded to reopen deportation proceedings for presentation of evidence on Ghadessi’s eligibility for asylum.