Maryam Ghadessi v. Immigration and Naturalization Service

POOLE, Circuit Judge,

dissenting:

I agree with Judge Jameson’s view concerning this court’s standard of review *810 when the BIA denies an alien’s petition to reopen deportation proceedings. However, because I believe that my colleagues incorrectly analyze the merits of Ghadessi’s prima facie case, I must respectfully dissent.

I.

Preliminarily, I note that a majority of the panel agrees that we must review for an abuse of discretion the BIA’s decision not to reopen Ghadessi’s deportation proceedings. As an appellate court, the resolution of what standard of review to apply to a given issue is a fundamental prerequisite to any further analysis of the case. Because of this importance, I offer my own views to support the conclusion that we must review for abuse of discretion the BIA’s denial of Ghadessi’s motion to reopen on the ground that she had failed to establish a prima facie case for asylum.

Motions to reopen deportation proceedings are not expressly provided for by statute, but are allowed pursuant to administrative regulations. INS v. Jong Ha Wang, 450 U.S. 139, 140-41 , 101 S.Ct. 1027, 1029-30 , 67 L.Ed.2d 123 (1981) (per curiam). The regulations are construed so that the granting of a motion to reopen deportation proceedings is discretionary with the BIA. See INS v. Rios-Pineda, 471 U.S. 444 , 105 S.Ct. 2098, 2102 , 85 L.Ed.2d 452 (1985); INS v. Phinpathya, 464 U.S. 183 , 188 n. 6, 104 S.Ct. 584 , 588 n. 6, 78 L.Ed.2d 401 (1984). This court reviews the BIA's decision denying reopening to see whether the BIA abused its discretion. Aviles-Torres v. INS, 790 F.2d 1433, 1435 (9th Cir.1986).

Judge Beezer, however, believes that when the BIA denies an alien’s motion to reopen deportation proceedings to apply for asylum on the basis that the alien has failed to establish a prima facie case, then this standard vanishes and is replaced by a new standard whereby this court reviews the BIA’s decision to determine whether that decision is “correct.” Opinion at 806.

Besides running contrary to this court’s decision in Larimi v. INS, 782 F.2d 1494, 1496 (9th Cir.1986) (when the BIA restricts its decision to whether the alien had established a prima facie case, “[i]t is this action that we must review for an abuse of discretion.”), this position strays from the Supreme Court’s reasoning in this area. As the Court has cautioned, reviewing courts must not improvidently encroach on the authority which the immigration statutes have conferred on the Attorney General and his delegates. See Jong Ha Wang, 450 U.S. at 144 , 101 S.Ct. at 1031 . As previously noted, the granting of a motion to reopen deportation proceedings clearly is discretionary with the BIA.' See RiosPineda, 105 S.Ct. at 2102 . Whether the basis for the BIA’s decision is the failure to establish a prima facie case or the further exercise of the BIA’s discretion beyond the prima facie case, the BIA is still performing the function which by statute it is authorized to perform.

While this court does review the BIA’s decision, our review is limited to whether the BIA abused its discretion in denying reopening. The BIA abuses its discretion if it acts arbitrarily, irrationally, or contrary to law. Israel v. INS, 785 F.2d 738, 740 (9th Cir.1986); see Aviles-Torres, 790 F.2d at 1435 . The Supreme Court has made clear that this standard is to be followed by the federal courts and that “it is not for the judiciary to usurp Congress’ grant of authority to the Attorney General by applying what approximates de novo appellate review.” Rios-Pineda, 105 S.Ct. at 2103 ; see also Jong Ha Wang, 450 U.S. at 144 , 101 S.Ct. at 1031 (definition of standard for suspension of deportation committed to Attorney General and his delegates “and their construction and application of th[ese] standardes] should not be overturned by a reviewing court simply because it may prefer another interpretation of the statute.”) (emphasis added). Heeding this admonition, I believe that we must examine the BIA’s conclusion that Ghadessi failed to establish a prima facie case of asylum to see if that conclusion was arbitrary, irrational or contrary to law. Therefore, I agree with Judge Jameson’s conclusion regarding this court’s standard of review, *811 although I disagree with his analysis of the facts under this standard.

II.

Even reviewing Ghadessi’s claim de novo, she has failed to present enough evidence to establish a prima facie case for asylum, namely that she has a well-founded fear of persecution. 1 Ghadessi must present objective evidence demonstrating that persecution is a “reasonable possibility” should she be forced to return to Iran.

To support her claim, Ghadessi submitted a two-page affidavit. In it Ghadessi states that due to her public political activities in this country, “I am sure I have been placed on the Revolutionary Committee ‘Black List’ and will be persecuted if I am forced to return to Iran.” Ghadessi, however, provides only one concrete example of her public activities. On October 27, 1984, she helped lead a demonstration in front of the Netherlands Embassy in San Francisco. Although the I.S.F. also demonstrated earlier in front of the San Francisco office of Melli Bank, Ghadessi’s affidavit does not state that she participated in that demonstration.

Even if one stretches Ghadessi’s affidavit so as to include her participation in the Melli Bank demonstration, there emerges only two instances of public political activity. From these two instances and Ghadessi’s generalized characterization of her activities as being “several” and “frequent” we are asked to draw the inference that she was so spotlighted that it would be reasonable to conclude that the Iranian government was thereby made aware of her anti-Khomeini sentiments. I do not believe there is any basis for such an inference from the dearth of specific information provided by Ghadessi, especially in light of the fact that her alleged activities all occurred in the midst of a crowd and in the United States. Cf. Garda-Ramos v. INS, 775 F.2d 1370 (9th Cir.1985) (political activities occurred in El Salvador).

Ghadessi’s strongest evidence suggesting a possibility of persecution concerns the questioning of Ghadessi’s parents by Iranian authorities. Because this evidence is so important, I quote it in full from Ghadessi’s affidavit:

To confirm my fears that the Islamic authorities were aware of my political activities, my parents have been questioned on three separate occassions [sic] on my whereabouts in the United States and whether they were aware of my involvement in Anti-Khomeini organizations. The Revolutionary Guards have told them that I should return to Iran to clear my name and undergo questioning.

The majority extrapolates from the fact that the Iranian officials inquired whether Ghadessi was involved in any anti-Khomeini activities and their suggestion — accompanied by no threats — that Ghadessi should return to Iran to clear her name and undergo questioning, a certainty that this “can only be interpreted as evidence that *812 the Iranian government suspects her lack of loyalty to the current regime.” Opinion at 808. I strongly disagree with such an interpretation. First, Ghadessi does not indicate the time frame in which these encounters occurred, i.e., whether all of some of the encounters occurred prior to 1980 when Ghadessi first joined the I.S.F. or after her affiliation with that group. Second, the Revolutionary Guards’ questions concerning Ghadessi suggest that the Iranian government is trying to find out about Ghadessi’s whereabouts and activities. It is significant that nowhere in Ghadessi’s affidavit is it stated, nor can it be inferred from what is set forth, that the government had information about Ghadessi’s I.S.F. activities and was merely confronting her parents with the hope that they would confirm such reports. No pressure appears to have been applied by the Guards to Ghadessi's parents. 2 Moreover, the fact that the Guards believe that Ghadessi should return to Iran to “clear her name” may just as easily stem from the fact that she has been domiciled in a country considered hostile by the Iranian government as from any concrete information concerning her lack of loyalty.

But even so, the majority reaches its conclusion only by drawing arguable inferences from the meager evidence presented. This ignores the proper allocation of functions between this court and the BIA. Surely, the BIA’s conclusion to the contrary was within the realm of reason and was not arbitrary, irrational or contrary to law. The majority may prefer its own result of inference-drawing; but Congress and the Supreme Court have placed that function in the hands of the BIA.

Ghadessi’s claim fails because it is not sufficiently specific. 3 She had the burden of establishing a prima facie case that she has a well-founded fear of persecution. The BIA found her evidence too speculative to sustain this burden. That was that body’s assigned role. The majority’s holding usurps that role. Accordingly, the BIA did not abuse the discretion vested in it when it denied the petition, and I would affirm its decision.

. I disagree with the majority that the BIA in its opinion applied the wrong standard in reviewing Ghadessi’s motion to reopen. The BIA appeared to recognize that there is a difference between the "clear probability” standard for prohibition of deportation and the "well-founded fear" standard for claims of asylum. Instead of requiring a clear probability of persecution, the BIA recognized a lesser standard of "realistic likelihood.” While the BIA did not mouth the specific words used by this court, its decision clearly evidenced and applied a more lenient standard to Chadessi’s claim. See Chatila v. INS, 770 F.2d 786, 790 (9th Cir.1985) (BIA recognized difference between two forms of relief when it stated that its conclusion as to asylum claim would be the same "whether we apply a standard of ‘clear probability,’ ‘good reason,’ or ‘realistic likelihood’”). Because I conclude that substantial evidence supports the BIA’s conclusion that Ghadessi did not establish a well-founded fear of persecution, I would affirm the BIA’s decision.

Even were I to agree with the majority that the BIA applied an incorrect standard to Ghadessi’s petition, I could not agree that Ghadessi is entitled to reopening of her deportation proceedings. When this court determines that the BIA has applied too strict a standard when reviewing an alien’s asylum claim, the proper course is not to determine the case de novo but to remand to the BIA for it to reconsider the alien’s petition under the correct standard. See Martinez-Sanchez v. INS, 794 F.2d 1396, 1400 (9th Cir.1986); Maroufi v. INS, 772 F.2d 597, 601 (9th Cir.1985).

. In her affidavit, Ghadessi claims, “My parents fear that I will be in trouble if I return to Iran." This warning is not entitled to probative weight. The basis for such a fear is not explained, nor does the affidavit explain what type or degree of trouble Ghadessi’s parents were talking about.

. Moreover, the fact that the Department of State's Bureau of Human Rights and Humanitarian Affairs (BHRHA) issued a favorable opinion letter does not alter this conclusion. Such an advisory opinion is not binding on the BIA but is merely a factor to be considered by it. Matter of Exilus, 18 I & N Dec. 276, 279 (BIA 1982). Furthermore, this advisory is conditional; if the allegations were factually sustained, a prima facie case of well-founded fear would be presented. That opinion does not conclude that such facts were established. The BIA did consider the State Department’s advisory opinion in making its determination, but found the supporting foundation lacking.