Hosseini v. Gonzales

• Decision Date: 28 September 2006
• Docket Number: No. 03-73734.,03-73734.
• Citation: 471 F.3d 953
• Parties: Masoud HOSSEINI, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 953

471 F.3d 953

Masoud HOSSEINI, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.

No. 03-73734.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 6, 2006.

Filed September 28, 2006.

Amended December 28, 2006.

Matthew H. Adams, Northwest Immigrant Rights Project, Seattle, WA, for the petitioner.

William C. Peachey, United States Department of Justice, Office of Immigration Litigation, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A73-985-544.

Before WILLIAM C. CANBY, JR., RONALD M. GOULD, and CARLOS T. BEA, Circuit Judges.

ORDER AMENDING OPINION AND AMENDED OPINION

ORDER

The request of the government for clarification of this court's opinion, reported at 464 F.3d 1018, is GRANTED.

The opinion of this court, filed September 28, 2006, is amended as follows: At 464 F.3d at 1024, first full paragraph, immediately following the citation to Travel Document Requirements for Citizens of the Islamic Republic of Iran, indicate a new footnote 6. That footnote is to state:

The government points out that it is precluded by regulation from disclosing any information relating to Hosseini's asylum application "without the written consent" of Hosseini. 8 C.F.R. § 1208.6(a). Although that regulation restrains the government, it does not impede Iran's actions.

Original footnote 6 is then renumbered to become footnote 7.

OPINION

CANBY, Circuit Judge.

Masoud Hosseini is an Iranian citizen who came to the United States on a student visa. He did not attend school and he overstayed his visa. He was ordered deported as an overstay, but he subsequently succeeded in having his deportation proceeding reopened. He sought asylum, withholding of deportation, and adjustment of status under the Immigration and Nationality Act ("INA"). He also sought withholding and deferral of deportation under the Convention Against Torture. An immigration judge denied Hosseini all relief under the INA primarily because of his connection and activities with the Iranian dissident group Mujahedin-e Khalq ("MEK"),¹ designated by the Secretary of State as a terrorist organization. The immigration judge also denied relief under the Convention Against Torture on the ground that Hosseini had failed to show that it was more likely than not that he would be tortured if deported to Iran.

The Board of Immigration Appeals ("BIA") dismissed Hosseini's appeal, upholding the immigration judge's rulings.² The BIA stated alternatively that it denied asylum as a matter of discretion because of Hosseini's immigration fraud. It also affirmed the denial of adjustment of status on the ground of inadmissibility, but in addition denied adjustment as an exercise of discretion, because of Hosseini's terrorist-connected activities and his fraud. The BIA also stated that Hosseini's terrorist-related activities precluded withholding of deportation not only under the INA, but also under the Convention Against Torture. Hosseini now petitions for review.

We deny the petition with regard to the BIA's denial of asylum and dismiss the petition with regard to the denial of adjustment of status. We grant the petition with regard to withholding of deportation under the INA, vacate that portion of the BIA's decision, and remand for further proceedings. We deny the petition for review with regard to withholding of deportation under the Convention Against Torture. We grant the petition for review with regard to deferral of deportation under the Convention Against Torture, and we reverse that portion of the BIA's decision and remand for an award of deferral.

Background

Hosseini's activities after coming to the United States present a complicated scenario. Hosseini entered this country on a student visa that allowed him to remain here for approximately two weeks. He obtained the visa with the help of a Los Angeles-based immigration consultant named Bahram Tabatabai. Hosseini never attended school and did not leave when his visa expired. Instead, he filed applications for political asylum with Tabatabai's help. Hosseini filed his first asylum application under a false name and alien registration number. He made numerous other false statements in this application. The Immigration and Naturalization Service ("INS") charged him with remaining in the U.S. longer than permitted and he was ordered deported in absentia when he did not appear for his hearing.

Hosseini filed a second asylum application using a different name and registration number. He made several other false declarations in this application. The INS charged Hosseini with deportability as an alien who was not admitted or paroled and again he was ordered deported in absentia.

In the meantime, the government's Joint Terrorism Task Force began investigating Tabatabai on suspicion that he was helping members of MEK commit immigration fraud. The State Department has designated MEK and an organization affiliated with MEK, the National Council of Resistance, "Foreign Terrorist Organization[s]." See Designation of Terrorist and Terrorist Organizations Pursuant to Executive Order 13224 of September 23, 2001, 67 Fed. Reg. 12,633 (Mar. 19, 2002); Determination Pursuant to Section 1(b) of Executive Order 13224 Relating to the Mujahedin-e Khalq (MEK), 68 Fed.Reg. 48,984 (Aug. 15, 2003). A confidential informant working with the Task Force identified Hosseini as a client of Tabatabai's and an MEK supporter. The Task Force also learned of Hosseini's fraudulent asylum applications. In March 1999, the INS took Hosseini into custody at the Los Angeles airport. The INS later amended its charges to include obtaining entry into the U.S. through fraud and failing to comply with the conditions under which he was admitted.

The immigration judge allowed Hosseini's case to be reopened, and Hosseini sought asylum, withholding of deportation, and adjustment of status under the INA, and withholding and deferral of deportation under the Convention Against Torture. He denied being a member of MEK and claimed that his life would be threatened and he would be tortured in Iran because he had been labeled a Mujahedeen terrorist. The immigration judge denied his requests for relief, and the BIA affirmed. This petition for review followed.

Jurisdiction

We have jurisdiction pursuant to INA § 242, 8 U.S.C. § 1252(a)(1), to review the BIA's denial of Hosseini's request for withholding and deferral of deportation. We also have jurisdiction to review the BIA's discretionary denial of Hosseini's application for asylum. See 8 U.S.C. § 1252(a)(2)(B)(ii) (stating that no court shall have jurisdiction to review discretionary denials "other than the granting of relief under section 1158(a)," which governs asylum applications).

We lack jurisdiction to review the BIA's denial of Hosseini's adjustment of status claim because the BIA alternatively denied relief as a matter of discretion. 8 U.S.C. § 1252(a)(2)(B)(i). The REAL ID Act does not restore our jurisdiction because Hosseini does not argue that the BIA's discretionary denial was unconstitutional or unlawful. See 8 U.S.C. § 1252(a)(2)(D) (allowing judicial review of "constitutional claims or questions of law"). We therefore dismiss the petition for review to the extent that it challenges the BIA's denial of adjustment of status.

Discussion

The BIA conducted its own review of the evidence and law rather than simply adopting the immigration judge's decision. Accordingly, our review "is limited to the BIA's decision, except to the extent the IJ's opinion is expressly adopted." Cordon-Garcia v. INS, 204 F.3d 985, 990 (9th Cir.2000).

1. Political Asylum

The BIA found Hosseini ineligible for asylum but it also held that, even if Hosseini were eligible, it would deny his application as a matter of discretion because he perpetrated fraud throughout his immigration proceedings. See 8 C.F.R. § 1208.14(a) (giving the IJ authority to "grant or deny asylum in the exercise of discretion to an applicant who qualifies as a refugee"). We affirm the BIA's discretionary denial of Hosseini's asylum application.³

There is substantial, uncontested evidence that Hosseini committed immigration fraud. Hosseini admitted that his first two asylum applications were fraudulent. He used false names and alien registration numbers in each application. He falsely claimed that Iranian authorities harassed his family in Iran in retaliation for an argument he had with Iranian officials. He stated that he had been arrested in Iran for being politically active, which was untrue. In his second application, he falsely claimed that he was married, that he had entered the U.S. without inspection, and that he was a member of an Iranian political organization opposed to the current regime. He also admitted obtaining a fraudulent birth certificate.

In light of the uncontested evidence that Hosseini perpetrated fraud throughout his immigration proceedings, the BIA's discretionary denial is neither "manifestly contrary to the law [nor] an abuse of discretion." 8 U.S.C. § 1252(b)(4)(D). We accordingly deny the petition for review with regard to the BIA's asylum ruling.

2. Withholding of Deportation under the INA

The BIA denied Hosseini's request for withholding of deportation under the INA because "he is a danger to the security of the United States." Although we normally review such a finding for substantial evidence, we cannot do so here because the BIA failed to articulate sufficiently the bases for its finding. See Mattis v. INS, 774 F.2d 965, 967 (9th Cir.1985) (explaining that we can affirm the BIA only on a basis articulated in its decision). We therefore vacate the denial of withholding and remand to the BIA for further proceedings.

Under the former INA § 243, 8 U.S.C. § 1253 (repealed 1997),⁴ the government can deport Hosseini to Iran even though his life and freedom may be threatened upon return as long as "there are...