Najmabadi v. Eric H. Holder Jr

• Decision Date: 09 March 2010
• Docket Number: No. 05-72401.,05-72401.
• Citation: 597 F.3d 983
• Court: U.S. Court of Appeals — Ninth Circuit
• Parties: Farangis NAJMABADI, Petitioner, v. Eric H. HOLDER Jr., Attorney General, Respondent.

597 F.3d 983

Farangis NAJMABADI, Petitioner, v. Eric H. HOLDER Jr., Attorney General, Respondent.

No. 05-72401.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 5, 2009.

Filed March 9, 2010.

Enrique Arevalo, Xavier Rosas and Jose Osorio Jr., Law Office of Enrique Arevalo South Pasadena, CA, for petitioner, Farangis Najmabadi.

Peter D. Keisler, Linda S. Wernery, and Angela N. Liang, United States Department of Justice, Office of Immigration Litigation, Washington, DC, for respondent Eric H. Holder Jr., United States Attorney General.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A072-439-437.

Before: HARRY PREGERSON, JAY S BYBEE and MILAN D. SMITH, JR. Circuit Judges.

Opinion by Judge MILAN D. SMITH, JR., Dissent by Judge HARRY PREGERSON.

MILAN D. SMITH, JR., Circuit Judge:

Petitioner, Farangis Najmabadi, a native and citizen of Iran, petitions for review of the Board of Immigration Appeals's (BIA or Board) order denying her motion to reopen her removal proceedings on the basis of changed conditions in Iran. Because we hold that Najmabadi failed to introduce previously unavailable, material evidence, we deny her petition for review.

FACTUAL AND PROCEDURAL BACKGROUND

Najmabadi was admitted to the United States on October 5, 1986, as a non-immigrant visitor with authorization to remain in the United States until April 5, 1987. On October 27, 1998, the former Immigration and Naturalization Service fded a notice to appear with the immigration court charging Najmabadi with removability.

Najmabadi filed an asylum application on November 18, 1998.

On April 11, 2000, an Immigration Judge (IJ) conducted a removal proceeding, at which Najmabadi claimed that she left Iran due to its then war with Iraq. She stated that "there wasn't any particular reason" that she left Iran but rather "[e]verything changed, especially for a woman like me." Asked why she did not want to return to Iran, Najmabadi testified that she is "not sure if [she] can live there, " and after sixteen years, knows the United States "now probably more than [her] country." Najmabadi further testified that she has never participated in any political rallies nor joined any political organizations. In addition, Najmabadi never had any problems in Iran prior to leaving. Rather, Najmabadi testified that she does not think she can "fit in" in Iran and fears returning to Iran because of the way women are treated.

The IJ denied Najmabadi's application. While the IJ found Najmabadi's testimony to be credible, he concluded that she had not established past persecution or a wellfounded fear of future persecution. After the BIA affirmed, we denied the petition for review in an unpublished decision. Najmabadi, v. Ashcroft, 107 Fed.Appx. 98 (9th Cir.2004). Relying on Fisher v. INS 79 F.3d 955, 962-63 (9th Cir.1996) (en banc), we rejected Najmabadi's claim that she has a well-founded fear of future persecution "based on her refusal to conform to the social norms of Iran if returned to that country." Najmabadi 107 Fed.Appx at 100.

On December 14, 2004, Najmabadi filed a petition to reopen based on changed circumstances in Iran. In her motion to reopen, Najmabadi argued that the relationship between Iran and the United States changed significantly after September 11, 2001. She pointed to ties between Iran and terrorist organizations; Iran's nuclear arms capabilities; tension between Iran and the United States stemming from the war in Iraq; and "generalized strife" including an Iranian governmental backlash to Iran's reform movement. With respect to this last category, Najmabadi referred to the following: State Department reports citing the worsening of Iran's human rights record from 2000 to 2003; evidence that a group of 50 women were lashed for listening to loud music; election of "hard liners"; the denouncement of an Iranian woman who won the Nobel Prize; torture of student activists as a means of suppressing dissent; a crackdown on the release of information over the Internet; the reported arrest of the editor of a women's rights journal; and greater restrictions on women's attire and social freedoms. Najmabadi also submitted a renewed asylum application and accompanying affidavit. In her affidavit, Najmabadi claims: the Iranian government would perceive her as being "proU.S. and pro-Western"; she "do[es] not agree with how the government treats their women and people in general"; and she "will be active in trying to change Iran and the situation for women."

On March 31, 2005, the BIA denied Petitioner's motion to reopen, concluding that Najmabadi did not establish changed circumstances. Relying on our decision in Malty v. Ashcroft, 381 F.3d 942 (9th Cir. 2004), the BIA held that while the evidence that Najmabadi submitted "establishes] that the situation in Iran continues to be deplorable, and that tensions with the United States appear to be increasingly,]" it does not "establish a level of change that is linked to [Najmabadi's] particular circumstances." The BIA noted that the record at the time of Najmabadi's original hearing contained the 1999 Country Reports on Human Rights Practices, which listed "systemic abuses... including] extrajudicial killings, summary executions, disappearances, widespread use of torture and other degrading treatment (including rape), and arbitrary arrest and prolonged detention." The BIA characterized Najmabadi's evidence as describing "general conditions which affect the population at largef,]" and held that this evidence was "in evidence at the prior hearing." Finally, the BIA held that there was no evidence, which fell "outside the realm of speculation, " that established "returnees from the United States will likely face persecution."

JURISDICTION AND STANDARD OF REVIEW

We review denials of motions to reopen for abuse of discretion, Toufighi v. Mukasey, 538 F.3d 988, 992 (9th Cir.2008), and defer to the BIA's exercise of discretion unless it acted arbitrarily, irrationally, or contrary to law, Singh v. INS, 295 F.3d 1037, 1039 (9th Cir.2002). We review the BIA's determination of purely legal questions de novo, and review its factual findings for substantial evidence. Bhasin v. Gonzales, 423 F.3d 977, 983 (9th Cir.2005). Finally, "[o]ur review is limited to the actual grounds relied upon by the BIA." Ramirez-Altamirano v. Holder, 563 F.3d 800, 804 (9th Cir.2009).

DISCUSSION

A. Standards Governing Motions to Reopen

Generally, a party wishing to file a motion to reopen must do so within ninetydays. 8 C.F.R. § 1003.2(c)(2). However the ninety-day time limit does not apply where the motion to reopen is "based on changed circumstances arising in the country of nationality or in the country to which deportation has been ordered, if such evidence is material and was not available and could not have been discovered or presented at the previous hearing." Id. § 1003.2(c)(3)(h). The BIA can deny a motion to reopen on any one of "at least" three independent grounds—"failure to establish a prima facie case for the relief sought, failure to introduce previously unavailable, material evidence, and a determination that even if these requirements were satisfied, the movant would not be entitled to the discretionary grant of relief which he sought." INS v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992). The Supreme Court has instructed that "[t]he granting of a motion to reopen is... discretionary, and the Attorney General has 'broad discretion' to grant or deny such motions." Id. (internal citations omitted).

B. Denial Based On Previously Unavailable, Material Evidence

The BIA considered Najmabadi's motion to be "premised on the fact that circumstances in Iran have significantly declined since her hearing, and as a result she has a viable claim of persecution based on direct and imputed political opinion, and the fact that she is a 'westernized woman.'" The BIA held that the evidence submitted by Najmabadi in her motion to reopen, which established the existence of torture and punishment for dissenters, was in evidence at the prior hearing. It explained that the evidence addressed general conditions affecting the population at large, and was not linked to Najmabadi's "particular circumstances." It also noted that there was no evidence, which fell "outside the realm of speculation, " that established that "returnees from the United States will likely face persecution." Thus, the BIA based its denial of Najmabadi's motion to reopen on the second ground articulated above— Najmabadi's failure to introduce previously unavailable, material evidence. As wemust, we limit our review to these grounds. See Ramirez-Altamirano, 563 F.3d at 804.

1. Qualitatively Different Evidence

In Malty v. Ashcroft, we held that in order for evidence to be "material, " "not available, " and not able to have "been discovered or presented at the previous hearing, " it must be "qualitatively different" from the evidence presented at the previous hearing. 381 F.3d at 945-46; see also 8 C.F.R. § 1003.2(c)(1) ("A motion to reopen proceedings shall state the new facts that will be proven at a hearing to be held if the motion is granted and shall be supported by affidavits or other evidentiary material." (emphasis added)). Relying primarily on Malty, Najmabadi argues that the Board abused its discretion in finding that her evidence was not materially distinct from the evidence at her original hearing, because her "new" evidence is qualitatively different. We therefore describe Malty in some detail.

In Malty, an Egyptian Coptic Christian filed an application for asylum and withholding of removal in 1992. 381 F.3d at 944. At the asylum hearing, he testified that he had been taunted while in high school by Islamic teachers and classmates due to his Christianity. Id. He was forced to finish college from home, and was unable to find employment as a result of religious discrimination. Id. He also testified...