Daneshvar v. Ashcroft

• Citation: 355 F.3d 615
• Decision Date: 20 January 2004
• Docket Number: No. 02-3653.,02-3653.
• Parties: Mohammad Reza DANESHVAR, Petitioner, v. John ASHCROFT, Attorney General of the United States, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

355 F.3d 615

Mohammad Reza DANESHVAR, Petitioner, v. John ASHCROFT, Attorney General of the United States, Respondent.

No. 02-3653.

United States Court of Appeals, Sixth Circuit.

Argued October 23, 2003.

Decided and Filed January 20, 2004.

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Behzad Ghassemi (argued and briefed), E. Lansing, MI, for Petitioner.

Lyle D. Jentzer (argued), Ethan B. Kanter (briefed), Michael P. Lindemann (briefed), Carl H. McIntyre, Nancy E. Friedman, United States Department of Justice, Office of Immigration Litigation, Washington, DC, for Respondent.

Before KENNEDY and GIBBONS, Circuit Judges; ALDRICH, District Judge.^*

KENNEDY, J., delivered the opinion of the court, in which ALDRICH, D.J., joined. GIBBONS, J. (pp. 629-34), delivered a separate opinion concurring in part and dissenting in part.

OPINION

KENNEDY, Circuit Judge.

This case presents an appeal from the Board's order denying Petitioner's application for asylum and denying his petition for adjustment of status. We grant but stay the enforcement of the order denying the application for asylum. We reverse the Board's denial of his petition for adjustment of status and remand that petition for further proceedings.

BACKGROUND

Petitioner is a thirty-nine-year-old native and citizen of Iran, born on March 25, 1964. He was admitted to the U.S. on June 17, 1994 as a visitor. Petitioner violated his non-immigrant status by overstaying his visa, and as a result, was placed in deportation proceedings. On October 19, 1995, Respondent ordered Petitioner to show cause why it should not deport him for remaining in the United States longer than authorized by his visa. Appearing before an immigration judge, Petitioner admitted the factual allegations in the order to show cause and conceded deportability. Petitioner asked for asylum, withholding of deportation, and, in the alternative, for voluntary departure.

In the aftermath of the Iranian Revolution (after the Shah was overthrown and the U.S. hostages were taken, but prior to their release), Petitioner, who was 16 years old at the time, became attracted to the Mujahedin-e Khalq Organization (MEK) in the city of Ghom.¹ The Department of State describes MEK as follows:

Formed in 1960s by the college-educated children of Iranian merchants, the MEK sought to counter what it perceived as excessive Western influence in the Shah's regime. Following a philosophy that mixes Marxism and Islam, has developed into the largest and most active armed Iranian dissident group. Its history is studded with anti-Western activity, and, most recently attacks on the interests of the clerical regime in Iran and abroad.... Worldwide campaign against the Iranian Government stresses propaganda and occasionally uses terrorist violence. During the 1970s the MEK staged terrorist attacks inside Iran and killed several U.S. military personnel and civilians working on defense projects in Tehran. Supported the takeover in 1979 of the U.S. Embassy in Tehran.

Press Release, Dep't of State, Background Information on Foreign Terrorist Organizations (Oct. 8, 1999), at http:// www.state.gov/s/ct/rls/rpt/fto/2801.htm# mek, J.A. at 22. MEK is a terrorist group currently designated by the Secretary of State as a Foreign Terrorist Organization under INA section 219. Press Release, Dep't of State, 2001 Report on Foreign Terrorist Organizations (Oct. 5, 2001), at http://www.state.gov/s/ct/rls/rpt/fto/2001/ 5258.htm. Petitioner's stated reason for affiliating was the religious nature of the organization that corresponded with his personal upbringing. Petitioner asserts that he was never a formal member of MEK. However, he distributed flyers in support of an MEK senatorial candidate² and sold MEK's newspapers. He personally only knew about 15 MEK members (the organization at the time had thousands of members). J.A. at 400. Petitioner discontinued his association with MEK approximately a year later, upon his discovery that MEK began resorting to violence. Petitioner was arrested in Ghom, a year later as part of the widespread campaign by the Islamic government against MEK. He was charged with possession of a gun and a hand grenade during a demonstration and sentenced to life in prison after a thirty-minute trial in front of a Court of Islamic Justice.³ Petitioner vigorously denies these accusations and maintains that he was arrested on a trumped-up charge designed to punish him for his earlier affiliation with MEK.⁴ Originally given a life sentence, Petitioner was released on probation after serving five years in various Iranian jails. He completed his probation without any major accidents, served in the army for two years, and was able to obtain some employment. Petitioner testified that the Iranian government did not allow him to complete his high school education and barred him from ever working for the government. There is no evidence to contradict that testimony.

In March of 1994, Petitioner, through the assistance of a family friend, secured a passport and an exit permit. He traveled to Germany and stayed with a sister there for three months prior to obtaining a visitor's visa to enter the U.S. Petitioner came to the U.S. on June 17, 1994. His immediate family in the U.S. includes his mother, two brothers and one sister, all of whom are either U.S. citizens or permanent residents. He is a beneficiary of an approved immediate relative visa petition filed by his U.S.-citizen sister on September 13, 1998. He is currently employed.⁵ Based on this approved visa petition, Petitioner is now eligible to apply to adjust his status and to become a permanent resident of the U.S.

After hearing all testimony, the immigration judge, on February 18, 1997, denied his asylum, withholding, and voluntary departure applications. The immigration judge found that (1) Petitioner lacked credibility based upon his demeanor, lack of responsiveness, and contradictions within his testimony and between his testimony and his application for asylum, (2) Petitioner's claimed fear of persecution was "considerably weakened" by his own testimony, including his statements that his life sentence was reduced to five years, that he successfully completed a subsequent five-year probation, that he was able to find employment, and that he completed his military service without incident, (3) Petitioner has not suffered past persecution, did not have a well-founded fear of future persecution, and thus was ineligible for either asylum or withholding of deportation, and (4) Petitioner would not be granted asylum as a matter of discretion even assuming statutory eligibility because of Petitioner's support for MEK's tough policy toward the American hostages, and his "raising of funds to support and further these policies" during "a critical period in the detention of the hostages." Daneshvar, No. A72-174-409 (Feb. 18, 1997) (decision of the IJ).

Petitioner appealed to the Board on March 24, 1997. During the pendency of the appeal, on May 23, 2001, he filed a motion to "reopen/remand" for consideration of his application for the discretionary relief of adjustment of status under INA section 245. On May 13, 2002,⁶ the Board affirmed the immigration judge's deportation order and asylum and withholding denials, denied Petitioner's motion to reopen and to remand to apply for adjustment of status, and dismissed the appeal. The Board agreed with the immigration judge's credibility determination, noting that her finding is given significant weight due to her observational advantages. The Board also agreed with the immigration judge's denial of asylum and withholding, finding that even if Petitioner's testimony regarding political imprisonment were true, "conditions in Iran have changed to such an extent that he no longer has a well-founded fear of being persecuted in that country." Daneshvar, No. A72-174-409, slip op. at 2 (BIA May 13, 2002). The Board also agreed that it was appropriate to deny Petitioner asylum in the exercise of discretion based upon his past involvement with MEK. Finally, the Board denied Petitioner's motion to remand the proceedings to allow him to apply for adjustment of status. The Board observed that Petitioner was inadmissible under 8 U.S.C. § 1182(a)(3)(B)(i)(I) for having engaged in terrorist activity, including solicitation for membership in the MEK. The Board concluded that the record provided "little apparent positive factors in this case" and that the motion should also be denied "in the exercise of discretion." Daneshvar, No. A72-174-409, slip op. at 3 (BIA May 13, 2002).

ANALYSIS

Petitioner presents four issues on this appeal. First is whether Petitioner was deprived of his constitutional right to a full and fair asylum hearing due to questionable translation by the interpreter where the IJ based her adverse credibility determination on Petitioner's testimony. Second is whether the adverse credibility determination made by the IJ and affirmed by the Board is erroneous and not supported by the record. Third is whether the Board's decision denying Petitioner's application for asylum and withholding of deportation is manifestly contrary to the law, an abuse of discretion and not supported by the record. Fourth is whether the Board's decision denying Petitioner's motion to reopen to apply for adjustment of status (permanent residency) based on the provisions of 8 U.S.C. § 1182(a)(3)(B)(i)(I) is erroneous, an abuse of discretion and not supported by the record.

1. Constitutional Right to a Full and Fair Asylum hearing.

Petitioner argues that non-responsiveness and evasion noted by the IJ in his testimony was due to failure of the interpreter at the hearing on February 5, 1997 to adequately communicate with either Petitioner or the IJ. Petitioner relies on this Court's earlier finding that an asylum applicant whose testimony was subjected to questionable translation by an interpreter was deprived of his constitutional right to a...