Ghasemimehr v. Gonzales, 04-1702.

• Decision Date: 22 September 2005
• Docket Number: No. 04-1702.,04-1702.
• Parties: Saeed GHASEMIMEHR, Petitioner, v. Alberto GONZALES,<SMALL><SUP>*</SUP></SMALL> Attorney General, of the United States of America, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

427 F.3d 1160

Saeed GHASEMIMEHR, Petitioner, v. Alberto GONZALES,^* Attorney General, of the United States of America, Respondent.

No. 04-1702.

United States Court of Appeals, Eighth Circuit.

Submitted September 14, 2005.

Decided September 22, 2005.

Patricia G. Mattos, Mattos Law Office, St. Paul, MN, for Petitioner.

Emily Anne Radford, Papu Sandhu, Jennifer Keeney, U.S. Department of Justice, Office of Immigration Litigation, Washington, DC, for Respondent.

Before RILEY, FAGG, and COLLOTON, Circuit Judges.

PER CURIAM.

Saeed Ghasemimehr, a citizen of Iran, entered the United States in 1983 as a nonimmigrant student and did not leave when his visa expired. Ghasemimehr applied for asylum and withholding of deportation. An immigration judge (IJ) denied relief and issued a preprinted, one-page form as a summary of his oral decision. This memorandum of the oral decision (MOD) provided a pro forma listing of fifteen alternatives, dealing with various types of relief and outcomes, such as grant or denial of voluntary departure, suspension of deportation, adjustment of status, asylum and withholding of deportation, and application for admission, among others. In Ghasemimehr's case, the IJ checked the line stating, "The application for Asylum/withholding of Deportation under Section 208(a)/243(h) was granted/denied/withdrawn," with the word "denied" circled and the words "granted" and "withdrawn" crossed out. The IJ also checked lines indicating Ghasemimehr had been granted voluntary departure with an alternate order of deportation to Iran, and the decision was final unless an appeal was filed by August 4, 1989. The Board of Immigration Appeals (BIA) dismissed Ghasemimehr's appeal, but granted voluntary departure. We denied Ghasemimehr's petition for review. See Ghasemimehr v. INS, 7 F.3d 1389 (8th Cir.1993).

Ghasemimehr did not leave the country, and in 2003, Ghasemimehr was detained by the Bureau of Immigration and Customs Enforcement. The Department of Homeland Security (DHS) sent a letter to the Iranian consular's office stating Ghasemimehr was in custody and had been ordered removed from the United States. The letter requested help in obtaining travel documents for Ghasemimehr's return to Iran. With the letter, the Department enclosed a copy of the MOD without the checkmark indicating his claims for asylum and withholding of deportation were denied. The altered MOD also deleted the words "was granted/denied/withdrawn" from the end of the asylum sentence. Apparently, those words and the checkmark had been whited out, then the form had been photocopied. As altered, the MOD indicated only that Ghasemimehr was granted voluntary departure on or before October 24, 1989 with an alternate order of deportation to Iran, and the decision was final unless appealed.

Later in 2003, Ghasemimehr moved to reopen his deportation proceedings to apply for asylum based on changed country conditions and to seek protection under the Convention Against Torture (CAT). According to Ghasemimehr, enclosure of the altered MOD disclosed his asylum application to the Iranian government and constituted changed circumstances because given the disclosure, he would be subject to torture in Iran. The BIA denied the motion to reopen, holding it was untimely and Ghasemimehr failed make the necessary showing of changed circumstances. Ghasemimehr now petitions for review from the BIA's decision. We deny the petition.

A motion to reopen generally must be filed no later than ninety days after the final administrative decision sought to be reopened. 8 C.F.R. § 1003.2(c)(2). The ninety-day limit does not apply, however, when the applicant seeks to reopen proceedings to apply or reapply for asylum or withholding of deportation based on changed circumstances arising in the country of nationality. Id. An alien can satisfy his burden to show changed circumstances by providing sufficient facts and supporting documentary evidence, through affidavits or other evidentiary material, establishing prima facie eligibility for the relief sought. See id. § 1003.2(c)(1). The BIA has broad discretion to deny a motion to reopen, even if the movant has presented a prima facie case for relief. Id. § 1003.2(a). "`[W]e will find an abuse of discretion if the denial was made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis (such as race).'" Boudaguian v. Ashcroft, 376 F.3d 825, 828 (8th Cir.2004) (quoting Zhang v. INS, 348 F.3d 289, 293 (1st Cir.2003)).

Ghasemimehr concedes his motion to reopen was untimely, but argues the untimeliness should be excused because of the disclosure of his asylum application to the Iranian government in violation of 8 C.F.R. § 1208.6 (information regarding asylum applications generally shall not be disclosed without applicant's consent). The BIA held Ghasemimehr...