Maroufi v. I.N.S.

• Decision Date: 30 September 1985
• Docket Number: No. 83-7819,83-7819
• Citation: 772 F.2d 597
• Parties: Mortaza Vaez MAROUFI, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 597

772 F.2d 597

Mortaza Vaez MAROUFI, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 83-7819.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Sept. 12, 1984.

Decided Sept. 30, 1985.

Jack I. Kaiser, San Francisco, Cal., for petitioner.

Marshall T. Golding, Washington, D.C., for respondent.

Petition to Review a Decision of the Immigration and Naturalization Service.

Before WALLACE, ALARCON, and NELSON, Circuit Judges.

ALARCON, Circuit Judge:

Mortaza Maroufi seeks review of the decision of the Board of Immigration Appeals (hereinafter the BIA) denying his motion to reopen deportation proceedings for consideration of his request for asylum and withholding of deportation made pursuant to 8 U.S.C. Secs. 1158, 1253(h). We have jurisdiction under 8 U.S.C. Sec. 1105a. We affirm in part, reverse in part, and remand.

I

Maroufi, a native and citizen of Iran, entered the United States as a nonimmigrant student visitor in June 1976. The Immigration and Naturalization Service (INS) instituted deportation proceedings against Maroufi in November 1980, charging that he had violated the conditions of his visa. An immigration judge found Maroufi to be deportable, and Maroufi's subsequent appeal from this decision to the BIA was dismissed.

In January 1982, Maroufi filed a motion to reopen deportation proceedings pursuant to 8 C.F.R. Sec. 3.2 (1985) to apply for political asylum. Pursuant to 8 C.F.R. Sec. 208.3(b) (1985), the BIA treated Maroufi's motion as a request to reopen in order to seek both asylum and withholding of deportation. The BIA denied Maroufi's motion in its entirety, and Maroufi appealed.

II

Maroufi asserts that the BIA erred in denying his motion to reopen. He contends that the motion should have been granted because he submitted sufficient evidence to make a prima facie showing of eligibility for asylum and a prima facie case for withholding of deportation. ¹

A.

We hold that the BIA did not abuse its discretion in denying Maroufi's motion to reopen for withholding of deportation.

We are unpersuaded that Maroufi's evidence, if believed, would prove that he faced a danger greater than any other citizen of Iran and therefore agree with the BIA's finding that Maroufi has not met his burden of coming forward with a prima facie showing that he was eligible for withholding of deportation. It is never an abuse of discretion to deny a motion to reopen when a prima facie case for relief is not established.

Maroufi asserts that he presented a sufficient "non-frivolous claim to asylum which justified the proceeding be reopened." He is incorrect. The standard of proof required to establish a prima facie case of entitlement to withholding of deportation is proof of a "clear probability of persecution." INS v. Stevic, 467 U.S. 407, 104 S.Ct. 2489, 2492-2501, 81 L.Ed.2d 321 (1984). While it is true that no hard and fast rule can be laid down as to what constitutes a sufficient showing of a "prima facie" case of a clear probability of persecution, Matter of Sipus, 14 I & N Dec. 229, 231 (1972), the standard demands more than the presentation of a "non-frivolous claim to asylum." The term "prima facie" traditionally indicates a requirement of proof that will support the desired finding if evidence to the contrary is disregarded; proof sufficiently strong to suffice on its own until it is contradicted or overruled by other evidence. See, e.g., INS v. Jong Ha Wang, 450 U.S. 139, 143-44 & n. 5, 101 S.Ct. 1027, 1030-31 & n. 5, 67 L.Ed.2d 123 (1981) (per curiam) (Wang ). Matter of Martinez-Romero, 18 I & N Dec. 75 (1981).

In support of his motion to reopen, Maroufi submitted an affidavit citing the following circumstances as proof of his claim: (1) the statement of his parents in Iran that they were unable to speak openly in telephone conversations; (2) the fact that the last letter he received from his parents had been opened; (3) the fact that his father's store had been closed by the government for stocking non-Iranian merchandise; and (4) his knowledge that individuals who oppose the current government in Iran, including members of the Mujahedeen, a group Maroufi has openly supported, are executed on a daily basis in Iran.

These incidents neither individually nor collectively establish that there is a clear probability that Maroufi would be persecuted upon his return to Iran. As for the telephone conversations and opened letter, it is a sad but true fact that the citizens of many foreign countries do not enjoy unhampered communication.

Similarly, Maroufi has neither alleged nor established that the closing of a store for selling non-Iranian merchandise is an act of persecution, or is not a proper sanction under Iranian law. Finally, Maroufi is apparently asking us to conclude that he is in danger of persecution because members of the Mujahedeen, a group he has openly supported, are among the thousands who have been executed for opposing the present government in Iran. We cannot draw such a specific inference of personal danger from such a sweeping claim.

We recognize the difficulty an alien may face in establishing that he or she will be persecuted. We are also aware of the political upheaval in Iran. However, Maroufi's affidavit and application for asylum consisted solely of conclusory and speculative inferences drawn from generalized events. Courts have recognized that a prima facie case of the clear probability of persecution cannot be established from speculative conclusions or vague assertions. E.g., Wang, 450 U.S. at 143, 101 S.Ct. at 1030. Affidavits submitted in support of motions to reopen deportation proceedings must contain specific facts in order to carry the burden of establishing a clear probability of persecution. See Shoaee v. INS, 704 F.2d 1079, 1084 (9th Cir.1983).

Maroufi's assertion that the BIA must accept the truth of his evidence is correct. The BIA is required to accept as true the facts stated in an alien's affidavit in ruling upon his motion to reopen unless it finds those facts to be "inherently unbelievable." See Hamid v. INS, 648 F.2d 635, 637 (9th Cir.1981) (concerning a motion to reopen based upon an application for suspension of deportation under Sec. 244(a)(1) of the I & N Act, 8 U.S.C. Sec. 1254(a)(1)). There is no indication in this record, however, that the BIA did not accept the truth of Maroufi's factual allegations.

The record does indicate that the BIA noted that "the respondent's statements are totally unsupported by any corroborating evidence." We do not agree with the BIA's assertion that the law requires independent corroboration of the facts contained in a supporting affidavit. At oral argument, the government lawyer representing the Immigration and Naturalization Service (hereinafter INS) also argued that an alien's "own affidavit, unsupported by independent corroboration, would not suffice" to meet the requirements of the INS regulations. It is clear from the express wording of the regulation that no such requirement was contemplated. The regulation provides that a motion to reopen must be supported by "affidavits or other evidentiary material...." 8 C.F.R. 103.5 (1984) (emphasis added).

It was thus error for the BIA to assume that the affidavit had to be independently corroborated. However, this error is neither dispositive nor prejudicial in light of Maroufi's failure to present a prima facie case of a clear probability of persecution. A motion to reopen deportation proceedings cannot be granted when a prima facie case of eligibility for the relief sought is not established. See Wang, 450 U.S. at 141, 101 S.Ct. at 1029. The BIA reviewed the evidence offered by Maroufi and concluded that he had not made a prima facie showing that he was eligible. This conclusion is clearly supported by the record.

B.

The denial of the motion to reopen to consider Maroufi's claim for asylum presents a different problem. In testing whether Maroufi established a prima facie case, it appears that the BIA may have incorrectly assumed that a well-founded fear of persecution is as stringent as a clear probability of persecution. See Bolanos-Hernandez v. INS, 767 F.2d 1277, 1282-84 (9th Cir.1984). The record suggests, however, that the BIA also might have relied on a different theory.

In a unanimous decision, the Supreme Court recently held that the BIA has broad discretion to deny motions to reopen deportation proceedings even if a prima facie case for relief from deportation is established. INS v. Rios-Pineda, --- U.S. ----, 105 S.Ct. 2098, 2101, 85 L.Ed.2d 452 (1985) (Rios-Pineda ). At least since Wang, 450 U.S. at 143-44 & n. 5, 101 S.Ct. at 1030-31 & n. 5, the law of this circuit has been that BIA decisions on motions to reopen are reviewed only for an abuse of discretion. Despite the apparently clear language in...