Toufighi v. Mukasey

• Decision Date: 13 December 2007
• Docket Number: No. 04-74010.,04-74010.
• Citation: 538 F.3d 988
• Parties: Pejman TOUFIGHI, Petitioner, v. Michael B. MUKASEY,<SMALL><SUP>*</SUP></SMALL> Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

538 F.3d 988

Pejman TOUFIGHI, Petitioner, v. Michael B. MUKASEY,^* Attorney General, Respondent.

No. 04-74010.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted August 9, 2007.

Filed December 13, 2007.

Amended August 18, 2008.

Theodore Whitley Chandler, Sidley Austin, San Francisco, CA, for the petitioner.

Adam M. Dinnell (argued) and Terri Scadron, United States Department of Justice, Civil Division, Washington, DC, for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A76-382-466.

Before MARSHA S. BERZON and SANDRA S. IKUTA, Circuit Judges, and JAMES K. SINGLETON, JR.,^** Senior District Judge.

Opinion by Judge Singleton; Dissent by Judge Berzon.

ORDER

The opinion filed December 13, 2007, slip op. 16371, 510 F.3d 1059, is amended as follows.

1. At slip op. 16387, footnote 14, 510 F.3d at 1066-67, replace the sentences that begin Department of Homeland . . . > and end <we lack jurisdiction to review the IJ's decision.> with < light of the IJ's factual determinations that Toufighi was not a genuine convert to Christianity, was not an apostate, and would not be considered an apostate by the Iranian authorities, and given our lack of jurisdiction to review these factual determinations, we do not reach the separate question whether a petitioner could establish a well-founded fear of persecution based on evidence of apostasy, or evidence that the petitioner would be perceived as an apostate by Iranian officials, in a case where the petitioner failed to prove that the petitioner's conversion was genuine. Cf. Najafi v. INS, 104 F.3d 943, 949 (7th Cir. 1997) (noting that evidence regarding the "sincerity of the alien's new religious commitment" can be relevant to an asylum claim based on apostasy, but is not dispositive).>.

OPINION

SINGLETON, Senior District Judge:

Pejman Toufighi, a native and citizen of Iran, petitions for review of a decision of the Board of Immigration Appeals ("Board") which denied his motion to reopen his claims for asylum and withholding of removal. Toufighi sought to reopen the proceedings in reliance on his marriage to a United States citizen, and what he contended were changed circumstances in Iran material to his claims. We have jurisdiction over the final order denying Toufighi's motion to reopen proceedings. 8 U.S.C. § 1252(a)(5). We deny the petition for review.

BACKGROUND

Pejman Toufighi is a native and citizen of Iran. He was admitted to the United States on or about March 16, 1996, as a non-immigrant visitor with authorization to remain for six months. Toufighi remained in the United States beyond his six-month stay without authorization from the Immigration Service ("Service"). In May of 1997, the Service instituted removal proceedings.

On August 8, 1997, Toufighi appeared with counsel and conceded that he was removable. The Immigration Judge ("IJ") granted additional time to consider available forms of relief, and in anticipation of an asylum claim, directed parties to file supporting documents by the hearing date of September 18, 1997. In September, Toufighi appeared with counsel and received a further continuance to allow him time to obtain additional documents.¹ The IJ set the hearing for April 1, 1998, and gave Toufighi until March 2, 1998, to submit additional supporting documents.

Toufighi appeared with counsel at the hearing on April 1, 1998, and testified on his own behalf. Essentially, Toufighi claimed that he had converted from Islam to Christianity, and that he feared that he would be persecuted upon return to Iran for committing apostasy. In support of his claim, Toufighi testified that he was introduced to Christianity while in college in Iran, but did not convert because he was afraid of the ramifications. He alleged that after arriving in the United States to visit his sister he began regularly attending church and prayer meetings and had become a Christian.

Toufighi also submitted in support of his claim several unauthenticated official documents translated from Farsi, and two letters from a Christian pastor attesting to his conversion. The IJ, finding that Toufighi had been given sufficient time to properly authenticate his documents, refused to consider the unauthenticated documents translated from Farsi. The letters from the pastor were admitted over the objection of the Service, but the IJ discounted them because they were not from the pastor of Toufighi's alleged home church, and neither the pastor who wrote the letters, nor the pastor of Toufighi's alleged home church, were present to testify to their knowledge of Toufighi's religious beliefs.

The IJ found that Toufighi's testimony was generally credible, but that Toufighi had not in fact converted to Christianity:

[T]he Court would note that he has very deep concern as to the genuineness as [to] the respondent's claimed conversion from Muslim to Christianity. The respondent testified that he attended church every Sunday since he came to the United States in 1996, at least December 1996. The respondent, however, apparently knows very little about the "Bible" that he studied. The respondent cannot even name the 12 apostles of Jesus Christ. With the Court's understanding that Christianity begins with the life and teaching of Jesus Christ in the New Testament, the 12 apostles have some of the most important, if not the most important, writings of Christianity. The Court has serious doubt in the respondent's conversion to Christianity when he cannot even give the names of the 12 apostles of Jesus Christ. The respondent's knowledge about Christianity [was presented] to the Court in such general terms that any person of any religion can come up with that description of their religion, namely peace, tranquility, and love. The respondent is not able to give any specific knowledge that he has learned from attending Christian church every Sunday, for four hours each day, for at least the last year-and-a-half, and also his desire to become a Christian was so big that he had to "escape" his home country and come to the United States to learn and become a Christian. The Court just would not believe that the respondent's claimed conversion is genuine in nature. The Court would find that the respondent's alleged conversion from Muslim to Christianity is basically as a vehicle for him to apply for political asylum in the United States.

The IJ further found that Toufighi had not previously practiced Christianity in Iran, and implicitly found that he would not practice it there in the future because his alleged apostasy was simply a ruse to gain asylum. Based on these findings, the IJ concluded that Toufighi had not established past persecution, or a well-founded fear of persecution upon his return to Iran.

The IJ therefore denied Toufighi's claim for asylum, and because the standard was higher, also denied the request for withholding of removal.² The IJ then granted Toufighi's alternate request for voluntary departure, giving him until May 31, 1998, to depart.

Toufighi challenged the IJ's decision, filing a timely notice of appeal with the Board. However, he failed to timely file a brief in support of his appeal, and the Board accordingly dismissed it in May 2002, pursuant to 8 C.F.R. § 1003.1(d)(2)(i)(E) (formerly 8 C.F.R. § 3.1(d)(2)(i)(D) (2002)).³ The Board's dismissal permitted Toufighi to voluntarily depart within thirty days, and warned him that if he failed to timely depart he would be removed, subjected to a fine, and made ineligible for a period of ten years for any further relief under certain sections of the Immigration and Nationality Act.⁴

Toufighi did not depart as promised. On October 16, 2003, he filed a motion to reopen his case to adjust his status to that of a lawful permanent resident based upon his recent marriage to a United States citizen. Alternatively, he asserted that changed conditions in Iran warranted reopening his asylum claim.⁵

The Board denied the motion on July 15, 2004. First, the Board found that as a consequence of Toufighi's failure to voluntarily depart pursuant to the Board's grant of voluntary departure dated May 21, 2002, Toufighi was barred from applying for adjustment of status for ten years in accordance with 8 U.S.C. § 1229c(d). Second, the Board concluded that the application for adjustment of status was barred as untimely pursuant to 8 C.F.R. § 1003.2(c)(2). Third, the Board rejected the motion to reopen based on changed circumstances in Iran because it was not supported by evidence that Toufighi would be directly affected by the alleged changes:

The respondent alternatively requests reopening of his asylum and withholding of removal claims based upon alleged changed conditions in Iran. To support his motion, the respondent has submitted some general news articles related to recent events in that country. None of the submitted information, however, contains prima facie evidence that the respondent would be directly affected by any changes noted therein. Moreover, the Immigration Judge previously rejected the respondent's assertion that he had converted to Christianity; the respondent's religious conversion was the basis of his claims. To the extent this information [the materials submitted by Toufighi] would relate to persecution of Christians in Iran, the respondent has already failed to establish that this would affect him. We are not in a position to readjudicate the merits of his original appeal at this point. Thus, none of the new evidence is material with respect to the respondent's claims.

In August 2004, Toufighi timely petitioned this Court for review of the final order of the Board dismissing his motion to reopen.

STANDARDS GOVERNING REVIEW

Denials of motions to reopen are generally reviewed for abuse of discretion. INS v. Doherty, 502 U.S. 314, 323-24, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992); INS v. Abudu, 485 U.S. 94, 104-05, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988). This Court...