Hosseini v. Gonzales ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MASOUD HOSSEINI,  No. 03-73734
Petitioner, Agency No.
v. A73-985-544
ALBERTO R. GONZALES, Attorney  ORDER
General, AMENDING
Respondent. OPINION AND
AMENDED
 OPINION
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
April 6, 2006—Seattle, Washington
Filed September 28, 2006
Amended December 28, 2006
Before: William C. Canby, Jr., Ronald M. Gould, and
Carlos T. Bea, Circuit Judges.
Opinion by Judge Canby
19995
19998 HOSSEINI v. GONZALES
COUNSEL
Matthew H. Adams, Northwest Immigrant Rights Project,
Seattle, Washington, for the petitioner.
William C. Peachey, United States Department of Justice,
Office of Immigration Litigation, Washington, D.C., for the
respondent.
HOSSEINI v. GONZALES 19999
ORDER
The request of the government for clarification of this
court’s opinion, reported at 464 F.3d 1018, is GRANTED.
The opinion of this court, filed September 28, 2006, is
amended as follows: At 464 F.3d 1024, first full paragraph,
immediately following the citation to Travel Document
Requirements for Citizens of the Islamic Republic of Iran,
indicate a new footnote 6. That footnote is to state:
The government points out that it is precluded by
regulation from disclosing any information relating
to Hosseini’s asylum application “without the writ-
ten consent” of Hosseini. 8 C.F.R. § 1208.6(a).
Although that regulation restrains the government, it
does not impede Iran’s actions.
Original footnote 6 is then renumbered to become footnote 7.
OPINION
CANBY, Circuit Judge:
Masoud Hosseini is an Iranian citizen who came to the
United States on a student visa. He did not attend school and
he overstayed his visa. He was ordered deported as an over-
stay, but he subsequently succeeded in having his deportation
proceeding reopened. He sought asylum, withholding of
deportation, and adjustment of status under the Immigration
and Nationality Act (“INA”). He also sought withholding and
deferral of deportation under the Convention Against Torture.
An immigration judge denied Hosseini all relief under the
INA primarily because of his connection and activities with
the Iranian dissident group Mujahedin-e Khalq (“MEK”),1
1
The spelling of this organization varies somewhat among writers. We
adopt the spelling most frequently used by the parties.
20000 HOSSEINI v. GONZALES
designated by the Secretary of State as a terrorist organiza-
tion. The immigration judge also denied relief under the Con-
vention Against Torture on the ground that Hosseini had
failed to show that it was more likely than not that he would
be tortured if deported to Iran.
The Board of Immigration Appeals (“BIA”) dismissed
Hosseini’s appeal, upholding the immigration judge’s rulings.2
The BIA stated alternatively that it denied asylum as a matter
of discretion because of Hosseini’s immigration fraud. It also
affirmed the denial of adjustment of status on the ground of
inadmissibility, but in addition denied adjustment as an exer-
cise of discretion, because of Hosseini’s terrorist-connected
activities and his fraud. The BIA also stated that Hosseini’s
terrorist-related activities precluded withholding of deporta-
tion not only under the INA, but also under the Convention
Against Torture. Hosseini now petitions for review.
We deny the petition with regard to the BIA’s denial of
asylum and dismiss the petition with regard to the denial of
adjustment of status. We grant the petition with regard to
withholding of deportation under the INA, vacate that portion
of the BIA’s decision, and remand for further proceedings.
We deny the petition for review with regard to withholding of
deportation under the Convention Against Torture. We grant
the petition for review with regard to deferral of deportation
under the Convention Against Torture, and we reverse that
portion of the BIA’s decision and remand for an award of
deferral.
Background
Hosseini’s activities after coming to the United States pre-
sent a complicated scenario. Hosseini entered this country on
a student visa that allowed him to remain here for approxi-
2
One member of the BIA dissented from the denial of deferral of depor-
tation under the Convention Against Torture.
HOSSEINI v. GONZALES 20001
mately two weeks. He obtained the visa with the help of a Los
Angeles-based immigration consultant named Bahram
Tabatabai. Hosseini never attended school and did not leave
when his visa expired. Instead, he filed applications for politi-
cal asylum with Tabatabai’s help. Hosseini filed his first asy-
lum application under a false name and alien registration
number. He made numerous other false statements in this
application. The Immigration and Naturalization Service
(“INS”) charged him with remaining in the U.S. longer than
permitted and he was ordered deported in absentia when he
did not appear for his hearing.
Hosseini filed a second asylum application using a different
name and registration number. He made several other false
declarations in this application. The INS charged Hosseini
with deportability as an alien who was not admitted or paroled
and again he was ordered deported in absentia.
In the meantime, the government’s Joint Terrorism Task
Force began investigating Tabatabai on suspicion that he was
helping members of MEK commit immigration fraud. The
State Department has designated MEK and an organization
affiliated with MEK, the National Council of Resistance,
“Foreign Terrorist Organization[s].” See Designation of Ter-
rorist and Terrorist Organizations Pursuant to Executive
Order 13224 of September 23, 2001, 67 Fed. Reg. 12,633
(Mar. 19, 2002); Determination Pursuant to Section 1(b) of
Executive Order 13224 Relating to the Mujahedin-e Khalq
(MEK), 68 Fed. Reg. 48,984 (Aug. 15, 2003). A confidential
informant working with the Task Force identified Hosseini as
a client of Tabatabai’s and an MEK supporter. The Task
Force also learned of Hosseini’s fraudulent asylum applica-
tions. In March 1999, the INS took Hosseini into custody at
the Los Angeles airport. The INS later amended its charges to
include obtaining entry into the U.S. through fraud and failing
to comply with the conditions under which he was admitted.
The immigration judge allowed Hosseini’s case to be
reopened, and Hosseini sought asylum, withholding of depor-
20002 HOSSEINI v. GONZALES
tation, and adjustment of status under the INA, and withhold-
ing and deferral of deportation under the Convention Against
Torture. He denied being a member of MEK and claimed that
his life would be threatened and he would be tortured in Iran
because he had been labeled a Mujahedeen terrorist. The
immigration judge denied his requests for relief, and the BIA
affirmed. This petition for review followed.
Jurisdiction
We have jurisdiction pursuant to INA § 242, 8 U.S.C.
§ 1252(a)(1), to review the BIA’s denial of Hosseini’s request
for withholding and deferral of deportation. We also have
jurisdiction to review the BIA’s discretionary denial of
Hosseini’s application for asylum. See 8 U.S.C. § 1252(a)(2)
(B)(ii) (stating that no court shall have jurisdiction to review
discretionary denials “other than the granting of relief under
section 1158(a),” which governs asylum applications).
We lack jurisdiction to review the BIA’s denial of
Hosseini’s adjustment of status claim because the BIA alter-
natively denied relief as a matter of discretion. 8 U.S.C.
§ 1252(a)(2)(B)(i). The REAL ID Act does not restore our
jurisdiction because Hosseini does not argue that the BIA’s
discretionary denial was unconstitutional or unlawful. See 8
U.S.C. § 1252(a)(2)(D) (allowing judicial review of “consti-
tutional claims or questions of law”). We therefore dismiss
the petition for review to the extent that it challenges the
BIA’s denial of adjustment of status.
Discussion
The BIA conducted its own review of the evidence and law
rather than simply adopting the immigration judge’s decision.
Accordingly, our review “is limited to the BIA’s decision,
except to the extent the IJ’s opinion is expressly adopted.”
Cordon-Garcia v. INS, 204 F.3d 985, 990 (9th Cir. 2000).
HOSSEINI v. GONZALES 20003
1. Political Asylum
The BIA found Hosseini ineligible for asylum but it also
held that, even if Hosseini were eligible, it would deny his
application as a matter of discretion because he perpetrated
fraud throughout his immigration proceedings. See 8 C.F.R.
§ 1208.14(a) (giving the IJ authority to “grant or deny asylum
in the exercise of discretion to an applicant who qualifies as
a refugee”). We affirm the BIA’s discretionary denial of
Hosseini’s asylum application.3
There is substantial, uncontested evidence that Hosseini
committed immigration fraud. Hosseini admitted that his first
two asylum applications were fraudulent. He used false names
and alien registration numbers in each application. He falsely
claimed that Iranian authorities harassed his family in Iran in
retaliation for an argument he had with Iranian officials. He
stated that he had been arrested in Iran for being politically
active, which was untrue. In his second application, he falsely
claimed that he was married, that he had entered the U.S.
without inspection, and that he was a member of an Iranian
political organization opposed to the current regime. He also
admitted obtaining a fraudulent birth certificate.
[1] In light of the uncontested evidence that Hosseini per-
petrated fraud throughout his immigration proceedings, the
BIA’s discretionary denial is neither “manifestly contrary to
the law [nor] an abuse of discretion.” 8 U.S.C.
§ 1252(b)(4)(D). We accordingly deny the petition for review
with regard to the BIA’s asylum ruling.
2. Withholding of Deportation under the INA
The BIA denied Hosseini’s request for withholding of
deportation under the INA because “he is a danger to the
3
We review the BIA’s decision for abuse of discretion. 8 U.S.C.
§ 1252(b)(4)(D).
20004 HOSSEINI v. GONZALES
security of the United States.” Although we normally review
such a finding for substantial evidence, we cannot do so here
because the BIA failed to articulate sufficiently the bases for
its finding. See Mattis v. INS, 774 F.2d 965, 967 (9th Cir.
1985) (explaining that we can affirm the BIA only on a basis
articulated in its decision). We therefore vacate the denial of
withholding and remand to the BIA for further proceedings.
[2] Under the former INA § 243, 8 U.S.C. § 1253 (repealed
1997),4 the government can deport Hosseini to Iran even
though his life and freedom may be threatened upon return as
long as “there are reasonable grounds for regarding [him] as
a danger to the security of the United States.” 8 U.S.C.
§ 1253(h)(1), (2)(D) (1996). Section 1253(h)(2)(D) of the
INA also provided that if Hosseini is engaged in “terrorist
activities,” as defined in § 241(a)(4)(B), he “shall be consid-
ered to be an alien for whom there are reasonable grounds for
regarding as a danger to the security of the United States.”
[3] The requirements for finding an alien to be a danger to
the security of the United States for purposes of the INA were
tightened, however, by our decision in Cheema v. Ashcroft,
383 F.3d 848 (9th Cir. 2004), which was issued after the
BIA’s decision in Hosseini’s case. Cheema holds that it is
impermissible to find that an alien is a danger to the security
of the United States solely because he engaged in terrorist
activity. See id. at 857. Terrorist activity that is directed at
another country does not invariably or necessarily involve a
danger to the security of the United States. See id. at 858-59.
4
The IJ incorrectly stated that Hosseini was seeking withholding of
removal under INA § 241. Hosseini was being deported, not removed.
Accordingly, INA § 243(h) is the appropriate statute for withholding of
deportation. As the BIA noted, however, the erroneous citation was harm-
less because the two sections are identical. Section 243(h) has been
replaced by § 241(b)(3) but the former section governs Hosseini’s claim
because he was placed into deportation proceedings before April 1, 1997.
Pub. L. No. 104-208, 110 Stat. 3009-612 (codified at 8 U.S.C. § 1253
(2006)).
HOSSEINI v. GONZALES 20005
To render an alien ineligible for withholding of deportation
(or asylum) on the latter ground, there must be a finding sup-
ported by substantial evidence that links the terrorist activity
“with one of the criteria relating to our national security.” Id.
at 857. Here the BIA, not having the benefit of our Cheema
decision, made no such finding and cited to no such evidence.
It also made no finding, and cited no evidence, of any reason
other than terrorist activity why Hosseini is a danger to the
security of the United States. The government concedes that,
under these circumstances, a remand is required so that the
BIA can determine the effect of Cheema on Hossieni’s claim
for withholding under the INA, which determination is for the
BIA in the first instance. See INS v. Ventura, 537 U.S. 12, 14
(2002). We therefore vacate the BIA’s denial of withholding
under the INA and remand for further proceedings in which
the BIA can apply the standard of Cheema. See 383 F.3d at
859. On remand the BIA must determine on the basis of sub-
stantial evidence, under the standard set forth in Cheema and
any other applicable law, whether Hosseini is a danger to the
security of the United States, so as to render him ineligible for
withholding of deportation under the INA.
3. Withholding of Deportation under the Convention
Against Torture
Cheema did not apply to withholding under the Convention
Against Torture its requirement under the INA that terrorist
activities be linked, by a finding supported by substantial evi-
dence, to a danger to the security of the United States, see id.
at 859, even though the same statute governs mandatory
denial of withholding under the Convention Against Torture
and the INA. See 8 C.F.R. § 1208.16(d)(2). We are bound by
that holding of Cheema, so if the BIA’s finding that Hosseini
has engaged in terrorist activities is supported by substantial
evidence, we must deny the petition with respect to withhold-
ing of deportation under the Convention Against Torture. See
Cheema, 383 F.3d at 859.
20006 HOSSEINI v. GONZALES
We conclude that substantial evidence supports the BIA’s
finding that there are reasonable grounds to believe that
Hosseini is engaged or is likely to engage in terrorist activity.
See 8 U.S.C. § 1182(a)(3)(B)(i)(II).5 The BIA did not specify
which statutory definitions of terrorist activity it was relying
on, but it recited evidence that Hosseini “was involved in
fund-raising as well as recruiting,” which fall within the defi-
nition of “engag[ing] in terrorist activity” when the fund-
raising or recruiting is for a designated terrorist organization.
See 8 U.S.C. § 1182(a)(3)(B)(iv)(IV)(bb) and (V)(bb).
The evidence of fund-raising is minimal: Hosseini sold
MEK newspapers to raise funds at a rally sponsored by the
National Council of Resistance. He stopped selling when he
saw that he was being photographed. Other evidence that
Hosseini admitted to being a “strong supporter” of MEK (and
that strong supporters were contributors), is not borne out by
the transcripts of the taped conversations on which that evi-
dence was supposedly based. Hosseini did indicate in one
taped conversation, however, that he was a “supporter” of
MEK and “not previously, but now I may have offered some
help, too.” He added that his brother had “given a lot of finan-
cial help.”
As for recruiting, Hosseini offered to make telephone calls
to MEK members to facilitate recruiting a confidential infor-
mant to whom he was speaking. The informant was taping the
conversation and had expressed an interest in joining MEK.
Hosseini also stated that it would be particularly good if the
informant brought along a couple of other people to be
recruited. Additional testimony, however, that Hosseini had
5
The immigration judge followed the statutory language in holding that
there were “reasonable grounds to believe that [Hosseini] is engaged or is
likely to engage in terrorist activities.” In upholding this ruling, the BIA
described it as a “conclusion that there is a reasonable likelihood that
[Hosseini] has or will participate in terrorist-related activities.” We are sat-
isfied that this mis-description of the immigration judge’s ruling on the
statutory standard had no effect on the BIA’s decision.
HOSSEINI v. GONZALES 20007
admitted recruiting in Thailand for MEK is not supported by
the transcript of the taped conversation on which it was based.
In that conversation, Hosseini stated that he had been
recruited in Thailand (but he always maintained that he never
became a member).
[4] Although this evidence of fund-raising and recruiting by
Hosseini is far from overwhelming, we cannot say that it is so
insignificant that it “compels a contrary result” to that reached
by the BIA. See Monjaraz-Munoz v. INS, 327 F.3d 892, 895
(9th Cir. 2003) (stating substantial evidence standard). We
therefore uphold the BIA’s determination that “there is rea-
sonable ground to believe [that Hosseini] is engaged in or is
likely to engage after entry in any terrorist activity” as defined
in the statute. See 8 U.S.C. § 1182(a)(3)(B)(i)(II). Conse-
quently, we deny the petition for review of the BIA’s denial
of withholding of deportation under the Convention Against
Torture.
4. Deferral under the Convention Against Torture
The BIA also denied Hosseini’s request for deferral of
removal under the Convention Against Torture. See 8 C.F.R.
§ 1208.17(a); see also Bellout v. Ashcroft, 363 F.3d 975, 979
(9th Cir. 2004). The BIA found Hosseini had not met his bur-
den of proving that he is “more likely than not” to be tortured
upon deportation to Iran. 8 C.F.R. § 1208.16(c)(3); see id.
§ 1208.17(a). We grant the petition as to this ruling and we
reverse.
[5] Hosseini presented sufficient evidence to prove that Ira-
nian officials will be able to identify him as a person involved
with MEK. Upon deportation, Hosseini will have to submit to
Iranian authorities “all court documents including all the
charges and court orders.” Embassy of Pakistan Interests Sec-
tion of the Islamic Republic of Iran, Travel Document
Requirements for Citizens of the Islamic Republic of Iran.6
6
The government points out that it is precluded by regulation from dis-
closing any information relating to Hosseini’s asylum application “without
20008 HOSSEINI v. GONZALES
His involvement with MEK is discussed at length in the
immigration judge’s deportation order and the BIA’s affirma-
tion of that order. Both the immigration judge and the BIA
concluded that Hosseini was a strong supporter of the MEK
and engaged in certain terrorist activities on its behalf. These
conclusions, which were reached by U.S. immigration offi-
cials, almost certainly will catch the attention of Iranian
authorities.
Two reports from the State Department establish that once
Iranian authorities identify Hosseini as an MEK supporter he
is likely to be tortured.7 See Kamalthas v. INS, 251 F.3d 1279,
1280 (9th Cir. 2001) (noting that “country conditions alone
can play a decisive role in granting relief under the Conven-
tion”). Although the reports are a few years old, the govern-
ment offered no evidence suggesting they were outdated. One
report states without qualification that “[k]nown or suspected
members of [the MEK] face either execution or long prison
terms if caught in Iran.” U.S. Dep’t of State, Iran — Profile
of Asylum Claims and Country Conditions 7 (1997). It also
states that “the Islamic regime’s human rights record contin-
ues to be abysmal, with continued reports of extrajudicial kill-
ings and summary executions; widespread use of torture and
other degrading treatment.” Id. at 4. The other report goes fur-
ther and provides that “Citizens continued to be tried and sen-
tenced to death in the absence of sufficient procedural
safeguards. . . . Supporters of outlawed political organiza-
tions, such as Mujahedin-e Khalq organization, are believed
to make up a large number of those executed each year.” U.S.
the written consent” of Hosseini. 8 C.F.R. § 1208.6(a). Although that reg-
ulation restrains the government, it does not impede Iran’s actions.
7
We do not base our decision on Hosseini’s testimony because the BIA
made an adverse credibility finding. The BIA’s finding is supported by
substantial evidence. See Gui v. INS, 280 F.3d 1217, 1225 (9th Cir. 2002)
(requiring substantial evidence to support an adverse credibility ruling).
Hosseini admitted to falsifying documents and making fraudulent state-
ments to immigration officials at nearly every stage of his proceedings.
HOSSEINI v. GONZALES 20009
Dep’t of State, Iran; Country Reports on Human Rights
Practices-2000 at 2. Moreover, “[t]he Constitution forbids the
use of torture; however, there are numerous, credible reports
that security forces and prison personnel continue to torture
detainees and prisoners. Some prison facilities, including Teh-
ran’s Evin prison, are notorious for the cruel and prolonged
acts of torture inflicted upon political opponents of the Gov-
ernment.” Id. at 3. These reports of activities against MEK do
not distinguish between leaders and mere supporters.
[6] Although the Convention Against Torture, as ratified by
the United States, does not “include pain or suffering arising
only from, inherent in or incidental to lawful sanctions,” 8
C.F.R. § 208.18(a)(3), these Country Reports make clear that
Iran’s treatment of political opponents, including MEK, goes
far beyond what could reasonably be regarded as “lawful
sanctions.” Along with the charges and evidence of
Hosseini’s activities in connection with MEK, they provide a
sufficient basis for concluding that Hosseini is more likely
than not to be tortured if he is deported to Iran. See Khup v.
Ashcroft, 376 F.3d 898, 906-07 (9th Cir. 2004) (finding peti-
tioner entitled to CAT relief where there were reports that the
country regularly tortures detainees and evidence of past per-
secution). He accordingly qualifies for deferral of deportation
under the Convention Against Torture. See 8 C.F.R.
§ 208.17(a).
Conclusion
We decline to review for lack of jurisdiction the BIA’s dis-
cretionary denial of adjustment of status. We deny the petition
for review with regard to the BIA’s denial of asylum. We
grant the petition for review with regard to the BIA’s denial
of withholding of deportation under the INA, and remand for
further proceedings in light of Cheema. We deny the petition
for review with regard to withholding of deportation under the
Convention Against Torture. Finally, we grant the petition for
review with regard to deferral under the Convention Against
20010 HOSSEINI v. GONZALES
Torture and we reverse the BIA’s decision and remand for an
award of deferral.
PETITION FOR REVIEW DENIED IN PART AND
GRANTED IN PART; REMANDED WITH INSTRUC-
TIONS.