Maryam Ghadessi v. Immigration and Naturalization Service , 797 F.2d 804 ( 1986 )

BEEZER, Circuit Judge:

Maryam Ghadessi petitions for review of the decision of the Board of Immigration Appeals (“BIA”) denying her motion to reopen deportation proceedings to apply for asylum as a refugee under section 208(a) of the Refugee Act of 1980, 8 U.S.C. § 1158(a). The BIA denied Ghadessi’s motion on the ground that she failed to establish a prima facie case for relief. We conclude that Ghadessi has stated a prima facie case of a well-founded fear of persecution and thus we remand this matter to the BIA to reopen deportation proceedings for the presentation of evidence on her eligibility for asylum.¹

I

Background

Ghadessi, a citizen of Iran, first entered the United States in 1978 as a non-immigrant student. When her student visa expired, the Immigration and Naturalization Service (“INS”) instituted deportation proceedings. In 1980, Ghadessi was found deportable by an immigration judge, and this decision was affirmed by the BIA and this court.

In 1984, Ghadessi filed a motion to reopen deportation proceedings pursuant to 8 C.F.R. § 3.2 to apply for asylum as a refugee. She alleges that since her deportation proceedings, she has been active in an anti-Khomeini organization and would be persecuted for such conduct upon her return to Iran. The BIA found that she had not established the prima facie showing necessary to reopen proceedings.

II

Standard of Review

It is generally stated that the BIA’s denial of a petition to reopen deportation proceedings to apply for asylum is reviewed by this court for an abuse of discretion. Hernandez-Ortiz v. INS, 777 F.2d 509, 513 (9th Cir.1985); cf. INS v. Rios-Pineda, — U.S. -, 105 S.Ct. 2098, 85 L.Ed.2d 452 (1985) (abuse of discretion standard applies to motion to reopen to petition for suspension of deportation). However, when the BIA restricts its decision, as here, to whether the alien has established a prima facie case, this is the only basis for the decision that we review. Hernandez-Ortiz, 777 F.2d at 517; see Larimi v. INS, 782 F.2d 1494, 1496 (9th Cir.1986). The determination of whether an alien has established a prima facie case that she is a refugee, i.e., has a well-founded fear of persecution, is nondiscretionary.² See Hernandez-Ortiz, 777 F.2d at 518; cf Aviles-Torres v. INS, 790 F.2d 1433, 1436 (9th Cir.1986) (BIA has no discretion to deny motion to reopen where prima facie case for prohibition of deportation is established).

Even where an alien qualifies as a refugee by showing a well-founded fear of persecution, the BIA may exercise some discretion in determining whether to grant asylum. Hernandez-Ortiz, 777 F.2d at 518; see Mahini v. INS, 779 F.2d 1419, 1421 (9th Cir.1986) (adverse factor of narcotics conviction permits discretionary denial of asylum). It is also true that, in a review of a motion to reopen, the BIA may exercise discretionary authority to avoid the question of whether a prima facie case of statutory eligibility is established and instead proceed to rule on the merits of the alien’s entitlement to a favorable exercise of discretion. See Hernandez-Ortiz, 777 F.2d at 517-18. However, the BIA clearly did not exercise any type of discretionary authority in this case. Its decision was squarely predicated on a finding that Ghadessi failed to establish a prima facie case. Thus, we need not consider the nature or extent of the BIA’s discretion to deny a motion to reopen deportation proceedings in order to apply for asylum.

Consequently, our review is limited to considering whether the BIA’s “determination concerning the prima facie case is correct. ” See Larimi, 782 F.2d at 1496 (emphasis added).

Ill

Prima Facie Case Standard

In support of her application, Ghadessi presented an affidavit in which she described her involvement in an anti-Khomeini organization, stated she had organized and participated in three public anti-Khomeini demonstrations, and said she had given interviews on conditions in Iran. She also alleged that the Revolutionary Guards had detained her parents in Iran and interrogated them as to her whereabouts and whether she was involved in anti-Khomeini activities. In addition, she submitted an advisory opinion letter from the Department of State’s Bureau of Human Rights and Humanitarian Affairs, which stated that if Ghadessi’s statements were true, she had established a well-founded fear of persecution.³

A prima facie case for relief as a refugee entitled to asylum under section 208(a) is established when an alien presents “affidavits or other evidentiary material,” 8 C.F.R. § 103.5, which, if true, demonstrate that she has a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. Hernandez-Ortiz, 777 F.2d at 513.

Because the BIA was acting on Ghadessi’s motion to reopen, it was required to accept as true the factual statements contained in her affidavit. Id. at 514; Maroufi v. INS, 772 F.2d 597, 600 (9th Cir.1985). As motions to reopen are decided without a factual hearing, the Board is unable to make credibility determinations at this stage of the proceedings. Hernandez-Ortiz, 777 F.2d at 516. Unless the alleged facts are “inherently unbelievable,” corroboration of the petitioner’s affidavit is not necessary to establish a prima facie case.⁴ Id. at 514.

The BIA simply failed to appreciate the limited screening nature of the motion to reopen review. There is every indication from the text of its decision that the BIA’s conclusion that Ghadessi had not established a prima facie case was due solely to the Board’s weighing of the quality, rather than the sufficiency, of her evidence. The BIA’s short decision emphasized that Ghadessi had not presented “any impartial, objective evidence” nor “any corroborating material independent of her own statements or those of family members or close friends.”

In fact, although the BIA correctly noted that the State Department opinion was not binding upon it, the BIA never contradicted the opinion letter’s statement that Ghadessi had established a prima facie case of a well-founded fear of persecution if her allegations were regarded as true. Rather the BIA strongly indicated that it found her allegations to be untrue, or at least insufficiently corroborated by other evidence; a finding which the BIA is prohibited from making in considering a motion to reopen.

Furthermore, the BIA applied the wrong standard in reviewing Ghadessi’s motion to reopen.⁵ The BIA required Ghadessi to establish a prima facie case of “a realistic likelihood of persecution” were she to return to Iran. By phrasing the test in terms of “likelihood” of persecution, the BIA was requiring Ghadessi to demonstrate the “probability” of persecution. See Garcia-Ramos, 775 F.2d at 1373 (withholding of deportation statute requires showing of a “probability” or “likelihood” of persecution).

This “probability” or “likelihood” standard has been expressly rejected by this court in considering petitions for asylum. The “well-founded fear” standard applied to claims for asylum under section 208(a) of the Refugee Act, 8 U.S.C. § 1158(a), is “more generous” than the “clear probability of persecution” standard applied to petitions for mandatory withholding of deportation under section 243(h) of the Immigration and Nationality Act, 8 U.S.C. § 1253(h). Bolanos-Hernandez v. INS, 767 F.2d 1277, 1282 (9th Cir.1984).

The “well-founded fear” standard applied to claims for asylum includes a subjective and an objective component. Diaz-Escobar v. INS, 782 F.2d 1488, 1492 (9th Cir.1986); Hemandez-Ortiz, 777 F.2d at 513. An applicant satisfies the subjective component if she shows that her fear is genuine. Diaz-Escobar, 782 F.2d at 1492. The objective component is satisfied if persecution is a “reasonable possibility,” Hernandez-Ortiz, 777 F.2d at 513; Garcia-Ramos, 775 F.2d at 1374. There is no requirement of a showing of a “likelihood” of persecution.

■ Finally, the BIA erred by simply noting the absence of independent corroborating evidence and failing to give any consideration to the substance of Ghadessi’s allegations in her affidavit. On a motion to reopen, the BIA must indicate both individualized and cumulative consideration of all of the relevant evidence presented in support of the motion. The BIA decision is devoid of any such analysis.

IV

Merits of the Prima Facie Case Analysis

Applying the proper standard and accepting Ghadessi’s affidavit as true, Ghadessi has established a prima facie showing of a well-founded fear of persecution. She has presented “specific facts that give rise to an inference that the applicant has been or has good reason to fear that he or she will be singled out for persecution.” See Del Valle v. INS, 776 F.2d 1407, 1411 (9th Cir.1985).

In her affidavit, Ghadessi has described her extensive and active involvement in a public campaign to protest and discredit the Khomeini regime in Iran.⁶ Although the Immigration and Naturalization Service (INS) asserts that no evidence was submitted showing her activities had come to the attention of the Iranian government, she had produced evidence from which an inference can be drawn that Iranian government authorities might be aware of her anti-Khomeini activities.

In Garcia-Ramos, 775 F.2d at 1373, we noted that the petitioner had not presented any evidence that the El Salvadoran government was aware of his political activities. However, we found that, owing to his extensive anti-government activities, he was statutorily eligible for asylum because he might have come to the attention of the government. Id. at 1374.

The affidavit evidence presented by Ghadessi is much stronger than that of the petitioner in Garcia-Ramos. Her allegation that her parents were detained and interrogated by Iranian authorities on three occasions regarding her activities indicates that her political beliefs may have come to the attention of the Iranian government. The fact that her parents have been harassed and actually detained due to the government’s apparent suspicion of her dissident activities lends “considerable strength” to her claim that she fears persecution. See id. (evidence of government harassment of petitioner or family “[ojbviously” would “lend considerable strength” to asylum claim).

The INS dismisses these interrogation sessions, saying that the questioning of her parents by Iranian authorities merely evidenced government curiousity as to her whereabouts and her delay in returning to Iran. This is belied by the record.

Ghadessi’s affidavit states the interrogation of her parents concerned “my whereabouts in the United States and whether they were aware of my involvement in Anti-Khomeini organizations. The revolutionary guards have told them that I should return to Iran to clear my name and undergo questioning.” (Emphasis added.) It is significant that Ghadessi does not state that her parents were interrogated as to whether she was involved in anti-Khomeini organizations, but whether they were “aware” of her involvement in such activities. This statement at least implies that the government may know of her activities. Most importantly, the suggestion by the Revolutionary Guards that she needs to “clear her name” can only be interpreted as evidence that the Iranian government suspects her lack of loyalty to the current regime.

Furthermore, Ghadessi submitted evidence giving rise to a reasonable fear on Ghadessi’s part that the Khomeini government might act upon its suspicions of her political opposition. She described the repressive conditions in Iran, which, although not sufficient in itself to demonstrate individualized fear of persecution, is a factor to be considered. See Bolanos-Hernandez, 767 F.2d at 1283 n. 11. In particular, she noted the unfavorable attitude toward female activists in that radical Islamic environment.

Most importantly, the fact her own parents have been detained by the Revolutionary Guards for interrogation regarding her activities, and that the government believes it necessary for her to “clear her name” lays a strong foundation for a reasonable fear of persecution. Her parents present in Iran have warned her not to return as she would encounter trouble.

Lastly, the Department of State’s advisory opinion, presumably based on the Department’s knowledge of the Iranian situation, stated that she has established a well-founded fear of persecution, assuming her allegations are true. Although this opinion is not binding upon the BIA, it is an important evidentiary factor to be weighed. See Zavala-Bonilla v. INS, 730 F.2d 562, 567 (9th Cir.1984) (State Department’s advisory opinion, stating that if petitioner’s allegations were true, she had a well-founded fear of persecution, was entitled to deference).

This evidence may or may not be sufficient to establish Ghadessi’s eligibility for asylum after a full hearing on the merits, but it is sufficient to establish a prima facie case of a well-founded fear of persecution in order to obtain a reopening of deportation proceedings.

Conclusion

This case is remanded to the BIA to conduct a deportation hearing allowing the presentation of evidence on Ghadessi’s statutory eligibility for asylum and her suitability for a favorable exercise of discretion by the BIA.

PETITION GRANTED.

1 . "All requests for political asylum are also considered applications for withholding of deportation pursuant to 8 U.S.C. § 1253(h).” Aviles-Torres v. INS, 790 F.2d 1433, 1435 (9th Cir. 1986); see also 8 C.F.R. § 208.3(b). As we hold that Ghadessi has established a prima facie case for asylum mandating reopening of proceedings, she should also be allowed to present evidence in support of a claim for prohibition of deportation.

2 . If we were reviewing a BIA decision denying asylum after a deportation hearing, we would apply a two-part standard of review. First, we would evaluate whether there is substantial evidence of a well-founded fear of persecution, i.e., whether the alien is statutorily eligible for asylum. Second, we would determine whether the BIA abused its discretion by its ultimate decision denying asylum. Garcia-Ramos v. INS, 775 F.2d 1370, 1373 (9th Cir.1985).

However, in a motion to reopen, the petitioner need only establish a prima facie showing. Although this is analogous in some ways to the statutory eligibility showing, there is no evidence in the record to review and we must accept as true the factual statements contained in the alien’s affidavit. Consequently, our review is limited to an evaluation of whether the BIA’s determination on the prima facie case showing was correct.

3 . Ghadessi also presented a letter from an acquaintance, Dr. Ahmad Azadeh, written on the stationery of an anti-Khomeini organization, which attested to her involvement in the organization’s activities and stated that her life would be endangered if she were returned to Iran. The BIA properly noted that this letter was not entitled to probative weight. The letter writer’s qualifications were not stated, and no factual basis was indicated for his assertion that she would be persecuted in Iran.

4 . As we noted in Hernandez-Ortiz, 777 F.2d at 514 n. 5, direct corroborative evidence of a substantive fear of persecution is not necessary even in the full hearing on the merits of a petition for asylum because "the imposition of such a requirement would result in the deportation of many people whose lives are genuinely in jeopardy.” Bolanos-Hernandez v. INS, 767 F.2d 1277, 1285 (9th Cir.1984). This court has recognized the impracticability of requiring refugees fleeing their homeland to present evidence other than their own credible testimony.

5 . The argument that Ghadessi failed to preserve this issue on appeal is without merit. Although Ghadessi’s brief did not expressly attack the evidentiary standard applied by the BIA, she did challenge the BIA’s decision that she had failed to establish a prima facie case for asylum. We cannot review the BIA’s ultimate decision denying the existence of a prima facie case of a well-founded fear of persecution without also considering whether the standard applied to evaluate Ghadessi’s petition was the correct one.

6 . The recent case of Larimi v. INS, 782 F.2d 1494 (9th Cir.1986), although superficially similar to the instant case, is in fact distinguishable. In Larimi, an Iranian national, who became involved in anti-Khomeini political activities subsequent to his initial deportation proceedings, subsequently sought to reopen proceedings to apply for asylum and withholding of deportation. We affirmed the BIA’s denial of the motion to reopen. Id. at 1497.

The evidence alleged in support of the prima facie case by Ghadessi is far stronger than that submitted in Larimi. In Larimi, the petitioner had only a casual connection with an anti-Khomeini organization in the Bay Area and he offered only speculation that such a connection would result in his persecution if returned to Iran. Id. at 1497. Ghadessi, by contrast, has described extensive and active involvement in anti-Khomeini activities, not only participating in demonstrations but organizing them, as well as giving public interviews to criticize the Iranian regime. More importantly, Ghadessi stated that her parents had been interrogated by the Revolutionary Guards concerning her involvement in anti-Khomeini activities, with the Guards’ stating that she needed to clear her name. Finally, the State Department advisory opinion confirmed that she had shown a well-founded fear of persecution. None of these important factors were present in the Larimi case.