*1 Petitioner, NAJMABADI, Farangis Jr., Attorney H. HOLDER
Eric
General, Respondent. 05-72401.
No. Appeals, Court
United States
Ninth Circuit. 5, 2009. Nov.
Argued and Submitted March
Filed *2 Arevalo,
Enrique Xavier Rosas and Jose Jr., Arevalo, Osorio Law Enrique Office of Pasadena, CA, South petitioner, Faran- gis Najmabadi. Keisler,
Peter D. Wernery, Linda S. Angela Liang, N. United States Depart- Justice, ment of Immigration Office of Lit- igation, Washington, DC, for respondent, Jr., Eric H. Holder United States Attor- ney General. PREGERSON,
Before: HARRY JAY S. SMITH, JR., BYBEE and MILAN D. Judges. Circuit Opinion by Judge SMITH, MILAN D. JR., Dissent Judge HARRY PREGERSON. SMITH, JR.,
MILAN D. Judge: Circuit Petitioner, Najmabadi, Farangis a native Iran, petitions citizen of for review of (BIA the Board of Immigration Appeals’s Board) denying order her motion to reopen her removal proceedings on the basis of changed conditions in Iran. Be- cause we hold failed to previously unavailable, introduce material deny her for review. AND FACTUAL PROCEDURAL
BACKGROUND
Najmabadi was admitted to the United
5, 1986,
States on October
aas
non-immi-
grant visitor with authorization to remain
the United
April
States until
27, 1998,
On October
Immigra-
the former
tion and Naturalization Service filed a no-
appear
tice to
with
immigration
court
charging Najmabadi
removability.
organizations;
Iran and terrorist
Iran’s
asylum application on
an
Najmabadi filed
18,1998.
capabilities;
nuclear arms
tension between
November
stemming from
Iran and the United States
11, 2000,
Judge
Immigration
an
April
On
Iraq;
“generalized
strife”
the war
(IJ)
proceeding, at
a removal
conducted
*3
governmental
an Iranian
back-
including
left
claimed that she
Najmabadi
which
movement. With
to Iran’s reform
lash
Iraq. She
then war with
Iran
to its
due
Najmabadi
respect
category,
to this last
any particular
“there wasn’t
that
stated
following:
Depart-
to the
State
referred
Iran but rather “[ev-
that she left
reason”
citing
worsening
reports
ment
especially for a woman
changed,
erything
record from 2000 to
rights
Iran’s human
to
why she did not want
like me.” Asked
2003;
a
50 women
group
evidence that
Iran,
that
Najmabadi
testified
return to
music;
listening
to loud
were lashed
there,”
can
and
live
[she]
she is “not sure
liners”;
the denounce-
election of “hard
knows the United
years,
after sixteen
won the
ment of an Iranian woman who
more than
probably
[her]
“now
States
Prize;
torture of student activists
Nobel
further
Najmabadi
testified
country.”
dissent; a
suppressing
a means of
any
in
participated
she has never
that
crackdown on the release of information
or-
joined any political
nor
political rallies
Internet;
reported
arrest of
over
addition, Najmabadi never
In
ganizations.
journal;
rights
the editor of a women’s
leaving.
prior
in Iran
any problems
had
attire
greater
and
restrictions on women’s
Rather,
testified that she does
Najmabadi
Najmabadi also sub-
and social freedoms.
“fit in” in Iran and fears
think she can
not
asylum application
a
and
mitted
renewed
way wom-
to Iran because of the
returning
affidavit,
In her
accompanying affidavit.
en are treated.
Najmabadi
govern-
Iranian
claims:
Najmabadi’s application.
The IJ denied
perceive
being “pro-
ment
her as
would
Najmabadi’s testimony
the IJ found
While
pro-Western”;
U.S. and
she
not
“do[es]
credible,
concluded that she had
to be
he
government
agree with how the
treats
past persecution or a well-
not established
people
general”;
and
their women and
After
persecution.
fear of future
founded
trying
change
she “will be active
affirmed,
petition
we denied the
the BIA
and the situation for women.”
in an
decision.
unpublished
for review
Ashcroft, 107
Najmabadi
Fed.Appx.
v.
31, 2005,
March
the BIA denied Peti
On
Cir.2004).
v.
Relying on Fisher
reopen, concluding
motion to
tioner’s
(9th Cir.1996) (en
962-63
cir
changed
did not establish
banc),
rejected Najmabadi’s claim that
Relying
cumstances.
on our decision
per
fear of future
she has a well-founded
Malty Ashcroft,
We review denials of motions to discretion, reopen Toufighi for abuse of v.
Mukasey, Cir.2008), 538 F.3d Previously B. Denial Based On Un- and defer to the BIA’s exercise of discre available, Material Evidence tion arbitrarily, irrationally, unless acted Najmabadi’s considered law, contrary Singh or v. 295 F.3d “premised on the fact that circum- Cir.2002). We review the in Iran significantly stances have declined BIA’s purely legal ques determination of since her hearing, and as a result she ahas novo, tions de and review its factual find persecution viable claim of based on direct ings for substantial evidence. Bhasin v. imputed political opinion, and fact Gonzales, (9th Cir.2005). 423 F.3d ” that she is a ‘westernized woman.’ The Finally, review is “[o]ur limited to the BIA held that the evidence submitted grounds actual upon by relied the BIA.” Najmabadi in her reopen, motion to which Holder, Ramirez-Altamirano v. established the existence of torture and (9th Cir.2009). 800, 804 dissenters, punishment for inwas prior hearing. at the It explained that the DISCUSSION general addressed conditions af- Governing A. Standards Motions fecting the population large, and was Reopen Najmabadi’s “particular not linked to cir- Generally, a party wishing to file a It cumstances.” also noted that there was motion to reopen ninety- must do so within no which fell “outside the realm 1003.2(c)(2). days. However, § 8 C.F.R. speculation,” of that established that “re- the ninety-day time limit apply does not turnees from the likely United States will where the reopen Thus, motion to is “based on persecution.” face the BIA based changed arising circumstances the coun its denial of try nationality of country or in the ground the second articulated above— which deportation ordered, has been failure to introduce such unavailable, evidence is material and was not material evidence. As we immigration judge denied his to these After must, limit our review affirmed, Ramirez-Altamirano, and the BIA we denied petition See grounds. Malty for review. Id. then his at 804. based on filed motion Egypt. Along Id. Qualitatively Evidence Different Malty evi- reopen, his motion to submitted we held that Ashcroft, Malty In “detailing rising dence levels of violence “material,” “not evidence to be order for Coptic gener- Christians against Egyptian “been dis available,” and not able to have ally specific against acts violence previous at the hear presented covered family particular.” Id. his different” “qualitatively it must be ing,” added). “a Those acts included series previ at the the evidence from Mal- against brutal attacks” members of 945-46; see also hearing. 381 F.3d at ous father, family, including his all occur- ty’s 1003.2(c)(1) (“A § motion to re 8 C.F.R. Malty’s original asylum hearing. ring after shall state the new open proceedings facts addition, Malty’s Id. In father had been held hearing at a to be proven that will be subsequently consequences “warned of sup granted and shall be if the motion is Malty face if he returned.” would *5 evidentiary by affidavits or other ported Malty’s accompa- held that evidence We added)). Relying pri (emphasis material.” “ reopen ‘material nying his motion to was argues that Malty, Najmabadi marily on and not available and could not have was finding its discretion the Board abused ” previous hearing.’ been discovered at the materially not dis that her evidence was (quoting at Id. 8 C.F.R. original at her tinct from evidence 1003.2(c)(3)(ii)). § We faulted the for because her “new” evidence hearing, present- that the evidence recognizing not de different. We therefore qualitatively along reopen ed with his motion to was Malty in some detail. scribe “qualitatively previous different” from his Coptic an Christian Malty, Egyptian In narrowly focusing and for on the for and with- application filed an simply new evidence was fact that of removal in 1992. 381 F.3d holding initial claim. Id. petitioner’s related to the asylum hearing, he testified At the Malty 944. had explained We high while in he had been taunted asylum hearing did little presented at his and classmates by school Islamic teachers of harass- more than describe incidents However, Christianity. Id. He was forced due to his discrimination. Id. ment and home, and was un- college Malty’s finish from new evidence showed that a result of employment to find had increased to the level of able “harassment Coptic persecution, respect discrimination. Id. He also testi- both with religious family generally respect received me- and with that “he and his Christians fied specifically.” mili- Id. at 946 telephone Malty’s family calls from Islamic nacing added).1 tants.” Id. reopen ren- a case in which has arguing that has shown In circumstances, requesting In simply re- dered a decision. changed the dissent case, petitioner will Malty’s Board 'petitioner's that "a cites observation grounds alleged often seek on the same regarding relief ig- original Yet the dissent petition. in the always her] to his initial [or will almost relate ” peti- Malty, that while the "new” evidence at-(quoting nores Dissent claim.' Indeed, 945). in the neces- tioner includes that observation is ob- claim, sarily relation to relates to the initial its reopen asks the Board to A motion to vious.
Malty’s “new” evidence consisted first of ferent” from that of arrests “mass and Report,” 1999 “Freedom House which torture” and the kinds of horrific events ... described “mass arrests and torture in Malty’s described Najma- declaration. Christians, Egyptian Coptic murders of persuade badi’s does not us to Coptic numerous Christians on account of reach the same conclusion. religion, Secretary- and the arrest of the At asylum hearing, Najmabadi her Egyptian of the Organization General submitted the Country Reports (internal Rights[.]” quotation Human Id. (the Rights Human Practices on Iran omitted). marks It also described the Report). The 1999 Report described growth jiyza, a tax Christians were Iran’s human rights “poor,” record as pay forced to to avoid violent attacks. Id. problems” detailed “serious in Iran’s hu Malty also submitted a detailed declaration rights man policies. For in example, it describing separate persecu- incidents of cluded the following information about life family
tion of Egypt. his members in Id. in Iran: For example, that declaration described Paramilitary volunteer forces known as Malty’s arrested, brother had been Basijis, gangs of thugs, known as interrogated, beaten, cigarettes burnt with the Ansar-e Hezbollah (Helpers of the subjected to electrical shocks inter- God), Party of who often are aligned rogating Malty’s officers. Id. father had specific members of the leadership, militants, also been attacked Islamic vigilantes, act as and are released into destroyed who his Malty’s business. the streets to intimidate and threaten beaten, brother was later at which time his demonstrators, physically journalists, “they attackers told him that going were suspected and individuals *6 (internal kill of counter-rev- all infidels like him.” Id. olutionary omitted). activities. Both quotation regular and marks police re- paramilitary security investigate fused to forces each of these committed attacks. numerous, Malty’s serious human rights Id. father was threatened abuses. peo- ple aware of Malty’s asylum application and told that if Malty returned to Egypt The Government right restricts citizens’ he would be arrested prosecuted. and Id. change government. their Systemat- Coptic Eve, On the Malty’s Christmas ic extrajudicial abuses include killings family’s apartment ransacked, was la- and summary executions; and disappear- attacked,
ter again his father this time for ances; widespread use of torture and failing payjizya. Id. treatment, other degrading reportedly
hadWe little trouble concluding including conditions; rape; prison harsh evidence of “menacing telephone calls” arbitrary detention, and arrest and pro- and high school “qualitatively “taunts” is longed dif- and incommunicado detention. the initial claim is not to amount to but rather whether circumstances have sufficient example Malty, "material” evidence. For in sufficiently petitioner pre- that a who the BIA had presented described the evidence viously legitimate did not have a claim for along with the merely asylum motion to as "a now has a well-founded fear of future gave continuance of the persecution.” added). circumstances that In or- petitioner's] rise to [the Malty, first claim.” der to determine petitioner whether the dem- (internal quotation F.3d at 945 marks onstrated a in circum- sufficient omitted). stances, explained We the BIA had materiality Malty’s assessed the of incorrectly framed the issue since "[t]he criti- new evidence "qualitatively and held it to be question cal allegations is not whether the different from the evidence at his prior application,
bear some connection to a hearing.” Id. bly, religion.... association and Perpetrators often commit such abuses Women are violence impunity. with victims of domestic well as legal and social discrimination.... occurs, women and against Violence respect particular, With to women legal face and societal discrimi- women “[sjome 1997 Profile noted women groups, strong Vigilante nation .... who do not dress to[Iran’s] conform code ties to certain members the Govern- subject have been to arrest and flog- ment, interpretation ap- their enforce ... ging. on the Depending individual intimi- propriate through social behavior experiences personal woman’s and her cir- dation and violence. cumstances, today’s life can be unbearable under such conditions.” gender segregation enforces State Najmabadi argues that the evidence she and public spaces, prohibits in most submits along with her mixing openly women with unmarried from that “qualitatively different” submit- men not related to them. Wom- or men at her asylum hearing. Specifi- ted initial en in a reserved section on must ride cally, Najmabadi points to the 2003 Coun- public building, and enter public buses try Reports Rights on Human Practices universities, airports sepa- through and (the However, Report). Re- subject rate Women are entrances.... merely port describes conditions similar to the authorities their harassment Report. those found in the Though inappro- dress or behavior is considered states, the 2003 Report “[t]he Govern- priate, may flogging and be sentenced to poor ment’s human rights record wors- imprisonment for such violations. ened,” describe, goes on to almost Ira- Report The 1999 also described the form, copy examples carbon contained “reform,” government’s nian backlash i.e., Report, “summary the 1999 execu- noting nu- the “Government closed tions,” “torture “disappearances,” oth- publications merous dur- reform-oriented treatment,” er degrading “flogging.” charges ing year brought against significantly This is different from the situ- prominent figures and members of political *7 juxtaposed ation in Malty, where we ha- the ideas clergy expressing viewed torture, rassing telephone calls with beat- contrary ruling orthodoxy.” to the The ings, and threats. The death bulk of Najmabadi’s asylum hearing record at also Najmabadi’s remaining though Depart- included the 1997 United States voluminous, similarly redundant. is Asylum ment of State’s “Profile of Claims and Country Conditions” issued on Moreover, concluded, BIA as the the (the Profile). 1997 The 1997 Profile stated in Najmabadi presents evidence her mo- that, tion to not share the does same relevancy human regime’s rights type
the rec- of individualized re- Islamic we There, in abysmal, quired Malty. ord con- in continues to addition to extrajudicial reports killings presenting country tinued of evidence of a executions; summary widespread indicating conditions that harassment of degrading Coptic perse- use torture and other Christians had escalated of cution, treatment; disappearances; arbitrary Malty presented detailing trials; detention; persecution lack of separate arrest and fair six incidents of of his conditions; members, family including the threat that prison repression harsh Malty prosecuted speech, press, of the assem- would be arrested freedoms 990 Egypt. Malty,
he returned to 381 F.3d at designs] to wear clothes she day.” [the one required accept Board is as true the facts stated in affidavit Gonzales, Likewise, in Bhasin v. we also they inherently unless are unbelievable. required previously unavailable evidence to INS, Limsico v. 951 F.2d 213 petitioner’s be material to the claim. Cir.1991). However, there is no indication There, while the had found petition IJ the that the Board failed to credit er to have established well-founded fear affidavit, itas characterized her motion as persecution, of future it denied eli premised on her imputed polit- “direct and gibility persecution because the was not ical opinion, and the fact that she is a petitioner’s “on account of’ the imputed ” ‘westernized woman’ and specifically ref- political opinion membership partic in a erenced both Iran’s “limitations on the group, group ular social being her freedoms of punishment women” and its Bhasin, family. 423 F.3d 982. The dissenters. See also v. affirmed, BIA finding that “other close Maroufi Cir.1985) (finding no [petitioner’s] members of the family are indication the record that did living difficulty. in India without The [Is accept not the truth of an affidavit’s factual group] lamic militant persecuted has not allegations accompanying a motion to re- brother, respondent’s daughters, two Rather, open). the Board concluded that daughter-in-law, or one the wife or her Najmabadi’s evidence details conditions af- missing In granting eldest son.” Id. fecting population review, large. There is petition for we held that “later- substantial evidence in the record to sup- discovered evidence in the mo port such a finding. tion to reopen rebuts this critical finding.” explained Id. We petitioner pre Moreover, “[t]he [BIA] does not new, previously sented unavailable evi exegesis have to write an every conten dence that daughters her two and son-in- tion. required merely What is that it threats, law had received death violent raised, consider the issues and announce threats, verbal and had subsequently dis its decision terms sufficient to enable appeared while appeal before the reviewing perceive court it has Board was pending. Id. at 983. thought heard and merely and not re Najmabadi points to lacks Lopez acted.” Ashcroft, v. 366 F.3d materiality required in Malty and (9th Cir.2004) (alterations n. in origi Rather, simply Bhasin. gener- recounts nal) (internal quotation omitted); marks alized conditions Iran that fail to demon- BIA, (2d Wang accord predicament strate “that her is appreciably Cir.2006) (“[W]e hold, do not and in fact different *8 dangers from the faced her reject any implication ... that where the INS, fellow Singh citizens.” v. 134 F.3d BIA given has reasoned consideration to Cir.1998) (alterations petition, the adequate made findings, omitted). quotation internal marks it expressly parse must or refute on the
Najmabadi points to the affidavit record each individual argument or piece accompanying her motion to reopen (in as evi of evidence offered petitioner.” dence of her in change particular omitted)). quotation circum ternal Here, marks There, stances. she asserts that she adequately “will the Board Najma considered be active in trying change to Iran and the sufficiently badi’s evidence and announced women[,]” situation for and that she its decision. It noted that “limitations on to “want[s] make sure Iranian get women the freedoms of women have been an un- Gonzales, contrary. He v. ny to the See post-revolution in cornerstone fortunate Cir.2007); Larngar that F.3d v. Iran[,]” its belief expressed (1st Cir.2009) Holder, 562 F.3d 76-77 nothing spec- besides provided Najmabadi (collecting holding change cases that a that “returnees suggest ulative evidence likely personal qualify circumstances should not will face States from the United circumstances). country the Board did not Though persecution.” pursuant That because a motion to 8 Najmabadi’s statements directly reference 1003.2(c)(3)(h) § must be on politically to be ac- C.F.R. “based concerning her intent arising in the Iran, nothing suggest there is tive nationality country or in the deciding country that evidence did not consider (em been deportation limited such which has ordered.” has post-revolution that added). say phasis Accordingly, cannot substantial time. We activism for some supports finding evidence the Board’s that give failure to reasons the Board’s that evidence submitted in her present affidavit did not detailing why the unavailable, qualitatively was not dif material evidence previously irrational, presented contrary or to ferent from arbitrary, was (finding original hearing. F.2d at 600 Maroufi, 772 law. Cf. BIA to an error for the assume
that it was
2. Returnees
From
United
independently
corrobo-
affidavit must
To Iran
States
rated,
holding that such error was
but
prejudicial).
nor
dispositive
neither
Board
that
also held
there was
that
establishing
no evidence
returnees
have no doubt
We
likely
from the United States will
face
if we asked
reach the same decision
would
rejected
persecution.
We have
the contents of
closely
more
it to focus
an
claim based on the hatred of
Wang, 437
affidavit. Accord
Americans, noting
for
that “this
Iranians
(declining to remand for Board
at 275
possibly justify asy
claim cannot
type of
on a motion to
to consider
lum!,]”
“every
it would mean that
because
failed to discuss the evi
where the Board
country unfriendly to the
citizen of a
Unit
detail” because to
any particular
“in
dence
asylum.”
be entitled to
ed States would
futile).
are so confi
so would be
We
do
Kaveh-Haghigy
First, we fail to
for two reasons.
dent
(9th Cir.1986)
curiam).
(per
asserting
how
understand
change Iran and
trying
“active in
will be
Group
3. Disfavored
women,”
Najma
the situation
Finally,
argues
also
that she
Iranian women one
wants to make
badi
persecu-
fear of future
has de
has a well-founded
the clothes
she
day wear
membership
on her
in a disfa-
“was not available
tion based
is evidence that
signed,
Najmabadi,
group. According
or vored
not have been discovered
and could
consists of “westernized” wom-
hearing.”
group
8 that
previous
1003.2(c)(3)(ii).
from the
Second,
forcibly removed
United
though
§
en
C.F.R.
Establishing a
to Iran.
well-founded
related,
perverse
States
recognized
we have
*9
persecution
aspect
is one
of
fear of future
granting
result from
incentive that would
facie case for relief.
petitioner’s prima
a
a
reopening based on
“self-
applicant
an
Bhasin,
circumstance;
previously
persecute
individualized threat to
her.
See, e.g.,
Ashcroft,
to reach the
of
Melkonian v.
320 F.3d
question
it did not need
(9th
1061,
Cir.2003) (individualized
1069
Najmabadi
prima
established a
whether
threat found
petitioner’s
where
home had
Doherty,
facie case for relief.2 See
502
into,
been broken
his property destroyed,
323,
Thus,
112
at
S.Ct. 719.
since our
U.S.
a
caring
peti
woman was murdered
grounds actually
to the
review is limited
cattle,
tioner’s
and a man was murdered
BIA,
upon
relied
Ramirez-Altami
they
him
petition
because
mistook
for the
rano,
804,
563 F.3d at
we decline to ad
father-in-law);
er’s
Ashcroft,
Sael v.
386
group
dress
“westernized”
(9th
922,
Cir.2004) (same
F.3d
927-28
claim.3
petitioner
where
past
testified about
However,
Najmaba
we note that
safety
threats to her
including that her car
provide
di’s failure to
evidence linked to
vandalized,
was
the boarding house she
particular
similarly
her
circumstances is
stoned,
living
was
was
an angry
applicable
Wakkary
in this context. See
v. mob rushed a taxi in
riding
which she was
Holder,
(9th Cir.2009)
1049,
F.3d
558
1066
door);
attempted
open
to
Hartoo
(“[A]
‘general, undifferentiated
claim’
INS,
336,
ni v.
21 F.3d
341-42
Cir.
solely
based
on the threat to
group
as
1994) (“personal
general
connection to the
a whole is not sufficient for an individual persecution” found where soldiers stoned
petitioner
requisite
to establish the
likeli
petitioner’s
church while she was in
persecution
hood of
the ‘singled
under
out
side, approached
petitioner
individually’
(quoting Lolong
rubric.”
v. group
girls
of
who did not have their hair
Gonzales,
1173,
484 F.3d
1179
Cir.
bound,
properly
petitioner’s
and visited the
2007) (en banc))).
is,
That
assuming
even
inquire
home to
about relatives who fled to
Najmabadi
is a member of a
States);
disfa
the United
Kotasz v.
31 F.3d
(9th Cir.1994)
group,
points
847,
vored
she
to no evidence of
(denying asylum
854-55
Similarly,
1078,
reopen, Najma
(9th Cir.2004)
2.
in her motion to
(noting
378 F.3d
sought asylum
badi also
under the humanitar
asylum exception
that the
"pro
humanitarian
exception.
ian
C.F.R.
discretionary grants
asylum
vides for
1208.13(b)(l)(iii)(A), (B). However,
§§
be
past persecution
victims of
longer
who no
present previously
cause
did not
reasonably
persecution
fear future
on account
unavailable,
material
the Board was
protected ground”);
of a
Mohammed v.Gon
deny
solely
entitled to
the on those
zales,
785,
(9th Cir.2005)
400 F.3d
Abudu,
grounds. See INS v.
485 U.S.
(same).
104-05,
(1988)
108 S.Ct.
derstand how think could that con-
ditions in Iran for those associated with dramatically West have not lief, noting It original is also worth that in his [Najma- IJ found "no reason to doubt denying Najmabadi’s decision claims for re- veracity.” badi's] truthfulness