Toufighi v. Mukasey

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

PEJMAN TOUFIGHI,  No. 04-74010
Petitioner, Agency No.
v. A76-382-466
MICHAEL B. MUKASEY,* 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
August 9, 2007—Pasadena, California

Filed December 13, 2007
Amended August 18, 2008

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

*Michael B. Mukasey is substituted for his predecessor, Alberto R.
Gonzales, as Attorney General of the United States, pursuant to Federal
Rule of Appellate Procedure 43(c)(2).
**The Honorable James K. Singleton, Jr., Senior United States District
Judge for the District of Alaska, sitting by designation.

10879
10882 TOUFIGHI v. MUKASEY

COUNSEL

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

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

ORDER

The opinion filed December 13, 2007, slip op. 16371, is
amended as follows.

1. At slip op. 16387, footnote 14, replace the sentences
that begin and end
 TOUFIGHI v. MUKASEY 10883
with .

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 circum-
stances in Iran material to his claims. We have jurisdiction
over the final order denying Toufighi’s motion to reopen pro-
ceedings. 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
10884 TOUFIGHI v. MUKASEY
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 addi-
tional 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 tes-
tified that he was introduced to Christianity while in college
in Iran, but did not convert because he was afraid of the rami-
fications. 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 let-
ters from the pastor were admitted over the objection of the
1
The documents presented in September 1997 included an Amnesty
International Report on Iran, unauthenticated translations of documents
written in Farsi, and a letter from the pastor of a Christian church serving,
inter alia, Persian immigrants.
 TOUFIGHI v. MUKASEY 10885
Service, but the IJ discounted them because they were not
from the pastor of Toufighi’s alleged home church, and nei-
ther the pastor who wrote the letters, nor the pastor of Tou-
fighi’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 credi-
ble, but that Toufighi had not in fact converted to Christianity:

[T]he Court would note that he has very deep con-
cern 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, how-
ever, 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 conver-
sion to Christianity when he cannot even give the
names of the 12 apostles of Jesus Christ. The respon-
dent’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 Chris-
tian 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
10886 TOUFIGHI v. MUKASEY
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 prac-
ticed 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 perse-
cution, 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 alter-
nate 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 dis-
missed 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 volun-
2
In order to obtain withholding of deportation on the basis of future per-
secution, an applicant must demonstrate a clear probability of persecution.
INS v. Stevic, 467 U.S. 407, 413 (1984). In contrast, an applicant seeking
asylum as a refugee, need only show a well-founded fear of persecution,
a lesser standard. See INS v. Cardoza-Fonseca, 480 U.S. 421, 428 (1987).
3
Although the Board prefaced the dismissal with a statement that it had
reviewed the record and was not persuaded that the IJ’s ultimate resolution
was in error, we have held such dismissals to be procedural and not on the
merits. See, e.g., Garcia-Cortez v. Ashcroft, 366 F.3d 749, 752 (9th Cir.
2004). We have also held that summary dismissal for failure to timely file
a brief is improper if the notice of appeal is sufficiently specific to focus
the Board’s attention on the specific findings of fact and conclusions of
law that the alien contends were erroneous. Id. at 753. Here, Toufighi
included an “attachment sheet” with his notice of appeal setting out his
claims of error. However, Toufighi did not seek timely review of the dis-
missal of his appeal, and we do not review it here.
 TOUFIGHI v. MUKASEY 10887
tarily 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 fur-
ther 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 cir-
cumstances 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
4
The Board’s Order, dated May 21, 2002, established a new departure
date thirty days thereafter and restarted the ten-year period of ineligibility.
Zazueta-Carrillo v. Ashcroft, 322 F.3d 1166, 1173-74 (9th Cir. 2003).
5
The changed conditions to which Toufighi referred did not address reli-
gion in general, or Christian-Muslim relations in particular, but sought to
show that since the latest Iraq war, Iran had been persecuting proponents
of liberal pro-Western or pro-American ideologies. Toufighi expressed
fear that if he and his family returned to Iran they would be perceived as
Americans or American sympathizers and persecuted on that basis. Tou-
fighi did not seek to challenge with new evidence the IJ’s finding that his
conversion to Christianity was a ruse.
10888 TOUFIGHI v. MUKASEY
his asylum and withholding of removal claims based
upon alleged changed conditions in Iran. To support
his motion, the respondent has submitted some gen-
eral news articles related to recent events in that
country. None of the submitted information, how-
ever, contains prima facie evidence that the respon-
dent would be directly affected by any changes noted
therein. Moreover, the Immigration Judge previously
rejected the respondent’s assertion that he had con-
verted to Christianity; the respondent’s religious
conversion was the basis of his claims. To the extent
this information [the materials submitted by Tou-
fighi] 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 mate-
rial 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
(1992); INS v. Abudu, 485 U.S. 94, 104-05 (1988). This Court
defers to the Board’s exercise of discretion unless it acted
arbitrarily, irrationally or contrary to law. Caruncho v. INS,
68 F.3d 356, 360 (9th Cir. 1995); Lainez-Ortiz v. INS, 96 F.3d
393, 395 (9th Cir. 1996). The Board’s determination of purely
legal questions is reviewed de novo except to the extent that
deference is owed to its interpretation of the governing stat-
utes and regulations. Rodriguez-Lariz v. INS, 282 F.3d 1218,
1222 (9th Cir. 2002); Simeonov v. Ashcroft, 371 F.3d 532,
535 (9th Cir. 2004). Factual findings are reviewed for sub-
 TOUFIGHI v. MUKASEY 10889
stantial evidence. Sharma v. INS, 89 F.3d 545, 547 (9th Cir.
1996).

DISCUSSION

A. Motion to Reopen based upon Marriage and the Birth of
Children

In reviewing Toufighi’s claims we must bear in mind that
motions to reopen, like motions for new trial based upon
newly discovered evidence, are disfavored. Doherty, 502 U.S.
at 323 (citing Abudu, 485 U.S. at 107-08). While the Board
has broad discretion in ruling on a motion to reopen, it must
show proper consideration of all factors, both favorable and
unfavorable, in determining whether to grant a motion to
reopen. Bhasin v. Gonzales, 423 F.3d 977, 983 (9th Cir.
2005).

In October 2003, Toufighi sought reopening to permit him
to apply for adjustment of status on the ground that he had
married a United States citizen and fathered children who are
also citizens. The Board declined to hear this argument for
two reasons. First, as a consequence of Toufighi failing to
depart as ordered in 2002, he was statutorily ineligible to
apply for adjustment of status for a ten-year period.6 See 8
U.S.C. § 1229c(d)(1)(B). Second, his application, made
6
Toufighi concedes that he was twice ordered to depart voluntarily and
twice warned that the civil consequences of failing to depart included a
ten-year bar on applying for an adjustment of status. He argues that, con-
struing the statutes and regulations in his favor, his failure to post the bond
required as a condition of voluntary departure relieved him of the civil
penalties for failing to depart. In Toufighi’s view, failure to post the
required bond terminates the right to voluntary departure, leaving the alien
under an order of removal, to which the civil penalties do not attach. An
alien in this situation may remain in the country with impunity subject
only to being removed if he is found. Toufighi relies upon In re Diaz-
Ruacho, 24 I. & N. Dec. 47 (BIA 2006). Our disposition of this petition
makes it unnecessary for us to determine whether In re Diaz-Ruacho is
entitled to deference.
10890 TOUFIGHI v. MUKASEY
nearly seventeen months after the final order of removal, was
untimely. See 8 C.F.R. § 1003.2(c)(2).

[1] Toufighi’s motion to reopen to apply for adjustment of
status was properly denied regardless of whether the ten-year
bar on discretionary relief for failing to voluntarily depart
applies to him. If the ten-year bar under § 1229c(d)(1)(B)
applies, it will not expire until 2012 and the motion here was
not available to him. If § 1229c(d)(1)(B) does not apply, Tou-
fighi was still bound by the usual ninety-day deadline for
motions to reopen, which ran long before he applied for a
change of status.7 See 8 C.F.R. § 1003.2(c)(2); 8 U.S.C.
§ 1229a(c)(7)(C)(I). The Board noted both grounds in its
opinion. We need not determine whether the former ground
is correct, because Toufighi’s motion was rightly rejected on
the latter ground, namely, it was barred by the usual ninety-
day deadline.8

B. Motion to Reopen based on Changed Circumstances

Alternatively, Toufighi argues that new and verified evi-
dence of changed conditions within Iran supports his claim of
a well-founded fear of persecution. This ground is not subject
to the ninety-day limitation discussed above. See 8 U.S.C.
§ 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii). Nor does the
ten-year bar apply, because it does not bar an alien from seek-
ing relief under 8 U.S.C. § 1231(b)(3) (withholding of
removal) or 8 U.S.C. § 1158 (asylum). 8 U.S.C.
§ 1229c(d)(1)(B). The Board was therefore permitted to con-
7
We recognize that the ninety-day time limit is not jurisdictional and
that in a proper case equitable tolling might apply. See Socop-Gonzalez v.
INS, 272 F.3d 1176, 1193 (9th Cir. 2001) (en banc). Toufighi did not pre-
sent an equitable tolling claim to the Board and points to no facts in the
existing record that might support such a claim.
8
Toufighi also argues that the Board ignored his request to reopen sua
sponte. We lack jurisdiction to review the Board’s refusal to reopen
removal proceedings sua sponte. Ekimian v. INS, 303 F.3d 1153, 1160
(9th Cir. 2002).
 TOUFIGHI v. MUKASEY 10891
sider Toufighi’s changed circumstances claim filed well over
ninety days after the original order became final.

(1) The Board did not err as a matter of law when it
concluded that Toufighi failed to establish that he would be
persecuted for being a Christian.

[2] The Board found that the newly available evidence pre-
sented by Toufighi relating to persecution of Christians in
Iran was irrelevant because the IJ had already determined that
Toufighi had not converted to Christianity.9 Toufighi argues
that the Board’s determination was in error because the IJ
never rejected his assertion that he had converted to Christian-
ity, and if the IJ did, the rejection was legally and factually in
error. We find that the IJ did reject Toufighi’s assertion of
conversion, and that we now lack jurisdiction to review the
IJ’s original determination, because Toufighi’s opportunity to
appeal that determination lapsed ninety days after the Board’s
Order of May 21, 2002. The Board therefore did not err as a
matter of law in relying on this conclusion.

a) The IJ made an express credibility finding rejecting
Toufighi’s assertion that he had converted to Christianity.

Toufighi asserts that the IJ did not make an express adverse
finding regarding his credibility, and that the Board therefore
erred in its reliance. In Toufighi’s view, the Board misunder-
stood the IJ’s decision. Toufighi submits that the IJ found him
generally credible, and that the IJ’s qualifying remarks10 do
9
Toufighi did not present new evidence or arguments in support of his
alleged conversion with his motion to reopen. Rather, the evidence related
solely to the deteriorating conditions in Iran for those associated with the
United States or pro-Western ideology. See supra note 5.
10
The IJ expressed “deep concern” as to genuineness of conversion; “se-
rious doubt” as to conversion; and found the alleged conversion was
merely “a vehicle for him to apply for political asylum in the United
States.” The IJ further stated that “[t]he Court just would not believe that
the respondent’s claimed conversion is genuine in nature.” See supra p.
16376-77.
10892 TOUFIGHI v. MUKASEY
not add up to a clear finding that Toufighi’s claim of conver-
sion was false. Toufighi asserts that the only fair conclusion
to be drawn is that the IJ had doubts, but resolved them on
balance in Toufighi’s favor, concluding that Toufighi had
converted to Christianity but could avoid persecution by prac-
ticing his faith in hiding in Iran.11

[3] We disagree. Words may not be interpreted in a vac-
uum. It is context that gives meaning to words. Given the IJ’s
qualifying remarks, we conclude that the Board reasonably
interpreted the IJ’s decision as an explicit or express rejection
of Toufighi’s claim to have converted to Christianity.12 On
this record we find that the IJ did make an express adverse
credibility determination as to Toufighi’s claim that he con-
verted to Christianity. See Rizal v. Gonzales, 442 F.3d 84, 89-
90 (2d Cir. 2006) (finding an express adverse credibility
determination on a similar record). The IJ did far more than
imply a negative credibility finding by concluding that the
applicant failed to satisfy the burden of proof. The IJ explic-
itly stated, “The Court just would not believe that the respon-
dent’s claimed conversion is genuine in nature. The Court
11
The law of this circuit is clear that a finding that an applicant would
have to practice her faith in hiding would support, not defeat, her applica-
tion for asylum. Zhang v. Ashcroft, 388 F.3d 713, 719-20 (9th Cir. 2004).
However, taken in context, the IJ’s questions and comments along this
vein were focused on imputed Christianity. The IJ merely intended to con-
vey that the Iranian authorities would not impute Christianity to Toufighi
because Toufighi had never practiced Christianity in Iran, and would cease
the ruse of practicing it in the United States with the closing of the asylum
proceedings. More importantly, as discussed infra, even if this had been
the basis of the IJ’s ultimate conclusion, we lack jurisdiction to review the
IJ’s decision.
12
There is no inconsistency between a finding of general credibility
where interest and bias were not significant, and partial non-credibility
about the central claim of conversion. It appears that Toufighi wants very
much to stay in this country. While Toufighi could have made a number
of claims in support of asylum, he elected to claim a religious conversion.
Stuck with that choice, he made the best effort he could to support it. The
IJ found his claim of conversion false.
 TOUFIGHI v. MUKASEY 10893
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.” Cf. Mansour
v. Ashcroft, 390 F.3d 667, 671-72 (9th Cir. 2004) (holding
that an IJ’s statements that he was “troubled by [ ] certain
inconsistencies” and that the petitioner’s credibility was “sus-
pect” amounted only to “an implicit adverse credibility deter-
mination,” which the court “refused to recognize”); Kataria v.
INS, 232 F.3d 1107, 1114 (9th Cir. 2000) (holding that the
Board did not make an adverse credibility finding when it
“merely noted questions about [the petitioner’s] claim and
concluded that [the petitioner] failed to meet his burden of
establishing asylum eligibility”).

b) We do not have jurisdiction to review the IJ’s
conclusions.

Alternatively, Toufighi has argued that if the IJ did reject
his conversion to Christianity, the IJ’s finding was also in
error. Although we have jurisdiction to hear this petition, our
jurisdiction is limited to review of the Board’s Order of July
15, 2004, denying the motion to reopen. We are not permitted
to review the Board’s Order entered May 21, 2002, dismiss-
ing Toufighi’s appeal of the IJ’s decision, because Toufighi
failed to seek timely review of that order.

[4] The Supreme Court has held that a timely motion for
reconsideration does not toll the running of the ninety-day
period for review of final deportation orders. Stone v. INS,
514 U.S. 386, 405-06 (1995). By reasonable extension, a
motion to reopen would also not toll the ninety-day period.
See, e.g., Martinez-Serrano v. INS, 94 F.3d 1256, 1257-58
(9th Cir. 1996); Caruncho v. INS, 68 F.3d 356, 360 (9th Cir.
1995). Toufighi’s opportunity to appeal the original denial of
his application lapsed ninety days after the Board’s Order of
May 21, 2002.
10894 TOUFIGHI v. MUKASEY
[5] Because Toufighi’s motion to reopen was not filed until
October 16, 2003, the IJ’s factual determinations in the origi-
nal proceeding are conclusive. We consider only whether the
alien satisfied the procedures, and presented a prima facie
case for asylum based on the newly available evidence in light
of the evidence presented in the original proceedings. See
Bhasin, 423 F.3d at 984, 986 n.3.13

Toufighi seeks to avoid this result, asserting that the origi-
nal decision of the IJ may be reviewed at this time because the
Board rested its decision to dismiss his motion to reopen on
the IJ’s conclusions of fact. Citing Ma v. Ashcroft, 361 F.3d
553 (9th Cir. 2004), Toufighi argues that the Board’s reliance
on the IJ’s original factual conclusion that Toufighi had not
converted to Christianity necessarily opened up the earlier
decision for review.

[6] Toufighi’s reliance on this case is misplaced. Ma dealt
with a motion for reconsideration of an earlier decision, not
a motion to reopen. Ma, 361 F.3d at 558 n.7. A motion to
reconsider necessarily reaches the prior decision because it
must “specify[ ] the errors of fact or law in the prior Board
decision.” See 8 C.F.R. § 1003.2(b)(1). In contrast, a motion
13
We have held that an alien may use a motion to reopen to present
newly available material evidence that challenges the original factual con-
clusions drawn by the IJ. Bhasin, 423 F.3d at 985-86. However, a court
may not directly review the original denial of asylum on a motion to
reopen. Id. at 986 n.3. The applicant must demonstrate that the new evi-
dence, when considered together with the evidence presented in the origi-
nal asylum proceeding, would establish a prima facie case for asylum. Id.
In Bhasin, the IJ based his conclusion that the applicant’s would-be perse-
cutors were not motivated by her membership in her familial social group
on evidence that her family members still residing in the country of origin
had not been persecuted. Id. at 985. In her motion to reopen, the applicant
presented evidence that since the hearing before the IJ, three or more of
her family members had been disappeared. Id. The court in Bhasin did not
directly review the fact finding in the original asylum proceeding, it
merely found that the facts had changed since the hearing. See id. at 985-
86. Toufighi did not present new evidence of his conversion.
 TOUFIGHI v. MUKASEY 10895
to reopen based on changed conditions is focused on “new
facts” showing changed conditions that now establish a prima
facie case for asylum. See 8 C.F.R. § 1003.2(c)(1) and
(c)(3)(ii); Bhasin, 423 F.3d at 984-86. While a motion for
reconsideration necessarily brings up the earlier order to be
reconsidered, a motion to reopen engages the earlier order
only to the extent the relevant available facts have since
changed. Id.

c) The Board did not abuse its discretion.

In order to prevail on his motion to reopen the proceedings
on the basis of changed country conditions, Toufighi needed
to clear four hurdles: (1) he had to produce evidence that con-
ditions had changed in Iran; (2) the evidence had to be “mate-
rial;” (3) the evidence must not have been available and
would not have been discovered or presented at the previous
proceeding; and (4) he had to “demonstrate that the new evi-
dence, when considered together with the evidence presented
at the original hearing, would establish prima facie eligibility
for the relief sought.” See 8 U.S.C. § 1229a(c)(7)(C)(ii); Bha-
sin, 423 F.3d at 984. The Board could thus deny the motion
to reopen for failing to meet any of these burdens. See Abudu,
485 U.S. at 104-05.

[7] In this case, the Board concluded that the evidence pro-
duced by Toufighi with his motion to reopen, did not “con-
tain[ ] prima facie evidence that the respondent would be
directly affected by any changes noted therein.” Even assum-
ing the newly available evidence presented by Toufighi dem-
onstrated a general increase in persecution of apostates in
Iran, Toufighi still failed to establish a prima facie case for
eligibility because it had already been conclusively deter-
mined that he was not an apostate, and that Iranian officials
would not impute this status to him because Toufighi would
never inform them of apostasy which never took place.14 The
14
The dissent argues that neither the IJ nor the Board considered
imputed group membership. Though he did not use the term “imputed,”
10896 TOUFIGHI v. MUKASEY
IJ’s conclusive findings on this point also make the new evi-
dence regarding persecution of apostates immaterial.

[8] In conclusion, because the IJ found the conversion was
not genuine, and that apostasy would not be imputed to Tou-
fighi, the Board did not abuse its discretion in concluding that
his evidence of changed country conditions was not “materi-
al” to his claim, and that he failed to establish a prima facie
case for asylum.

(2) The Board did not err in failing to consider other
possible bases for reopening.

On appeal, Toufighi argues that the Board abused its dis-
cretion by confining his motion to reopen to issues of reli-
gious persecution. He argues that the Board should have
addressed a claim that Toufighi was exposed to persecution
based upon his association with the United States, pro-
American opinion, and his new wife and children who are
United States citizens. In Toufighi’s view, anyone identified
in the Iranian mind with the United States or pro-American
ideology will be at risk because of the recent escalation of

the IJ addressed this concern, concluding that Toufighi would not be
viewed as a Christian in Iran. The IJ noted that Toufighi had never been
persecuted in Iran; had never practiced Christianity in Iran; had almost no
ties to Christians in Iran; and would not communicate his alleged conver-
sion upon return to Iran because it was merely a ruse to gain asylum. In
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 ques-
tion whether a petitioner could establish a well-founded fear of persecu-
tion based on evidence of apostasy, or evidence that the petitioner would
be perceived as an apostate by Iranian officials, in a case where the peti-
tioner 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).
 TOUFIGHI v. MUKASEY 10897
tensions brought on by war in Iraq and the tussle over Iran’s
plan to develop nuclear capability.

The Board did not recognize this as a separate claim. It was
not required to search the record to tease out claims that Tou-
fighi had not clearly made. The claims Toufighi had previ-
ously made were focused on his religious beliefs and how
those beliefs would be viewed in Iran. He does not contend
that he was active in pro-Western groups before coming to
this country. He never claimed to be affiliated with anti-
Iranian-government or pro-Western groups in this country.
We have never recognized pro-Western as a social group pro-
tected against persecution, and agree with the Seventh Circuit
that such a proposition “is debatable at best.” Sharif v. INS,
87 F.3d 932, 936 (7th Cir. 1996); see also Fisher v. INS, 79
F.3d 955 (9th Cir. 1996) (en banc).

[9] In sum, the Board did not act unreasonably in not sepa-
rately addressing a claim that Toufighi had a well-founded
fear that he would be persecuted based upon his political
opinions or membership in a pro-Western or pro-American
social group.

CONCLUSION

The Board denied Toufighi’s motion to reopen his case. It
held that Toufighi’s motion to reopen to adjust his status
based on marriage to a United States citizen and the birth of
their citizen children could not be considered because the
motion was untimely and barred by civil penalties assessed
against Toufighi for failing to depart as ordered. As to Tou-
fighi’s request to reopen in light of changed circumstances in
Iran, the Board, in reliance on the IJ’s conclusion that Tou-
fighi had not converted, and would not be identified as having
done so, concluded that the evidence presented was not rele-
vant, and that he failed to establish a prima facie case for asy-
lum. These decisions of the Board did not constitute an abuse
of discretion and were supported by substantial evidence.
10898 TOUFIGHI v. MUKASEY
PETITION DENIED.

BERZON, Circuit Judge, dissenting:

I respectfully dissent. The BIA misunderstood what the IJ
actually said about Toufighi’s conversion and, as a result,
entirely failed to consider whether circumstances have
changed with regard to how Iran treats apostates.1 The major-
ity opinion perpetuates the BIA’s error.

The BIA declined to consider Toufighi’s new evidence
because:

[T]he Immigration Judge [IJ] 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 that this
information would relate to persecution of Christians
in Iran, the respondent has already failed to establish
that this would affect him.

The majority upholds the BIA because it also concludes that
the IJ found that “the conversion was not genuine, and that
[therefore] apostasy would not be imputed to Toufighi.” Maj.
Op. at 10896.

But the IJ did not find that Toufighi had not converted, only
that his conversion was not spiritually genuine.2 The IJ found
1
Toufighi submitted documents demonstrating that the climate of
repression in Iran is worsening for Muslims who have renounced Islam.
Whether or not the evidence was adequate to support reopening is prop-
erly a question for the BIA on remand.
2
The majority is correct that we lack jurisdiction to review the IJ’s deci-
sion. The IJ’s findings of fact cannot be disturbed at this point. But we do
not, of course, lack jurisdiction to read the opinion carefully to discern
what the IJ did and did not say.
 TOUFIGHI v. MUKASEY 10899
“first of all, the respondent’s testimony to be generally credi-
ble,” but went on to “note that he has very deep concern as
to the genuineness as the [sic] respondent’s claimed conver-
sion from Muslim [sic] to Christianity” and that he “just
would not believe that the respondent’s claimed conversion is
genuine in nature.” (emphases added). Instead, he found, “the
respondent’s alleged conversion from Muslim [sic] to Chris-
tianity is basically a vehicle for him to apply for political asy-
lum in the United States.”

At the same time, however, the IJ credited Toufighi’s testi-
mony that he was a church member, “attending Christian
church every Sunday, for four hours each day, for at least the
last year-and-a-half” and that he attended a small prayer
group every Tuesday. The IJ also found that Toufighi would
continue to practice his Christian beliefs in Iran, as he cred-
ited Toufighi’s statement that “if he were to return to Iran, he
would only practice his religion in hiding.”3

So the IJ’s finding was only that the conversion might not
be “genuine” — that is, not spiritually in earnest. The BIA
elided the distinction between this finding and a finding that
there had been no conversion, in the sense of behavior and
practice, when it stated that “the [IJ] previously rejected the
respondent’s assertion that he had converted to Christianity.”
3
To the extent the BIA relied on this finding to determine that changed
conditions would not affect Toufighi, its holding was, as the majority rec-
ognizes, improper. “[T]o require [a petitioner] to practice his beliefs in
secret is contrary to our basic principles of religious freedom and the pro-
tection of religious refugees.” Zhang v. Ashcroft, 388 F.3d 713, 719 (9th
Cir. 2004). On a more pragmatic level, “[a]s for the suggestion that the
Iranian authorities may not discover [Toufighi’s] aspostasy, . . . the INS
[and now the DHS] apparently makes no effort to conceal its deportation
and asylum proceedings from foreign states.” Bastanipour v. I.N.S., 980
F.2d 1129, 1133 (7th Cir. 1992).
The majority resolves this problem by arguing that the IJ really just “in-
tended to convey that the Iranian authorities would not impute Christianity
to Toufighi because he “would cease the ruse of practicing it in the United
States with the closing of the asylum proceedings.” The IJ did not say that.
10900 TOUFIGHI v. MUKASEY
The BIA’s oversight is critically important. The question
for asylum purposes is not what Toufighi believes in his heart
of hearts, but whether he would be perceived as having
renounced Islam were he to return to Iran. The threat to the
petitioner upon return would stem not from what he really
believes, but from what his persecutors would understand him
to believe. By missing the distinction, the BIA failed to con-
sider whether changed circumstances bear upon this threat.

We have recognized the distinction between actual and
imputed belief in the political opinion context: “To establish
a likelihood of persecution on account of an imputed political
opinion, an applicant must show that his alleged persecutors
have imputed or would impute a political opinion to him,
‘rightly or in error,’ and have persecuted or would persecute
him for that opinion.” Al-Harbi v. I.N.S., 242 F.3d 882, 890
(9th Cir. 2001) (quoting Sangha v. I.N.S., 103 F.3d 1482,
1489 (9th Cir. 1997)); see also Mejia v. Ashcroft, 298 F.3d
873, 877-78 (9th Cir. 2002) (discussing imputed political
opinions). In Al-Harbi, for example, we upheld the BIA’s
conclusion that the Iraqi petitioner was not an anti-Hussein
activist, and had lied when he said he was. 242 F.3d at 889-
90. But given the circumstances in Iraq at the time, and his
involvement in an American-sponsored escape from Iraq, we
held he would be treated upon return as an American loyalist
and opponent of Hussein, even though he was not. Id. at 890-
94.

An imputed religious opinion is treated the same way, par-
ticularly in theocratic Iran where religion is politics. We have
recognized that the Iranian government may persecute people
for their “actually-held or perceived-to-be-held political or
religious beliefs.” Fisher v. I.N.S., 79 F.3d 955, 962 (9th Cir.
1996) (en banc) (emphasis added); see also Abedini v. U.S.
I.N.S., 971 F.2d 188, 192 (9th Cir. 1992) (discussing the pos-
sibility of persecution if Iranian government would “impute a
political or religious belief” to the petitioner) (emphasis
added). Other circuits have also so held in the religion con-
 TOUFIGHI v. MUKASEY 10901
text. See Rizal v. Gonzales, 442 F.3d 84, 90 n. 7 (2nd Cir.
2006) (“Indeed, even an individual who does not subscribe to
a certain religion, but is nonetheless being persecuted on
account of others’ perception that he does, may well be able
to establish a religious persecution claim under a theory of
‘imputed religion’ analogous to the ‘imputed political opin-
ion’ theory . . . .”) (emphasis in original)4; Mezvrishvili v. U.S.
Attorney General, 467 F.3d 1292, 1296 (11th Cir. 2006)
(same); Ahmadshah v. Ashcroft, 396 F.3d 917, 920 n. 2 (8th
Cir. 2005) (holding that, in the case of a Muslim apostate
applying for asylum from religious persecution in Afghani-
stan, “[e]ven if [petitioner] did not have a clear understanding
of Christian doctrine, this is not relevant to his fear of perse-
cution. . . . If [petitioner] had shown that Afghans would
believe that he was an apostate, that is sufficient basis for fear
of persecution under the law.”).

As Ahmadshah and a line of earlier well-reasoned Seventh
Circuit cases make clear, the BIA particularly missed the
point in the case of a Muslim apostate who fears persecution
under religious law. “The offense in Muslim religious law is
apostasy — abandoning Islam for another religion,” not the
sincerity of faith in the new religion. Bastanipour v. I.N.S.,
980 F.2d 1129, 1132 (7th Cir. 1992); see also Najafi v. I.N.S.,
104 F.3d 943, 948 (7th Cir. 1997) (IJ “treated the question of
whether [petitioner] is a Christian as dispostive of his claim
of religious persecution [but] . . . . [r]ather we must ask
whether the alien is an apostate.”).

In short, the question is not what Toufighi believes but
what Iran understands him to believe — or, more accurately,
4
Indeed, in Rizal the IJ found that the petitioner had “failed to persuade
the Court of the genuineness of his professed Christian faith,” 442 F.3d at
88 (emphasis added), much as in this case. While that case was resolved
on other grounds, Rizal endorsed a distinction between “genuine” faith
and the imputed religious opinions that may put asylum seekers at risk and
which threaten Toufighi here. Id. at 90 n. 7.
10902 TOUFIGHI v. MUKASEY
not to believe. It is throughly plausible that because he attends
Christian services and belongs to a Christian church, Toufighi
will be taken to have renounced Islam. Neither the BIA’s nor
the IJ’s “opinion[s] . . . consider[ed] what could count as con-
version in the eyes of an Iranian religious judge, which is the
only thing that would count as far as the danger to [the peti-
tioner] is concerned.” Bastanipour, 980 F.2d at 1132 (empha-
sis in original). Even if his conversion is not “genuine,” he
remains at risk. “Whether [the petitioner] believes the tenets
of Christianity in his heart of hearts or, . . . is acting oppor-
tunistically (though at great risk to himself) in the hope of
staving off deportation would not . . . matter to an Iranian reli-
gious judge.” Id.; cf. Al-Harbi, 242 F.3d at 890-94.5

The IJ’s sincerity findings were therefore entirely unre-
sponsive to the critical question before the BIA on Toufighi’s
religious asylum ground. For these reasons, the BIA’s holding
on the religious persecution/change of country circumstances
question was unsupported. Because the majority, like the
BIA, misreads the IJ as holding that Toufighi was not and is
not a Christian, in any sense, it concludes that he is therefore
“not an apostate” and so fails to recognize the BIA’s error.
Maj. Op. at 10896.

It is important to note, however, that, because of its misun-
derstanding of the IJ’s opinion, the majority does not hold that
imputed religious beliefs in general or apostasy in particular
are improper grounds on which to base an asylum claim.
Instead, it simply fails to grasp that the sincerity of Toufighi’s
beliefs has no direct bearing on the question whether he will
be persecuted based on imputed religious beliefs.
5
For this reason, the IJ’s belief that Toufighi’s conversion was moti-
vated by a desire to seek asylum is largely irrelevant to the changed cir-
cumstances inquiry. If the external incidents of conversion were
sufficiently obvious as to suggest that he had left Islam, he could well be
in danger in Iran, even if his initial motivations were impure.
 TOUFIGHI v. MUKASEY 10903
Starting from false premises, the majority reaches an unjust
result. A remand to reconsider Toufighi’s motion to reopen
upon proper legal standards would have been the appropriate
course.

I respectfully dissent.