Mohammad Reza Daneshvar v. John Ashcroft, Attorney General of the United States

GIBBONS, Circuit Judge,

concurring in part and dissenting in part.

I agree with the majority’s conclusion to affirm the decision of the Board of Immigration Appeals with respect to denying Daneshvar’s petitions for asylum and withholding of deportation. Daneshvar has *630failed to satisfy the statutory requirements for these forms of relief.

I disagree, however, with the majority’s decision to reverse and remand the BIA’s order denying Daneshvar’s motion to reopen for adjustment of status. While the majority is correct that Daneshvar is not inadmissible to the United States for soliciting membership in a terrorist organization, as that term is defined at 8 U.S.C. § 1182(a)(3)(B)(vi)(I), the definition of terrorist organization relied on by the BIA, Daneshvar is nonetheless inadmissible for soliciting membership in a terrorist organization, as defined at 8 U.S.C. § 1182(a)(3)(B)(vi)(III). Compare 8 U.S.C. § 1182(a)(3)(B)(vi)(D (defining terrorist organization as an organization “designated under section 1189 [8 U.S.C. § 1189]” by the Secretary of State) with 8 U.S.C. § 1182(a) (3) (B) (vi) (III) (defining terrorist organization as “a group of two or more individuals, whether organized or not, which engages in the activities described in subclause (I), (II), or (III) of clause (iv) [such as committing or preparing a terrorist activity or gathering information on potential targets for terrorist activity]”). Furthermore, even if Danesh-var is not deemed inadmissible under either definition of terrorist organization, it was not an abuse of discretion for the Board to deny Daneshvar’s motion to reopen for the reasons stated in the Board opinion- — Daneshvar’s involvement with the MEK “at a time when it was particularly strong in its opposition to the United States” and the existence of few positive factors in support of granting the motion.

As the majority explained, this court reviews the BIA’s denial of a motion to reopen for abuse of discretion. Ashki v. INS, 233 F.3d 913, 917 (6th Cir.2000). This court has described review under an abuse of discretion standard in the following manner:

Abuse of discretion is a phrase which sounds worse than it really is. All it need mean is that, when judicial action is taken in a discretionary manner, such action cannot be set aside by a reviewing court unless it has a definite and firm conviction that the court below committed a clear error in judgment in the conclusion it reached upon a weighing of the relevant factors. There is no exact measure of what constitutes abuse of discretion. It is more than the substitution of the judgment of one tribunal for that of another. Judicial discretion is governed by the situation and circumstances affecting each individual case. Even where an appellate court has power to review the exercise of such discretion, the inquiry is confined to whether such situation and circumstances clearly show an abuse of discretion, that is, arbitrary action not justifiable in view of such situation and circumstances.

Balani v. INS, 669 F.2d 1157, 1160-61 (6th Cir.1982) (internal quotation and citation omitted). In reviewing the BIA’s decision to deny a motion to reopen, as the majority notes, “this Court must decide whether the denial of Petitioner’s motion to reopen deportation proceedings was made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis such as invidious discrimination against a particular race or group.” Id. at 1161.

The Supreme Court has commented that the Attorney General has “broad discretion” to grant or deny a motion to reopen. INS v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992) (citing INS v. Rios-Pineda, 471 U.S. 444, 449, 105 S.Ct. 2098, 85 L.Ed.2d 452 (1985)). Furthermore, “[mjotions for reopening of immigration proceedings are disfavored for the same reasons as are petitions for rehearing and motions for a new trial on the *631basis of newly discovered evidence.” Id. “This is especially true in a deportation proceeding, where, as a general matter, every delay works to the advantage of the deportable alien who wishes merely to remain in the United States.” Id.

The BIA denied Daneshvar’s motion to reopen his deportation proceedings by finding that he is inadmissible to enter the United States under 8 U.S.C. § 1182(a) (3) (B) (i) (I) for having engaged in terrorist activity and because “the record provides very little apparent positive factors in his case.” The BIA did not abuse its discretion in making this determination.

I agree with the majority that the MEK was a terrorist organization, as defined by § 1182(a)(3)(B)(vi)(III), during the 1970s. In a decision refusing to set aside the State Department’s designation of the MEK as a foreign terrorist organization in the 1990s, the D.C. Circuit described the MEK’s activities in. the years just prior to Daneshvar’s involvement:.

The MEK “collaborated with Ayatollah Khomeini to overthrow the former Shah of Iran. As part of that struggle, they ' assassinated at least six American citizens, supported the takeover of the U.S. embassy,' and opposed the release of American hostages.” “[In 1972] the MEK exploded time bombs at more than a dozen sites throughout Tehran, including the Iran-American Society, ... and the offices of Pepsi-Cola and General Motors. From 1972-75 ... the Mojahe-din continued their campaign of bombings, damaging such targets as the offices of Pan-American Airlines, Shell Oil Company, and British organizations.”

People’s Mojahedin Org. of Iran v. United States Dep’t of State, 182 F.3d 17, 20 (D.C.Cir.1999) (quoting a CIA Intelligence Research Paper dated July 1993) (alterations in original). The U.S. State Department characterizes the MEK’s violence in this way:

During the 1970’s [sic], the Mojahedin organization was at the forefront of opposition to the Shah and in this period assassinated several Americans in Iran. The Mojahedin was in full support of the takeover of the U.S. embassy and the holding of our hostages during the 1979-81 hostage crisis in Iran. Their own published statements show that their anti-US position at that time was much more hard-line than that of Iran’s leaders. Although the Mojahedin now deny a role in that crisis, they advocated a tough hostage policy in several issues of their own official newspaper “Mojahed,” published in Persian in Tehran in 1980-81.

Iran — Profile of Asylum Claims and Country Conditions, June 1996, Dept. St. Report, at 5. Title 8 U.S.C. § 1182(a)(3)(B)(i)(I) provides that an alien who has engaged in terrorist activity is inadmissible to the United States. To “engage in terrorist activity” means inter alia “to solicit any individual for membership in a terrorist organization described in clause (vi)(III) [8 U.S.C. § 1182(a)(3)(B)(vi)(III)], unless the solicitor can demonstrate that he did not know, and should not reasonably have known, that the solicitation would further the organization’s terrorist activity.” 8 U.S.C. § 1182(a)(3)(B)(iv)(V)(cc) (emphasis added).

By Daneshvar’s own admission, his involvement with the MEK was by no means a passive pursuit. In his testimony before the immigration court, Daneshvar stated that from around 1978 or 1979 until 1980 or 1981 he sold the Mojahed, the MEK newspaper that the State Department has stated advocated support for the taking of American hostages, supported the MEK’s ideology, and was “active” in the MEK’s *632election efforts. Daneshvar also testified that he was part of a twenty member committee that produced and distributed flyers in support of MEK political candidates.1 Therefore, the entire focus of Daneshvar’s involvement with the MEK— according to his own testimony was aimed at soliciting individuals for membership in this terrorist organization.

Since Daneshvar’s actions constitute solicitation of membership in a terrorist organization, he is inadmissible to the United States unless he demonstrates that he did not know, and should not reasonably have known, that his acts of solicitation would further the MEK’s terrorist activities. Daneshvar has wholly failed to meet this burden. While the majority, citing factors such as Daneshvar’s age at the time of participation and his solicitation over a one year period of time, concludes that “there is substantial evidence that Petitioner is not statutorily ineligible for immigration relief,” these factors do not demonstrate Daneshvar’s knowledge, or lack thereof, concerning the contribution that his activities made to the organization’s terrorism efforts. The statute does not craft an exception for persons that solicit membership in terrorist organizations based on the solicitator’s age or duration of action. Rather, the statute only exempts persons under 8 U.S.C. § 1182(a)(3)(B)(iv)(V)(cc) for reasonably lacking the knowledge that their efforts contributed to the organization’s terrorist activities.

The majority also claims that Daneshvar learned of the MEK’s violent aims around the time that he left the organization. On this point, Daneshvar testified, “at the time Mojahedin and my friend were talking to go against the government with our force. And at the time, I find out if we go that it will like [sic] bloody war in the country. Right before when they take the guns out, I separated from them.” Again, this evidence does not demonstrate that Daneshvar was unaware that his actions furthered the MEK’s terrorist activities. This testimony, if believed, only leads to the conclusion that Daneshvar left the MEK when he felt the organization was about to confront the Iranian government. Daneshvar’s testimony does not indicate that he lacked knowledge of the MEK’s terrorist activities prior to his departure from the group.

Furthermore, even if this court were to believe that Daneshvar did not know the effects of his solicitation for the MEK, declaring Daneshvar inadmissible to the United States would nonetheless be appropriate. The statute requires the solicitor to demonstrate both that he lacked actual knowledge that his solicitation would further the organization’s terrorist activities and that he should not reasonably have known of the effects of his solicitation. As previously discussed, during the very period that Daneshvar solicited members on behalf of the MEK in the late 1970s and early 1980s, the organization’s own newspapers proclaimed the MEK’s support for the holding of American hostages. Therefore, it is extremely difficult to accept that Daneshvar should not have known he was soliciting members for a terrorist organization, when he willingly distributed literature proclaiming the organization’s violent policies.

*633Although the majority initially states correctly that the burden for demonstrating Daneshvar’s lack of knowledge concerning the effect of his solicitation rests on him, the majority ultimately places this burden on the INS by remarking that “Respondent failed to establish that Petitioner knew or reasonably should have known about MEK’s activities.” The statute clearly places the burden on the solicitor — Daneshvar, in this case — to demonstrate that he “did not know, and should not reasonably have known, that the solicitation would further the organization’s terrorist activity.” 8 U.S.C. § 1182(a)(3)(B)(iv)(V)(cc). Examining evidence offered by the INS is irrelevant to this court’s consideration of whether Dan-eshvar solicited individuals for membership in the MEK.

Finally, the majority opinion lists several factors, such as Daneshvar’s length of stay in the United States, in an attempt to provide positive factors the Board could have used as justification for granting Daneshvar’s motion to reopen. While this court could consider these factors if applying de novo review to this issue, under an abuse of discretion standard of review, this court cannot substitute its judgment for that of the Board. Balani, 669 F.2d at 1162 (“Congress has entrusted to the Attorney General of the United States the responsibility of exercising discretion in immigration matters. The Courts will not substitute their discretion for that of the Attorney General.”).

Therefore, I disagree with the majority’s apparent conclusion that Daneshvar is not inadmissible to the United States. Nevertheless, even if one were to decide that Daneshvar was not inadmissible through his involvement with the MEK, it is important to note that the Board also based its decision to deny Daneshvar’s motion on his participation in the MEK during the precise time that the organization not only opposed American interests but also “argu[ed] for a prolongation of the detention of the hostages.” In addition, the Board concluded that there were “very little apparent positive factors” that favored granting Daneshvar’s motion in the exercise of the Board’s discretion. In its decision, which upheld the denial of Daneshvar’s petitions for asylum and withholding of deportation as well as denied Daneshvar’s motion to reopen, the BIA also cited the immigration judge’s finding that Daneshvar lacked credibility because of his demeanor during testimony and inconsistencies within his testimony.2 Consequently, the Board did not abuse its discretion — even if Daneshvar was not statutorily inadmissible to the United States — in deciding to deny his motion to reopen. I dissent from the majority’s decision to reverse the BIA’s order denying Daneshvar’s motion to reopen and to re*634mand for proceedings consistent with the majority opinion.

. Interestingly Daneshvar first testified that he was part of a committee aimed at electing the MEK’s presidential candidate. He later recanted this testimony, stating that he “didn’t participate in the election of the president, but in the election of the Senate.” Inconsistencies such as this instance belie the doubt expressed by the majority that the immigration judge erred in adversely assessing Daneshvar’s credibility. Regardless of which candidate Daneshvar supported, however, his active participation with the MEK’s political operations bolsters the conclusion that he solicited membership in die organization.

. While concluding that review of Danesh-var’s claim that the immigration court erred in making an adverse credibility determination about him is unnecessary, the majority nevertheless says that Daneshvar "may have a valid claim that IJ’s adverse credibility determination was erroneous.” The majority also creates a possible explanation, not supported by the record, for one of Daneshvar's inconsistent statements. Although we do not resolve this issue, my reading of the record provides no basis to question the credibility finding of the immigration judge. The immigration judge, who — unlike the present panel — had the opportunity to witness first-hand ■the testimony of all the witnesses as well as the demeanor exhibited by Daneshvar, pointed to six separate instances of inconsistent testimony and also based the adverse credibility finding on Daneshvar's demeanor and nonresponsiveness. Since the majority does not undertake review of the immigration judge's credibility determination, its construction of hypothetical explanations for Danesh-var's apparent inconsistencies is superfluous. In addition, the development of such explanations is inconsistent with our deferential appellate role in this context.