Toufighi v. Mukasey

*998BERZON, 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 majority 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 997.

But the IJ did not find that Toufighi had not converted, only that his conversion was not spiritually genuine.2 The IJ found “first of all, the respondent’s testimony to be generally credible,” but went on to “note that he has very deep concern as to the genuineness as the [sic] respondent’s claimed conversion 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 Christianity is basically a vehicle for him to apply for political asylum in the United States.”

At the same time, however, the IJ credited Toufighi’s testimony 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 credited 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] previous*999ly rejected the respondent’s assertion that he had converted to Christianity.”

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 consider 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 Alr-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, particularly 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 possibility 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 context. See Rizal v. Gonzales, 442 F.3d 84, 90 n. 7(2d 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 opinion’ 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 Afghanistan, “[e]ven if [petitioner] did not have a clear understanding of Christian doctrine, this is not relevant to his fear of persecution.... 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 *1000new 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 dis-positive of his claim of religious persecution [but] .... Mather we must ask whether the alien is an apostate.”).

In short, the question is not what Toufi-ghi believes but what Iran understands him to believe — or, more accurately, not to believe. It is thoroughly 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] ... considered] what could count as conversion in the eyes of an Iranian religious judge, which is the only thing that would count as far as the danger to [the petitioner] is concerned.” Bastanipour, 980 F.2d at 1132(emphasis 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 opportunistically (though at great risk to himself) in the hope of staving off deportation would not ... matter to an Iranian religious judge.” Id.; cf. Al-Harbi, 242 F.3d at 890-94.5

The IJ’s sincerity findings were therefore entirely unresponsive 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 997.

It is important to note, however, that, because of its misunderstanding 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.

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.

. 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 properly a question for the BIA on remand.

. The majority is correct that we lack jurisdiction to review the IJ’s decision. 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.

. To the extent the BIA relied on this finding to determine that changed conditions would not affect Toufighi, its holding was, as the majority recognizes, improper. “[T]o require [a petitioner] to practice his beliefs in secret is contrary to our basic principles of religious freedom and the protection 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] as-postasy, ... 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 "intended 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.

. 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 Toufi-ghi here. Id. at 90 n.7.

. For this reason, the IJ’s belief that Toufi-ghi’s conversion was motivated by a desire to seek asylum is largely irrelevant to the changed circumstances 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.