Obtaining entry into the U.S. through fraud

United States 9th Circuit Court of Appeals Reports

HOSSEINI v. GONZALES, 03-73734 (9th Cir. 12-28-2006) MASOUD
HOSSEINI, Petitioner, v. ALBERTO R. GONZALES, Attorney
General, Respondent. No. 03-73734. United States Court of
Appeals, Ninth Circuit. Argued and Submitted April 6, 2006
— Seattle, Washington. Filed September 28, 2006,
Amended December 28, 2006.

On Petition for Review of an Order of the Board of
Immigration Appeals, Agency No. A73-985-544.

Matthew H. Adams, Northwest Immigrant Rights Project,
Seattle, Washington, for the petitioner.

William C. Peachey, United States Department of Justice,
Office of Immigration Litigation, Washington, D.C., for the
respondent.

Before: William C. Canby, Jr., Ronald M. Gould, and Carlos
T. Bea, Circuit Judges.

Opinion by Judge Canby.

ORDER

The request of the government for clarification of this
court’s opinion, reported at 464 F.3d 1018, is GRANTED.

The opinion of this court, filed September 28, 2006, is
amended as follows: At 464 F.3d 1024, first full paragraph,
immediately following the citation to Travel Document
Requirements for Citizens of the Islamic Republic of Iran,
indicate a new footnote 6. That footnote is to state:

The government points out that it is precluded by
regulation from disclosing any information relating to
Hosseini’s asylum application “without the written
consent” of Hosseini. 8 C.F.R. § 1208.6(a).
Although that regulation restrains the government, it does
not impede Iran’s actions.

Original footnote 6 is then renumbered to become footnote 7.

OPINION

CANBY, Circuit Judge:

Masoud Hosseini is an Iranian citizen who came to the
United States on a student visa. He did not attend school
and he overstayed his visa. He was ordered deported as an
overstay, but he subsequently succeeded in having his
deportation proceeding reopened. He sought asylum,
withholding of deportation, and adjustment of status under
the Immigration and Nationality Act (“INA”). He also sought
withholding and deferral of deportation under the
Convention Against Torture. An immigration judge denied
Hosseini all relief under the INA primarily because of his
connection and activities with the Iranian dissident group
Mujahedine Khalq (“MEK”),[fn1] designated by the Secretary
of State as a terrorist organization. The immigration judge
also denied relief under the Convention Against Torture on
the ground that Hosseini had failed to show that it was
more likely than not that he would be tortured if deported
to Iran.

The Board of Immigration Appeals (“BIA”) dismissed
Hosseini’s appeal, upholding the immigration judge’s
rulings.[fn2] The BIA stated alternatively that it denied
asylum as a matter of discretion because of Hosseini’s
immigration fraud. It also affirmed the denial of
adjustment of status on the ground of inadmissibility, but
in addition denied adjustment as an exercise of discretion,
because of Hosseini’s terrorist-connected activities and
his fraud. The BIA also stated that Hosseini’s
terrorist-related activities precluded withholding of
deportation not only under the INA, but also under the
Convention Against Torture. Hosseini now petitions for
review.

We deny the petition with regard to the BIA’s denial of
asylum and dismiss the petition with regard to the denial
of adjustment of status. We grant the petition with regard
to withholding of deportation under the INA, vacate that
portion of the BIA’s decision, and remand for further
proceedings. We deny the petition for review with regard to
withholding of deportation under the Convention Against
Torture. We grant the petition for review with regard to
deferral of deportation under the Convention Against
Torture, and we reverse that portion of the BIA’s decision
and remand for an award of deferral.

Background

Hosseini’s activities after coming to the United States
present a complicated scenario. Hosseini entered this
country on a student visa that allowed him to remain here
for approximately two weeks. He obtained the visa with the
help of a Los Angeles-based immigration consultant named
Bahram Tabatabai. Hosseini never attended school and did not
leave when his visa expired. Instead, he filed applications
for political asylum with Tabatabai’s help. Hosseini filed
his first asylum application under a false name and alien
registration number. He made numerous other false
statements in this application. The Immigration and
Naturalization Service (“INS”) charged him with remaining in
the U.S. longer than permitted and he was ordered deported
in absentia when he did not appear for his hearing.

Hosseini filed a second asylum application using a
different name and registration number. He made several
other false declarations in this application. The INS
charged Hosseini with deportability as an alien who was not
admitted or paroled and again he was ordered deported in
absentia.

In the meantime, the government’s Joint Terrorism Task
Force began investigating Tabatabai on suspicion that he
was helping members of MEK commit immigration fraud. The
State Department has designated MEK and an organization
affiliated with MEK, the National Council of Resistance,
“Foreign Terrorist Organization[s].” See Designation of
Terrorist and Terrorist Organizations Pursuant to Executive
Order 13224 of September 23, 2001, 67 Fed. Reg. 12,633
(Mar. 19, 2002); Determination Pursuant to Section 1(b) of
Executive Order 13224 Relating to the Mujahedine Khalq
(MEK), 68 Fed. Reg. 48,984 (Aug. 15, 2003). A confidential
informant working with the Task Force identified Hosseini
as a client of Tabatabai’s and an MEK supporter. The Task
Force also learned of Hosseini’s fraudulent asylum
applications. In March 1999, the INS took Hosseini into
custody at the Los Angeles airport. The INS later amended
its charges to include obtaining entry into the U.S. through
fraud and failing to comply with the conditions under which
he was admitted.

The immigration judge allowed Hosseini’s case to be
reopened, and Hosseini sought asylum, withholding of
deportation, and adjustment of status under the INA, and
withholding and deferral of deportation under the
Convention Against Torture. He denied being a member of MEK
and claimed that his life would be threatened and he would
be tortured in Iran because he had been labeled a
Mujahedeen terrorist. The immigration judge denied his
requests for relief, and the BIA affirmed. This petition
for review followed.

Jurisdiction

We have jurisdiction pursuant to INA § 242, 8 U.S.C.
§ 1252(a)(1), to review the BIA’s denial of
Hosseini’s request for withholding and deferral of
deportation. We also have jurisdiction to review the BIA’s
discretionary denial of Hosseini’s application for asylum.
See 8 U.S.C. § 1252(a)(2) (B)(ii) (stating that no
court shall have jurisdiction to review discretionary
denials “other than the granting of relief under section
1158(a),” which governs asylum applications).

We lack jurisdiction to review the BIA’s denial of
Hosseini’s adjustment of status claim because the BIA
alternatively denied relief as a matter of discretion. 8
U.S.C. § 1252(a)(2)(B)(i). The REAL ID Act does not
restore our jurisdiction because Hosseini does not argue
that the BIA’s discretionary denial was unconstitutional or
unlawful. See 8 U.S.C. § 1252(a)(2)(D) (allowing
judicial review of “constitutional claims or questions of
law”). We therefore dismiss the petition for review to the
extent that it challenges the BIA’s denial of adjustment of
status.

Discussion

The BIA conducted its own review of the evidence and law
rather than simply adopting the immigration judge’s
decision. Accordingly, our review “is limited to the BIA’s
decision, except to the extent the IJ’s opinion is
expressly adopted.” Cordon-Garcia v. INS, 204 F.3d 985, 990
(9th Cir. 2000).

1. Political Asylum

The BIA found Hosseini ineligible for asylum but it also
held that, even if Hosseini were eligible, it would deny
his application as a matter of discretion because he
perpetrated fraud throughout his immigration proceedings.
See 8 C.F.R. § 1208.14(a) (giving the IJ authority
to “grant or deny asylum in the exercise of discretion to
an applicant who qualifies as a refugee”). We affirm the
BIA’s discretionary denial of Hosseini’s asylum
application.[fn3]

There is substantial, uncontested evidence that Hosseini
committed immigration fraud. Hosseini admitted that his
first two asylum applications were fraudulent. He used
false names and alien registration numbers in each
application. He falsely claimed that Iranian authorities
harassed his family in Iran in retaliation for an argument
he had with Iranian officials. He stated that he had been
arrested in Iran for being politically active, which was
untrue. In his second application, he falsely claimed that
he was married, that he had entered the U.S. without
inspection, and that he was a member of an Iranian
political organization opposed to the current regime. He
also admitted obtaining a fraudulent birth certificate.

[1] In light of the uncontested evidence that Hosseini
perpetrated fraud throughout his immigration proceedings,
the BIA’s discretionary denial is neither “manifestly
contrary to the law [nor] an abuse of discretion.” 8 U.S.C.
§ 1252(b)(4)(D). We accordingly deny the petition
for review with regard to the BIA’s asylum ruling.

2. Withholding of Deportation under the INA

The BIA denied Hosseini’s request for withholding of
deportation under the INA because “he is a danger to the
security of the United States.” Although we normally review
such a finding for substantial evidence, we cannot do so
here because the BIA failed to articulate sufficiently the
bases for its finding. See Mattis v. INS, 774 F.2d 965, 967
(9th Cir. 1985) (explaining that we can affirm the BIA only
on a basis articulated in its decision). We therefore
vacate the denial of withholding and remand to the BIA for
further proceedings.

[2] Under the former INA § 243, 8 U.S.C. §
1253 (repealed 1997),[fn4] the government can deport
Hosseini to Iran even though his life and freedom may be
threatened upon return as long as “there are reasonable
grounds for regarding [him] as a danger to the security of
the United States.” 8 U.S.C. § 1253(h)(1), (2)(D)
(1996). Section 1253(h)(2)(D) of the INA also provided that
if Hosseini is engaged in “terrorist activities,” as
defined in § 241(a)(4)(B), he “shall be considered to
be an alien for whom there are reasonable grounds for
regarding as a danger to the security of the United
States.”

[3] The requirements for finding an alien to be a danger to
the security of the United States for purposes of the INA
were tightened, however, by our decision in Cheema v.
Ashcroft, 383 F.3d 848 (9th Cir. 2004), which was issued
after the BIA’s decision in Hosseini’s case. Cheema holds
that it is impermissible to find that an alien is a danger
to the security of the United States solely because he
engaged in terrorist activity. See id. at 857. Terrorist
activity that is directed at another country does not
invariably or necessarily involve a danger to the security
of the United States. See id. at 858-59.

To render an alien ineligible for withholding of
deportation (or asylum) on the latter ground, there must be
a finding supported by substantial evidence that links the
terrorist activity “with one of the criteria relating to
our national security.” Id. at 857. Here the BIA, not
having the benefit of our Cheema decision, made no such
finding and cited to no such evidence. It also made no
finding, and cited no evidence, of any reason other than
terrorist activity why Hosseini is a danger to the security
of the United States. The government concedes that, under
these circumstances, a remand is required so that the BIA
can determine the effect of Cheema on Hossieni’s claim for
withholding under the INA, which determination is for the
BIA in the first instance. See INS v. Ventura, 537 U.S. 12,
14 (2002). We therefore vacate the BIA’s denial of
withholding under the INA and remand for further
proceedings in which the BIA can apply the standard of
Cheema. See 383 F.3d at 859. On remand the BIA must
determine on the basis of substantial evidence, under the
standard set forth in Cheema and any other applicable law,
whether Hosseini is a danger to the security of the United
States, so as to render him ineligible for withholding of
deportation under the INA.

3. Withholding of Deportation under the Convention Against
Torture

Cheema did not apply to withholding under the Convention
Against Torture its requirement under the INA that
terrorist activities be linked, by a finding supported by
substantial evidence, to a danger to the security of the
United States, see id. at 859, even though the same statute
governs mandatory denial of withholding under the
Convention Against Torture and the INA. See 8 C.F.R.
§ 1208.16(d)(2). We are bound by that holding of
Cheema, so if the BIA’s finding that Hosseini has engaged
in terrorist activities is supported by substantial
evidence, we must deny the petition with respect to
withholding of deportation under the Convention Against
Torture. See Cheema, 383 F.3d at 859.

We conclude that substantial evidence supports the BIA’s
finding that there are reasonable grounds to believe that
Hosseini is engaged or is likely to engage in terrorist
activity. See 8 U.S.C. § 1182(a)(3)(B)(i)(II).[fn5]
The BIA did not specify which statutory definitions of
terrorist activity it was relying on, but it recited
evidence that Hosseini “was involved in fund-raising as well
as recruiting,” which fall within the definition of
“engag[ing] in terrorist activity” when the fund-raising or
recruiting is for a designated terrorist organization. See
8 U.S.C. § 1182(a)(3)(B)(iv)(IV)(bb) and (V)(bb).

The evidence of fund-raising is minimal: Hosseini sold MEK
newspapers to raise funds at a rally sponsored by the
National Council of Resistance. He stopped selling when he
saw that he was being photographed. Other evidence that
Hosseini admitted to being a “strong supporter” of MEK (and
that strong supporters were contributors), is not borne out
by the transcripts of the taped conversations on which that
evidence was supposedly based. Hosseini did indicate in one
taped conversation, however, that he was a “supporter” of
MEK and “not previously, but now I may have offered some
help, too.” He added that his brother had “given a lot of
financial help.”

As for recruiting, Hosseini offered to make telephone calls
to MEK members to facilitate recruiting a confidential
informant to whom he was speaking. The informant was taping
the conversation and had expressed an interest in joining
MEK. Hosseini also stated that it would be particularly
good if the informant brought along a couple of other
people to be recruited. Additional testimony, however, that
Hosseini had admitted recruiting in Thailand for MEK is not
supported by the transcript of the taped conversation on
which it was based. In that conversation, Hosseini stated
that he had been recruited in Thailand (but he always
maintained that he never became a member).

[4] Although this evidence of fund-raising and recruiting
by Hosseini is far from overwhelming, we cannot say that it
is so insignificant that it “compels a contrary result” to
that reached by the BIA. See Monjaraz-Munoz v. INS, 327
F.3d 892, 895 (9th Cir. 2003) (stating substantial evidence
standard). We therefore uphold the BIA’s determination that
“there is reasonable ground to believe [that Hosseini] is
engaged in or is likely to engage after entry in any
terrorist activity” as defined in the statute. See 8 U.S.C.
§ 1182(a)(3)(B)(i)(II). Consequently, we deny the
petition for review of the BIA’s denial of withholding of
deportation under the Convention Against Torture.

4. Deferral under the Convention Against Torture

The BIA also denied Hosseini’s request for deferral of
removal under the Convention Against Torture. See 8 C.F.R.
§ 1208.17(a); see also Bellout v. Ashcroft, 363 F.3d
975, 979 (9th Cir. 2004). The BIA found Hosseini had not
met his burden of proving that he is “more likely than not”
to be tortured upon deportation to Iran. 8 C.F.R. §
1208.16(c)(3); see id. § 1208.17(a). We grant the
petition as to this ruling and we reverse.

[5] Hosseini presented sufficient evidence to prove that
Iranian officials will be able to identify him as a person
involved with MEK. Upon deportation, Hosseini will have to
submit to Iranian authorities “all court documents
including all the charges and court orders.” Embassy of
Pakistan Interests Section of the Islamic Republic of Iran,
Travel Document Requirements for Citizens of the Islamic
Republic of Iran.[fn6] His involvement with MEK is
discussed at length in the immigration judge’s deportation
order and the BIA’s affirmation of that order. Both the
immigration judge and the BIA concluded that Hosseini was a
strong supporter of the MEK and engaged in certain
terrorist activities on its behalf. These conclusions,
which were reached by U.S. immigration officials, almost
certainly will catch the attention of Iranian authorities.

Two reports from the State Department establish that once
Iranian authorities identify Hosseini as an MEK supporter
he is likely to be tortured.[fn7] See Kamalthas v. INS, 251
F.3d 1279, 1280 (9th Cir. 2001) (noting that “country
conditions alone can play a decisive role in granting
relief under the Convention”). Although the reports are a
few years old, the government offered no evidence
suggesting they were outdated. One report states without
qualification that “[k]nown or suspected members of [the
MEK] face either execution or long prison terms if caught
in Iran.” U.S. Dep’t of State, Iran — Profile of
Asylum Claims and Country Conditions 7 (1997). It also
states that “the Islamic regime’s human rights record
continues to be abysmal, with continued reports of
extrajudicial killings and summary executions; widespread
use of torture and other degrading treatment.” Id. at 4.
The other report goes further and provides that “Citizens
continued to be tried and sentenced to death in the absence
of sufficient procedural safeguards. . . . Supporters of
outlawed political organizations, such as Mujahedine Khalq
organization, are believed to make up a large number of
those executed each year.” U.S. Dep’t of State, Iran;
Country Reports on Human Rights Practices-2000 at 2.
Moreover, “[t]he Constitution forbids the use of torture;
however, there are numerous, credible reports that security
forces and prison personnel continue to torture detainees
and prisoners. Some prison facilities, including Tehran’s
Evin prison, are notorious for the cruel and prolonged acts
of torture inflicted upon political opponents of the
Government.” Id. at 3. These reports of activities against
MEK do not distinguish between leaders and mere supporters.

[6] Although the Convention Against Torture, as ratified by
the United States, does not “include pain or suffering
arising only from, inherent in or incidental to lawful
sanctions,” 8 C.F.R. § 208.18(a)(3), these Country
Reports make clear that Iran’s treatment of political
opponents, including MEK, goes far beyond what could
reasonably be regarded as “lawful sanctions.” Along with
the charges and evidence of Hosseini’s activities in
connection with MEK, they provide a sufficient basis for
concluding that Hosseini is more likely than not to be
tortured if he is deported to Iran. See Khup v. Ashcroft,
376 F.3d 898, 906-07 (9th Cir. 2004) (finding petitioner
entitled to CAT relief where there were reports that the
country regularly tortures detainees and evidence of past
persecution). He accordingly qualifies for deferral of
deportation under the Convention Against Torture. See 8
C.F.R. § 208.17(a).

Conclusion

We decline to review for lack of jurisdiction the BIA’s
discretionary denial of adjustment of status. We deny the
petition for review with regard to the BIA’s denial of
asylum. We grant the petition for review with regard to the
BIA’s denial of withholding of deportation under the INA,
and remand for further proceedings in light of Cheema. We
deny the petition for review with regard to withholding of
deportation under the Convention Against Torture. Finally,
we grant the petition for review with regard to deferral
under the Convention Against Torture and we reverse the
BIA’s decision and remand for an award of deferral.

[fn1] The spelling of this organization varies somewhat
among writers. We adopt the spelling most frequently used
by the parties.

[fn2] One member of the BIA dissented from the denial of
deferral of deportation under the Convention Against
Torture.

[fn3] We review the BIA’s decision for abuse of discretion.
8 U.S.C. § 1252(b)(4)(D).

[fn4] The IJ incorrectly stated that Hosseini was seeking
withholding of removal under INA § 241. Hosseini was
being deported, not removed. Accordingly, INA §
243(h) is the appropriate statute for withholding of
deportation. As the BIA noted, however, the erroneous
citation was harmless because the two sections are
identical. Section 243(h) has been replaced by §
241(b)(3) but the former section governs Hosseini’s claim
because he was placed into deportation proceedings before
April 1, 1997. Pub.L. No. 104-208, 110 Stat. 3009-612
(codified at 8 U.S.C. § 1253 (2006)).

[fn5] The immigration judge followed the statutory language
in holding that there were “reasonable grounds to believe
that [Hosseini] is engaged or is likely to engage in
terrorist activities.” In upholding this ruling, the BIA
described it as a “conclusion that there is a reasonable
likelihood that [Hosseini] has or will participate in
terrorist-related activities.” We are satisfied that this
mis-description of the immigration judge’s ruling on the
statutory standard had no effect on the BIA’s decision.

[fn6] The government points out that it is precluded by
regulation from disclosing any information relating to
Hosseini’s asylum application “without the written consent”
of Hosseini. 8 C.F.R. § 1208.6(a). Although that
regulation restrains the government, it does not impede
Iran’s actions.

[fn7] We do not base our decision on Hosseini’s testimony
because the BIA made an adverse credibility finding. The
BIA’s finding is supported by substantial evidence. See Gui
v. INS, 280 F.3d 1217, 1225 (9th Cir. 2002) (requiring
substantial evidence to support an adverse credibility
ruling). Hosseini admitted to falsifying documents and
making fraudulent statements to immigration officials at
nearly every stage of his proceedings.