877 F. 2d 64 - Shafiei v. Immigration & Naturalization Service

MEMORANDUM^*

Mahmoud H. Shafiei filed a motion to reopen his deportation proceedings in which he asserted that were he deported to Iran, his country of origin, he would be subject to execution because of his prior conviction for trafficking in drugs. Following a change of counsel, the grounds for reopening were considerably broadened to include his family's ties with the deposed Shah of Iran and hostility of the regime in Iran to all who have not in any way adhered to the laws of God as the regime perceives and interprets them. A considerable amount of material, particularly from Amnesty International, was submitted to support assertions of both the "likelihood" of persecution as well as a "well-founded fear" of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.

The Board of Immigration Appeals (BIA) denied the motion on the grounds that Shafiei had failed to make a prima facie showing that he had a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. The BIA explained its holding in this manner:

In his motion, respondent claims that he will be persecuted upon his return to Iran as a member of a "social group," drug traffickers. Drug traffickers are not a "social group."

The BIA erred when it failed to consider the other grounds Shafiei urged and the showing he made in support of such grounds in arriving at its conclusion that no prima facie case was established. We remand this case to the BIA to conduct further appropriate proceedings.

In Ghadessi v. INS, 797 F.2d 804, 806 (9th Cir.1986), this court said:

A prima facie case for relief as a refugee entitled to asylum under section 208(a) is established when an alien presents "affidavits or other evidentiary material," 8 C.F.R. Sec. 103.5, which, if true, demonstrate that she has a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.

Although the Supreme Court, in INS v. Abudu, 108 S.Ct. 904, 913-14 (1988), declined to fix the proper standard of review applicable to a holding by the BIA that a movant has failed to establish a prima facie case, we shall apply the standard enunciated in Ghadessi.

Were it not for Shafiei's drug trafficking conviction, it would be clear that a prima facie case might well have been made by his showing. His links through his family with the Shah, his estrangement from the values the present regime of Iran espouses, and the present practices of the regime with respect to dissenters and potential enemies could, if documented properly, constitute a prima facie case.

The question we confront is whether that conviction alone precludes the establishment of a prima facie case. We hold that it does not. We so hold despite the fact that this court has held that the INS did not abuse its discretion in denying an application for asylum and withholding deportation made by an alien convicted of possession with intent to distribute heroin. See Mahini v. INS, 779 F.2d 1419, 1421 (9th Cir.1986). The hurdle that an alien must clear to establish a prima facie case is lower than the hurdle that he must clear to demonstrate an abuse of discretion. This is the thrust of Abudu when, after declining to fix a standard of review of a holding that no prima facie case was established, proceeded to hold that abuse of discretion was the proper standard to employ when reviewing an ultimate grant of discretionary relief.

It is true that the court in Abudu held that the BIA could "leap ahead" of the prima facie case and new evidence/reasonable explanation stages and simply decide that in all events the movant would not be entitled to the discretionary relief sought. 108 S.Ct. at 915. The BIA clearly did not do that in this case. It merely held that the drug conviction prevented the making of a prima facie case. No conflation of the grounds on which the Board can deny a motion to reopen occurred.

Therefore, we must return this case to the BIA to permit it to determine whether Shafiei's showing, absent the veto effect of a drug conviction, constitutes a prima facie case.

REMANDED.