Enayatkhaw v. Gonzales

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
July 3, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-60415
Summary Calendar
ALI REZA ENAYATKHAW,
Petitioner,
versus
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
Respondent.
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Petitions for Review of Orders of
the Board of Immigration Appeals
No. A77 524 700
--------------------
Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
Ali Enayatkhaw petitions for review of a final order of the
Board of Immigration Appeals (“BIA”) that affirmed the denial of
his applications for asylum, withholding of removal, and relief

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under the Convention Against Torture (“CAT”). He also petitions
for review of the denial of his motion to reopen.
Enayatkhaw argues that the evidence and testimony support a
finding that he faces at least a ten percent chance of persecution
if he returns to Iran and that the BIA’s decision is not supported
by substantial evidence. He also asserts that the decision of the
immigration judge (“IJ”) does not contain reasoning or analysis of
the merits of his claims and is not amenable to meaningful review,
so a remand is required. Alternatively, Enayatkhaw contends that
if the BIA’s decision is construed as having adopted the IJ’s gen-
eral finding of non-credibility, the IJ’s credibility finding is
not subject to deference, because it was not supported by the rec-
ord, nor was Enayatkhaw provided a meaningful opportunity to rebut
or address the IJ’s credibility concerns.
The IJ’s original decision in 2001, which the BIA affirmed,
rejected Enayatkhaw’s applications based on lack of credibility.
The BIA then granted Enayatkhaw’s motion to reopen, and he was giv-
en the opportunity to present additional evidence in support of his
claims, which evidence the IJ determined to be fraudulent, per-
jured, and misleading. The IJ made reference to his 2001 adverse
credibility determination. The BIA agreed with the IJ’s decision
except for the frivolousness determination. The only thing remain-
ing to adopt and affirm was the IJ’s implicit adverse credibility
finding, which the BIA effectively adopted, allowing this court to
review the IJ’s decision. Efe v. Ashcroft, 293 F.3d 899, 903 (5th

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Cir. 2002).
The IJ’s adverse credibility determination was based in large
part on the discrepancies between the letters of Enayatkhaw’s fam-
ily, who asserted that they had observed him in the videotaped
footage of the July 2002 rally waving the Iranian flag and chant-
ing, and the actual footage introduced into evidence, which showed
him holding a poster and a tee shirt and standing silent. Enayat-
khaw argues that he was not provided an opportunity to address the
IJ’s concerns after the IJ viewed the videotape post-hearing.
The discrepancy between the letters of his family and the vid-
eotape concerning Enayatkhaw’s activities at the rally was brought
out at the hearing. Enayatkhaw testified that he held a tee shirt
stained with blood. This was corroborated by Shawn Namdar, the or-
ganizer of the event, who testified that Enayatkhaw held a bloody
tee shirt to symbolize the student movement. The letters from En-
ayatkhaw’s family and friends stated they had observed him holding
the Iranian flag and chanting. The IJ expressed his concerns about
the truthfulness of the evidence. Enayatkhaw had an opportunity at
that point to clear up the discrepancy or any misunderstanding
about his conduct at the rally, but he did not.
Enayatkhaw argues that the discrepancy is not important be-
cause the purpose of his offering the videotape was to show that he
had been visible on the speaker’s platform at the rally, which fact
is evidence of his political participation and opposition to the
Iranian regime, and which could become known to his government. He

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argues that because he appeared on the platform at the rally, “he
may certainly be deemed to possess at least a well-founded fear,
that agents of the Iranian regime have either identified him, or
that he could be discovered.”
Enayatkhaw’s argument is speculative concerning what the Iran-
ian regime may have discovered. But, the evidence he submitted, in
the form of the letters from his family stating that they had seen
him in a broadcast of the rally on TV in Iran, was intended to
prove that the government had already identified him as part of the
student protest movement and would arrest him immediately on his
return. The IJ determined, based on the discrepancy between the
letters and the videotape, that the letters were fraudulent. The
IJ disbelieved Enayatkhaw’s evidence that he had been identified as
part of the student protest movement by the government in Iran.
That adverse credibility determination undercuts Enayatkhaw’s ar-
gument that the Iranian regime has identified him and that he is
likely to face persecution if he returned.
The IJ’s adverse credibility determination is supported by
substantial evidence. Chun v. INS, 40 F.3d 76, 78-79 (5th Cir.
1994). The BIA’s adoption of that finding is a sufficient basis
for the BIA’s affirmance and is adequate for purposes of review,
with no remand required for additional reasons. Enayatkhaw makes
no other arguments concerning the IJ’s decision. To the extent
that his brief raises his other claims of non-discretionary with-
holding of removal and CAT relief, substantial evidence also sup-
ports the IJ’s rejection of his applications for withholding of re-

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moval, for the same reasons given in connection with his claim for
asylum, see Mikhael v. I.N.S., 115 F.3d 299, 306 & n.10 (5th Cir.
1997), and for CAT relief. See Efe, 293 F.3d at 907.
Enayatkhaw avers that the BIA improperly denied his motion to
reconsider when it failed to reconsider the material errors of fact
and law made in its prior decision. The BIA’s dismissal of an ap-
peal and its denial of a motion to reconsider are distinct final
orders, which require separate petitions for review. See Stone v.
INS, 514 U.S. 386, 393-95, 405 (1995). Enayatkhaw did not file a
separate petition for review from the denial of his motion to re-
consider. This court lacks jurisdiction to review the order deny-
ing the motion to reconsider. Id.
Enayatkhaw argues that the BIA erred in denying his motion to
reopen as number-barred because he established an exception of
changed country conditions that increased his fear of persecution
in Iran. The BIA determined that the motion did not fall within
the exception and was number-barred. Enayatkhaw disagrees with
that conclusion, but he does not point to any evidence accompanying
his motion to reopen that tends to show that he is more likely to
be persecuted on his return to Iran than at the time of his hearing
in 2003. The BIA did not abuse its discretion in denying the mo-
tion to reopen. See Lara v. Trominski, 216 F.3d 487, 496 (5th
Cir. 2000).
PETITIONS FOR REVIEW DENIED.

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