Asal Nazi v. LORETTA E. LYNCH, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ASAL NAZI,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
Nos. 08-70851, 10-70980
Agency No. A076-715-598
MEMORANDUM*
On Petitions for Review of Orders of the
Board of Immigration Appeals
Argued and Submitted September 2, 2015
Pasadena, California
Before: GRABER, RAWLINSON, and WATFORD, Circuit Judges.
Asal Nazi, a native and citizen of Iran, petitions for review of orders of the
Board of Immigration Appeals (“BIA”) denying her motions to reopen her removal
proceedings to present evidence that she would be persecuted if returned to Iran.
1. The BIA did not abuse its discretion by denying Nazi’s first motion to
reopen. In support of that motion, Nazi presented evidence that women are
FILED
OCT 08 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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systematically discriminated against in Iran. As the BIA noted, much of this
evidence was undated or predated her initial proceedings and, thus, failed to show
that conditions in Iran had changed for the worse since Nazi initially sought relief
from removal. Moreover, the BIA concluded that, to the extent the evidence
established changed country conditions, it “indicate[d] primarily a crackdown on
the manner of dress for women and against activists” and was insufficient to
establish that Nazi was prima facie eligible for relief. Because Nazi made no
showing at that time that she was an activist or would not comply with the dress
code, and thus that there was some “individualized threat to persecute her,”
Najmabadi v. Holder, 597 F.3d 983, 992 (9th Cir. 2010), the BIA did not abuse its
discretion in denying her first motion to reopen.
2. The BIA abused its discretion, however, by denying her second motion to
reopen. In support of that motion, Nazi presented evidence that the Iranian
government had recently cracked down on political dissidents, violently
suppressed protests following the 2009 election, and detained several Westerners
who had entered the country. Evidence of the Iranian government’s increased
sensitivity to, and brutal repression of, political dissent following the 2009
elections was unavailable at the time of Nazi’s original hearing, and it was material
because it was “qualitatively different” from the evidence presented with her first

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motion to reopen. See Toufighi v. Mukasey, 538 F.3d 988, 996 (9th Cir. 2008); cf.
Najmabadi, 597 F.3d at 987.
That evidence was also sufficient to establish prima facie eligibility for
relief. Cf. Toufighi, 538 F.3d at 996–97. In order to establish prima facie
eligibility for relief, Nazi needed only to introduce evidence that “reveals a
reasonable likelihood that the statutory requirements for relief have been satisfied,”
Tadevosyan v. Holder, 743 F.3d 1250, 1255 (9th Cir. 2014) (quoting Garcia v.
Holder, 621 F.3d 906, 912 (9th Cir. 2010))—in particular, that she has a well-
founded fear of future persecution on account of a protected ground, see Malty v.
Ashcroft, 381 F.3d 942, 947–48 (9th Cir. 2004). The BIA determined that Nazi
had not established prima facie eligibility for relief. In the BIA’s view, her
proffered evidence that she opposes the Iranian regime and has attended anti-
regime protests in California, was insufficient to establish that she is already
known to the Iranian government as a dissident or that she is a “‘visible’
opposition political activist and/or dissenter” or a member of “any Iranian
opposition or pro-Western group in the United States.”
Nazi introduced evidence, however, that the Iranian regime has killed,
beaten, and detained ordinary protesters, not just leading dissidents or members of
established, organized opposition groups. If Nazi were repatriated to Iran and

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continued to voice her opposition to the regime publicly, there is some likelihood
that she would face persecution on account of her political opinion, regardless of
whether the regime is aware that she has previously participated in protests in the
United States. In light of the evidence presented before the BIA, we conclude that
there is a “reasonable likelihood” that, if reopening is granted, Nazi will be able to
establish a well-founded fear of future persecution either by showing that there is a
“pattern or practice” of persecuting anti-regime protesters in Iran or that, in
comparison to political dissidents in Iran generally, she faces a greater risk of
persecution as a public protestor, a woman, and a long-time resident of the United
States. See Wakkary v. Holder, 558 F.3d 1049, 1060–63 (9th Cir. 2009); 8 C.F.R.
§ 1208.13(b)(2)(iii)(A).
3. Because we grant the petition in No. 10-70980, we need not reach Nazi’s
claim that the BIA’s denial of her motions to reopen violated her Fifth Amendment
right to due process of law on the ground that she was a minor at the time of her
initial application, that she proceeded solely as a derivative beneficiary of her
father’s application, and that she lacked an adequate opportunity to present her
own claims for relief.
PETITION GRANTED in No. 10-70980; PETITION DENIED in No.
08-70851.

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Nazi v. Lynch, Nos. 08-70851 and 10-70980
Rawlinson, Circuit Judge, concurring in part and dissenting in part:
I concur in that portion of the disposition denying the petition for review of
the denial of the first motion to reopen filed by Asal Nazi (Nazi).
I respectfully dissent from that portion of the disposition granting the
petition for review of the denial of Nazi’s second motion to reopen.
We review denial of the motion to reopen for an abuse of discretion. See
Go v. Holder, 744 F.3d 604, 609 (9th Cir. 2014). Applying this standard, the
decision of the Board of Immigration Appeals (BIA) “may only be reversed if it is
arbitrary, irrational, or contrary to the law.” Id. (citation and internal quotation
marks omitted). In my view, this standard has not been met.
Nazi specifically contends that the BIA abused its discretion in holding that
she failed to demonstrate individualized threats to her in Iran, and in holding that
her political activities were limited to the extent that she would not have come to
the attention of Iranian authorities.
The BIA concluded that Nazi’s supplemental declaration reflected only that
she had “been involved in an unspecified manner with other Iranians”; had “been
attending protests by Federal Building in Los Angeles”; and had “attended a silent
vigil elsewhere in the memory of a woman named Neda killed in Iran during the
FILED
OCT 08 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
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unrest following the 2009 presidential elections.” (internal quotation marks
omitted).
The BIA noted that the photos submitted by Nazi included ones that
appeared “to have been taken on a single unknown date at an unidentified
location.” The BIA observed that it was “unclear where and when the photos
spelling out ‘Neda’ were taken.” The BIA analyzed the photos as suggesting “at
most” that Nazi attended one rally in Los Angeles and “perhaps a separate vigil” at
an unknown location.
The BIA noted that Nazi submitted no evidence that anyone in Iran was even
aware of her involvement in any protests in America. The BIA thus rejected
Nazi’s “characterization of herself as a ‘visible’ opposition political activist and/or
dissenter.” (citations omitted); see Bhasin v. Gonzales, 423 F.3d 977, 984 (9th Cir.
2005) (articulating that “an applicant must generally show an individualized, rather
than a generalized, risk of persecution” to meet the prima facie eligibility
requirement for a motion to reopen); see also Najmabadi v. Holder, 597 F.3d 983,
990 (9th Cir. 2010) (denying challenge to denial of motion to reopen because
substantial evidence supported the BIA’s conclusion that the petitioner’s evidence
that she was a “westernized woman” and a political dissenter to the Iranian regime
did not demonstrate an individualized threat but rather “conditions affecting the
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population at large”).
The BIA’s view of this evidence was not “arbitrary, irrational, or contrary to
law.” Go, 744 F.3d at 609 (citation omitted). Although the BIA could have
determined that the submitted evidence presented a reasonable likelihood that Nazi
would suffer persecution in Iran, it was not compelled to do so. See Najmabadi,
597 F.3d at 986 (recognizing the “broad discretion to grant or deny” a motion to
reopen).
It is inappropriate for us as a reviewing court to re-weigh the evidence
presented to the BIA and reach a different conclusion. As our colleague Judge
Farris so eloquently stated: “[The majority] would re-try. I am content to review.”
Li v. Ashcroft, 378 F.3d 959, 964 n.1 (9th Cir. 2004).
I respectfully dissent.
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