                                                                            FILED
                            NOT FOR PUBLICATION
                                                                            OCT 08 2015
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


ASAL NAZI,                                       Nos. 08-70851, 10-70980

              Petitioner,                        Agency No. A076-715-598

 v.
                                                 MEMORANDUM*
LORETTA E. LYNCH, Attorney General,

              Respondent.


                      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


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                                                            Page 2 of 4
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
                                                                             Page 3 of 4
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
                                                                            Page 4 of 4
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.
                                                                              FILED
Nazi v. Lynch, Nos. 08-70851 and 10-70980
                                                                     OCT 08 2015
Rawlinson, Circuit Judge, concurring in part and dissenting in part:
                                                                           MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS
      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



                                            1
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

                                           2
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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