                                                                           FILED
                            NOT FOR PUBLICATION                             NOV 09 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



MOZAFFAR ZADESMAEIL,                             No. 07-75139

              Petitioner,                        Agency No. A095-177-103

  v.
                                                 MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,

              Respondent.



                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                     Argued and Submitted November 5, 2012
                              Pasadena, California

Before: REINHARDT and THOMAS, Circuit Judges, and SEDWICK, District
Judge.**

       Mozaffar Zadesmaeil petitions for review from the Board of Immigration

Appeals’ decision denying his application for asylum under the Immigration and




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable John W. Sedwick, District Judge for the U.S. District
Court for Alaska, sitting by designation.
Nationality Act, 8 U.S.C.§ 1158(a). Because the parties are familiar with the

history of this case, we need not recount it here. We grant the petition.

       Zadesmaeil seeks asylum on the basis of (1) an imputed political opinion by

virtue of his work as a photographer and photo laboratory supervisor and (2) his

conversion to the Eckankar religion. We conclude that the record compels the

conclusion that Zadesmaeil has a well-founded fear of persecution because of his

conversion to the Eckankar religion if he returns to Iran. Therefore, we need not

reach the question of whether substantial evidence supports the BIA’s conclusion

concerning his political asylum claim.

      The undisputed record shows that Zadesmaeil was a former Muslim who

converted to Eckankar. He testified about his conversion and offered third-party

evidence of it, which the government accepted. He also submitted a considerable

amount of documentary evidence as to his Eckankar beliefs, which the government

did not contest. There is no controversy over his subjective fear of future

persecution on the basis of religion.

      The undisputed record also establishes that apostasy from the Islam religion

is punishable by death in Iran. The 2000 State Department Country Report in the

record states: “The Government does not ensure the right of citizens to change or




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recant their religious faith. Apostasy, specifically conversion from Islam, may be

punishable by death.”

      The BIA did not dispute these facts, but denied the claim solely on the basis

that “in so far as the respondent fears harm in Iran because he converted to the

Eckankar religion in the United States, it does not appear that the authorities in Iran

are aware of that fact or are likely to learn thereof.” There is no factual support for

this statement in the record.

      In addition, the salient question is not whether the Iranian government is

aware of Zadesmaeil’s conversion, but rather, whether he has a well-founded fear

that upon his removal to Iran his government will become aware of his conversion

and persecute him accordingly. See Matter of Mogharrabi, 19 I & N Dec. 439,

446 (BIA 1987) (explaining that an alien can demonstrate a well-founded fear by

showing that his government “‘could easily become aware[] that the alien possess

this belief or characteristic’” (citation omitted)), abrogated on other grounds by

Pitcherskaia v. INS, 118 F.3d 641 (9th Cir. 1997).1

      The record is devoid of any evidence showing that Zadesmaeil could openly

practice Eckankar without being discovered in Iran. Indeed, the only evidence to


      1
         Zadesmaeil testified that he wrote letters to his wife describing his
conversion, and that some of these letters never arrived. He suggested that the
Iranian authorities seized these letters.

                                           3
this point in the record is the State Department’s conclusion that “[r]eligious

activity is monitored closely by the Ministry of Intelligence and Security.”

Nothing in the record rebuts petitioner’s claim that his subjective fear is

objectively reasonable. Further, an asylum applicant still has a well-founded fear

of religious persecution if the only way for him to avoid persecution is by avoiding

the public practice of his religion: “to require [a petitioner] to practice his beliefs in

secret is contrary to our basic principles of religious freedom and the protection of

religious refugees.” Zhang v. Ashcroft, 388 F.3d 713, 719 (9th Cir. 2004) (per

curiam).

       The government seeks to rely on the immigration judge’s finding that the

Iranian government would not persecute Zadesmaeil because the Eckankar religion

recognizes Mohammed as a spiritual leader, along with spiritual leaders of other

religions. The BIA did not adopt that determination, and when the BIA conducts

its own review of the evidence and law, our review is “limited to the BIA’s

decision, except to the extent the IJ’s opinion is expressly adopted.” Rodriguez v.

Holder, 683 F.3d 1164, 1169 (9th Cir. 2012) (internal quotation marks and citation

omitted). Regardless, nothing in the record supports the IJ’s speculation. Indeed,

the State Department Report states that members of the Baha’i faith are considered




                                             4
apostates in Iran “because of their claim to a valid religious revelation subsequent

to that of Prophet Mohammed.”

      Although the IJ did not make an express adverse credibility finding, as

would normally be required to deny Zadesmaeil’s claim on credibility grounds, the

BIA affirmed what it thought to be the IJ’s adverse credibility finding. Regardless

of the propriety of the BIA’s action, it is not relevant to the question of well-

founded fear of future religious persecution.

      Because Zadesmaeil applied for asylum prior to the passage of the REAL ID

Act, an inconsistency can only support an adverse credibility finding if it “relates

to the basis for the petitioner’s alleged fear of persecution and goes to the heart of

the claim.” Singh v. Gonzales, 439 F.3d 1100, 1108 (9th Cir. 2006) (internal

quotation marks, citation, and alterations omitted), superseded by statute, 8 U.S.C.

§ 1158(b)(1)(B)(iii) (2005). All of the issues that the IJ found troubling were

related to petitioner’s claim of persecution on account of imputed political opinion

and therefore do not go to the heart of his claim of fear of religious persecution.

Cf. Kamalthas v. INS, 251 F.3d 1279, 1283-84 (9th Cir. 2001) (BIA could not rely

on adverse credibility finding with respect to asylum claim in assessing claim for

protection under Convention Against Torture). The record is undisputed as to the

religious persecution claim.


                                           5
      Because the undisputed record compels the conclusion that petitioner has a

well-founded fear of future persecution on account of his religious beliefs, remand

under INS v. Ventura, 537 U.S. 12 (per curiam), is unnecessary. We grant the

petition for review and remand this case to the BIA for the Attorney General to

exercise his discretion under 8 U.S.C. § 1158(b) as to whether to grant asylum.

See Fedunyak v. Gonzales, 477 F.3d 1126, 1130-31 (9th Cir. 2007) (finding

Ventura remand unnecessary but remanding for Attorney General to exercise his

discretion under § 1158(b)).

      PETITION GRANTED and REMANDED.




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