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Abstract:
A "Baha'i" immigration case, in which an Iranian immigrant sought asylum by falsely claiming affiliation with the Baha'i Faith.
Notes:
See also sobhani_vs_ins_1994 and sarhangzadeh_vs_ins_1996.

Text taken from "Westlaw," a commercial database published by the West Publishing Company. To comply with copyright law, any annotations have been deleted, leaving the original public-domain text. -R.D.W.


Mostofi vs. Immigration and Naturalization Service, 1996

compiled by Ralph D. Wagner.
1996-04
(CITE AS: 83 F.3D 428, 1996 WL 183740 (9TH CIR.))
 Nos. A28 958 783 to A28 958 786.
  BIA
  AFFIRMED.

   Mohammed Ali Nasser MOSTOFI, Esmat Narchi and Galawazh
                       Nasser Mostofi,
                        Petitioners,
                             v.
     IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
                        No. 94-70627.
       United States Court of Appeals, Ninth Circuit.
               Submitted April 12, 1996. [FN*]
                   Decided April 16, 1996.
                              
Petition to Review a Decision of the Immigration and
Naturalization Service, Nos. A28 958 783 to A28 958 786

BIA
AFFIRMED.

Before:  GOODWIN, HAWKINS, Circuit Judges, and WARE [FN**],
District Judge.

                     MEMORANDUM [FN***]

     **1 Mohammed Ali Nasser Mostofi, a citizen of Iran,
appeals the decision of the Board of Immigration Appeals
(the "BIA") affirming the denial of his application for
asylum and withholding of deportation.  Mostofi contends
that the evidence compels the conclusion that he suffered
past persecution and has a well-founded fear of persecution
if he returns to Iran. [FN1]  We review the BIA's finding on
eligibility for asylum for substantial evidence.  _INS v.
Elias-Zacharias_, 502 U.S. 478 (1992).  The ultimate
decision that denies a claim for asylum is reviewed for
abuse of discretion.  _Ramos-Vasquez v. INS_, 57 F.3d 857,
861 (9th Cir.1995).
    In order to establish past persecution, an asylum
applicant must show that he was harmed on account of a
belief or characteristic related to race, religion,
nationality, membership in a particular social group, or
political opinion.  See, e.g., _Desir v. Ilchert_, 840 F.2d
723, 726 (9th Cir.1988).  In order to prove a well-founded
fear of persecution, the applicant must show that a
reasonable person in the same circumstances would fear
persecution.  _Elnagar v. INS_, 930 F.2d 784, 786 (9th Cir.
1991).  A "well-founded fear" is both subjective and
objective in that an alien must have a genuine fear of
persecution and provide evidence that would support a
reasonable fear of persecution.  _Estrada-Posadas v. INS_,
924 F.2d 916, 918 (9th Cir.1991).
     The Immigration Judge ("IJ") denied the petitioner's
application because he did not find the petitioner's
testimony to be credible or sufficient.  The BIA affirmed
this conclusion stating that the "lack of credibility
results in a failure to establish a well-founded fear of
persecution."  (Administrative Record at 6).  The IJ found
that the petitioner lacked credibility because of several
inconsistencies between his asylum application and his
testimony at the hearing, in addition to other "improbable
testimony."  (Administrative Record at 61).  This Court
gives great deference to credibility determinations made by
the IJ.  _Estrada-Posadas v. INS_, 775 F.2d 1018, 1021 (9th
Cir. 1985).
     The IJ's reasons for the adverse credibility finding
include:  (1) petitioner's initial claim that his father
introduced him to the Bahá'í Faith and that his mother was
not religious, followed by testimony that his mother
involved him in the religion; (2) petitioner's claim that he
and his family returned to Iran in 1983 and stayed until
1987, while his wife indicated in her Biographic Information
Form that the family lived in Canada during that time
period; (3) petitioner's asylum application listed his
ethnic background as White Persian, while at the hearing he
claimed to be Kurdish [FN2]; (4) petitioner claimed to fear
persecution upon his return to Iran yet he stated that he
had returned there and lived undisturbed for four years
before leaving again; and (5) petitioner's asylum
application did not state the reasons for his incarceration
in Iran, but at the hearing he first testified that he was
jailed because he was Kurdish but then later testified that
he was jailed because he was posting anti-government
pamphlets.  These critical inconsistencies and dubious
assertions provided the substantial evidence necessary for
the IJ to conclude that Mostofi's overall credibility was
lacking.
     **2 Even if the petitioner had been credible, he was
unable to establish that he was persecuted or has a well-
founded fear of persecution within the meaning of the
Immigration and Nationality Act.  The petitioner never
really claimed to be a member of the Bahá'í faith, and even
if he was, there is no evidence in the record to show that
the Iranian government persecuted him because he was a
Bahá'í, or would persecute him if he were to return.
     Next, nothing in the record proves that the petitioner
was persecuted because of his Kurdish ethnicity.  He did
state that he was jailed because of his race, but later
contradicted himself when he claimed his jailing was
politically motivated.  In any event, both of those
assertions lacked the necessary detailed facts to support
them.  Furthermore, the petitioner testified that he was
never told why he was jailed.  As to the well-founded fear
of persecution on account of race, there is no evidence in
the record that the Iranian government is persecuting Kurds.
     Finally, the petitioner fears persecution in Iran
because he left the country illegally.  There is no evidence
in the record that proves that Iran persecutes those who
leave the country illegally, and in fact, that fear is made
questionable by the petitioner's own safe return to Iran in
1983.
     Because the petitioner did not present any credible, or
even sufficient, claims of past persecution, or objective
evidence to support a well-founded fear of persecution, we
affirm the denial of asylum and the refusal to withhold
deportation.

     AFFIRMED.

     FN* The panel unanimously finds this case suitable for
     submission on the record and briefs and without oral
     argument.  Fed.R.App.P. 34(a); Ninth Circuit Rule 34-4.

     FN** Honorable James Ware, United States District Judge
     for the Northern
     
     FN*** This disposition is not appropriate for
     publication and may not be cited to or by the courts of
     this circuit except as provided by  Ninth Circuit Rule
     36-3.

     FN1. Petitioner's wife and child are applying
     derivatively for asylum through his application.

     FN2. The petitioner acknowledged that this is a
     significant difference, but claims that he did not fill
     out the form and so did not know what it said.

 C.A.9,1996.
 Mostofi v. I.N.S.
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