Mohammad Reza Daneshvar v. JOHN ASHCROFT, Attorney General of the United States

*The Honorab le Ann Aldrich, United States District Judge for the
Northern District of Ohio, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0027P (6th Cir.)
File Name: 04a0027p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
MOHAMMAD REZA
DANESHVAR,
Petitioner,
v.
JOHN ASHCROFT, Attorney
General of the United States,
Respondent.
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No. 02-3653
On Appeal from the Board of Immigration Appeals.
No. A72 174 409.
Argued: October 23, 2003
Decided and Filed: January 20, 2004
Before: KENNEDY and GIBBONS, Circuit Judges;
ALDRICH, District Judge.*
2 Daneshvar v. Ashcroft No. 02-3653
_________________
COUNSEL
ARGUED: Behzad Ghassemi, E. Lansing, Michigan, for
Petitioner. Lyle D. Jentzer, UNITED STATES
DEPARTMENT OF J U S T I C E , OFFICE OF
IMMIGRATION LITIGATION, Washington, D.C., for
Respondent. ON BRIEF: Behzad Ghassemi, E. Lansing,
Michigan, for Petitioner. Ethan B. Kanter, Michael P.
Lindemann, UNITED STATES DEPARTMENT OF
JUSTICE, OFFICE OF IMMIGRATION LITIGATION,
Washington, D.C., for Respondent.
KENNEDY, J., delivered the opinion of the court, in which
ALDRICH, D. J., joined. GIBBONS, J. (pp. 23-30),
delivered a separate opinion concurring in part and dissenting
in part.
_________________
OPINION
_________________
KENNEDY, Circuit Judge. This case presents an appeal
from the Board’s order denying Petitioner’s application for
asylum and denying his petition for adjustment of status. We
grant but stay the enforcement of the order denying the
application for asylum. We reverse the Board’s denial of his
petition for adjustment of status and remand that petition for
further proceedings.
BACKGROUND
Petitioner is a thirty-nine-year-old native and citizen of
Iran, born on March 25, 1964. He was admitted to the U.S.
on June 17, 1994 as a visitor. Petitioner violated his non-
immigrant status by overstaying his visa, and as a result, was
placed in deportation proceedings. On October 19, 1995,
Respondent ordered Petitioner to show cause why it should

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No. 02-3653 Daneshvar v. Ashcroft 3
1This Court takes judicial notice of the fact that today Ghom is a city
of approximately 800,000 people located 100 miles southwest of Tehran
(pop. 8 million).
not deport him for remaining in the United States longer than
authorized by his visa. Appearing before an immigration
judge, Petitioner admitted the factual allegations in the order
to show cause and conceded deportability. Petitioner asked
for asylum, withholding of deportation, and, in the alternative,
for voluntary departure.
In the aftermath of the Iranian Revolution (after the Shah
was overthrown and the U.S. hostages were taken, but prior
to their release), Petitioner, who was 16 years old at the time,
became attracted to the Mujahedin-e Khalq Organization
(MEK) in the city of Ghom.1 The Department of State
describes MEK as follows:
Formed in 1960s by the college-educated children of
Iranian merchants, the MEK sought to counter what it
perceived as excessive Western influence in the Shah’s
regime. Following a philosophy that mixes Marxism and
Islam, has developed into the largest and most active
armed Iranian dissident group. Its history is studded with
anti-Western activity, and, most recently attacks on the
interests of the clerical regime in Iran and abroad. . . .
Worldwide campaign against the Iranian Government
stresses propaganda and occasionally uses terrorist
violence. During the 1970s the MEK staged terrorist
attacks inside Iran and killed several US military
personnel and civilians working on defense projects in
Tehran. Supported the takeover in 1979 of the US
Embassy in Tehran.
Press Release, Dep’t of State, Background Information on
Foreign Terrorist Organizations (Oct. 8, 1999), at
http://www.state.gov/s/ct/rls/rpt/fto/2801.htm#mek, J.A. at
22. MEK is a terrorist group currently designated by the
4 Daneshvar v. Ashcroft No. 02-3653
2There was a confusion during Petitioner’s testimony about what type
of an election he participated in. Petitioner did explicitly clarify that he
was mistaken when he first said he participated in a Pre sidential election
and that he, indeed, participated in a Senatorial race. Dissent emphasizes
that this inconsistency further supports the IJ’s adverse credibility finding.
W e disagree. For the purposes of his asylum claim, it was irrelevant what
type of the election he participated in. And as we exp lain later in this
opinion, an adverse credibility judgment cannot be based on an irrelevant
inconsistency. On the other hand, for the purposes of his petition for
adjustment of status (which was not even filed at the time of his
testimony), the distinction between a Presidential and a Senatorial election
is significant because, even today, we know nothing about the platform
of the Senatorial candidate in question. Whereas it would be fair to
impute the beliefs of a national party (lik e M EK) to its Presidential
candidate, we have seen enough diversity in viewpoints among the
legislators of the same party in this country to doubt that every MEK
Senatorial candidate shared the same viewpoint as the MEK organization
itself.
Secretary of State as a Foreign Terrorist Organization under
INA section 219. Press Release, Dep’t of State, 2001 Report
on Foreign Terrorist Organizations (Oct. 5, 2001), at
http://www.state.gov/s/ct/rls/rpt/fto/2001/5258.htm.
Petitioner’s stated reason for affiliating was the religious
nature of the organization that corresponded with his personal
upbringing. Petitioner asserts that he was never a formal
member of MEK. However, he distributed flyers in support
of an MEK senatorial candidate2 and sold MEK’s
newspapers. He personally only knew about 15 MEK
members (the organization at the time had thousands of
members). J.A. at 400. Petitioner discontinued his
association with MEK approximately a year later, upon his
discovery that MEK began resorting to violence. Petitioner
was arrested in Ghom, a year later as part of the widespread
campaign by the Islamic government against MEK. He was
charged with possession of a gun and a hand grenade during
a demonstration and sentenced to life in prison after a thirty-

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No. 02-3653 Daneshvar v. Ashcroft 5
3The State Departm ent Re port stated that:
Defendants tried in the Revolutionary Courts are not granted fair
trials. Th ey are often held in prolonged pretrial detention
without access to attorneys, and their attorne ys are rarely
afforded sufficient time to prepare their defense. Defendants are
often indicted for such vague offenses as “moral corruption,”
“antirev olutionary behavior,” and “siding with global
arrogance.” Defendants do not have the right to confront their
accusers or the right to appeal. Summary trials of 5 minutes are
com mon , and so me trials are conduc ted in secret.
DEP’T OF STATE, 104T H CO N G., CO U N T RY RE P O RT S O N HUMAN RIG H TS
PRACTICES FOR 1995 1154 (Jo int Comm. Print 1996).
4This Court does not have b efore it any evidence that led to
Petitioner’s conviction in Iran. W e do, however, no te that it is a common
occurrence for the Iranian government to arrest “persons on trumped-up
criminal charges when their actual ‘offenses’ are political.” DEP’T O F
STATE, 104T H CO N G., CO U N T RY RE P O RT S O N HU M A N RIGHTS PRACTICES
FOR 1995 1154 (Jo int Comm. Print 1996).
minute trial in front of a Court of Islamic Justice.3 Petitioner
vigorously denies these accusations and maintains that he was
arrested on a trumped-up charge designed to punish him for
his earlier affiliation with MEK.4 Originally given a life
sentence, Petitioner was released on probation after serving
five years in various Iranian jails. He completed his probation
without any major accidents, served in the army for two
years, and was able to obtain some employment. Petitioner
testified that the Iranian government did not allow him to
complete his high school education and barred him from ever
working for the government. There is no evidence to
contradict that testimony.
In March of 1994, Petitioner, through the assistance of a
family friend, secured a passport and an exit permit. He
traveled to Germany and stayed with a sister there for three
months prior to obtaining a visitor’s visa to enter the U.S.
Petitioner came to the U.S. on June 17, 1994. His immediate
family in the U.S. includes his mother, two brothers and one
sister, all of whom are either U.S. citizens or permanent
6 Daneshvar v. Ashcroft No. 02-3653
5In the Application to Register Permanent Resident or Adjust Status,
Petitioner is listed as a medical biller. J.A. at 100. During the oral
argum ent, Petitioner’s counsel indicated that Petitioner is currently
emp loyed as a physical thera pist.
residents. He is a beneficiary of an approved immediate
relative visa petition filed by his U.S.-citizen sister on
September 13, 1998. He is currently employed.5 Based on
this approved visa petition, Petitioner is now eligible to apply
to adjust his status and to become a permanent resident of the
U.S.
After hearing all testimony, the immigration judge, on
February 18, 1997, denied his asylum, withholding, and
voluntary departure applications. The immigration judge
found that (1) Petitioner lacked credibility based upon his
demeanor, lack of responsiveness, and contradictions within
his testimony and between his testimony and his application
for asylum, (2) Petitioner’s claimed fear of persecution was
“considerably weakened” by his own testimony, including his
statements that his life sentence was reduced to five years,
that he successfully completed a subsequent five-year
probation, that he was able to find employment, and that he
completed his military service without incident, (3) Petitioner
has not suffered past persecution, did not have a well-founded
fear of future persecution, and thus was ineligible for either
asylum or withholding of deportation, and (4) Petitioner
would not be granted asylum as a matter of discretion even
assuming statutory eligibility because of Petitioner’s support
for MEK’s tough policy toward the American hostages, and
his “raising of funds to support and further these policies”
during “a critical period in the detention of the hostages.”
Daneshvar, No. A72-174-409 (Feb. 18, 1997) (decision of the
IJ).
Petitioner appealed to the Board on March 24, 1997.
During the pendency of the appeal, on May 23, 2001, he filed
a motion to “reopen/remand” for consideration of his

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No. 02-3653 Daneshvar v. Ashcroft 7
6The record is silent as to why the Board took over 5 (five) years to
decide P etitioner’s appeal.
application for the discretionary relief of adjustment of status
under INA section 245. On May 13, 2002,6 the Board
affirmed the immigration judge’s deportation order and
asylum and withholding denials, denied Petitioner’s motion
to reopen and to remand to apply for adjustment of status, and
dismissed the appeal. The Board agreed with the immigration
judge’s credibility determination, noting that her finding is
given significant weight due to her observational advantages.
The Board also agreed with the immigration judge’s denial of
asylum and withholding, finding that even if Petitioner’s
testimony regarding political imprisonment were true,
“conditions in Iran have changed to such an extent that he no
longer has a well-founded fear of being persecuted in that
country.” Daneshvar, No. A72-174-409, slip op. at 2 (BIA
May 13, 2002). The Board also agreed that it was appropriate
to deny Petitioner asylum in the exercise of discretion based
upon his past involvement with MEK. Finally, the Board
denied Petitioner’s motion to remand the proceedings to allow
him to apply for adjustment of status. The Board observed
that Petitioner was inadmissible under 8 U.S.C.
§ 1182(a)(3)(B)(i)(I) for having engaged in terrorist activity,
including solicitation for membership in the MEK. The
Board concluded that the record provided “little apparent
positive factors in this case” and that the motion should also
be denied “in the exercise of discretion.” Daneshvar, No.
A72-174-409, slip op. at 3 (BIA May 13, 2002).
ANALYSIS
Petitioner presents four issues on this appeal. First is
whether Petitioner was deprived of his constitutional right to
a full and fair asylum hearing due to questionable translation
by the interpreter where the IJ based her adverse credibility
determination on Petitioner’s testimony. Second is whether
the adverse credibility determination made by the IJ and
8 Daneshvar v. Ashcroft No. 02-3653
affirmed by the Board is erroneous and not supported by the
record. Third is whether the Board’s decision denying
Petitioner’s application for asylum and withholding of
deportation is manifestly contrary to the law, an abuse of
discretion and not supported by the record. Fourth is whether
the Board’s decision denying Petitioner’s motion to reopen to
apply for adjustment of status (permanent residency) based on
the provisions of 8 U.S.C. §1182(a)(3)(B)(i)(I) is erroneous,
an abuse of discretion and not supported by the record.
1. Constitutional Right to a Full and Fair Asylum
hearing.
Petitioner argues that non-responsiveness and evasion noted
by the IJ in his testimony was due to failure of the interpreter
at the hearing on February 5, 1997 to adequately
communicate with either Petitioner or the IJ. Petitioner relies
on this Court’s earlier finding that an asylum applicant whose
testimony was subjected to questionable translation by an
interpreter was deprived of his constitutional right to a full
and fair asylum hearing where the IJ grounded his adverse
credibility solely on the applicant’s testimony. Amadou v.
INS, 226 F.3d 724 (6th Cir. 2000). We review de novo the
Board’s legal determinations. Hamama v. INS, 78 F.3d 233,
235 (6th Cir. 1996).
In Amadou, this Court was confronted with a situation
where the asylum petitioner and the interpreter spoke
different dialects of a West African language, Fulani.
Amadou, 226 F.3d at 725. The immigration judge in that case
found that Amadou was not credible, citing several
inconsistencies in his testimony. Id. The Board agreed with
the immigration judge. This Court, however, noted that both
the immigration judge and the Board were on notice that there
was a problem with the interpreter. Id. at 727. The Court
went on to say that the “record indicates that the interpreter’s
faulty translation directly prejudiced Amadou because the
judge and Board denied his application based on the
testimony at the hearing.” Id. The Court concluded that since

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No. 02-3653 Daneshvar v. Ashcroft 9
7As Judge Cole noted in an earlier case:
I see it as particularly impo rtant that the IJs put their adverse
credibility determinations on the record. Such a record would
enab le us to conduct a more effective, and even more efficient,
review and it would allow us to determine if an IJ's or the B IA's
inferences are reasonable. Othe r circuits require that specific
reasons be given for a determination that a witness is not
credible, and I also view such a practice as desirable.
“[t]he immigration judge based her decision to deny
Amadou’s applications for asylum, withholding of
deportation, and voluntary departure solely on her
determination that Amadou’s responses were not credible”
and since “the Board of Immigration Appeals deferred to the
judge’s adverse credibility finding...Amadou was denied his
right to a full and fair hearing...” Id at 728.
Respondent argues that Petitioner’s claim is legally
irrelevant because the Board denied asylum and withholding,
even assuming the truth of Petitioner’s testimony, because he
failed to demonstrate a well-founded fear of persecution.
Since, as discussed below, we agree that the Board correctly
denied asylum on the basis that Petitioner failed to
demonstrate a well-founded fear based on present conditions
in Iran, we do not address here Petitioner’s argument that
inadequate translation caused the adverse credibility ruling.
2. Adverse credibility determination
Petitioner next argues that a detailed review of the record
would not support an adverse credibility determination made
by the Immigration Judge and affirmed by the Board.
Although we think that Petitioner may have a valid claim that
the IJ’s adverse credibility determination was erroneous, we
nevertheless choose not to resolve this issue because we are
satisfied that Petitioner failed to establish that he has a well-
founded fear of persecution. Since on remand BIA will
exercise its discretion in whether to grant Petitioner’s motion
to reopen, we note that a blind acceptance7 of the IJ’s adverse
10 Daneshvar v. Ashcroft No. 02-3653
Ahmad v. INS, 1998 WL 4 15975, at *4 (6th Cir. 1998) (Cole, Jr., J.,
concurring)
8For exam ple, the ALJ based her adve rse credibility determination,
in part, on the testimony about the number of brothers that Petitioner has.
According to the ALJ, “[t]he respondent testified that he had three
brothers. His own brother testified that the respo ndent had six brothers.”
Daneshvar, No. A72 -174 -409 , slip op. at 16 (Feb. 18, 1997) (decision of
the IJ). In fact, when Petitioner was asked how m any relatives he had in
Iran, he answered that he had one. J.A. at 385. And when he was asked
how many family members lived in the United States, he answered that
he had two brothers and a sister. Id. Petitioner’s bro ther testified that
there were seven brothers altogether (he also said that Petitioner was
unrelated to one of them). J.A. at 423-2 4. Instea d of attempting to
reconcile the discrepancies, the ALJ simply, and unjustifiably, assumed
that there was an inconsisten cy betw een the two testimonies. W e
disagree. Since he has at least one sister living in G ermany, it is entirely
possible that Petitioner has three brothers who live outside of the United
States and Iran.
credibility findings in this particular case is unwarranted in
light of the questionable quality of the interpreters, and that
these findings should be reexamined before forming a basis
for a discretionary ruling.8 See, e.g., Abadi v. INS, 2002 WL
31856127, at *2 (9th Cir. 2002) (granting a petition of an
Iranian asylum seeker and remanding to BIA after observing
that “Moreover, ‘untrue statements by themselves are not
reason for refusal of refugee status.’”); Garrovillas v. INS,
156 F.3d 1010, 1013 (9th Cir. 1997) (quoting Tucious v. INS,
821 F.2d 1396, 1400 (9th Cir. 1987) (finding error in the
BIA’s adverse credibility determination where the petitioner’s
application stated that he had been shot at, but the petitioner
testified at his hearing six years later that he had never been
shot at)). “If discrepancies ‘cannot be viewed as attempts by
the applicant to enhance his claims of persecution, they have
no bearing on credibility.’” Shah v. INS, 220 F.3d 1062, 1068
(9th Cir. 2000) (noting that the adverse credibility finding will
not be upheld unless the IJ or BIA specifically explains the
significance of the discrepancy) (quoting Damaize-Job v. INS,
787 F.2d 1332, 1337 (9th Cir. 1986)). See also Bandari v.

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No. 02-3653 Daneshvar v. Ashcroft 11
INS, 227 F.3d 1160, 1166 (9th Cir. 2000) (granting a petition
from an Iranian applicant and remanding to BIA for a
discretionary ruling on the grant of asylum and withholding
of deportation after noting that “[a]ny alleged inconsistencies
in dates that reveal nothing about a petitioner’s credibility
cannot form the basis of an adverse credibility finding.”);
Zahedi v. INS, 222 F.3d 1157, 1168 (9th Cir. 2000) (finding
that IJ’s adverse credibility finding was not supported by
substantial evidence in a case of an Iranian applicant for
asylum, in part, because it was “clear that there were
significant communication and translation problems
concerning dates during the asylum hearing.”).
3. Asylum claim
A deportable alien is eligible to seek asylum at the
discretion of the Attorney General upon proof of a “well-
founded fear of persecution on account of race, religion,
nationality, membership in a particular social group, or
political opinion.” 8 U.S.C. § 1158(b); 8 U.S.C.
§ 1101(a)(42)(A). A well-founded fear must be both
subjectively genuine and objectively reasonable.
Mikhailevitch v. INS, 146 F.3d 384, 389 (6th Cir. 1998)
(stating that “[a]n applicant must therefore actually fear that
he will be persecuted upon return to his country, and he must
present evidence establishing an objective situation under
which his fear can be deemed reasonable.”) (citations
omitted). The applicant need not, however, show “that he
probably will be persecuted if he is deported; one can
certainly have a well-founded fear of an event happening
when there is less than a 50% chance of the occurrence taking
place.” Id. (citations omitted). This Court has held that
“‘persecution’ within the meaning of 8 U.S.C.
§ 1101(a)(42)(A) requires more than a few isolated incidents
of verbal harassment or intimidation, unaccompanied by any
physical punishment, infliction of harm, or significant
deprivation of liberty.” Id. at 390. This Court reviews the
Board’s denial of asylum and withholding of deportation
12 Daneshvar v. Ashcroft No. 02-3653
9Eco nomic deprivation constitutes persecution only when the
resulting cond itions are sufficiently severe. Matter of Ac osta, 19 I&N
Dec. 211, 222 (BIA 19 85). See also Tarevski v. INS, 19 94 W L 276886,
at *2 (6th Cir. 1994) (citing Zalega v. INS, 916 F.2d 12 57, 1260 (7th Cir.
1990) (review ing decisions from several circuits and holding that one’s
inability to obtain his preferred government job is not sufficient evidence
to establish persecution)); Youssefinia v. INS, 784 F.2d 125 4, 12 61 (5th
Cir. 1986) (in a case involving an Iranian applicant for asylum, observing
that “[w]hile Youseffinia argues that a total withdrawal of all economic
opp ortunity may support a well-founded fear of persecution, he has not
met the burden of proof for such a showing. The record indicates that
Yo ussefinia’s brothers have obtained employment and are able to support
the family. . .Youssefinia’s status upon return wo uld be close r to his
brothers’ than to his father’s.”)
under the substantial evidence standard. INS v. Elias-
Zacarias, 502 U.S. 478, 481 (1992).
Petitioner argues that his five-year imprisonment from 1981
to 1986 in Iran establishes that he suffered past persecution,
giving rise to the presumption under 8 C.F.R. § 208.13(b) that
he possesses a well-founded fear of persecution making him
eligible for asylum. Respondent argues that even if the claim
of imprisonment is assumed to be credible, a preponderance
of the evidence establishes that since Petitioner’s
imprisonment, conditions in Iran have changed enough to
where he no longer has a well-founded fear of being
persecuted in that country on the basis of his past involvement
with MEK. 8 C.F.R. § 208.13(b)(1)(i)(A). We agree with
Respondent.
As Petitioner testified, his original life sentence was
eventually reduced to five years. He thereafter served for two
years in the Iranian military without any incidents. Between
1986, when he was released, and 1994, when he left Iran, he
was only questioned four times and was never physically
mistreated during these encounters with the government.
Petitioner was also able to obtain employment, although his
options were limited by his inability to work for the
government.9 Petitioner strenuously argues that the human

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No. 02-3653 Daneshvar v. Ashcroft 13
rights conditions in Iran have continuously deteriorated, citing
country reports published by the U.S. Department of State.
Although we accept as true the allegations of widespread
human rights abuse by the Iranian government, we are
nevertheless constrained by the statute to reject Petitioner’s
claim for asylum because he failed to show a well-founded
fear of persecution based on his political opinion. See, e.g.,
Hamzehi v. INS, 64 F.3d 1240, 1244 (8th Cir. 1995) (“We
agree with the Hamzehis that, by our standards, today’s living
conditions in Iran are inhospitable or worse for women and
those who would prefer a different political order. However
[petitioners] have not shown the sort of particularized threat
of severe harm that would support a well-founded fear of
persecution.”); Ahmadi v. Board of Immigration Appeals,
1992 WL 114386, at *3 (4th Cir. 1992) (“We have no doubt
that the conditions and human rights in Iran are deplorable.
The Act, though, does not provide asylum eligibility for
anyone who may be subject to violence in his home
country.”) (citations omitted). We understand that many
Iranian citizens may live in fear of persecution by the Islamic
regime. However, the statute requires them to either be
members of a particular race, religion, nationality, or social
group, or to have the fear based on a political opinion. If we
were to accept Petitioner’s theory of eligibility for political
asylum, we would have to hold that every Iranian citizen has
a well-founded fear of persecution solely by virtue of living
in Iran. Petitioner has enjoyed as close to a normal life during
his eight years in Iran after his release, as can be expected of
a person living in a totalitarian Islamic state. He has
presented no credible evidence that he will be singled out for
different treatment if he is deported back to Iran. As the
Board explained in an earlier opinion:
This Board in turn appreciates the awful circumstances
in which the Sri Lankan Government and large numbers
of the inhabitants of that country find themselves. But if
we were to accept the applicant’s assessment of human
rights violations as constituting persecution under the
Act, Tamils, Moslems, and Sinhalese alike would all be
14 Daneshvar v. Ashcroft No. 02-3653
persecuted in Sri Lanka. Neither the relief of asylum nor
of withholding of deportation provides for refuge on
account of human rights abuses unconnected to the
grounds enumerated in the Act, i.e., race, religion,
nationality, membership in a particular social group, or
political opinion.
Matter of T, 20 I&N Dec. 571, 577 (BIA Oct. 13, 1992)
(citations omitted) (emphasis added).
4. Withholding of Deportation
The United States Code provides that “[t]he Attorney
General shall not deport any alien . . . to a country if the
Attorney General determines that such alien’s life or freedom
would be threatened in such country on account of race,
religion, nationality, membership in a particular social group,
or political opinion.” 8 U.S.C. § 1253(h)(1). As this Court
has previously noted, “[a]n application seeking withholding
of deportation faces a more stringent burden of proof than one
for asylum.” Mikhailevitch, 146 F.3d at 391 (citing INS v.
Cardoza-Fonseca, 480 U.S. 421, 431-32 (1987)). Because
substantial evidence supports the Board’s determination that
Petitioner is ineligible for asylum, it therefore follows that he
cannot satisfy the more stringent standard for withholding of
deportation.
5. Motion to Reopen
The Attorney General, may in his discretion, adjust the
status of an alien “to that of an alien lawfully admitted for
permanent residence if (1) the alien makes an application for
such adjustment, (2) the alien is eligible to receive an
immigrant visa and is admissible to the United States for
permanent residence, and (3) an immigrant visa is
immediately available to him at the time his application is
filed.” 8 U.S.C. § 1255(a). As the Supreme Court noted, the
abuse-of-discretion standard applies to the judicial review of
the Board’s determination of motions to reopen. INS v.

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No. 02-3653 Daneshvar v. Ashcroft 15
Abudu, 485 U.S. 94, 96 (1988). The Board’s discretion is
broad but it is not unlimited. It may not exercise its
discretion in a way that is arbitrary, irrational or contrary to
law. Babai v. INS, 985 F.2d 252, 255 (6th Cir. 1993)
(quoting Mejia-Carrillo v. INS, 656 F.2d 520, 522 (9th Cir.
1991)). Cursory, summary, or conclusory statements are
inadequate. Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 97
(2nd Cir. 2001). As this Court has explained:
In determining whether the Board abused its discretion,
this court must decide whether the Board’s decision was
made without a rational explanation, inexplicably
departed from established policies or rested on an
impermissible basis, such as invidious discrimination. . .
The scope of review is exceedingly narrow because a
lack of statutory standards provides the Attorney General
with unusually broad discretion. At least two courts have
held that it is only necessary that the Board hear,
consider and rationally decide the case before it. . .
Nevertheless, the BIA may be reversed if it fails to
actually consider the facts and circumstances respecting
each petitioner’s claim of extreme hardship. . . Such a
decision would be reversed as arbitrary or capricious.
Hazime v. INS, 17 F.3d 136, 140 (6th Cir. 1994) (citations
omitted). Finally, the Board’s denial of relief may be
affirmed only on the basis articulated in the decision and this
Court may not assume that the Board considered factors that
it failed to mention in its opinion. See, e.g., Casem v. INS, 8
F.3d 700, 702 (9th Cir. 1993); Anderson v. McElroy, 953 F.2d
803, 806 (2nd Cir. 1992).
The Board disposed of Petitioner’s motion to reopen to
apply for adjustment of status in the following manner:
Due to his participation in these same activities, we will
deny the respondent’s motion to remand proceedings to
apply for adjustment of status. Although he has an
approved visa petition based on his relationship to his
16 Daneshvar v. Ashcroft No. 02-3653
sister, the respondent is inadmissible to the United States
under section 212(a)(3)(B)(i)(I), for having engaged in
terrorist activity. Engagement in terrorist activities
includes solicitation for membership in terrorist
organization. Section 212(a)(3)(B)(iii). As noted above,
the MEK is designated as a terrorist organization under
section 219 of the Act. . . Therefore the respondent is
inadmissible on this ground. Further, the record provides
very little apparent positive factors in his case and leads
us to conclude that the request should be denied in the
exercise of discretion.
Daneshvar, No. A72-174-409, slip op. at 3 (BIA May 13,
2002). We find that (1) the Board erred as a matter of law in
its statutory analysis and (2) that it abused its discretion in
rejection Petitioner’s motion to reopen by failing to
adequately consider all relevant factors.
Section 1182 of Title 8 defines various categories of
inadmissible aliens. 8 U.S.C. § 1182. One of those
categories is involvement in terrorist activities. 8 U.S.C.
§ 1182(a)(3)(B). The Board confined its analysis to the
provision that provides that any alien who has engaged in a
terrorist activity is ineligible to receive a visa and ineligible
to be admitted into the United States. 8 U.S.C.
§ 1182(a)(3)(B)(i)(I). The Immigration Judge and the Board
held that MEK was a terrorist organization because it was so
designated by the State Department. We agree that today
MEK is a designated terrorist organization. However, MEK
was not designated as a terrorist organization at the time of
Petitioner’s involvement. The importance of this distinction
is explained below.

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No. 02-3653 Daneshvar v. Ashcroft 17
10On remand, the B oard should explain in what way Petitioner’s
conduct constituted “solicitation of memb ership.” W e see no evid ence in
the record to indicate that Petitioner actually attempted to convince
anyone to become a member of the MEK.
11Our reading is consistent with the Congressional intent as
illustrated by the following Note that accompanied the amend ments to the
statute:
Notwithstanding paragraphs (1) and (2 ), no alien shall be
considered inadmissible under section 212(a)(3) of the
Immigration and Nationality Act (8 U.S.C. 1182 (a)(3)) [subsec.
(a)(3) of this section]...by reason of the amendments made by
subsection (a) [amending this section], on the ground that the
alien engaged in a terrorist activity described in subclause
(IV)(bb), (V)(bb), or (VI)(cc) of section 212(a)(3)(B)(iv) of such
Act (as so amended) [subclause (IV)(bb), (V)(bb), or (VI)(cc) of
subsection (a)(3)(b)(iv) of this section] with respect to a group
at any time when the group was not a terrorist organization
designated by the Secretary of State under section 219 of such
Act (8 U.S.C. 1189 ) or otherwise designated under section
212(a)(3)(B )(vi)(II) of such Act (as so amended) [subsect.
(a)(3)(B)(vi)(II) of this section].
8 U.S.C. § 1182 note para. (3)(A) (2001) (Retroactive Application of
Amendm ents).
The Board found Petitioner to be statutorily ineligible for
“solicitation for membership in a terrorist organization.”10
Daneshvar, No. A72-174-409, slip op. at 3. We review
questions of statutory interpretation de novo but with due
deference to the interpretation by the Attorney General and
the Board. Fieran v. INS, 268 F.3d 340, 344 (6th Cir. 2001)
(citing INS v. Aguirre Aguirre, 526 U.S. 415, 424 (1999);
Chevron, USA, Inc. v. Natural Res. Def. Council, Inc., 467
U.S. 837, 842 (1984)). The statute does prohibit solicitation
of any individual for membership in a terrorist organization
described in clauses (vi)(I) or (vi)(II). 8 U.S.C.
§ 1182(a)(3)(B)(iv)(V)(aa) and (bb). Those clauses deal with
an organization that is designated as a “terrorist organization”
either under §1189 or by the Secretary of State. Id. As
discussed above, MEK was not a “terrorist organization” at
the time of Petitioner’s conduct under either clause.11
18 Daneshvar v. Ashcroft No. 02-3653
12As the Note to 8 U .S.C. § 11 82 exp lains:
Subparagraph (A) shall not be construed to prevent an alien from
being considered inadmissible or deportable for having engaged
in a terrorist activity...described in subclause (IV)(cc), (V)(cc),
or (VI)(dd) of section 212(a)(3)(B )(iv) of such Act (as so
amended) [subclause (IV)(cc), (V)(cc), or (VI)(dd) of subsec.
(a)(3)(B)(vi)(III) of such Act (as so amended) [subsec.
(a)(3)(B)(vi)(III) of this section].
8 U.S.C. § 1182 note (2001) para. (3)(B) (Retroactive Application of
Amendm ents).
13Because it is unnecessary for our ultimate disposition of the case,
we do not decide whether MEK ’s behavior during the Iranian hostage
crisis amounted to a terrorist activity within the meaning of
§ 118 2(a)(3)(B )(vi)(III). Nor do we decide whether or not such a
determination is necessary. We merely note a certain degree of ambiguity
in the statute that the parties may wish to consider on rem and. A “terrorist
activity” is defined as an activity that would be unlawful, inter alia, in the
United States if it had been committed in the United States, and that
involves, inter alia, taking hostages. 8 U.S.C. § 1182 (a)(3)(B)(iii). The
term “engage in terrorist activity” is defined, inter alia, as incitem ent “to
com mit, under circumstances indicating an intention to cause death or
serious bod ily injury, a terr oris t activity.” 8 U .S.C .
§ 1182(a)(3)(B)(iv)(I). It is therefore unclear whether or not an act that
would qualify as “engage in terrorist activity” must at the same time be
unlawful in the United States. In other words, the question is whether
MEK ’s cond uct during the hostage crisis, which is clearly in violation of
8 U.S.C. § 1182 (a)(3)(B)(iv)(I), ought to be evaluated in light of the more
speech-friend ly First Amendment standard articulated by the Supreme
Court in Brande nbu rg v. O hio, 395 U.S. 444 (1969).
The statute does also provide that a terrorist organization is
a “group of two or more individuals, whether organized or
not, which engages in the activities described in
subclause (I), (II), or (III) of clause (iv).” 8 U.S.C.
§ 1182(a)(3)(B)(vi)(III).12 Based on the evidence in the
record, we think that BIA was correct in finding that MEK
was a terrorist organization during the 1970s as defined by
§1182(a)(3)(B)(vi)(III).13 Petitioner’s solicitation for
membership in a clause (vi)(III) terrorist organization,
however, only renders him ineligible if he cannot
“demonstrate that he did not know, and should not have

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No. 02-3653 Daneshvar v. Ashcroft 19
14As Petitioner notes in his brief, a number of U.S. Congressmen
opposed the designation of MEK as a terrorist organization. See, e.g.,
U.S. v. Rahmani, 209 F. Sup p.2d 104 5, 10 50-5 1 (C.D. Cal. June 21,
2002). See also National Council of Resistance of Iran v. Department of
State, 251 F.3d 192, 208-09 (D.C. Cir. 2001) (holding that the process by
which MEK was designated as a terrorist organization violated MEK ’s
due process rights by not allowing it to present “such evidence as [it] may
be able to produce to rebut the administrative record or otherw ise nega te
the proposition that [it is a] foreign terrorist organization.”)
15Petitioner lived in Ghom, away from the center of the hostage
crisis. Freedo m of the press did not exist in Iran. It is unlikely that he
was aware of all of the events going on around the country during the
volatile period in question. Petitioner’s brother also testified that MEK
changed its public position so many times during the relevant period that
it was impossible to know what it actually advocated. J.A. at 418.
reasonably have known, that the solicitation would further the
organization’s terrorist activity.” 8 U.S.C.
§ 1182(a)(3)(B)(iv)(V)(cc). We find that the Board
committed a legal error when it failed to consider Petitioner’s
evidence regarding his state of mind.
Petitioner, at the age of 16, supported one of the numerous
organizations that came to life in the aftermath of the Iranian
Revolution. We would be hard-pressed to classify any minor
who sold newspapers for an organization that supported an
armed revolt against a tyrannical monarch as a terrorist. To
impute such political sophistication to a teenager that
apparently even the U.S. Congress failed to achieve,14 in our
minds, would amount to a manifest injustice. Furthermore,
we are persuaded that Petitioner’s voluntary disassociation
from MEK merely a year after he joined it, is evidence that he
did not originally know in what MEK was involved. Finally,
Petitioner testified during the hearing before the IJ that he was
unaware of MEK’s violent activities until the time he left the
group.15 There is no evidence that Petitioner himself engaged
in any violent acts of terrorism. Thus, there is substantial
evidence that Petitioner is not statutorily ineligible for
immigration relief. The burden then shifts to Respondent to
20 Daneshvar v. Ashcroft No. 02-3653
16In its opinion, the Board implies, without explicitly stating, that
Petitioner was invo lved with MEK during the time of the murder of the
U.S. citizens. We want to emphasize that the murder of the U.S. citizens
took place prior to Petitioner’s involvement with the MEK and there is no
evidence produced by Respo ndent to suggest that Petitioner was aware of
those murd ers.
show otherwise. Since Petitioner’s affiliation with MEK was
very brief, Respondent’s burden will be a heavy one. We
note that the Board was under the misapprehension that
Petitioner remained a member of MEK until he was
imprisoned, and was unaware that Petitioner had actually
disassociated himself from MEK upon learning of MEK’s
violent conduct a full year prior to his arrest. Respondent,
and the Board, relied on the 1996 State Department Report
that stated: “[a]lthough the Mojahedin now deny a role in that
crisis, they advocated a tough hostage policy in several issues
of their own official newspaper “Mojahed,” published in
Persian in Tehran in 1980-81.” DEP’T OF STATE, BUREAU OF
DEMOCRACY, HUMAN RIGHTS, AND LABOR, IRAN–PROFILE OF
ASYLUM CLAIMS & COUNTRY CONDITIONS (June 1996), J.A.
at 171. Ordinarily, we defer to the executive branch in
matters affecting immigration. However, in light of the
significant factual and legal mistakes committed by the Board
in this case, as detailed above, we find that no such deference
is warranted and that Respondent failed to establish that
Petitioner knew or reasonably should have known about
MEK’s activities.
Respondent also defends the Board’s decision on the
grounds that the Board did not abuse its discretion when it
found that “the record provide[d] very little apparent positive
factors in this case and leads us to conclude that the request
should be denied in the exercise of discretion.” Daneshvar,
No. A72-174-409, slip op. at 3. We disagree.
We find a number of factors in the record that may cause
the Board to find that Petitioner’s motion to reopen should be
granted.16 First, the Board inexplicably took 5 (five) years to

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No. 02-3653 Daneshvar v. Ashcroft 21
decide his appeal. See generally Casem v. INS, 8 F.3d 700,
702-03 (9th Cir. 1993) (reprimanding BIA for failure to
consider the effect of a five-year delay on the petitioner’s
son); Rodriguez-Barajas v. INS, 992 F.2d 94, 97 (7th Cir.
1993) (noting “unconscionable” seven-year delay between
petitioner’s appeal and BIA’s decision); Saywack v. Attorney
General, No. 91 Civ. 7797, 1993 WL 205121, at *1
(S.D.N.Y. June 9, 1993) (discussing BIA’s series of “lengthy
and unexplained delays.”) Therefore, Petitioner has now been
in this country for almost ten years. One should hesitate
before uprooting him after such a long delay. Second,
Petitioner has a number of his immediate family members in
this country, including his mother, a sister, and two brothers,
all of whom are either U.S. citizens or permanent residents.
See, e.g., Casem, 8 F.3d at 703 (noting the special regard that
Congress has for keeping families intact). Third, the record
indicates that the immediate members of Petitioner’s family
have become productive members of this society and
Petitioner himself is currently employed. Fourth, Petitioner
was an immature teenager when he was associated with
MEK; he lived in a country known for its suppression of all
political activity at the time of high political turmoil; he was
not in Tehran at the time of the Iranian hostage crisis; and he
quit MEK as soon as he found out about its violent activities.
Fifth, and last, although we found that Petitioner has not
established a valid claim for political asylum, we nevertheless
cannot ignore the ramifications of sending a man to what can
only best be described as a lawless country.
CONCLUSION
For the reasons stated above, we find that Petitioner is
ineligible for an asylum and/or withholding of deportation.
However, we stay the enforcement of the Board’s order as it
relates to asylum and/or withholding of deportation because
we find that the Board committed reversible legal error and
abused its discretion in denying Petitioner’s motion to reopen
his application for adjustment of status. Accordingly, we
reverse the Board’s order denying Petitioner’s motion for
22 Daneshvar v. Ashcroft No. 02-3653
adjustment of status and remand for proceedings consistent
with this opinion.

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No. 02-3653 Daneshvar v. Ashcroft 23
_____________________________________________
CONCURRING IN PART, DISSENTING IN PART
_____________________________________________
JULIA SMITH GIBBONS, Circuit Judge, concurring in
part and dissenting in part. I agree with the majority’s
conclusion to affirm the decision of the Board of Immigration
Appeals with respect to denying Daneshvar’s petitions for
asylum and withholding of deportation. Daneshvar has failed
to satisfy the statutory requirements for these forms of relief.
I disagree, however, with the majority’s decision to reverse
and remand the BIA’s order denying Daneshvar’s motion to
reopen for adjustment of status. While the majority is correct
that Daneshvar is not inadmissible to the United States for
soliciting membership in a terrorist organization, as that term
is defined at 8 U.S.C. § 1182(a)(3)(B)(vi)(I), the definition of
terrorist organization relied on by the BIA, Daneshvar is
nonetheless inadmissible for soliciting membership in a
terrorist organization, as defined at 8 U.S.C.
§ 1182(a)(3)(B)(vi)(III). Compare 8 U.S.C.
§ 1182(a)(3)(B)(vi)(I) (defining terrorist organization as an
organization “designated under section 1189 [8 U.S.C.
§ 1189]” by the Secretary of State) with 8 U.S.C.
§ 1182(a)(3)(B)(vi)(III) (defining terrorist organization as “a
group of two or more individuals, whether organized or not,
which engages in the activities described in subclause (I), (II),
or (III) of clause (iv) [such as committing or preparing a
terrorist activity or gathering information on potential targets
for terrorist activity]). Furthermore, even if Daneshvar is not
deemed inadmissible under either definition of terrorist
organization, it was not an abuse of discretion for the Board
to deny Daneshvar’s motion to reopen for the reasons stated
in the Board opinion – Daneshvar’s involvement with the
MEK “at a time when it was particularly strong in its
opposition to the United States” and the existence of few
positive factors in support of granting the motion.
24 Daneshvar v. Ashcroft No. 02-3653
As the majority explained, this court reviews the BIA’s
denial of a motion to reopen for abuse of discretion. Ashki v.
INS, 233 F.3d 913, 917 (6th Cir. 2000). This court has
described review under an abuse of discretion standard in the
following manner:
Abuse of discretion is a phrase which sounds worse than
it really is. All it need mean is that, when judicial action
is taken in a discretionary manner, such action cannot be
set aside by a reviewing court unless it has a definite and
firm conviction that the court below committed a clear
error in judgment in the conclusion it reached upon a
weighing of the relevant factors. There is no exact
measure of what constitutes abuse of discretion. It is
more than the substitution of the judgment of one
tribunal for that of another. Judicial discretion is
governed by the situation and circumstances affecting
each individual case. Even where an appellate court has
power to review the exercise of such discretion, the
inquiry is confined to whether such situation and
circumstances clearly show an abuse of discretion, that
is, arbitrary action not justifiable in view of such
situation and circumstances.
Balani v. INS, 669 F.2d 1157, 1160-61 (6th Cir. 1982)
(internal quotation and citation omitted). In reviewing the
BIA’s decision to deny a motion to reopen, as the majority
notes, “this Court must decide whether the denial of
Petitioner’s motion to reopen deportation proceedings was
made without a rational explanation, inexplicably departed
from established policies, or rested on an impermissible basis
such as invidious discrimination against a particular race or
group.” Id. at 1161.
The Supreme Court has commented that the Attorney
General has “broad discretion” to grant or deny a motion to
reopen. INS v. Doherty, 502 U.S. 314, 323 (1992) (citing INS
v. Rios-Pineda, 471 U.S. 444, 449 (1985)). Furthermore,
“[m]otions for reopening of immigration proceedings are

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No. 02-3653 Daneshvar v. Ashcroft 25
disfavored for the same reasons as are petitions for rehearing
and motions for a new trial on the basis of newly discovered
evidence.” Id. “This is especially true in a deportation
proceeding, where, as a general matter, every delay works to
the advantage of the deportable alien who wishes merely to
remain in the United States.” Id.
The BIA denied Daneshvar’s motion to reopen his
deportation proceedings by finding that he is inadmissible to
enter the United States under 8 U.S.C. § 1182(a)(3)(B)(i)(I)
for having engaged in terrorist activity and because “the
record provides very little apparent positive factors in his
case.” The BIA did not abuse its discretion in making this
determination.
I agree with the majority that the MEK was a terrorist
organization, as defined by § 1182(a)(3)(B)(vi)(III), during
the 1970s. In a decision refusing to set aside the State
Department’s designation of the MEK as a foreign terrorist
organization in the 1990s, the D.C. Circuit described the
MEK’s activities in the years just prior to Daneshvar’s
involvement:
The MEK “collaborated with Ayatollah Khomeini to
overthrow the former Shah of Iran. As part of that
struggle, they assassinated at least six American citizens,
supported the takeover of the U.S. embassy, and opposed
the release of American hostages.” “[In 1972] the MEK
exploded time bombs at more than a dozen sites
throughout Tehran, including the Iran-American Society,
. . . and the offices of Pepsi-Cola and General Motors.
From 1972-75 . . . the Mojahedin continued their
campaign of bombings, damaging such targets as the
offices of Pan-American Airlines, Shell Oil Company,
and British organizations.”
People’s Mojahedin Org. of Iran v. United States Dep’t of
State, 182 F.3d 17, 20 (D.C. Cir. 1999) (quoting a CIA
Intelligence Research Paper dated July 1993) (alterations in
26 Daneshvar v. Ashcroft No. 02-3653
original). The U.S. State Department characterizes the
MEK’s violence in this way:
During the 1970’s [sic], the Mojahedin organization was
at the forefront of opposition to the Shah and in this
period assassinated several Americans in Iran. The
Mojahedin was in full support of the takeover of the US
embassy and the holding of our hostages during the
1979-81 hostage crisis in Iran. Their own published
statements show that their anti-US position at that time
was much more hard-line than that of Iran’s leaders.
Although the Mojahedin now deny a role in that crisis,
they advocated a tough hostage policy in several issues
of their own official newspaper “Mojahed,” published in
Persian in Tehran in 1980-81.
Iran – Profile of Asylum Claims and Country Conditions,
June 1996, Dept. St. Report, at 5. Title 8 U.S.C.
§ 1182(a)(3)(B)(i)(I) provides that an alien who has engaged
in terrorist activity is inadmissible to the United States. To
“engage in terrorist activity” means inter alia “to solicit any
individual for membership in a terrorist organization
d e s c r i b e d i n c l a u s e ( v i ) ( I II ) [ 8 U . S . C .
§ 1182(a)(3)(B)(vi)(III)], unless the solicitor can demonstrate
that he did not know, and should not reasonably have known,
that the solicitation would further the organization’s terrorist
activity.” 8 U.S.C. § 1182(a)(3)(B)(iv)(V)(cc) (emphasis
added).
By Daneshvar’s own admission, his involvement with the
MEK was by no means a passive pursuit. In his testimony
before the immigration court, Daneshvar stated that from
around 1978 or 1979 until 1980 or 1981 he sold the Mojahed,
the MEK newspaper that the State Department has stated
advocated support for the taking of American hostages,
supported the MEK’s ideology, and was “active” in the
MEK’s election efforts. Daneshvar also testified that he was
part of a twenty member committee that produced and

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No. 02-3653 Daneshvar v. Ashcroft 27
1Interestingly Daneshvar first testified tha t he was part of a
committee aimed at electing the MEK ’s presidential candidate. He later
recanted this testimony, stating that he “didn’t participate in the election
of the president, but in the election of the Senate.” Inconsistencies such
as this instance belie the doubt expressed by the majority that the
immigration judge erred in ad versely assessing Daneshvar’s credibility.
Regard less of which candidate Daneshvar supported, however, his active
participation with the M EK ’s political operations bolsters the conclusion
that he solicited membership in the organization.
distributed flyers in support of MEK political candidates.1
Therefore, the entire focus of Daneshvar’s involvement with
the MEK – according to his own testimony – was aimed at
soliciting individuals for membership in this terrorist
organization.
Since Daneshvar’s actions constitute solicitation of
membership in a terrorist organization, he is inadmissible to
the United States unless he demonstrates that he did not
know, and should not reasonably have known, that his acts of
solicitation would further the MEK’s terrorist activities.
Daneshvar has wholly failed to meet this burden. While the
majority, citing factors such as Daneshvar’s age at the time of
participation and his solicitation over a one year period of
time, concludes that “there is substantial evidence that
Petitioner is not statutorily ineligible for immigration relief,”
these factors do not demonstrate Daneshvar’s knowledge, or
lack thereof, concerning the contribution that his activities
made to the organization’s terrorism efforts. The statute does
not craft an exception for persons that solicit membership in
terrorist organizations based on the solicitator’s age or
duration of action. Rather, the statute only exempts persons
under 8 U.S.C. § 1182(a)(3)(B)(iv)(V)(cc) for reasonably
lacking the knowledge that their efforts contributed to the
organization’s terrorist activities.
The majority also claims that Daneshvar learned of the
MEK’s violent aims around the time that he left the
organization. On this point, Daneshvar testified, “at the time
28 Daneshvar v. Ashcroft No. 02-3653
Mojahedin and my friend were talking to go against the
government with our force. And at the time, I find out if we
go that it will like [sic] bloody war in the country. Right
before when they take the guns out, I separated from them.”
Again, this evidence does not demonstrate that Daneshvar
was unaware that his actions furthered the MEK’s terrorist
activities. This testimony, if believed, only leads to the
conclusion that Daneshvar left the MEK when he felt the
organization was about to confront the Iranian government.
Daneshvar’s testimony does not indicate that he lacked
knowledge of the MEK’s terrorist activities prior to his
departure from the group.
Furthermore, even if this court were to believe that
Daneshvar did not know the effects of his solicitation for the
MEK, declaring Daneshvar inadmissible to the United States
would nonetheless be appropriate. The statute requires the
solicitor to demonstrate both that he lacked actual knowledge
that his solicitation would further the organization’s terrorist
activities and that he should not reasonably have known of the
effects of his solicitation. As previously discussed, during the
very period that Daneshvar solicited members on behalf of the
MEK in the late 1970s and early 1980s, the organization’s
own newspapers proclaimed the MEK’s support for the
holding of American hostages. Therefore, it is extremely
difficult to accept that Daneshvar should not have known he
was soliciting members for a terrorist organization, when he
willingly distributed literature proclaiming the organization’s
violent policies.
Although the majority initially states correctly that the
burden for demonstrating Daneshvar’s lack of knowledge
concerning the effect of his solicitation rests on him, the
majority ultimately places this burden on the INS by
remarking that “Respondent failed to establish that Petitioner
knew or reasonably should have known about MEK’s
activities.” The statute clearly places the burden on the
solicitor – Daneshvar, in this case – to demonstrate that he
“did not know, and should not reasonably have known, that

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No. 02-3653 Daneshvar v. Ashcroft 29
the solicitation would further the organization’s terrorist
activity.” 8 U.S.C. § 1182(a)(3)(B)(iv)(V)(cc). Examining
evidence offered by the INS is irrelevant to this court’s
consideration of whether Daneshvar solicited individuals for
membership in the MEK.
Finally, the majority opinion lists several factors, such as
Daneshvar’s length of stay in the United States, in an attempt
to provide positive factors the Board could have used as
justification for granting Daneshvar’s motion to reopen.
While this court could consider these factors if applying de
novo review to this issue, under an abuse of discretion
standard of review, this court cannot substitute its judgment
for that of the Board. Balani, 669 F.2d at 1162 (“Congress
has entrusted to the Attorney General of the United States the
responsibility of exercising discretion in immigration matters.
The Courts will not substitute their discretion for that of the
Attorney General.”).
Therefore, I disagree with the majority’s apparent
conclusion that Daneshvar is not inadmissible to the United
States. Nevertheless, even if one were to decide that
Daneshvar was not inadmissible through his involvement
with the MEK, it is important to note that the Board also
based its decision to deny Daneshvar’s motion on his
participation in the MEK during the precise time that the
organization not only opposed American interests but also
“argu[ed] for a prolongation of the detention of the hostages.”
In addition, the Board concluded that there were “very little
apparent positive factors” that favored granting Daneshvar’s
motion in the exercise of the Board’s discretion. In its
decision, which upheld the denial of Daneshvar’s petitions for
asylum and withholding of deportation as well as denied
Daneshvar’s motion to reopen, the BIA also cited the
immigration judge’s finding that Daneshvar lacked credibility
because of his demeanor during testimony and inconsistencies
30 Daneshvar v. Ashcroft No. 02-3653
2W hile concluding that review of Daneshvar’s claim that the
immigration court erred in making an adverse credibility determination
about him is unnecessary, the majority nevertheless says that Daneshvar
“may have a valid claim that IJ’s adverse credibility determination was
erroneous.” The majority also creates a possible explanation, not
supported by the record, for one of Dane shvar’s inconsistent statements.
Although we do not resolve this issue, my reading of the record provides
no basis to question the credibility finding of the immigration judge . The
immigration judge, who – unlike the present panel – had the opp ortunity
to witness first-hand the testimony of all the witnesses as well as the
demeanor exhibited by Daneshvar, pointed to six separate instances of
inconsistent testimony and also based the adverse credibility finding on
Daneshvar’s demeanor and nonresponsiveness. Since the majority does
not undertake review of the immigration jud ge’s credibility determination,
its construction of hypothetical explanations for Daneshvar’s apparent
inconsistencies is superfluous. In addition, the development of such
explanations is inconsistent with our deferential appe llate role in this
context.
within his testimony.2 Consequently, the Board did not abuse
its discretion – even if Daneshvar was not statutorily
inadmissible to the United States – in deciding to deny his
motion to reopen. I dissent from the majority’s decision to
reverse the BIA’s order denying Daneshvar’s motion to
reopen and to remand for proceedings consistent with the
majority opinion.

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