Abadi v. Immigration & Nat ( 2000 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
AUG 16 2000
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
MEHRDAD NOORI HOSSAIN
ABADI,
Petitioner-Appellant,
v. No. 99-1522
(D.C. No. 94-Z-1867)
IMMIGRATION AND (D. Colo.)
NATURALIZATION SERVICE;
JOSEPH R. GREENE, and John Doe,
Respondents-Appellees.
ORDER AND JUDGMENT *
Before BRORBY, PORFILIO, and MURPHY , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Mehrdad Noori Hossain Abadi [“Mr. Noori”] appeals from a final order
denying a writ of habeas corpus. Through the writ, Mr. Noori sought reversal of
the Board of Immigration Appeal’s (BIA) order denying his request for asylum or,
alternatively, for withholding of deportation. Our jurisdiction arises under
28 U.S.C. § 2253(a), and we affirm.
The district court’s and the BIA’s final orders fully set out the history of
this case and we need not repeat it here 1
. It is undisputed that Mr. Noori is an
excludable alien from Iran. Under Section 208(a) of the Immigration and
Nationality Act, 8 U.S.C. § 1158(a), the Attorney General may grant asylum to
an alien who is unable or unwilling to return to his home country “because of
persecution or a well-founded fear of persecution on account of . . . political
opinion,” 8 U.S.C. § 1101(a)(42)(A). Mr. Noori applied for asylum under these
provisions. After a full hearing, the BIA refused to grant asylum. Mr. Noori
raises four issues on appeal: (1) whether substantial evidence supports the BIA’s
finding that Mr. Noori’s testimony was not credible; (2) whether the BIA erred in
finding that Mr. Noori had not met his burden of proof to establish that he is
a refugee who has suffered past persecution or has a well-founded fear of future
1
Because Mr. Noori’s application for asylum and petition for writ of habeas
corpus were filed in 1994, the provisions of the Illegal Immigration Reform and
Immigrant Responsibility Act do not apply and we decide the case under the law
effective at that time. See, e.g. , Jurado-Gutierrez v. Greene , 190 F.3d 1135 ,
1142-43 (10th Cir. 1999), cert. denied , 120 S. Ct. 1539 (2000).
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persecution; (3) whether the BIA erred by disregarding unauthenticated
documentary evidence; and (4) whether the BIA and/or the district court denied
Mr. Noori due process by allegedly failing to “fully weigh all the relevant
evidence.” Appellant’s Br. at 19.
In reviewing the BIA’s order denying asylum, we may not reweigh the
evidence or determine the credibility of witnesses. See Refahiyat v. INS , 29 F.3d
553, 556 (10th Cir. 1994). The BIA’s determination that Mr. Noori was not
eligible for asylum must be upheld if supported by substantial evidence on the
whole record, and may be reversed only if the evidence presented was such that
a reasonable factfinder would be compelled to conclude that the requisite fear of
persecution existed. See INS v. Elias-Zacarias , 502 U.S. 478, 481 (1992).
We have carefully reviewed the whole record and we conclude that
substantial evidence supports the BIA’s finding that Mr. Noori was not credible
and its concurrent legal conclusion that Mr. Noori did not meet his burden of
proof. We also conclude that the BIA was not unreasonable in refusing to give
controlling weight to the documents that Mr. Noori presented at the hearing,
especially in light of the fact that they were prepared after he had applied for
asylum and he was given an opportunity to present the original documents and did
not do so. Further, the documents did not present conclusive evidence of political
persecution even if they had been authenticated. The letter from an
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opthalmologist, for example, states only that the doctor had treated Mr. Noori for
keratitis, which is an inflammation of the cornea that may have several different
causes. See Respondent’s App. Vol. II at 158.
Finally, we note that the BIA fully considered the documentary evidence
and Mr. Noori’s testimony, and, given the inconsistencies in the record, was not
obliged to believe Mr. Noori’s story. We conclude that the BIA reasonably
discounted Mr. Noori’s statement that the reason the Islamic Revolutionary
Committee connected him and his friend Mehdi with the anti-government flyers
they had surreptitiously posted was that Mehdi had written his own name on the
flyers. It is very unlikely that one who secretly posts flyers at midnight because
of fear of execution would openly identify himself on the face of the flyer. Thus,
it is reasonable for the BIA to have also discounted Mr. Noori’s story that he was
arrested and beaten for posting those flyers. See Refahiyat , 29 F.3d at 556
(stating that alien seeking political asylum must objectively demonstrate
persecution or fear of persecution with credible evidence).
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The judgment of the United States District Court for the District of
Colorado is AFFIRMED.
Entered for the Court
Wade Brorby
Circuit Judge
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