## Facts

- Pejman Toufighi, a native and citizen of Iran, entered the United States in 1996 as a visitor, overstayed, and was placed in removal proceedings.
- He applied for asylum and withholding of removal, claiming he had converted from Islam to Christianity in the United States and feared persecution in Iran for apostasy.
- At the merits hearing, he offered letters from a pastor and other documents; the immigration judge (IJ) declined to consider certain documents because they were unauthenticated.
- The IJ denied relief, finding Toufighi failed to show past persecution or a well-founded fear of future persecution; the IJ found the claimed conversion not genuine and concluded he would not be treated as an apostate.
- The Board of Immigration Appeals (BIA) dismissed Toufighi’s appeal after he failed to timely file a brief and granted voluntary departure, which he did not take.
- About a year later, Toufighi moved to reopen, seeking (1) adjustment of status based on marriage to a U.S. citizen and (2) reopening based on changed conditions in Iran affecting Christians/converts.
- The BIA denied reopening: the marriage-based request was untimely and barred by failure to comply with voluntary departure; the changed-conditions evidence was deemed immaterial given the IJ’s prior finding that Toufighi was not a genuine convert.

## Issues

1. Whether the BIA abused its discretion in denying reopening based on alleged changed conditions in Iran regarding persecution of Christians or apostates.
2. Whether changed-conditions evidence can establish prima facie eligibility for asylum or withholding when prior proceedings found the applicant is not a genuine member of the targeted group and would not be perceived as such.
3. Whether, on review of a denial of a motion to reopen, the court could revisit the IJ’s underlying factual findings concerning the sincerity of the asserted conversion.

## Decision

- The Ninth Circuit denied the petition for review and affirmed the BIA’s denial of the motion to reopen.
- The court held the BIA reasonably concluded the new country-conditions evidence was not material because the IJ had already found Toufighi was not a genuine convert, not an apostate, and would not be viewed as an apostate by Iranian authorities.
- The court held Toufighi therefore failed to show prima facie eligibility for asylum or withholding in the reopening posture.
- The court also upheld denial of reopening for adjustment of status because the motion was untimely and independently barred by Toufighi’s failure to depart under voluntary departure.
- The court did not reach the broader question whether an applicant could prevail on a fear-of-persecution theory based on perceived apostasy in a case where the applicant failed to prove genuine conversion.

## Legal Principles

- A motion to reopen based on changed country conditions must present previously unavailable evidence of changed conditions that is material and supports prima facie eligibility for the requested relief.  
- Materiality is assessed in light of existing, binding factual findings from the prior proceedings; evidence is not material if it does not affect the outcome given those findings.
- Where prior proceedings have determined the applicant lacks the asserted protected characteristic (and would not be perceived to have it), evidence describing increased persecution of persons with that characteristic does not, by itself, establish prima facie eligibility.
- In the posture of reviewing denial of a motion to reopen, the court’s review does not extend to reconsidering underlying, final factual determinations that control the materiality and prima facie-eligibility analysis.
- Reopening to pursue adjustment of status may be denied when the motion is untimely and when statutory or regulatory consequences attach to failure to comply with voluntary departure.

## Conclusion

The Ninth Circuit held that reopening was properly denied because evidence of increased persecution of Christians in Iran was immaterial to Toufighi’s case once the prior finding that he was not a genuine convert (and would not be treated as an apostate) was accepted, and because his marriage-based reopening request was time-barred and foreclosed by his failure to depart voluntarily.


Toufighi v. Mukasey, 538 F.3d 988 (9th Cir. 2008)