Matter of Mahmoudi (Board decision, June 11, 1981)

Plain-English summary

The Board reviewed an Iranian citizen's request to reopen deportation proceedings so he could apply for political asylum. An Immigration Judge had found him deportable for overstaying and granted voluntary departure, and the Board had dismissed his appeal. The Immigration and Naturalization Service did not oppose reopening because the motion made a prima facie showing of eligibility and complied with the regulatory requirements for an asylum motion. The Board explained that a prior Service policy of treating such motions by Iranian nationals as unopposed had changed, but granted this motion because the Service did not oppose it in this case. The proceedings were reopened and the record was remanded to the Immigration Judge for consideration of the asylum application.

Decision snapshot

• Cited authorities: 8 U.S.C. § 1251(a)(2); 8 C.F.R. §§ 3.2, 3.8, and 208.11
• Outcome: The motion to reopen was granted, the proceedings were reopened, and the record was remanded to the Immigration Judge.
• Key point: A change in Service policy meant that asylum reopening motions by Iranian nationals were no longer treated as unopposed, but reopening was granted where the Service did not oppose the particular motion.

Full text (BIA official public release)

Interim Decision #2868

MATTER OF MAHMOUDI

In Deportation Proceedings
A-22891304
Decided by Board June 11, 1981

In recognition of a change in Service policy, the Board will no longer consider motions to reopen to apply for political asylum filed by Iranian nationals to be unopposed by the Service. Matter of Farjam, Interim Decision 2843 (BIA 1980), superseded.

CHARGE:
Order: Act of 1952—Sec. 241(a)(2) [8 U.S.C. 1251(a)(2)]—Nonimmigrant—remained longer than permitted

ON BEHALF OF RESPONDENT:
Amiram Klein, Esquire
8920 Wilshire Boulevard
Suite 520
Beverly Hills, California 90211

ON BEHALF OF SERVICE:
William Martin
Trial Attorney

Gerald S. Hurwitz
Appellate Trial Attorney

BY: Milhollan, Chairman; Maniatis, Maguire, and Morris, Board Members

In a decision dated June 3, 1980, the immigration judge found the respondent, a native and citizen of Iran, deportable as an overstay and granted him voluntary departure. The respondent's appeal from that decision was dismissed by the Board on November 6, 1980. The respondent now seeks to reopen deportation proceedings in order to apply for political asylum. The motion will be granted, proceedings will be reopened, and the record will be remanded to the immigration judge.

In responding to the motion, the Appellate Trial Attorney for the Immigration and Naturalization Service states that reopening is not opposed in this case because the motion presents a prima facie showing of eligibility for relief and is in compliance with the regulatory requirements for a motion to reopen to the Board to apply for asylum. See 8 C.F.R. 3.2; 8 C.F.R. 3.8; 8 C.F.R. 208.11 (effective June 1, 1980). He further indicates, however, that the Service policy not to oppose motions to reopen to apply for asylum filed by Iranian nationals, which was acknowledged by the Board in Matter of Farjam, 17 I&N Dec. 603 (BIA 1980), is no longer in effect. As evidence of this modification of policy, the Appellate Trial Attorney has submitted a memorandum dated

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Interim Decision #2868

April 24, 1981, from the Acting Commissioner of the Immigration and Naturalization Service notifying the Regional Commissioners of this change.

As we recognized the Service policy in regard to motions to reopen to apply for asylum by Iranian nationals in Matter of Farjam, supra, we now acknowledge the modification of that policy and will no longer consider such motions as unopposed by the Service. Accordingly, Matter of Farjam is hereby superseded. However, as the Service does not oppose reopening in this case for the reasons stated above, the motion will be granted.

ORDER: The motion to reopen is granted. The proceedings are reopened and the record is remanded to the immigration judge for con- sideration of the respondent's application for political asylum.

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