FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MASOUD HOSSEINI, 

Petitioner, No. 03-73734

v. Agency No.  A73-985-544 ALBERTO R. GONZALES, Attorney

General, OPINION

Respondent. 

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

April 6, 2006—Seattle, Washington

Filed September 28, 2006

Before: William C. Canby, Jr., Ronald M. Gould, and

Carlos T. Bea, Circuit Judges.

Opinion by Judge Canby

17087
COUNSEL

Matthew H. Adams, Northwest Immigrant Rights Project,

Seattle, Washington, for the petitioner. 

William C. Peachey, United States Department of Justice,

Office of Immigration Litigation, Washington, D.C., for the

respondent. 

17090 HOSSEINI v. GONZALES
OPINION

CANBY, Circuit Judge: 

Masoud Hosseini is an Iranian citizen who came to the

United States on a student visa. He did not attend school and

he overstayed his visa. He was ordered deported as an overstay, but he subsequently succeeded in having his deportation

proceeding reopened. He sought asylum, withholding of

deportation, and adjustment of status under the Immigration

and Nationality Act (“INA”). He also sought withholding and

deferral of deportation under the Convention Against Torture.

An immigration judge denied Hosseini all relief under the

INA primarily because of his connection and activities with

the Iranian dissident group Mujahedin-e Khalq (“MEK”),1

designated by the Secretary of State as a terrorist organization. The immigration judge also denied relief under the Convention Against Torture on the ground that Hosseini had

failed to show that it was more likely than not that he would

be tortured if deported to Iran. 

The Board of Immigration Appeals (“BIA”) dismissed

Hosseini’s appeal, upholding the immigration judge’s rulings.2

The BIA stated alternatively that it denied asylum as a matter

of discretion because of Hosseini’s immigration fraud. It also

affirmed the denial of adjustment of status on the ground of

inadmissibility, but in addition denied adjustment as an exercise of discretion, because of Hosseini’s terrorist-connected

activities and his fraud. The BIA also stated that Hosseini’s

terrorist-related activities precluded withholding of deportation not only under the INA, but also under the Convention

Against Torture. Hosseini now petitions for review. 

1The spelling of this organization varies somewhat among writers. We

adopt the spelling most frequently used by the parties. 

2One member of the BIA dissented from the denial of deferral of deportation under the Convention Against Torture. 

HOSSEINI v. GONZALES 17091
We deny the petition with regard to the BIA’s denial of

asylum and dismiss the petition with regard to the denial of

adjustment of status. We grant the petition with regard to

withholding of deportation under the INA, vacate that portion

of the BIA’s decision, and remand for further proceedings.

We deny the petition for review with regard to withholding of

deportation under the Convention Against Torture. We grant

the petition for review with regard to deferral of deportation

under the Convention Against Torture, and we reverse that

portion of the BIA’s decision and remand for an award of

deferral.

Background

Hosseini’s activities after coming to the United States present a complicated scenario. Hosseini entered this country on

a student visa that allowed him to remain here for approximately two weeks. He obtained the visa with the help of a Los

Angeles-based immigration consultant named Bahram

Tabatabai. Hosseini never attended school and did not leave

when his visa expired. Instead, he filed applications for political asylum with Tabatabai’s help. Hosseini filed his first asylum application under a false name and alien registration

number. He made numerous other false statements in this

application. The Immigration and Naturalization Service

(“INS”) charged him with remaining in the U.S. longer than

permitted and he was ordered deported in absentia when he

did not appear for his hearing. 

Hosseini filed a second asylum application using a different

name and registration number. He made several other false

declarations in this application. The INS charged Hosseini

with deportability as an alien who was not admitted or paroled

and again he was ordered deported in absentia. 

In the meantime, the government’s Joint Terrorism Task

Force began investigating Tabatabai on suspicion that he was

helping members of MEK commit immigration fraud. The

17092 HOSSEINI v. GONZALES
State Department has designated MEK and an organization

affiliated with MEK, the National Council of Resistance,

“Foreign Terrorist Organization[s].” See Designation of Terrorist and Terrorist Organizations Pursuant to Executive

Order 13224 of September 23, 2001, 67 Fed. Reg. 12,633

(Mar. 19, 2002); Determination Pursuant to Section 1(b) of

Executive Order 13224 Relating to the Mujahedin-e Khalq

(MEK), 68 Fed. Reg. 48,984 (Aug. 15, 2003). A confidential

informant working with the Task Force identified Hosseini as

a client of Tabatabai’s and an MEK supporter. The Task

Force also learned of Hosseini’s fraudulent asylum applications. In March 1999, the INS took Hosseini into custody at

the Los Angeles airport. The INS later amended its charges to

include obtaining entry into the U.S. through fraud and failing

to comply with the conditions under which he was admitted.

The immigration judge allowed Hosseini’s case to be

reopened, and Hosseini sought asylum, withholding of deportation, and adjustment of status under the INA, and withholding and deferral of deportation under the Convention Against

Torture. He denied being a member of MEK and claimed that

his life would be threatened and he would be tortured in Iran

because he had been labeled a Mujahedeen terrorist. The

immigration judge denied his requests for relief, and the BIA

affirmed. This petition for review followed. 

Jurisdiction

We have jurisdiction pursuant to INA § 242, 8 U.S.C.

§ 1252(a)(1), to review the BIA’s denial of Hosseini’s request

for withholding and deferral of deportation. We also have

jurisdiction to review the BIA’s discretionary denial of

Hosseini’s application for asylum. See 8 U.S.C.

§ 1252(a)(2)(B)(ii) (stating that no court shall have jurisdiction to review discretionary denials “other than the granting

of relief under section 1158(a),” which governs asylum applications). 

HOSSEINI v. GONZALES 17093
We lack jurisdiction to review the BIA’s denial of

Hosseini’s adjustment of status claim because the BIA alternatively denied relief as a matter of discretion. 8 U.S.C.

§ 1252(a)(2)(B)(i). The REAL ID Act does not restore our

jurisdiction because Hosseini does not argue that the BIA’s

discretionary denial was unconstitutional or unlawful. See 8

U.S.C. § 1252(a)(2)(D) (allowing judicial review of “constitutional claims or questions of law”). We therefore dismiss

the petition for review to the extent that it challenges the

BIA’s denial of adjustment of status. 

Discussion

The BIA conducted its own review of the evidence and law

rather than simply adopting the immigration judge’s decision.

Accordingly, our review “is limited to the BIA’s decision,

except to the extent the IJ’s opinion is expressly adopted.”

Cordon-Garcia v. INS, 204 F.3d 985, 990 (9th Cir. 2000). 

1. Political Asylum

The BIA found Hosseini ineligible for asylum but it also

held that, even if Hosseini were eligible, it would deny his

application as a matter of discretion because he perpetrated

fraud throughout his immigration proceedings. See 8 C.F.R.

§ 1208.14(a) (giving the IJ authority to “grant or deny asylum

in the exercise of discretion to an applicant who qualifies as

a refugee”). We affirm the BIA’s discretionary denial of

Hosseini’s asylum application.3

There is substantial, uncontested evidence that Hosseini

committed immigration fraud. Hosseini admitted that his first

two asylum applications were fraudulent. He used false names

and alien registration numbers in each application. He falsely

claimed that Iranian authorities harassed his family in Iran in

3We review the BIA’s decision for abuse of discretion. 8 U.S.C.

§ 1252(b)(4)(D). 

17094 HOSSEINI v. GONZALES
retaliation for an argument he had with Iranian officials. He

stated that he had been arrested in Iran for being politically

active, which was untrue. In his second application, he falsely

claimed that he was married, that he had entered the U.S.

without inspection, and that he was a member of an Iranian

political organization opposed to the current regime. He also

admitted obtaining a fraudulent birth certificate. 

[1] In light of the uncontested evidence that Hosseini perpetrated fraud throughout his immigration proceedings, the

BIA’s discretionary denial is neither “manifestly contrary to

the law [nor] an abuse of discretion.” 8 U.S.C.

§ 1252(b)(4)(D). We accordingly deny the petition for review

with regard to the BIA’s asylum ruling. 

2. Withholding of Deportation under the INA 

The BIA denied Hosseini’s request for withholding of

deportation under the INA because “he is a danger to the

security of the United States.” Although we normally review

such a finding for substantial evidence, we cannot do so here

because the BIA failed to articulate sufficiently the bases for

its finding. See Mattis v. INS, 774 F.2d 965, 967 (9th Cir.

1985) (explaining that we can affirm the BIA only on a basis

articulated in its decision). We therefore vacate the denial of

withholding and remand to the BIA for further proceedings.

[2] Under the former INA § 243, 8 U.S.C. § 1253 (repealed

1997),4 the government can deport Hosseini to Iran even

4The IJ incorrectly stated that Hosseini was seeking withholding of

removal under INA § 241. Hosseini was being deported, not removed.

Accordingly, INA § 243(h) is the appropriate statute for withholding of

deportation. As the BIA noted, however, the erroneous citation was harmless because the two sections are identical. Section 243(h) has been

replaced by § 241(b)(3) but the former section governs Hosseini’s claim

because he was placed into deportation proceedings before April 1, 1997.

Pub. L. No. 104-208, 110 Stat. 3009-612 (codified at 8 U.S.C. § 1253

(2006)). 

HOSSEINI v. GONZALES 17095
though his life and freedom may be threatened upon return as

long as “there are reasonable grounds for regarding [him] as

a danger to the security of the United States.” 8 U.S.C.

§ 1253(h)(1), (2)(D) (1996). Section 1253(h)(2)(D) of the

INA also provided that if Hosseini is engaged in “terrorist

activities,” as defined in § 241(a)(4)(B), he “shall be considered to be an alien for whom there are reasonable grounds for

regarding as a danger to the security of the United States.” 

[3] The requirements for finding an alien to be a danger to

the security of the United States for purposes of the INA were

tightened, however, by our decision in Cheema v. Ashcroft,

383 F.3d 848 (9th Cir. 2004), which was issued after the

BIA’s decision in Hosseini’s case. Cheema holds that it is

impermissible to find that an alien is a danger to the security

of the United States solely because he engaged in terrorist

activity. See id. at 857. Terrorist activity that is directed at

another country does not invariably or necessarily involve a

danger to the security of the United States. See id. at 858-59.

To render an alien ineligible for withholding of deportation

(or asylum) on the latter ground, there must be a finding supported by substantial evidence that links the terrorist activity

“with one of the criteria relating to our national security.” Id.

at 857. Here the BIA, not having the benefit of our Cheema

decision, made no such finding and cited to no such evidence.

It also made no finding, and cited no evidence, of any reason

other than terrorist activity why Hosseini is a danger to the

security of the United States. The government concedes that,

under these circumstances, a remand is required so that the

BIA can determine the effect of Cheema on Hossieni’s claim

for withholding under the INA, which determination is for the

BIA in the first instance. See INS v. Ventura, 537 U.S. 12, 14

(2002). We therefore vacate the BIA’s denial of withholding

under the INA and remand for further proceedings in which

the BIA can apply the standard of Cheema. See 383 F.3d at

859. On remand the BIA must determine on the basis of substantial evidence, under the standard set forth in Cheema and

any other applicable law, whether Hosseini is a danger to the

17096 HOSSEINI v. GONZALES
security of the United States, so as to render him ineligible for

withholding of deportation under the INA. 

3. Withholding of Deportation under the Convention

Against Torture 

Cheema did not apply to withholding under the Convention

Against Torture its requirement under the INA that terrorist

activities be linked, by a finding supported by substantial evidence, to a danger to the security of the United States, see id.

at 859, even though the same statute governs mandatory

denial of withholding under the Convention Against Torture

and the INA. See 8 C.F.R. § 1208.16(d)(2). We are bound by

that holding of Cheema, so if the BIA’s finding that Hosseini

has engaged in terrorist activities is supported by substantial

evidence, we must deny the petition with respect to withholding of deportation under the Convention Against Torture. See

Cheema, 383 F.3d at 859. 

We conclude that substantial evidence supports the BIA’s

finding that there are reasonable grounds to believe that

Hosseini is engaged or is likely to engage in terrorist activity.

See 8 U.S.C. § 1182(a)(3)(B)(i)(II).5 The BIA did not specify

which statutory definitions of terrorist activity it was relying

on, but it recited evidence that Hosseini “was involved in

fund-raising as well as recruiting,” which fall within the definition of “engag[ing] in terrorist activity” when the fundraising or recruiting is for a designated terrorist organization.

See 8 U.S.C. § 1182(a)(3)(B)(iv)(IV)(bb) and (V)(bb). 

5The immigration judge followed the statutory language in holding that

there were “reasonable grounds to believe that [Hosseini] is engaged or is

likely to engage in terrorist activities.” In upholding this ruling, the BIA

described it as a “conclusion that there is a reasonable likelihood that

[Hosseini] has or will participate in terrorist-related activities.” We are satisfied that this mis-description of the immigration judge’s ruling on the

statutory standard had no effect on the BIA’s decision. 

HOSSEINI v. GONZALES 17097
The evidence of fund-raising is minimal: Hosseini sold

MEK newspapers to raise funds at a rally sponsored by the

National Council of Resistance. He stopped selling when he

saw that he was being photographed. Other evidence that

Hosseini admitted to being a “strong supporter” of MEK (and

that strong supporters were contributors), is not borne out by

the transcripts of the taped conversations on which that evidence was supposedly based. Hosseini did indicate in one

taped conversation, however, that he was a “supporter” of

MEK and “not previously, but now I may have offered some

help, too.” He added that his brother had “given a lot of financial help.” 

As for recruiting, Hosseini offered to make telephone calls

to MEK members to facilitate recruiting a confidential informant to whom he was speaking. The informant was taping the

conversation and had expressed an interest in joining MEK.

Hosseini also stated that it would be particularly good if the

informant brought along a couple of other people to be

recruited. Additional testimony, however, that Hosseini had

admitted recruiting in Thailand for MEK is not supported by

the transcript of the taped conversation on which it was based.

In that conversation, Hosseini stated that he had been

recruited in Thailand (but he always maintained that he never

became a member). 

[4] Although this evidence of fund-raising and recruiting by

Hosseini is far from overwhelming, we cannot say that it is so

insignificant that it “compels a contrary result” to that reached

by the BIA. See Monjaraz-Munoz v. INS, 327 F.3d 892, 895

(9th Cir. 2003) (stating substantial evidence standard). We

therefore uphold the BIA’s determination that “there is reasonable ground to believe [that Hosseini] is engaged in or is

likely to engage after entry in any terrorist activity” as defined

in the statute. See 8 U.S.C. § 1182(a)(3)(B)(i)(II). Consequently, we deny the petition for review of the BIA’s denial

of withholding of deportation under the Convention Against

Torture. 

17098 HOSSEINI v. GONZALES
4. Deferral under the Convention Against Torture

The BIA also denied Hosseini’s request for deferral of

removal under the Convention Against Torture. See 8 C.F.R.

§ 1208.17(a); see also Bellout v. Ashcroft, 363 F.3d 975, 979

(9th Cir. 2004). The BIA found Hosseini had not met his burden of proving that he is “more likely than not” to be tortured

upon deportation to Iran. 8 C.F.R. § 1208.16(c)(3); see id.

§ 1208.17(a). We grant the petition as to this ruling and we

reverse. 

[5] Hosseini presented sufficient evidence to prove that Iranian officials will be able to identify him as a person involved

with MEK. Upon deportation, Hosseini will have to submit to

Iranian authorities “all court documents including all the

charges and court orders.” Embassy of Pakistan Interests Section of the Islamic Republic of Iran, Travel Document

Requirements for Citizens of the Islamic Republic of Iran. His

involvement with MEK is discussed at length in the immigration judge’s deportation order and the BIA’s affirmation of

that order. Both the immigration judge and the BIA concluded

that Hosseini was a strong supporter of the MEK and engaged

in certain terrorist activities on its behalf. These conclusions,

which were reached by U.S. immigration officials, almost certainly will catch the attention of Iranian authorities. 

Two reports from the State Department establish that once

Iranian authorities identify Hosseini as an MEK supporter he

is likely to be tortured.6See Kamalthas v. INS, 251 F.3d 1279,

1280 (9th Cir. 2001) (noting that “country conditions alone

can play a decisive role in granting relief under the Conven6We do not base our decision on Hosseini’s testimony because the BIA

made an adverse credibility finding. The BIA’s finding is supported by

substantial evidence. See Gui v. INS, 280 F.3d 1217, 1225 (9th Cir. 2002)

(requiring substantial evidence to support an adverse credibility ruling).

Hosseini admitted to falsifying documents and making fraudulent statements to immigration officials at nearly every stage of his proceedings. 

HOSSEINI v. GONZALES 17099
tion”). Although the reports are a few years old, the government offered no evidence suggesting they were outdated. One

report states without qualification that “[k]nown or suspected

members of [the MEK] face either execution or long prison

terms if caught in Iran.” U.S. Dep’t of State, Iran — Profile

of Asylum Claims and Country Conditions 7 (1997). It also

states that “the Islamic regime’s human rights record continues to be abysmal, with continued reports of extrajudicial killings and summary executions; widespread use of torture and

other degrading treatment.” Id. at 4. The other report goes further and provides that “Citizens continued to be tried and sentenced to death in the absence of sufficient procedural

safeguards. . . . Supporters of outlawed political organizations, such as Mujahedin-e Khalq organization, are believed

to make up a large number of those executed each year.” U.S.

Dep’t of State, Iran; Country Reports on Human Rights

Practices-2000 at 2. Moreover, “[t]he Constitution forbids the

use of torture; however, there are numerous, credible reports

that security forces and prison personnel continue to torture

detainees and prisoners. Some prison facilities, including Tehran’s Evin prison, are notorious for the cruel and prolonged

acts of torture inflicted upon political opponents of the Government.” Id. at 3. These reports of activities against MEK do

not distinguish between leaders and mere supporters. 

[6] Although the Convention Against Torture, as ratified by

the United States, does not “include pain or suffering arising

only from, inherent in or incidental to lawful sanctions,” 8

C.F.R. § 208.18(a)(3), these Country Reports make clear that

Iran’s treatment of political opponents, including MEK, goes

far beyond what could reasonably be regarded as “lawful

sanctions.” Along with the charges and evidence of

Hosseini’s activities in connection with MEK, they provide a

sufficient basis for concluding that Hosseini is more likely

than not to be tortured if he is deported to Iran. See Khup v.

Ashcroft, 376 F.3d 898, 906-07 (9th Cir. 2004) (finding petitioner entitled to CAT relief where there were reports that the

country regularly tortures detainees and evidence of past per17100 HOSSEINI v. GONZALES
secution). He accordingly qualifies for deferral of deportation

under the Convention Against Torture. See 8 C.F.R.

§ 208.17(a). 

Conclusion

We decline to review for lack of jurisdiction the BIA’s discretionary denial of adjustment of status. We deny the petition

for review with regard to the BIA’s denial of asylum. We

grant the petition for review with regard to the BIA’s denial

of withholding of deportation under the INA, and remand for

further proceedings in light of Cheema. We deny the petition

for review with regard to withholding of deportation under the

Convention Against Torture. Finally, we grant the petition for

review with regard to deferral under the Convention Against

Torture and we reverse the BIA’s decision and remand for an

award of deferral. 

PETITION FOR REVIEW DENIED IN PART AND

GRANTED IN PART; REMANDED WITH INSTRUCTIONS.

HOSSEINI v. GONZALES 17101