*Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion

should not be published and is not precedent except under the limited circumstances

set forth in 5TH CIR. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 02-60445

Summary Calendar

 

ATA GHOLAMI, also known as Gholami Ata,

also known as Angelo Minelli,

Petitioner,

versus

JOHN ASHCROFT, Attorney General,

Respondent.

 

On Petition for Review of an Order of

the Board of Immigration Appeals

(BIA No. A73 750 436)

_______________________________________________________

February 5, 2003

Before REAVLEY, BARKSDALE and CLEMENT, Circuit Judges.

PER CURIAM:*

Iranian citizen Ata Gholami petitions for review of the Board of Immigration

Appeals’s (BIA) summary denial of his appeal from the Immigration Judge’s (IJ)
2

denial of his Motion to Reopen Proceedings under the United Nations Convention

Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

[hereinafter “CAT”] pursuant to 8 C.F.R. § 208.18(b)(2). We affirm for the

following reasons:

1. We review motions to reopen removal proceedings for abuse of discretion. 

Efe v. Ashcroft, 293 F.3d 899, 904 (5th Cir. 2002). We apply the same

standard of review applied to the BIA’s holdings on asylum claims to CAT

motions for withholding of deportation. Ontunez-Tursios v. Ashcroft, 303

F.3d 341, 353 (5th Cir. 2002). 

2. Where the BIA adopts the IJ’s decision, as in this case, we must review the

IJ’s decision. Chun v. I.N.S., 40 F.3d 76, 78 (5th Cir. 1994). We review

findings of fact for substantial evidence. We may not reverse factual

conclusions unless the evidence was so compelling that no reasonable

factfinder could conclude against it. Id. Although purely legal questions are

reviewed de novo, see Carbajal-Gonzalez, 78 F.3d 194, 197 (5th Cir. 1996),

we must defer to the BIA’s interpretations of ambiguous provisions of the

Immigration and Nationality Act and its accompanying regulations. Chevron

U.S.A., Inc. v. Natural Res. Def. Coun., 467 U.S. 837, 843 (1984). We

review the IJ’s application of the law to the facts for abuse of discretion. 
3

Only if we find that the IJ applied the wrong legal standard, and that the BIA

adopted his error, may we conduct a de novo review. Carbajal-Gonzalez, 78

F.3d at 197.

3. An alien applying to reopen removal proceedings under the CAT must seek to

offer evidence that establishes a prima facie case for relief. Withholding of

removal under the CAT requires that the petitioner show it is “more likely

than not that he or she will be tortured if removed to the proposed country of

removal.” 8 C.F.R. § 208.16(c)(2). This standard requires the petitioner to

make an objective showing that he is entitled to relief. In re J-E-, 23 I. & N.

Dec. 291, 302 (BIA 2002) (“The ‘more likely than not’ standard of proof has

no subjective component, but instead requires the alien to establish, by

objective evidence, that it is more likely than not that he or she will be subject

to torture upon removal.”). Thus, an applicant seeking to reopen proceedings

under the CAT must produce objective evidence showing a reasonable

likelihood that he can establish that he is more likely than not to be tortured

as defined by 8 C.F.R. § 208.18(a)(2). See Sevoian v. Ashcroft, 290 F.3d

166, 175 (3d Cir. 2002). The decision of the Immigration Judge indicates he

applied this standard.

4. Gholami’s motion to reopen sought to offer his testimony that he was tortured
4

in the past as an Iranian prisoner and evidence that torture is used in Iranian

prisons. The Immigration Judge found Gholami’s testimony would not be

credible in light of his past dishonesty with the INS. This factual finding is

entitled to great deference, see Efe, 293 F.3d at 903, and is supported by

substantial evidence in the record. Thus, we hold that the Immigration Judge

did not err by finding that there was no reasonable likelihood that the

evidence Gholami sought to offer could demonstrate that it is more likely than

not that he will be tortured should he be removed to Iran. 

5. Because we find the decision of the Immigration Judge was legally correct,

the BIA did not err by summarily dismissing the appeal pursuant to 8 C.F.R.

§ 3.1(a)(7).

6. Gholami offered evidence to the BIA on appeal that the Iranian Islamic

Revolutionary Court has issued a warrant for his arrest, but he did not offer

an explanation for his failure to include this evidence with his motion to

reopen. Although a CAT motion need not be based on previously unavailable

evidence, see 8 C.F.R. §§ 3.2(c)(1), 208.18(b)(2), “[o]rdinarily, the Board

will not remand a record to the Immigration Judge for consideration of

evidence profferred on appeal which was available and could have been

presented at an earlier hearing or along with a motion to reopen filed with the
5

Immigration Judge . . . . The evidence necessary to support a motion to

reopen must be presented to the Immigration Judge with the motion to

reopen.” In re Grijalva, 21 I. & N. Dec. 27, 37 (BIA 1995). Although

Grijalva did not deal with a CAT motion to reopen, § 208.18's exemption

from the unavailability requirement must apply to offers of additional

evidence on appeal or an alien would be entitled to a remand of his motion to

reopen simply by producing any evidence material to the conditions of the

proposed country of removal. See 8 C.F.R. § 208.16(c)(3) (requiring an IJ to

consider all evidence of country conditions in connection with CAT motions). 

This would be contrary to Supreme Court precedent regarding immigration

motions to reopen, which are “disfavored” for reasons of finality. See INS v.

Doherty, 502 U.S. 314, 323 (1992). Thus, the BIA did not abuse its

discretion by declining to consider this evidence. 

AFFIRMED.