PETITION FOR REVIEW IMMIGRATION AND NATURALIZATION SERVICE.
Aldisert and Higginbotham, Circuit Judges, and H. Lee Sarokin, District Judge.*fn*
This petition for review of the Board of Immigration Appeals' denial of motions to reopen deportation proceedings requires us to decide whether the Board imposed an improper burden of proof on the petitioner. The petitioner is an Iranian who came to this country in 1978 to attend school for 10 months -- from September 1978 to June 1979 -- and now does not want to return to his native country. He contends that he will be persecuted if he returns to the Islamic Republic of Iran. In considering petitioner's request for political asylum under § 243(h) of the Immigration and Nationality Act, the Board required him to prove "a clear probability of persecution," a formulation that the Immigration and Naturalization Service equates with "a well-founded fear of persecution." We find no error and deny the petition for review at No. 81-3195.*fn1
Ramin Rejaie, a native and citizen of Iran, was admitted to the United States as a nonimmigrant student on September 9, 1978. He was authorized to attend Oakwood School in Poughkeepsie, New York, and to remain in the United States until June 30, 1979. According to Immigration and Naturalization Service allegations, however, he never attended Oakwood School but, without obtaining permission from the INS as required by 8 C.F.R. § 214.2(f) (4), enrolled instead at the Valley Forge Military Academy in Wayne, Pennsylvania. Moreover, he failed to depart the United States on June 30, 1979, or to obtain INS permission to stay beyond that date.
At a deportation hearing held January 8, 1980, Rejaie admitted the allegations. The immigration judge found him deportable, but granted his request for voluntary departure until February 8, 1980. Rejaie appealed to the Board of Immigration Appeals, but on June 18, 1981, the Board upheld the finding of deportability.
Although ordered to report for deportation on August 27, 1981, on that date he filed a petition for review in this court, No. 81-2375, which entitled him to an automatic stay under 8 U.S.C. § 1105a(a)(3). Also on that date, he filed with the INS a Request for Asylum in the United States, contending that he feared political persecution if he were forced to return to Iran, thereby moving to reopen his case.*fn2 On October 16, 1981, the Board denied his motion to reopen, "on the ground that the respondent has failed to reasonably explain why he did not assert his asylum claim prior to completion of the deportation hearing." Record at 112. On December 10, 1981, he filed a second motion to reopen and reconsider, this time explaining that he had been unaware of certain political developments in Iran at the time of his deportation proceedings. Noting that Rejaie had failed to substantiate the claims made in his motions to reopen, the Board denied the second motion.*fn3 Rejaie filed a second petition for review, No. 82-3195, which we consolidated with No. 81-2375.
Rejaie contends that the Board applied an incorrect burden of proof in considering his fear of persecution in Iran. Before we reach that issue, however, we note a significant omission in Rejaie's argument. Petitioner's brief fails to respond to one of the Board's stated reasons for denying relief: his failure to submit substantial evidence to justify reopening his claim. Under 8 C.F.R. § 208.11 (1981)
an alien may request that . . . [a] deportation proceeding be reopened pursuant to . . . 8 C.F.R.§ 242.22 . . . on the basis of a request for asylum. Such request must reasonably explain the failure to request asylum prior to the completion of the . . . deportation proceeding. If the alien fails to do so, the asylum claim shall be considered frivolous, absent any evidence to the contrary.
Moreover, under § 3.8(a), "motions to reopen shall state the new facts to be proved at the reopened hearing and shall be supported by affidavits or other evidentiary material." The Supreme Court has observed that motions under § 3.8 "will not be granted 'when a prima facie case of eligibility for the relief sought has not been established. '" INS v. Jong Ha Wang, 450 U.S. 139, 141, 67 L. Ed. 2d 123, 101 S. Ct. 1027 (1981) (per curiam) (quoting In re Lam, 14 I. & N. Dec. 98 (BIA 1972)).
Petitioner does not now argue that he made a sufficient showing of "new facts" supported by affidavits or other evidence. Rather, in his brief he simply summarizes the factual content of his motion without explaining which, if any, of the narrated events, substantiated or otherwise, occurred after the deportation hearing and thus qualify as "new facts." His argument to the Board in his second motion to reopen is clearer, however, and indicates that petitioner's "new facts" related to the war between Iran and Iraq, and his unwillingness to serve in the Iranian military. ...