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Molouk Afshari v. Immigration and Naturalization Service

Publisher United States Court of Appeals for the Eighth Circuit
Publication Date 12 October 1993
Reference 93-1774
Cite as Molouk Afshari v. Immigration and Naturalization Service, United States Court of Appeals for the Eighth Circuit, 12 October 1993, available at: [accessed 29 May 2016]
Comments Submitted: 14 September, 1993; Filed: 12 October, 1993
DisclaimerThis is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.

Molouk Afshari, Petitioner, v. Immigration and
Naturalization Service, Respondent.
September 14, 1993, Submitted
October 12, 1993, Filed

Prior History:

Appeal from an Order of the Board of Immigration Appeals. No. A26-635-866.


For MOLOUK AFSHARI, Petitioner: Robert Frager, SHIRKEY & SLONE, Kansas City, MO.

For IMMIGRATION AND NATURALIZATION SERVICE, Respondent: Mark C. Walters, Assistant Director, Alison R. Drucker, Robert L. Bombaugh, Karen Fletcher Torstenson, Richard M. Evans, Ellen Sue Shapiro, U.S. DEPARTMENT OF JUSTICE, Office of Immigration Litigation, Washington, DC. David L. Milhollan, Chairman, U.S. DEPARTMENT OF JUSTICE, Falls Church, VA.


Before FAGG, Circuit Judge, HEANEY, Senior Circuit Judge, and LOKEN, Circuit Judge.

Opinion By:




Molouk Afshari, an Iranian citizen, failed to leave the United States when her visa expired, and the Immigration and Naturalization Service began deportation proceedings against her. An immigration judge (IJ) denied Afshari's request for asylum, and the Board of Immigration Appeals (BIA) upheld the IJ's decision. Afshari then filed a motion to reopen her deportation proceedings to apply for suspension of deportation under 8 U.S.C. § 1254(a)(1) (1988). The BIA denied Afshari's motion to reopen, and Afshari appeals.

The BIA may deny a motion to reopen on the ground that the movant has not introduced previously unavailable, material evidence. INS v. Abudu, 485 U.S. 94, 104-05, 108 S. Ct. 904, 99 L. Ed. 2d 90 (1988); 8 C.F.R. § 3.2 (1993). We review the BIA's decision that the movant failed to introduce such evidence for abuse of discretion. Abudu, 485 U.S. at 106-07. Here, the BIA decided the evidence Afshari presented in support of her motion to reopen was substantially the same evidence used to support her asylum claim in the earlier deportation proceedings. Thus, that evidence was not unavailable during those proceedings. The BIA also decided a new affidavit by an Iranian "expert" about Iranian prison conditions did not present a previously unavailable fact or circumstance warranting reopening, because evidence of Iranian prison conditions was considered during the deportation proceedings. Other information discussed in the new affidavit was also introduced in the deportation proceedings.

We conclude the BIA did not abuse its discretion in deciding Afshari failed to introduce previously unavailable, material evidence. The BIA thus properly denied Afshari's motion to reopen on this ground, and we need not consider whether the BIA abused its discretion in deciding Afshari's deportation would not result in extreme hardship to her warranting suspension of deportation. See id. at 105 (alternative ground for denying motion to reopen). Accordingly, we deny Afshari's petition for review.

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