Kami Etemadi v. Merrick Garland ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KAMI ETEMADI, No. 18-72318
Petitioner,
Agency No.
v. A074-808-492
MERRICK B. GARLAND, Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted February 11, 2021
Pasadena, California
Filed September 9, 2021
Before: Danny J. Boggs, ∗ Milan D. Smith, Jr., and Mary
H. Murguia, Circuit Judges.
Opinion by Judge Boggs;
Dissent by Judge Milan D. Smith, Jr.
∗
The Honorable Danny J. Boggs, United States Circuit Judge for
the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
2 ETEMADI V. GARLAND
SUMMARY **
Immigration
Granting Kami Etemadi’s petition for review of the
Board of Immigration Appeals’ denial of a motion to reopen
based on changed country conditions, and remanding, the
panel held that: (1) the law-of-the-case doctrine did not
require it to accept a prior panel’s determination that
Etemadi is not a Christian; (2) Etemadi was not required to
reattach his application for relief to his motion to reopen; and
(3) Etemadi demonstrated changed country conditions in
Iran concerning the treatment of Christians and made a
prima facie showing of entitlement to Convention Against
Torture relief.
As an initial matter, the panel rejected the government’s
argument that Etemadi was foreclosed from CAT relief
under the law-of-the-case doctrine. The panel concluded
that an exception to the doctrine applied because the prior
panel’s decision was clearly erroneous as to its
determination that Etemadi was not a Christian, and
enforcement of the prior decision would work a manifest
injustice. First, the panel explained that the prior panel
clearly erred when it failed to correct or even acknowledge
that a primary basis for the IJ’s adverse credibility finding
rested on a material error concerning whether Etemadi
deliberately evaded a question concerning his Christian
denomination. The panel wrote that the prior panel and the
IJ also erred by failing to address the abundant evidence that
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
ETEMADI V. GARLAND 3
Etemadi is a Christian. Next, the panel concluded that the
prior panel clearly erred in accepting the IJ’s application of
the falsus in uno, falsus in omnibus maxim. The panel
explained that, at most, an adverse credibility determination
may be used to invalidate an applicant’s testimony, but the
falsus maxim may not be used to wipe out an entire claim
that is corroborated by other evidence. The panel explained
that the IJ must still examine the corroborating evidence.
Because the IJ failed to do so here, the panel concluded that
the prior panel clearly erred in affirming the IJ’s
determination. Finally, the panel concluded that pursuant to
Kamalthas v. INS, 251 F.3d 1279 (9th Cir. 2001), the IJ erred
in allowing the adverse credibility determination as to
Etemadi’s political opinion claim to wash over his unrelated
CAT claim.
Addressing the Board’s denial of the motion to reopen
based on Etemadi’s failure to include an application for
relief, as required by 8 U.S.C. § 1003.2(c)(1), the panel first
determined that Etemadi had not waived any challenge to the
Board’s interpretation of that provision. Next, considering
the issue de novo, the panel concluded that Etemadi was not
required to submit a new application because the text of
§ 1003.2(c)(1) makes a distinction between a motion to
reopen proceedings and a motion to reopen proceedings for
the purpose of submitting an application for relief. Here,
Etemadi previously submitted an application for relief based
on his religious persecution claim, and referred to it
repeatedly in his motion to reopen in which he sought CAT
relief on the same grounds. The panel concluded that
Etemadi was required to do no more. The panel wrote that
it also need not defer to the Board’s interpretation of
§ 1003.2(c)(1) because there was no indication that the
Board’s interpretation was the agency’s “authoritative” or
“official” position on the issue. Moreover, even if the
4 ETEMADI V. GARLAND
Board’s interpretation was considered representative of the
agency’s official views, the panel concluded that the
regulation was not genuinely ambiguous.
Next, the panel concluded that the Board abused its
discretion in determining that Etemadi failed to establish
changed country conditions or prima facie eligibility for
CAT relief. First, the panel explained that on a motion to
reopen the Board is required to accept as true the facts stated
in an affidavit unless they are inherently unbelievable.
Although an exception to the rule applies when the affidavit
is contradicted by previous findings that are supported by
substantial evidence, the panel concluded that the exception
did not apply because the IJ, Board, and prior panel’s
findings that Etemadi was not a Christian were not supported
by substantial evidence. The panel also concluded that the
Board erred by failing to address compelling evidence
showing that conditions had become qualitatively worse for
Christians in Iran. The panel held that Etemadi established
prima facie eligibility for CAT relief, and remanded for a
new hearing to consider all evidence of Etemadi’s Christian
faith and whether Etemadi is more likely than not to face
torture if removed to Iran.
Dissenting, Judge M. Smith wrote that the question
presented in this case is not whether Etemadi is a Christian
or even whether it is more likely than not that he would be
tortured if removed to Iran, but rather whether the court
should cast aside a prior panel’s disposition, whether it
should excuse waiver and decide an issue of first impression
without briefing, and whether the Board abused its discretion
in analyzing the Iranian government’s persecution of
Christians over the past thirty years. Judge M. Smith wrote
that for each of these questions, precedent mandates very
deferential standards of review, yet the majority disregards
ETEMADI V. GARLAND 5
the questions presented and bypasses the deference owed to
the prior panel and the Board.
Judge M. Smith wrote that, contrary to the majority’s
suggestion otherwise, the law-of-the case doctrine applies to
a prior panel’s application of the substantial evidence
standard for IJ credibility determinations. Judge M. Smith
wrote that the majority misunderstands the standard of
review applicable to this case, explaining that when the court
revisits a prior panel’s affirmance of an IJ’s factual
determination, the standard is doubly deferential. The court
must determine whether the prior panel clearly erred in
holding that substantial evidence supported the IJ’s adverse
credibility finding. In other words, it must be left with the
definite and firm conviction that any reasonable adjudicator
would be compelled to conclude that the IJ’s credibility
determination did not meet the low bar of “more than a
scintilla, but less than a preponderance” of the evidence.
Judge M. Smith wrote that were the panel reviewing the IJ’s
adverse credibility determination under de novo review, or
even on direct appeal pursuant to a substantial evidence
standard, a reversal of the adverse credibility determination
might be defensible. However, because it is governed by the
doubly deferential standard, Judge M. Smith could not join
the majority’s analysis or conclusion.
Addressing the Board’s interpretation of § 1003.2(c)(1),
Judge M. Smith first wrote that in his view, none of the
exceptions to waiver apply here. Judge M. Smith also
explained that the majority decision creates a circuit split, all
without briefing from the parties. Judge M. Smith wrote that
without briefing, it was unclear whether the Board’s
interpretation of § 1003.2(c)(1) was deserving of deference,
especially in light of the recently-announced Kisor
framework. Judge M. Smith wrote that a case in which the
6 ETEMADI V. GARLAND
petitioner has waived an issue is not the proper vehicle to
make a pronouncement that will bind future panels of this
court.
Judge M. Smith also wrote that while Etemadi need only
make a prima facie case for CAT relief at this stage, the
majority’s reliance on changed conditions regarding general
persecution of Christian converts, rather than torture of those
individuals, shows that the Board did not abuse its discretion
in denying the motion to reopen. Judge M. Smith also wrote
that the majority does not demonstrate that the recent
country reports constitute evidence that Iran has increased
its torture of Christians.
COUNSEL
Judith L. Wood (argued) and Beth S. Persky, Law Offices of
Judith L. Wood, Los Angeles, California, for Petitioner.
Madeline Henley (argued), Trial Attorney; Leslie McKay,
Senior Litigation Counsel; Office of Immigration Litigation,
Civil Division, United States Department of Justice,
Washington, D.C.; for Respondent.
ETEMADI V. GARLAND 7
OPINION
BOGGS, Circuit Judge:
Kami Etemadi, a citizen and native of Iran, came to the
United States in 1996 and made a life in Los Angeles. After
being introduced to an Iranian American church, he
converted to Christianity and was baptized in 1999. The
government maintains his faith is false, and endeavors to
deport him. Etemadi desires to remain in the United States
with his American wife and family. He fears that if he is
deported to Iran, he will be tortured or killed for his faith. He
has filed a motion to reopen, which the Board of
Immigration Appeals (BIA) has denied. We face three
questions: First, whether the law-of-the-case doctrine
requires that we accept a prior Ninth Circuit panel’s
determination that the immigration judge’s (IJ) finding that
Etemadi is not a Christian was supported by substantial
evidence. Second, whether Etemadi was required to reattach
his application for relief to his motion to reopen. And third,
whether Etemadi has demonstrated changed country
conditions for Christians in Iran to warrant reopening his
application under the Convention Against Torture. We grant
Etemadi’s petition and remand for a new hearing to consider
all evidence of Etemadi’s Christian faith and whether
Etemadi is more likely than not to face torture if removed to
Iran.
I. JURISDICTION AND STANDARD OF REVIEW
The BIA’s denial of a motion to reopen is a final order
of removal, which this court has jurisdiction to review under
8 U.S.C. § 1252(a)(1). “A denial of a motion to reopen
immigration proceedings is generally reviewed for abuse of
discretion; however, where . . . the issue presented is a
8 ETEMADI V. GARLAND
‘purely legal question,’ a de novo standard applies.” Alali-
Amin v. Mukasey, 523 F.3d 1039, 1041 (9th Cir. 2008)
(quoting Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir.
2002)).
II. FACTS AND PROCEDURE
Etemadi was served with a Notice to Appear in
April 1997 and charged with removability under 8 U.S.C.
§ 1182(a)(6)(A)(i) as a noncitizen present in the United
States without having been admitted or paroled. He sought
the help of a man known as Reza Tabatabai, who Etemadi
believed was an immigration lawyer. Etemadi had seen
Tabatabai’s immigration-assistance advertisements in a
local magazine and Tabatabai had been recommended to
Etemadi by people in the Iranian-American community. In
truth, Tabatabai was neither a lawyer nor an immigration
expert, but an “expert” in forging immigration documents
and falsifying applications. Under Tabatabai’s instruction,
Etemadi conceded removability, and applied for asylum and
withholding of removal under the Immigration and
Nationality Act and protection under the Convention
Against Torture (CAT) on account of his political opposition
to the Iranian government. To improve Etemadi’s chances of
being granted asylum, Tabatabai embellished Etemadi’s
asylum application with falsehoods, forged documents, and
directed Etemadi to lie to the IJ. Etemadi followed his
instructions and falsely testified that the forged documents
were authentic. In March 1999, the Federal Bureau of
Investigation arrested Tabatabai, who shortly thereafter
pleaded guilty to federal crimes, including those related to
asylum fraud.
In 2000, no longer working with Tabatabai and having
since become a Christian, Etemadi amended his application
ETEMADI V. GARLAND 9
to add fear of religious persecution as a separate ground for
relief.
At his merits hearing in 2002, Etemadi admitted that
some documents he submitted in support of his political
asylum application were forged and that he had
misrepresented his past persecution in Iran based on his
political opinion. In October 2002, the IJ issued an oral
decision denying Etemadi any relief. The IJ found Etemadi’s
political-asylum claim to be frivolous. Although Etemadi
responded to the IJ’s questioning regarding his Christian
faith, the IJ “discount[ed] all testimony offered by
[Etemadi].” The IJ also determined that none of his claims—
including the claim that he is a Christian and thus eligible for
CAT relief—were credible. Despite repeated requests by
Etemadi’s lawyer, the IJ refused to hear from Etemadi’s
pastor to confirm that he was a sincere Christian and active
member of the Iranian Christian Church in San Jose. The IJ’s
three-sentence CAT analysis misstated an important part of
the record and ignored undisputed documentary evidence
corroborating the claim that Etemadi is a Christian.
In May 2004, the BIA adopted the IJ’s decision in a one-
paragraph decision. The BIA decision analyzed none of the
claims Etemadi raised on appeal, which included a challenge
to the errors in the IJ’s factfinding.
In October 2007, the Ninth Circuit denied Etemadi’s
petition for review and later petition for rehearing en banc in
an unpublished opinion. See Etemadi v. Keisler, 251 F.
App’x 388 (9th Cir. 2007). The prior panel concluded that
substantial evidence supported the IJ’s finding that
Etemadi’s political-asylum application was frivolous and
that Etemadi is not a Christian. Id. at 389–90.
10 ETEMADI V. GARLAND
In May 2018, Etemadi filed a motion with the BIA to
reopen his proceedings, based on changed country
conditions for Christians in Iran. Alternatively, he asked the
BIA to exercise its sua sponte reopening authority.
In August 2018, the BIA denied Etemadi’s motion to
reopen on three grounds. First, it held that Etemadi had not
submitted the required application for relief. See 8 C.F.R.
§ 1003.2(c)(1). Second, the BIA determined that any
evidence of changed country conditions for Christians was
irrelevant because he was found not to be a Christian and
that any challenge to his credibility determination was
untimely. Third, the BIA found that, even if Etemadi is a
Christian, he had failed to introduce adequate, previously
unavailable evidence to demonstrate that conditions in Iran
are worse now for Christians than at the time of his 2002
immigration hearing. The BIA found no exceptional
situation warranted reopening sua sponte and also concluded
that Etemadi’s frivolous asylum claim barred him from
adjustment of his status based on his marriage to a United
States citizen. On August 21, 2018, Etemadi filed this
petition for review. Although there is no time limit for a
motion to reopen a withholding of removal claim based on
changed country conditions, Etemadi raises on appeal only
his CAT claim related to his Christian faith.
III. ANALYSIS
A. The Law-of-the-Case Doctrine
The government argues that the law-of-the-case doctrine
forecloses Etemadi from CAT relief because the prior panel
accepted the agency’s determination that he is not a
Christian. See Etemadi, 251 F. App’x at 389. The “doctrine
states that the decision of an appellate court on a legal issue
ETEMADI V. GARLAND 11
must be followed in all subsequent proceedings in the same
case.” In re Rainbow Mag., Inc., 77 F.3d 278, 281 (9th Cir.
1996) (quoting Herrington v. Cnty. of Sonoma, 12 F.3d 901,
904 (9th Cir. 1993)).
The law-of-the-case doctrine is “a guide to discretion.”
United States v. Alexander, 106 F.3d 874, 876 (9th Cir.
1997); see also United States v. Lewis, 611 F.3d 1172, 1179
(9th Cir. 2010) (citing Messenger v. Anderson, 225 U.S. 436,
444 (1912)). It “is not a doctrine of inescapable application.”
Ferreira v. Borja, 93 F.3d 671, 674 (9th Cir. 1996). Still, “a
prior decision should be followed unless (1) the decision is
clearly erroneous and its enforcement would work a manifest
injustice; (2) intervening controlling authority makes
reconsideration appropriate; or (3) substantially different
evidence was adduced at a subsequent trial.” Alaimalo v.
United States, 645 F.3d 1042, 1049 (9th Cir. 2011) (citing
Hegler v. Borg, 50 F.3d 1472, 1475 (9th Cir. 1995)). The
prior panel accepted the agency’s determination that
Etemadi is not a Christian, which was not a legal
determination but a mixed question of law and fact because
it required the prior panel to apply a legal standard to
disputed facts. “When a mixed question of law and fact is
presented, the standard of review turns on whether factual
matters or legal matters predominate.” United States v.
Mateo-Mendez, 215 F.3d 1039, 1042 (9th Cir. 2000)
(quotation omitted). In Etemadi’s appeal to the prior panel,
the factual issues were predominant because there was no
dispute that the substantial-evidence legal standard applied
to the Agency’s factual determinations. The dispute among
the parties primarily concerned the weight of the evidence
regarding the agency’s determination that Etemadi is not a
Christian.
12 ETEMADI V. GARLAND
Because the law-of-the-case doctrine applies to legal
issues, and because the prior panel decided a facts-
predominant mixed question of law and fact, the law-of-the-
case doctrine likely does not apply here at all. But even if it
does, the first exception to the law-of-the-case doctrine
applies to Etemadi’s case.
Clear Error
While we do not make the decision to reject the prior
panel’s conclusion lightly, the prior panel’s decision was
clearly erroneous and enforcing it against Etemadi would be
unjust. “[A] finding is ‘clearly erroneous’ when[,] although
there is evidence to support it, the reviewing court on the
entire evidence is left with the definite and firm conviction
that a mistake has been committed.” Anderson v. City of
Bessemer City, 470 U.S. 564, 573 (1985) (quotation
omitted). If deported now, Etemadi will suffer a manifest
injustice because no adjudicator has given his claim the
consideration required by law.
The prior panel upheld the IJ’s determination under the
substantial-evidence standard: “[A]dministrative findings of
fact are conclusive unless any reasonable adjudicator would
be compelled to conclude to the contrary.” Farah v.
Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003) (quoting
8 U.S.C. § 1252(b)(4)(A)–(B)). “Substantial evidence is
‘more than a mere scintilla,’ and means only ‘such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion.’” Biestek v. Berryhill, 139 S. Ct. 1148,
1154 (2019) (quoting Consolidated Edison Co. v. NLRB,
305 U.S. 197, 229 (1938)). The substantial-evidence
standard is even more deferential than the clear-error
standard. See, e.g., Dickinson v. Zurko, 527 U.S. 150, 165
(1999) (holding that the more deferential substantial-
ETEMADI V. GARLAND 13
evidence standard, and not the “stricter” and less deferential
clear-error standard, applies to challenges to Patent and
Trademark Office’s patent denials, as it does to other
agencies). However, although “the substantial evidence
standard demands deference to the IJ, ‘[w]e do not accept
blindly an IJ’s conclusion that a petitioner is not credible.
Rather, we examine the record to see whether substantial
evidence supports that conclusion and determine whether the
reasoning employed by the IJ is fatally flawed.’” Gui v. INS,
280 F.3d 1217, 1225 (9th Cir. 2002) (quoting Osorio v. INS,
99 F.3d 928, 931 (9th Cir. 1996)). The IJ’s conclusion must
be reasonable. Biestek, 139 S. Ct. at 1154. After reviewing
the record, we are left with the firm and definite conviction
that the prior panel erred in accepting the IJ’s flawed
decision, which was unsupported by substantial evidence.
A petitioner at this stage must succeed under both the
substantial-evidence standard and the clear-error standard to
prevail. But because the substantial-evidence standard
requires that we give more deference to agency
determinations than we must give to a prior panel under the
clear-error standard, a prior panel’s error that substantial
evidence supported an agency’s determination will
necessarily be “clearly erroneous” under the first exception
to the law-of-the-case doctrine. 1 In other words, if the
1
The dissent concedes that if we were to review the IJ’s adverse-
credibility determination under the substantial-evidence standard,
finding against the agency “might be defensible.” Dissent at 44. But the
dissent argues that, when we revisit a prior panel’s acceptance of an IJ’s
factual determination, our standard of review is even more deferential
than substantial-evidence review. Dissent at 43. We disagree. A prior
panel’s incorrect determination that an IJ’s decision was supported by
substantial evidence is necessarily clear error because more deference is
required under the substantial-evidence standard than the clear-error
standard.
14 ETEMADI V. GARLAND
agency error was so wrong that “any reasonable adjudicator
would be compelled to conclude to the contrary,” Farah,
348 F.3d at 1156, and the prior panel does not conclude to
the contrary, a subsequent panel will be “left with the
definite and firm conviction that a mistake has been
committed,” Anderson, 470 U.S. at 573 (quotation omitted),
by the prior panel. Here, the prior panel made three errors
when it failed to examine the record and accepted the IJ’s
false determination that Etemadi is not a Christian.
1. The prior panel ignored the IJ’s factual and legal
errors.
The prior panel’s fundamental error is its determination
that the IJ’s finding that Etemadi is not a Christian was
supported by substantial evidence. The record is clear that
the IJ’s finding was not supported by substantial evidence.
The IJ’s analysis was limited to three cursory sentences:
“When queried as to the denomination of the Christian
religion that [Etemadi] purports to be a member of, this was
not answered directly. [Etemadi] stated that he was baptized
in the Christian faith prior to the commencement of
proceedings. The Court found that this was not true.” 2
2
In relevant part, the prior panel held: “Substantial evidence also
supports the IJ’s adverse credibility finding regarding Etemadi’s
conversion to Christianity. Etemadi testified inconsistently regarding the
timing of his conversion. He also testified evasively when asked into
what Christian denomination he had been baptized. The IJ made a
specific finding his testimony was untrue. The IJ also made a general
finding that all of Etemadi’s testimony was rejected. Etemadi’s
deliberate and knowing filing of forged documents provided the IJ
grounds to discount all of Etemadi’s testimony.” Etemadi, 251 F. App’x
at 389. As discussed below, the IJ’s and prior panel’s conclusion that
ETEMADI V. GARLAND 15
The IJ made a material error of fact when he concluded
that Etemadi falsely testified that he was baptized prior to
the proceedings. At the 2002 hearing, the IJ asked Etemadi
when he converted to Christianity. Etemadi testified that he
was first introduced to Christianity in 1998 and was baptized
after “about a year” of going to church and attending church
classes. In support of his testimony, Etemadi presented four
documents: his baptism certificate, his statement to amend
his CAT claim, a letter from a pastor at his church, and
another letter from his church’s founding pastor. All four
documents state that Etemadi was baptized on October 24,
1999—before Etemadi amended his application to assert a
fear of religious persecution as a separate ground for relief.
What is more, Etemadi’s lawyer also specifically referred to
both the founding pastor’s letter and the baptism certificate
at the hearing. Indeed, the government did not, and does not
now, challenge the veracity of these documents. Etemadi has
consistently maintained that he was baptized on October 24,
1999. The IJ must make findings based on a “specific cogent
reason.” Gui, 280 F.3d at 1225. At minimum, a “cogent”
reason must not be based on a material error of law or fact.
The prior panel failed to address this material error of fact.
The prior panel clearly erred when it failed to correct or even
acknowledge that a primary basis for the IJ’s adverse-
credibility finding rested on a material error.
The IJ implied, and the prior panel found, that Etemadi
deliberately evaded the question at the hearing regarding his
Christian denomination. Both the IJ and the prior panel
failed to note, however, that Etemadi answered with the
Etemadi testified inconsistently on the timing of his conversion and was
evasive on the denomination of his church was clearly erroneous.
16 ETEMADI V. GARLAND
name of his church instead of its denomination. 3 This is not
evidence of evasion, but miscommunication. Nothing in the
record—the letters from Etemadi’s pastors or his baptism
certificate—indicates that Etemadi’s church has a
denomination. In fact, Etemadi swore in his affidavit that he
is a nondenominational Christian, which is consistent with
the fact that many evangelical churches are
nondenominational. Further, the lawyer questioning
Etemadi did not repeat or rephrase the question. When
Etemadi gave the name of his church, the lawyer responded,
“Okay,” and did not request further clarification. Nor did the
IJ expressly note that Etemadi acted or spoke evasively. The
question—“[w]hat denomination of Christian do you belong
to”—was also awkwardly stated. Finally, Etemadi’s
interpreter appeared to be unfamiliar with theological
terms. 4 Credibility must be determined in the context of the
entire record.
That the IJ based his adverse credibility determination on
Etemadi’s answer is a clear error of law. “Generalized
statements that do not identify specific examples of
evasiveness or contradiction in the petitioner’s testimony”
are insufficient. Garrovillas v. INS, 156 F.3d 1010, 1013 (9th
Cir. 1998); see also Kebede v. Ashcroft, 366 F.3d 808, 811
(9th Cir. 2004) (“[M]inor discrepancies . . . [that] cannot be
viewed as attempts by the applicant to enhance h[er] claims
of persecution have no bearing on credibility.” (quoting
3
“[Lawyer:] What denomination of Christian do you belong to?
[Etemadi:] There’s an Iranian church in Fremont, and I’m a member of
that church. [Lawyer:] Do you know what that church is called?
[Etemadi:] Iranian Fremont Christian Church. [Lawyer:] Okay.”
For example, the interpreter did not know the word “divinity” and
4
needed Etemadi’s lawyer to translate the word.
ETEMADI V. GARLAND 17
Damaize-Job v. INS, 787 F.2d 1332, 1337 (9th Cir. 1986)
(alterations in original))). Without the IJ providing a specific
reason, Gui, 280 F.3d at 1225, we cannot see how Etemadi
responding with the name of his church rather than an
(irrelevant) denomination should be counted against him.
The IJ and the prior panel also failed to address the
abundant evidence that Etemadi is a Christian. Etemadi’s
testimony that he attended church every Sunday and was an
active member of his church was corroborated by letters
from two of his pastors. The founding pastor’s letter stressed
that Etemadi is a sincere Christian, baptized in the faith, who
attended church services and Bible study and regularly
participated in the life of the church. The other pastor’s letter
also corroborated Etemadi’s testimony that he taught in a
church class.
The government brushed off Etemadi’s conversion
testimony, calling it “highly suspect and unconvincing,” and
implied that Etemadi converted out of cunning instead of
conviction. But Etemadi did not hide the fact that his fear of
deportation caused him to seek help from a higher power,
and that even if he was returned to Iran, he was happy to
have converted. That the occasion of Etemadi’s conversion
was in large part fear of deportation does not necessarily
mean his conversion was insincere.
Further, when questioned on Biblical scripture and
doctrine, Etemadi testified of a faith unfeigned and
demonstrated an understanding of Biblical scripture and
doctrine. When the IJ asked Etemadi about the subject of the
most recent church class he taught, Etemadi discussed the
concept of tithing. And when the IJ also asked Etemadi to
name and explain his favorite chapter of the New Testament,
18 ETEMADI V. GARLAND
Etemadi responded with a remarkably accurate description
of the last chapter of Matthew:
[Jesus] says that all the powers on the earth
and in th[e] skies belong to me. And you have
to try to bring together all the nations, and
bring them, and baptize in the name of the
Father, and the Son, and the Spirit, and try to
convince them to apply all the things which I
have already (indiscernible) to do. And then
I shall be with you until the end of the world.
But the IJ, the BIA, and the prior panel failed to take any of
this into account.
The IJ also rejected Etemadi’s lawyer’s offer to call the
pastor to testify in support of Etemadi, although the IJ had
earlier asked Etemadi’s lawyer if the pastor was available to
testify. Etemadi’s lawyer then sought a stipulation that
Etemadi’s faith is sincere, but the government’s lawyer
refused to so stipulate without being able to cross-examine
Etemadi’s pastor. This put Etemadi in a very difficult
position: unable to call his pastor to testify that he is a sincere
Christian, and with the government refusing to stipulate that
he is a Christian without his pastor being called as a witness
subject to cross-examination.
The IJ ultimately discounted all of Etemadi’s claims—
including his Christianity-based CAT claim—because of
Etemadi’s “lack of credibility” in his political-asylum
application, which had no relation to his faith. The IJ gave
no regard to Etemadi’s corroborating documentary evidence
and gave his testimony such cursory consideration that it
amounted to no consideration at all. The prior panel’s
ETEMADI V. GARLAND 19
decision affirming the IJ’s glaring errors was clearly
erroneous.
2. The prior panel accepted the IJ’s incorrect
application of the falsus maxim.
Although the IJ stated he would discount all of Etemadi’s
testimony, he went beyond that to wipe out Etemadi’s CAT
claim. The prior panel held that the IJ properly “discount[ed]
all of Etemadi’s testimony” based on Etemadi’s “deliberate
and knowing filing of forged documents.” Etemadi, 251 F.
App’x at 389 (emphasis added). The prior panel did not hold
that the IJ could discount all of Etemadi’s CAT claim. When
a claim is based solely on an applicant’s testimony, the
distinction between testimony and claim is a distinction
without a difference. But not here, where significant
documentary evidence and third-party testimony
corroborates the applicant’s claim.
The IJ appears to have relied on the falsus in uno, falsus
in omnibus maxim, which has been upheld by this court in
immigration cases. See, e.g., Enying Li v. Holder, 738 F.3d
1160 (9th Cir. 2013). Courts use the falsus maxim to
discount the entirety of a person’s testimony—not claim—
“based on the logic that . . . if a person testifies falsely,
willfully, and materially on one matter, then his ‘oath’ or
word is not ‘worth anything’ and he is likely to be lying in
other respects.” Id. at 1163 (citing Cvitkovic v. United States,
41 F.2d 682, 684 (9th Cir. 1930)); see id. at 1164 (stating
that the falsus maxim “may properly be used to evaluate
witness testimony in immigration cases” (emphasis added)).
The key word is likely. The falsus maxim is a heuristic that
is useful when, in the absence of corroborating evidence, the
IJ must decide whether someone who lied about one thing is
likely lying about another. But when verifiable corroborating
20 ETEMADI V. GARLAND
evidence supports the applicant’s testimony, the doubt the
maxim is intended to resolve, and the likelihood of
deception, are diminished. In such cases, the falsus maxim
may not be used to wipe out a claim that is corroborated by
verifiable documentary evidence or testimony from others.
In many immigration cases, documents and exhibits
submitted by applicants are from their native lands and may
be difficult to authenticate. When the government timely
disputes such evidence and the petitioner has adequate
opportunity to respond, IJs have the discretion to disregard
that evidence, so long as they give a reasoned explanation.
The IJ did not have that discretion here because the
government never disputed the authenticity of Etemadi’s
evidence and the evidence could be readily authenticated.
Etemadi’s church letters were from a California church with
its address, email address, and phone number listed on the
letterhead. The church’s founding pastor was also willing
and ready to testify in support of Etemadi. The IJ ignored the
documentary evidence and refused to hear the pastor, over
Etemadi’s requests. Consequently, the prior panel
erroneously accepted the IJ’s misinterpretation of the
documentary evidence and misapplication of the falsus
maxim in this case. See Etemadi, 251 F. App’x at 389.
The falsus maxim invalidates testimony, not other
evidence. The cases the dissent cites in opposition to this
proposition are hardly on point because they speak to other
matters not at issue in this case. See Cvitkovic, 41 F.2d at 684
(upholding incorrect jury instruction that falsus maxim also
applies to unintentional false testimony because the error did
not prejudice the defendant); Cent. Cal. Canneries Co. v.
Dunkley Co., 247 F. 790, 793 (9th Cir. 1917) (“If Campbell’s
testimony was not true, he was testifying falsely concerning
a material and relevant matter, and his testimony would for
ETEMADI V. GARLAND 21
that reason be wholly rejected.”) (emphasis added); Lopez-
Umanzor v. Gonzales, 405 F.3d 1049, 1059 (9th Cir. 2005)
(“We merely hold that the IJ was required to hear testimony
from Petitioner’s experts in the subject of domestic violence,
as to matters pertaining to her credibility.”).
Our understanding of the limits of the falsus maxim is
informed by this court’s precedent. In Guan v. Barr, the IJ
and the BIA disregarded an applicant’s CAT claim—also
based on his Christian faith—after the IJ made an adverse
credibility finding on the applicant’s factually distinct
political-asylum claim. Guan v. Barr, 925 F.3d 1022, 1034
(9th Cir. 2019). We held that “the BIA abused its discretion
when it failed to . . . show proper consideration of all factors
when weighing equities and denying relief.” Id. at 1035(quoting Kamalthas v. INS, 251 F.3d 1279, 1284 (9th Cir.
2001)). The Guan court distinguished its case from Farah v.
Ashcroft, in which this court upheld a denial of CAT relief
“because the petitioner’s CAT claims were based on the
same statements [as his asylum claim] with ‘no other
evidence’” apart from discredited testimony. Id. at 1034
(quoting Farah, 348 F.3d at 1157). Unlike in Farah, the
petitioner in Guan “offered additional evidence in support of
his claim of religion-based torture that neither the BIA nor
the IJ addressed.” Id. at 1034. “In particular, Guan presented
country reports indicating that Christians in China are
subject to torture, and he presented a letter from a leader of
his church in the United States stating that Guan began
attending services there in 2014, shortly after he arrived in
the United States.” Ibid. We stressed:
Thus, even if as a result of the adverse
credibility finding the IJ properly rejected
Guan’s testimony that he participated in
religious activities in China and was beaten
22 ETEMADI V. GARLAND
up by the police for it, the unaddressed
evidence still supports his CAT claim. It
suggests that Guan is currently a practicing
Christian and that such individuals face a risk
of persecution in China, including torture.
Ibid.
The IJ similarly denied Etemadi’s religious-conversion
CAT claim based on his discredited political-asylum claim.
As in Guan, the IJ and the BIA erred in failing to address
verifiable corroborating evidence that supported Etemadi’s
CAT claim. But, unlike Guan, who submitted one letter from
his church leader, Etemadi submitted much more evidence:
a letter from the founding pastor, a letter from another pastor,
and his certificate of baptism. Guan is clear that an adverse-
credibility determination cannot destroy an entire CAT
claim. At most, it may be used to invalidate the applicant’s
testimony, but it still requires the IJ to examine corroborating
documentary evidence or testimony from another person.
The IJ failed to do so here, and the prior panel clearly erred
in so affirming.
3. The prior panel accepted the IJ’s violation of
Kamalthas v. INS.
In Kamalthas v. INS, we held that a Sri Lankan Tamil
applicant’s adverse credibility finding for an “asylum claim
does not necessarily preclude relief under the Convention
Against Torture.” Kamalthas, 251 F.3d at 1280. We relied
on Mansour v. INS, 230 F.3d 902 (7th Cir. 2000), in which
the Seventh Circuit found that the BIA had abused its
discretion for having “only addressed the Convention claim
‘in a minimalistic and non-detailed manner,’ and had
overrelied on its adverse credibility determination in the
ETEMADI V. GARLAND 23
asylum context, which ‘seem[ed] to overshadow its analysis
of [Iraqi applicant] Mansour’s torture claim.’” Kamalthas,
251 F.3d at 1283 (quoting Mansour, 230 F.3d at 908). In
reversing the BIA and remanding, we concluded that we
could not “allow[] a negative credibility determination in the
asylum context to wash over the torture claim; especially
when the prior adverse credibility determination is not
necessarily significant in this situation.” Id. at 1284 (quoting
Mansour, 230 F.3d at 908).
The IJ’s three-sentence analysis of Etemadi’s CAT claim
was likewise minimal, non-detailed, and overshadowed by
the analysis of Etemadi’s political-asylum claim. See id.
at 1283. Etemadi’s asylum and CAT claims are grounded in
different facts: His asylum claim was based on his asserted
political opinion and his CAT claim is based on his Christian
faith. And worse than in Kamalthas and Mansor, the IJ’s
adverse-credibility determination was based on a material
error of fact that Etemadi lied about the timing of his
baptism. This error clearly “indicates [the IJ’s] failure to
consider all the evidence.” Cole v. Holder, 659 F.3d 762, 771
(9th Cir. 2011). “[W]here there is any indication that the BIA
did not consider all of the evidence before it . . . the decision
cannot stand. Such indications include misstating the record
and failing to mention highly probative or potentially
dispositive evidence.” Id. at 771–72.
Here, the IJ ignored the documentary evidence
corroborating Etemadi’s claim of Christian conversion. “The
agency abuses its discretion if it fails to state its reasons and
show proper consideration of all factors when weighing
equities and denying relief.” Yepes-Prado v. INS, 10 F.3d
1363, 1366 (9th Cir. 1993) (citing Cerrillo-Perez v. INS,
809 F.2d 1419, 1422 (9th Cir. 1987)). “[W]e cannot assume
that the [agency] considered factors that it failed to
24 ETEMADI V. GARLAND
mention.” Id. at 1366 (citing Mattis v. INS, 774 F.2d 965,
967 (9th Cir. 1985)). The IJ did precisely what Kamalthas
(and Guan) prohibit: The IJ used an adverse credibility
finding for an asylum claim to “wash over” Etemadi’s CAT
claim and failed to consider the evidence and all factors in
Etemadi’s favor. Kamalthas, 251 F.3d at 1284.
B. Documents Required in Etemadi’s Motion to Reopen
Proceedings
When the BIA denied Etemadi’s motion to reopen, the
first reason it gave was that Etemadi “has not submitted an
application for relief” as required by 8 C.F.R. § 1003.2(c)(1).
This court has reviewed the BIA’s interpretation of this
regulation under the abuse-of-discretion standard. See Aliyev
v. Barr, 971 F.3d 1085, 1086–87 (9th Cir. 2020). However,
the interpretation of a regulation or statute is a legal question,
and we review legal questions de novo. See Ayala v.
Sessions, 855 F.3d 1012, 1020 (9th Cir. 2017); see also
Alali-Amin, 523 F.3d 1041 (“A denial of a motion to reopen
immigration proceedings is generally reviewed for abuse of
discretion; however, where, as here, the issue presented is a
‘purely legal question,’ a de novo standard applies.”)
(quoting Cano-Merida, 311 F.3d at 964. Further, we need
not defer to the BIA’s interpretation of § 1003.2(c)(1)
because, among other reasons, there is no indication that its
interpretation of the regulation in its unpublished decision is
“the agency’s ‘authoritative’ or ‘official position.’” Kisor v.
Wilkie, 139 S. Ct. 2400, 2416 (2019). The BIA cited only to
the text of the regulation. Because the question of whether
Etemadi submitted the “appropriate application for relief”
turns on how to interpret the text of § 1003.2(c)(1)—a legal
question—the appropriate standard of review is de novo.
ETEMADI V. GARLAND 25
The government argues that Etemadi has “waived” any
challenge to the BIA’s decision because he did not discuss
this regulation in his opening brief. The government
probably means that Etemadi has forfeited any challenge to
the BIA’s decision on this issue. Although “waiver” and
“forfeiture” are often used to mean the same thing, they are
different. As this court recently clarified, “[f]orfeiture is the
failure to make a timely assertion of a right, whereas waiver
is the intentional relinquishment or abandonment of a known
right.” Claiborne v. Blauser, 934 F.3d 885, 893 (9th Cir.
2019) (quoting United States v. Perez, 116 F.3d 840, 845
(9th Cir. 1997) (en banc)); see also United States v.
Montgomery, 998 F.3d 693, 697–98 (6th Cir. 2021).
The government cites only one case in support of its
waiver argument, Lopez-Vasquez v. Holder, 706 F.3d 1072,
1079–80 (9th Cir. 2013). However, the government fails to
note that Lopez-Vasquez relied on Koerner v. Grigas,
328 F.3d 1039 (9th Cir. 2003), which explicitly discussed
this court’s longstanding exceptions to the general rule that
we will not review an issue not presented in an opening brief.
First, we will review an issue not present in
an opening brief for “good cause shown”,
[sic] Fed. R. App. P. 2, or “if a failure to do
so would result in manifest injustice.” United
States v. Loya, 807 F.2d 1483, 1487 (9th Cir.
1987). Second, “[w]e have discretion to
review an issue not raised by appellant . . .
when it is raised in the appellee’s brief.” In re
Riverside–Linden Investment Co., 945 F.2d
320, 324 (9th Cir. 1991). Third, we may
review an issue if the failure to raise the issue
properly did not prejudice the defense of the
opposing party.
26 ETEMADI V. GARLAND
Grigas, 328 F.3d at 1049 (quoting United States v. Ullah,
976 F.2d 509, 514 (9th Cir. 1992)).
All three exceptions to the waiver rule apply here. As
discussed, to deport Etemadi without a hearing conducted
according to the requirements of the law would work a
manifest injustice against him. The second exception applies
because the issue was raised in the government’s appellee
brief. The Government did not rely only on “waiver” but did
interpret both the BIA decision and § 1003.2(c)(1) to “quite
reasonably” require Etemadi to submit a new application
because the agency and prior panel originally found that
Etemadi is not a Christian. The third exception also applies
because there is no reason to believe—nor does the
government argue—that the government was prejudiced by
Etemadi’s failure to raise the issue.
The text of § 1003.2(c)(1) makes a clear distinction
between a motion to reopen proceedings and a motion to
reopen proceedings for the purpose of submitting an
application for relief:
A motion to reopen proceedings shall state
the new facts that will be proven at a hearing
to be held if the motion is granted and shall
be supported by affidavits or other
evidentiary material. A motion to reopen
proceedings for the purpose of submitting an
application for relief must be accompanied
by the appropriate application for relief and
all supporting documentation.
8 C.F.R. § 1003.2(c)(1) (emphasis added).
The first of these—a standard motion to reopen—need
only state the new facts that will be proven at the hearing and
ETEMADI V. GARLAND 27
supporting evidentiary material. Under this standard,
Etemadi has satisfied the requirements of the regulation. 5
But a motion to reopen proceedings for the purpose of
submitting an application for relief must meet the additional
requirement of attaching “the appropriate application for
relief.” Ibid.The unambiguous language of § 1003.2(c)(1) describes
two kinds of motions to reopen. We do not now create a
“circuit split” because this issue has not been squarely
addressed by any other circuit. Nearly all the cases the
dissent cites can be easily distinguished from Etemadi’s case
because the petitioners raised a different claim on the motion
to reopen that they had not raised earlier. Bi Feng Liu v.
Holder, 560 F.3d 485, 487 (6th Cir. 2009), involved an
immigrant who, after having been denied asylum on grounds
related to China’s one-child policy, moved to reopen based
on his later-acquired political affiliation in the China
Democratic Party in New York. In Palma-Mazariegos v.
Keisler, 504 F.3d 144, 147 (1st Cir. 2007), the petitioner was
originally denied relief and then filed a motion to reopen on
new grounds—his motion to adjust status. Similarly, In re
Yewondwosen, 21 I. & N. Dec. 1025 (BIA 1997), involved a
petitioner who was originally denied relief but later moved
to “pursue an application of adjustment of status” “during
the pendency of her appeal.” See also Lin Xing Jiang v.
Holder, 639 F.3d 751, 754 (7th Cir. 2011) (stressing that, in
5
Etemadi submitted (1) a declaration that he converted to
Christianity in 1999 and will be subject to torture in Iran for his faith;
(2) a psychologist’s evaluation of Etemadi’s wife, finding that she
“would suffer extreme hardship were her husband not allowed to remain
in this country . . . .”; (3) a 2017 publication of the Austrian Red Cross
on persecution of Christians in Iran, which contains excerpts of other
reports; and (4) the State Department’s 2016 International Religious
Freedom Report for Iran.
28 ETEMADI V. GARLAND
the petitioner’s motion to reopen, “[f]or the first time, [the
petitioner] argued that she feared persecution based on her
Catholic religion”). By contrast, Etemadi’s 2018 motion to
reopen is on the same basis as the application he submitted
in 2000: his Christian faith.
The case that comes closest to ours is Gen Lin v. Attorney
General, 700 F.3d 683 (3d Cir. 2012). But it too can be
distinguished from Etemadi’s case because Lin’s asylum
claim was originally denied on two distinct grounds: on
“Lin’s failure to file his petition for asylum within one year
of his arrival, and on an adverse credibility determination.”
Id. at 685. However, Lin’s motion to reopen only challenged
the IJ’s credibility determination. In other words, Lin knew
or should have known that, regardless of his challenge to the
IJ’s credibility finding, his original claim had been denied on
an independent ground that he did not challenge—his failure
to file his petition on time. By contrast, here there is no
independent and unchallenged ground that defeated
Etemadi’s CAT claim.
The regulation’s plain language makes it hard to see how
Etemadi’s motion to reopen his previous CAT claim based
on Christianity was in any way “for the purpose of
submitting an application for relief” rather than a regular
motion to reopen his original CAT claim. 8 C.F.R.
§ 1003.2(c)(1). Etemadi had already submitted his
application for relief before the IJ, and his application
asserting his religious-persecution claim is in the
administrative record. Etemadi referred to it repeatedly in his
motion to reopen. Indeed, the CAT relief he sought in his
motion to reopen is identical to the relief he sought at the
hearing, and on the same grounds of his Christian faith. He
was required to do no more.
ETEMADI V. GARLAND 29
We also need not defer to the BIA’s interpretation of
§ 1003.2(c)(1) because there is no indication that BIA’s
interpretation of the regulation is “the agency’s
‘authoritative’ or ‘official’ position, rather than any more ad
hoc statement not reflecting the agency’s views.” Kisor,
139 S. Ct. at 2416. But even if the BIA’s interpretation were
considered representative of the agency’s official views, the
regulation is not genuinely ambiguous. Id. at 2415 (“First
and foremost, a court should not afford Auer deference
unless the regulation is genuinely ambiguous. . . . And
before concluding that a rule is genuinely ambiguous, a court
must exhaust all the ‘traditional tools’ of construction.”). We
see no ambiguity. There are two kinds of motions to reopen,
and those that are “for the purpose of submitting an
application for relief” require an attachment of the
“appropriate application.” The other kind does not. Finally,
adopting the BIA’s presumption and allowing it to defeat
Etemadi’s claim without examining it would create “unfair
surprise” and lack “fair warning,” id. at 2418, to Etemadi
because it would require him to submit an application that
the agency already has.
C. Changed Country Conditions
In his motion to reopen, Etemadi filed an affidavit that
he is a Christian. The BIA denied Etemadi’s motion to
reopen as untimely “to the extent [he] [sought]
reconsideration” of the IJ’s determination that Etemadi is not
a Christian. But “[t]he Board is required to accept as true the
facts stated in [Etemadi’s] affidavit unless they are
inherently unbelievable.” Najmabadi v. Holder, 597 F.3d
983, 990 (9th Cir. 2010) (citing Limsico v. INS, 951 F.2d
210, 213 (9th Cir. 1991)); see also Sakhavat v. INS, 796 F.2d
1201, 1204 (9th Cir. 1986) (“[W]e hold that ‘[t]he BIA
abused its discretion . . . when it disbelieved affidavit
30 ETEMADI V. GARLAND
evidence that was not inherently incredible.” (quoting
Mattis, 774 F.2d at 969)). An exception to this rule applies
when the affidavit is contradicted by findings below that are
“supported by substantial evidence.” Limsico, 951 F.2d at
213 (quoting Elias-Zacarias v. INS, 921 F.2d 844, 854 (9th
Cir. 1990), rev’d on other grounds, 502 U.S. 478 (1992)). In
Limsico, the petitioner’s affidavit that he had good character
was contradicted by his own testimony that he paid an
American citizen to marry him so that he could get a green
card. Id. at 213–14. The government does not present—and
we are not aware of—any such testimony or evidence that
contradicts Etemadi’s claim that he is a Christian. Because
the IJ, the BIA, and the prior panel’s findings that Etemadi
was not a Christian were not supported by substantial
evidence, this exception does not apply. Further, “[t]o
determine whether [Etemadi] has established a prima facie
case, the Board must look at the evidence in its entirety.” Id.
at 213. The BIA failed to do so.
The BIA abused its discretion in its conclusory analysis
that the evidence Etemadi submitted with his motion to
reopen failed to show changed country conditions in Iran.
“The agency abuses its discretion if it fails to state its reasons
and show proper consideration of all factors when weighing
equities and denying relief.” Yepes-Prado, 10 F.3d at 1366
(citing Cerrillo-Perez, 809 F.2d at 1422); see also Chandra
v. Holder, 751 F.3d 1034, 1039 (9th Cir. 2014) (requiring
that the BIA give full consideration to all factors, both
favorable and unfavorable, on a motion to reopen); Yan Rong
Zhao v. Holder, 728 F.3d 1144, 1149 (9th Cir. 2013)
(remanding to the BIA where the BIA entirely failed to
address petitioner’s supplemental brief and the evidence
attached to it; although the BIA had discretion whether to
consider the evidence, it was legal error for it to fail entirely
to exercise its discretion). The BIA concluded that Etemadi
ETEMADI V. GARLAND 31
“has not demonstrated that Iran’s treatment of Christians has
worsened since the Immigration Judge’s hearing. Rather,
Iran’s treatment of Christians is a continuation of those
conditions presented at the Immigration Judge’s hearing.”
But we “cannot assume that the [agency] considered factors
that it failed to mention.” Yepes-Prado, 10 F.3d at 1366
(citing Mattis, 774 F.2d at 967). Although the BIA correctly
noted that the punishment for apostacy was the same then as
it is now, the BIA’s passing reference to the country-
conditions reports Etemadi submitted at his original hearing
and on his motion to reopen “fails to state its reasons and
show proper consideration of all factors when weighing
equities and denying relief.” Id. at 1366 (emphasis added).
“[T]he changed country conditions exception is
concerned with two points in time: the circumstances of the
country at the time of the petitioner’s previous hearing, and
those at the time of the motion to reopen.” Salim v. Lynch,
831 F.3d 1133, 1137 (9th Cir. 2016). A petitioner need not
prove that the changed conditions are unprecedented.
Changes in country conditions are still changes even if they
began in intervening years. Because the changed-country-
conditions exception “is concerned with two points in time,”
ibid., the petitioner need only show that country conditions
are worse at the time of the motion to reopen than at the last
hearing. See, e.g., Chandra, 751 F.3d at 1039 (“The BIA
abused its discretion when it failed to assess Chandra’s
evidence that treatment of Christians in Indonesia had
deteriorated since his 2002 removal hearing.”). This is done
by comparing the evidence submitted for the original hearing
with the evidence submitted at the motion to reopen.
“The newly submitted evidence must be ‘qualitatively
different’ from the evidence presented at the previous
hearing.” Agonafer v. Sessions, 859 F.3d 1198, 1204 (9th
32 ETEMADI V. GARLAND
Cir. 2017) (quoting Malty v. Ashcroft, 381 F.3d 942, 945 (9th
Cir. 2004)). “Evidence that simply recounts previous
conditions presented at a previous hearing or that is
voluminous but redundant is not sufficient to show a change
in country conditions.” Id. at 1204. Repeated evidence
should not be confused with evidence of repeated offenses.
For example, one credible report that a pastor was arrested
is not better than ten reporting the same arrest. But reports
that many more pastors have been arrested now than in the
past would demonstrate a qualitative difference in country
conditions. A significant quantitative difference is a
qualitative difference.
The BIA failed to address compelling evidence that
Etemadi submitted in his motion to reopen that conditions
have become qualitatively worse for Christians in Iran. A
careful comparison of the evidence Etemadi submitted prior
to his 2002 hearing and on his 2018 motion to reopen, show
that, as the Danish Immigration Service noted in 2014, there
have been “major recent changes in Iran when it comes to
conditions for Christians.” This evidence was not available
to Etemadi because the changes in country conditions
occurred after the IJ’s original deportation order.
For instance, there has been a proliferation of clandestine
“house churches” because of the significant government
pressure on official churches. As the Austrian Red Cross
report in the record notes, in “2012, Iran’s government began
to bar converts from Muslim backgrounds from attending
services in official churches.” In 2010, “the Iranian National
Security Council . . . made a decision to stop Farsi-speaking
churches. In late 2010 and early 2011, the demands against
the churches started and finally in 2013 the largest remaining
churches were shut down.” The task to shut down Farsi-
speaking churches was assigned “to the Special Intelligence
ETEMADI V. GARLAND 33
Branch of the Revolutionary Guard which has taken charge
of dealing with Iranian Farsi speaking churches and converts
to Christianity.” As the State Department notes in its 2016
International Religious Freedom Report, “the [Iranian]
government, through such pressure and through church
closures, had eliminated in recent years all but a handful of
Farsi-language church services.” Most notable was the
complete shutdown in 2013 of the Central Assemblies of
God Church in Tehran, Iran’s largest evangelical church, and
the arrest of its pastor. A report by the Danish Immigration
Service concluded, “[T]here are essentially no churches
offering services in Farsi over ground anymore.”
The State Department’s 2015 International Religious
Freedom Report notes that “the [Iranian] government
prevented ordination of new ministers.” The Danish report
states that one of the only Farsi-speaking evangelical
churches remaining, in the “more liberal” area of Rasht, has
stopped allowing new members into its church. Etemadi’s
original country-conditions reports do not mention
government prevention of the ordination of new ministers or
acceptance of new members.
The State Department’s 2016 International Religious
Freedom Report notes that the Iranian government “arrested
17 Christians who were attending a private social event in
Tehran. Following this incident, attendees of the event were
reportedly subjected to interrogations and intimidation and
had their private property seized.” In addition, “[t]wo
attendees were reportedly banned from continuing their
university studies for engaging in ‘illegal activities’ while
other attendees lost their jobs.” This is another qualitative
change in the conditions in Iran. Etemadi’s previously
submitted reports discussed arrests of pastors, as well as
ordinary Christians during religious activities. Those reports
34 ETEMADI V. GARLAND
did not note that the government would arrest Christians at
social events, or that social events would be deemed “illegal
activities” based on the religious status of its attendees. Nor
did Etemadi’s original reports discuss that Christian students
would be expelled from university or lose their livelihoods.
That Christians face the threat of arrest even outside of
religious activities greatly increases their risk of persecution,
arbitrary arrest, and torture. Similarly, the United States
Commission on International Religious Freedom’s
(“USCIRF”) 2016 report noted a “significant increase in the
number of physical assaults and beatings of Christians in
prison.” The BIA ignored all of this.
The USCIRF 2016 report described that the Iranian
government has continuously and systematically arrested
Christians in their homes, and has “[s]ince 2010, . . .
arbitrarily arrested and detained more than 550 Christians
throughout the country. As of February 2016, approximately
90 Christians were either in prison, detained, or awaiting
trial because of their religious beliefs and activities.”
Etemadi’s reports also note that “Christians who were
arrested were reportedly subject to severe physical and
psychological mistreatment” and that prison officials
withhold medical care from Christian prisoners.
There were, of course, house churches in Iran before
2002 and one report by a Christian nonprofit that Etemadi
submitted in 2002 noted that the government persecuted at
least some of them. But the State Department Report
Etemadi submitted in 2002 did not discuss any persecution
of house churches, and the report by the Christian nonprofit
noted that the persecution was intermittent and occurred in
“waves” (“The persecution of Evangelical Christians occurs
in waves of attacks.”), rather than what is reported now: a
systematic, continuous, and “widening gyre of persecution.”
ETEMADI V. GARLAND 35
Aviles-Torres v. INS, 790 F.2d 1433, 1435 (9th Cir. 1986).
This is a qualitatively different kind of persecution that the
BIA failed to address.
Etemadi has demonstrated prima facie evidence for relief
under CAT. See, e.g., Ramirez-Munoz v. Lynch, 816 F.3d
1226, 1228 (9th Cir. 2016). A prima facie case is established
“where the evidence reveals a reasonable likelihood the
statutory requirements for relief have been satisfied.”
Mendez-Gutierrez v. Gonzales, 444 F.3d 1168, 1171 (9th
Cir. 2006) (quoting Ordonez v. INS, 345 F.3d 777, 785 (9th
Cir. 2003)). In order to establish a prima facie claim, the law
does “not require[] a conclusive showing that, assuming the
facts alleged to be true, eligibility for relief has been
established.” Tadevosyan v. Holder, 743 F.3d 1250, 1255
(9th Cir. 2014) (quoting In re L-O-G-, 21 I. & N. Dec. 413,
418–19 (BIA 1996)). Etemadi’s country-conditions
evidence sufficiently documents the widespread persecution
of Christian converts and torture 6 of Christian prisoners in
Iran to establish a prima facie claim for CAT relief, and thus
requires remand.
CONCLUSION
The record compels us to conclude that the IJ’s finding
that Etemadi is not a Christian was unsupported by
substantial evidence. The IJ improperly allowed his negative
determination of Etemadi’s credibility, based primarily on
6
For example, a 1997 State Department report in the record noted
“extrajudicial killings and summary executions; widespread use of
torture and other degrading treatment; disappearances; arbitrary arrest
and detention; lack of fair trials; [and] harsh prison conditions,” and the
USCIRF 2016 report documented that “human rights groups inside Iran
reported a significant increase in the number of physical assaults and
beatings of Christians in prison.”
36 ETEMADI V. GARLAND
Etemadi’s frivolous political asylum claim, to wash over
Etemadi’s legitimate religion-based CAT claim. The BIA,
and a subsequent panel of our court, relied on this error and
denied Etemadi proper consideration of this claim. Etemadi
has demonstrated changed country conditions in Iran and has
also made a prima facie showing of entitlement to CAT
relief. We therefore GRANT the petition for review and
REMAND for a new hearing to consider all evidence of
Etemadi’s Christian faith and whether Etemadi is more
likely than not to face torture if removed to Iran.
M. SMITH, Circuit Judge, dissenting:
This should be a straightforward case. Nearly twenty
years ago, an immigration judge (IJ) ordered Kami Etemadi
removed, having concluded that Etemadi did not make the
required showing to be granted asylum or relief pursuant to
the Convention Against Torture (CAT). The Board of
Immigration Appeals (BIA) affirmed that decision. In 2007,
we affirmed the BIA. See Etemadi v. Keisler, 251 F. App’x
388 (9th Cir. 2007). Sixteen years after the IJ denied relief,
Etemadi asked the BIA to reopen his case, and the BIA
declined to exercise its discretion to do so. Based on the fact
that we already affirmed the IJ’s removal order and that we
generally defer to the BIA on motions to reopen, the BIA’s
decision should have been the end of the matter.
The majority now concludes that Etemadi should have a
second bite at the apple. In doing so, the majority jumps
over not one, not two, but three legal hurdles. First, the
majority disregards the law of the case doctrine. Second, the
majority excuses waiver and proceeds to overrule the BIA’s
interpretation of a regulation, thereby creating a circuit split
ETEMADI V. GARLAND 37
on an issue that was not even briefed. And third, the majority
incorrectly holds that the BIA abused its discretion with
regard to changed country conditions in Iran. The existence
of any one of these hurdles should be sufficient to deny
Etemadi’s petition for review, yet the majority somehow
leaps over each and every one of them. I would not normally
undertake the exhaustive review below of what I consider to
be the majority’s errors, but the result of the majority’s
decision is, in my view, so non-sensical, and so contrary to
so many of our precedents, that I feel I have no choice but to
undertake the task. I respectfully dissent.
I. Law of the Case Doctrine
Adjudicating Etemadi’s original application for relief,
the IJ first determined that Etemadi did not testify credibly.
With regard to evidence of Etemadi’s purported Christian
faith, the IJ wrote:
When queried as to the denomination of the
Christian religion that he purports to be a
member of, this was not answered directly.
He stated that he was baptized in the
Christian faith prior to the commencement of
proceedings. The [Immigration] Court found
that this was not true.
But the IJ found numerous other reasons to make an adverse
credibility finding: Etemadi submitted false documents, with
the IJ determining that Etemadi “knew that the documents
he offered were false at the time [they were] filed and
offered;” Etemadi knowingly made “misrepresentations that
were material” regarding his family in Iran; and Etemadi did
not recant his false testimony or forged documents. The IJ
considered Etemadi to be so incredible that he deemed
38 ETEMADI V. GARLAND
Etemadi’s application to be frivolous. For those reasons, the
IJ “believe[d] it appropriate to discount all testimony offered
by” Etemadi.
After explaining why he made an adverse credibility
finding, the IJ then turned to the merits of Etemadi’s
application, holding that Etemadi had not made the required
showings for asylum or withholding of removal. The IJ
denied Etemadi’s application for CAT relief as well. The IJ
concluded that Etemadi’s “application for relief under
Article 3 of the Convention Against Torture is likewise
denied on the basis . . . of a lack of credibility as set forth in
the credibility findings above.” The BIA summarily
affirmed the IJ’s decision.
Upon appeal to our court, our prior panel first evaluated
the IJ’s credibility finding. We held that “[s]ubstantial
evidence . . . support[ed] the IJ’s adverse credibility finding
regarding Etemadi’s conversion to Christianity.” Etemadi,
251 F. App’x at 389. We specifically highlighted that
Etemadi “testified inconsistently,” “testified evasively,” and
filed “forged documents.” Id. Based on these “forgeries and
inconsistencies,” which went “to the heart of Etemadi’s
asylum claim,” we affirmed the IJ’s decision to deny asylum
and withholding of removal. Id.We then separately evaluated Etemadi’s CAT claim,
writing that “[i]t was precisely the falsity of [Etemadi’s]
claim of Christian conversion which invalidated his CAT
claim.” Id. at 390. This was because Etemadi’s CAT claim
was based entirely on his claim of Christian conversion. See
id. (“Etemadi claimed he would be tortured only because of
his Christian conversion.”). Thus, although “[a]n adverse
credibility determination is not necessarily a death knell to
ETEMADI V. GARLAND 39
CAT protection” in general, Shrestha v. Holder, 590 F.3d
1034, 1048 (9th Cir. 2010), in this case, it was.
A. Applicability of the Law of the Case Doctrine
The majority first questions whether the law of the case
doctrine should even apply to this case. The majority writes:
“Because the law-of-the-case doctrine applies to legal issues,
and because the prior panel decided a facts-predominant
mixed question of law and fact, the law-of-the-case doctrine
likely does not apply here at all.” Majority Opinion at 12.
At times we have stated that the law of the case doctrine
applies to “legal issue[s].” See, e.g., In re Rainbow
Magazine, 77 F.3d 278, 281 (9th Cir. 1996). But we have
also stated that “under the ‘law of the case’ doctrine one
panel of an appellate court will not as a general rule
reconsider questions which another panel has decided on a
prior appeal in the same case,” without restricting the
doctrine to “legal issues” or denying the applicability of the
doctrine to mixed questions of law and fact. Kimball v.
Callahan, 590 F.2d 768, 771 (9th Cir. 1979); cf. United
States v. Hollis, 506 F.3d 415, 421 (5th Cir. 2007) (“On this
second appeal, we are bound by the law of the case rule:
ordinarily an issue of fact or law decided on appeal may not
be reexamined by the appellate court on subsequent appeal.”
(internal quotation marks and modifications omitted)).
In any event, when deciding whether the law of the case
doctrine applies to this matter, we are not determining
whether we should overrule the IJ’s adverse credibility
determination, but instead whether we should overrule the
prior panel’s affirmance of that adverse credibility
determination. The prior panel’s ruling is based on
application of the substantial evidence standard to the IJ’s
40 ETEMADI V. GARLAND
factfinding. “The phrase ‘substantial evidence’ is a ‘term of
art’ used throughout administrative law to describe how
courts are to review agency factfinding.” Biestek v.
Berryhill, 139 S. Ct. 1148, 1154 (2019) (citation omitted).
Application of the substantial evidence standard does not
involve actual factfinding (taking testimony, weighing
evidence, etc.), which is left to the agency, but is instead a
legal determination as to whether those facts meet the legal
bar of substantial evidence. See id. at 1161 (Gorsuch, J.,
dissenting) (“All of the relevant facts are undisputed, and it
remains only to decide the legal question whether they meet
the substantial evidence standard.”); cf. Blumenthal Distrib.,
Inc. v. Herman Miller, Inc., 963 F.3d 859, 871 (9th Cir.
2020) (“[T]he legal question before us is whether HM
offered evidence sufficient to allow a reasonable jury to
conclude that the EAMES trade dress met the definition of
fame.”); Stein v. United States, 337 F.2d 14, 16 (9th Cir.
1964) (“The sole legal question raised on this appeal is the
sufficiency of the evidence to prove the crimes charged.”).
In applying the substantial evidence standard, we “must not
weigh the evidence.” SEC v. Todd, 642 F.3d 1207, 1215 (9th
Cir. 2011); see also Donchev v. Mukasey, 553 F.3d 1206,
1213 n.7 (9th Cir. 2009) (“This independent weighing of the
testimony is what we are not permitted to do.”). As this
precedent confirms, application of the substantial evidence
standard by the prior panel was a legal question, even if it
did involve an analysis of the IJ’s factual determinations.
The majority does not address this precedent. Instead,
the majority incorrectly contends that “[t]he dispute among
the parties” in the prior appeal “primarily concerned the
weight of the evidence regarding the agency’s determination
that Etemadi is not a Christian.” Majority Opinion at 11; but
see Todd, 642 F.3d at 1215. I agree that “[w]hen a mixed
question of law and fact is presented, the standard of review
ETEMADI V. GARLAND 41
turns on whether factual matters or legal matters
predominate.” Majority Opinion at 11 (quoting United
States v. Mateo-Mendez, 215 F.3d 1039, 1042 (9th Cir.
2000) (internal quotation marks omitted)). But the law of
the case doctrine is not a “standard of review.” It is instead
a “practice of courts generally to refuse to reopen what has
been decided.” Messenger v. Anderson, 225 U.S. 436, 444
(1912). We are not deciding which standard of review
should apply to the prior panel’s disposition, but instead
whether we should afford that disposition the respect
warranted pursuant to the law of the case doctrine.
The majority appears to argue that because the prior
panel’s standard of review involved a mixed question of law
and fact, the law of the case doctrine should not apply. The
majority cites no case law, either from our court or any other
court, for this proposition. As noted above, we have
pronounced that the law of the case doctrine pertains to
“questions which another panel has decided on a prior
appeal.” Kimball, 590 F.3d at 771. And both our court and
other courts, albeit in unpublished dispositions, have applied
the law of the case doctrine to prior panels’ application of
the substantial evidence standard for IJ credibility
determinations. See, e.g., Kaur v. Holder, 470 F. App’x 611,
612 (9th Cir. 2012) (applying the law of the case doctrine
and “declin[ing] to reconsider [a petitioner’s] challenge to
the immigration judge’s adverse credibility determination
because this court already decided the issue in” a prior
appeal). 1 Accordingly, the prior panel’s determination that
1
See also Ceni v. Mukasey, 291 F. App’x 454, 456 n.1 (2d Cir. 2008)
(“In any event, this Court has previously considered the BIA’s
affirmance of the IJ’s adverse credibility determination and found that it
was supported by substantial evidence. Thus, that adverse credibility
42 ETEMADI V. GARLAND
the evidence before the IJ was substantial is subject to the
law of the case doctrine.
B. Substantial Evidence and Clear Error
On direct appeal, we review an “adverse credibility
finding for substantial evidence.” Soto-Olarte v. Holder,
555 F.3d 1089, 1091 (9th Cir. 2009). “[W]hatever the
meaning of ‘substantial’ in other contexts, the threshold for
such evidentiary sufficiency is not high. Substantial
evidence, [the Supreme] Court has said, is ‘more than a mere
scintilla.’” Biestek, 139 S. Ct. at 1154 (citation omitted).
The review of an IJ’s credibility determination and
evaluation of a CAT application is “extremely deferential:
‘administrative findings of fact are conclusive unless any
reasonable adjudicator would be compelled to conclude to
the contrary.’” Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th
Cir. 2003) (quoting 8 U.S.C. § 1252(b)(4)(A)–(B) (1996)).
“Thus, when a petitioner contends that the IJ’s findings are
erroneous, the petitioner ‘must establish that the evidence
not only supports that conclusion, but compels it.’” Id.(quoting Singh v. INS, 134 F.3d 962, 966 (9th Cir. 1998)).
“Under this standard, only the most extraordinary
circumstances will justify overturning an adverse credibility
determination.” Iman v. Barr, 972 F.3d 1058, 1064 (9th Cir.
2020) (citation and internal quotation marks omitted).
determination remains the law of the case.”); Fui Ha Bong v. Mukasey,
287 F. App’x 955, 955–56 (2d Cir. 2008) (“In this Court’s summary
order resolving [the prior] petition, we decided that both the IJ’s past
persecution and well-founded fear findings were supported by
substantial evidence. That decision remains the law of the case.”
(citation omitted)); Portillo-Sierra v. U.S. Att’y Gen., 270 F. App'x 859,
861 (11th Cir. 2008) (“[W]e upheld the adverse credibility findings [in a
prior appeal]. . . . [O]ur prior holding has become the law of the case.”)
ETEMADI V. GARLAND 43
As the majority acknowledges, “[a]ccording to the [law
of the case] doctrine, . . . a prior decision should be followed
unless . . . the decision is clearly erroneous and its
enforcement would work a manifest injustice.” Alaimalo v.
United States, 645 F.3d 1042, 1049 (9th Cir. 2011); see
Majority Opinion at 11. “[A] finding is ‘clearly erroneous’
when although there is evidence to support it, the reviewing
court on the entire evidence is left with the definite and firm
conviction that a mistake has been committed.” Anderson v.
City of Bessemer City, N.C., 470 U.S. 564, 573 (1985)
(citation and some internal quotation marks omitted). We
cannot “reverse the finding of” the previous panel “simply
because [we are] convinced that [we] would have decided
the case differently.” Id.Thus, when we revisit a prior panel’s affirmance of an
IJ’s factual determination, our standard of review is doubly
deferential. We must determine whether the prior panel
clearly erred in holding that substantial evidence supported
the IJ’s adverse credibility finding. Put another way, we
must be “left with the definite and firm conviction,” id., that
“any reasonable adjudicator would be compelled to
conclude,” Farah, 348 F.3d at 1156 (internal quotation
marks omitted), that the IJ’s credibility determination did not
meet the low bar of “more than a scintilla, but less than a
preponderance” of the evidence, Smolen v. Chater, 80 F.3d
1273, 1279 (9th Cir. 1996) (citations and internal quotation
marks omitted). Given that our normal review of a
credibility determination is already “extremely deferential,”
Farah, 348 F.3d at 1156 (emphasis added), it is difficult to
even summon an adverb that describes the level of deference
for overruling a prior panel on a substantial evidence
determination.
44 ETEMADI V. GARLAND
The majority misunderstands the standard of review that
we are required to apply in this case. The majority contends
that “[a] prior panel’s incorrect determination that an IJ’s
decision was supported by substantial evidence is
necessarily clear error because” the substantial evidence
standard is more deferential than the clear error standard.
Majority Opinion at 13 n.1. Application of the two standards
is not an either-or question. Instead, it is sequential. The
first panel asked whether there was substantial evidence to
support the IJ’s credibility determination. See Etemadi,
251 F. App’x at 389. We now ask whether it was clear error
for the prior panel to make that substantial evidence
determination. That is because clear error review examines
whether “a finding is ‘clearly erroneous.’” Anderson,
470 U.S. at 573 (emphasis added). The prior panel’s
“finding” (or, in this case, holding) was not whether Etemadi
was or was not a Christian. Instead, it was whether there was
substantial evidence to support the IJ’s credibility
determination. Thus, we do not weigh the two standards of
review against one another. We must apply both standards
and resolve whether it was clear error to hold that there was
substantial evidence to support the IJ’s credibility
determination.
Despite mischaracterizing the standard of review, the
majority decides that the prior panel did commit “clear
error.” See Majority Opinion at 12–24. Were we reviewing
the IJ’s adverse credibility determination under de novo
review, or even on direct appeal pursuant to a substantial
evidence standard, a reversal of the adverse credibility
determination might be defensible, but since we are
governed by the doubly deferential standard of substantial
evidence and clear error, I cannot join the majority’s analysis
or conclusion.
ETEMADI V. GARLAND 45
1. Substantial Evidence for the IJ’s Credibility
Determination
The majority concludes that “[t]he IJ made a material
error of fact when he concluded that Etemadi falsely testified
that he was baptized prior to the proceedings.” Majority
Opinion at 15. The majority highlights that Etemadi
submitted a number of documents showing his conversion to
Christianity before he amended his asylum and CAT
applications to include a religious persecution claim. See id.
at 15. The IJ listed most, if not all, of these documents in his
decision, and wrote that Etemadi “did submit documentation
in support of his application for asylum.”
The majority faults the IJ for finding Etemadi’s claim of
Christian conversion to be false because the IJ stated: “When
queried as to the denomination of the Christian religion that
[Etemadi] purports to be a member of, this was not answered
directly. [Etemadi] stated that he was baptized in the
Christian faith prior to the commencement of proceedings.
The [Immigration] Court found that this was not true.” See
Majority Opinion at 14. The majority correctly notes that
Etemadi claimed to have been baptized on October 24, 1999,
both based on his testimony and documents submitted in
support of his asylum application, including a baptismal
certificate and a letter from a pastor. See id. at 15. Thus, I
agree that the IJ technically erred in writing that Etemadi
falsely claimed to have been baptized prior to the start of
proceedings, as Etemadi submitted his original asylum
application in October 1996.
The question, however, in determining whether we
should disregard the law of the case doctrine is not whether
the IJ erred, but instead whether our prior panel clearly erred
in determining that there was substantial evidence to affirm
46 ETEMADI V. GARLAND
the IJ’s adverse credibility finding. Our prior panel never
mentioned the date of Etemadi’s baptism, nor did it cite the
IJ’s erroneous statement. See Etemadi, 251 F. App’x at 389–
90. 2 The majority essentially faults our prior panel for not
pointing out an error made by the IJ, when there is no
indication that the prior panel ever actually relied on that
error. One wonders how the majority can be “left with the
definite and firm conviction that a mistake has been
committed” by the prior panel when the prior panel never
stated that it relied on the IJ’s error. Anderson, 470 U.S.
at 573; cf. Perez-Arceo v. Lynch, 821 F3d 1178, 1185 (9th
Cir. 2016) (upholding an adverse credibility determination
even though “the IJ erred in . . . three respects”).
Next, the majority states that the prior panel erred by
upholding a finding “that Etemadi deliberately evaded the
question at the hearing regarding his Christian
denomination.” Majority Opinion at 15. The prior panel did
rely on this finding. See Etemadi, 251 F. App’x at 389
(“[Etemadi] also testified evasively when asked into what
Christian denomination he had been baptized.”). The
relevant portion of the testimony is: 3
2
The prior panel did write that “[t]he IJ made a specific finding [that
Etemadi’s] testimony was untrue.” Etemadi, 251 F. App’x at 389. While
this could be referring to the baptism date, the prior panel never stated as
much, which does not meet the high bar of clear error, especially as the
IJ found much of Etemadi’s testimony to be untrue.
3
The majority writes that “Etemadi’s interpreter appeared to be
unfamiliar with theological terms,” citing that Etemadi’s attorney had to
translate the word “divinity.” See Majority Opinion at 16 & n.4. From
my review of the hearing transcripts, that appears to be the only instance
in which the interpreter did not know how to translate a theological term.
ETEMADI V. GARLAND 47
[Etemadi’s Counsel:] Okay. Now what is
your religion currently?
[Etemadi:] Christian.
[Etemadi’s Counsel:] What denomination of
Christian [sic] do you belong to?
[Etemadi:] There’s an Iranian church in
Fremont, and I’m a member of that church.
[Etemadi’s Counsel:] Do you know what the
church is called?
[Etemadi:] Iranian Fremont Christian
Church.
To be sure, this line of questioning is not the strongest
evidence of evasiveness. Cf. Bingxu Jin v. Holder, 748 F.3d
959, 962 (9th Cir. 2014) (upholding an IJ’s finding of
evasive testimony when the petitioner failed to respond to
multiple inquiries about his residence). And on direct review
from the BIA, this testimony alone likely would not be
enough to sustain the IJ’s adverse credibility determination.
But the posture of this case demands that we ask whether it
was clear error for the prior panel to rely, at least in part, on
this testimony to show that there was substantial evidence
for the adverse credibility finding. Etemadi’s counsel asked
him about which “denomination” he belonged to. Etemadi
answered not by naming a denomination, but instead by
The transcript reveals no issues with interpretation of words like
“baptized,” “pastor,” “the Holy Spirit,” “Old Testament,” and “New
Testament.”
48 ETEMADI V. GARLAND
stating that he was “a member of” the “Iranian church in
Fremont.” A specific church is not a denomination.
“[W]hen a petitioner contends that the IJ’s findings are
erroneous, the petitioner must establish that the evidence not
only supports that conclusion, but compels it.” Farah,
348 F.3d at 1156 (first emphasis added) (citation and internal
quotation marks omitted). Etemadi points to no evidence
submitted to the IJ, the BIA, or our court during the original
proceedings that show he was a “nondenominational
Christian.” Majority Opinion at 16. In holding that the prior
panel clearly erred in relying on this testimony, the majority
uses ex post evidence and speculation. The majority
highlights Etemadi’s recent declaration in which he states
that he does not “really relate to any particular
denomination” of Christianity. But Etemadi attached that
declaration to his 2018 motion to reopen, not his original
asylum application. In setting aside a prior panel’s decision
and disregarding the law of the case doctrine, we must ask
whether the evidence before that panel could not support the
panel’s decision, pursuant to a clear error standard. “This
standard plainly does not entitle” the current panel “to
reverse the” prior panel “simply because it is convinced that
it would have decided the case differently.” Anderson,
470 U.S. at 573. The current panel “oversteps the bounds of
its duty . . . if it undertakes to duplicate the role of” the prior
panel or the IJ because our “function is not to decide factual
issues de novo,” id. (citation and internal quotation marks
omitted), and especially not to decide issues based on new
factual allegations.
The majority also posits that “[n]othing in the record . . .
indicates that Etemadi’s church has a denomination” and that
“many evangelical churches are nondenominational.”
Majority Opinion at 16. The majority cites nothing from the
ETEMADI V. GARLAND 49
record to show that either of these statements is true and
effectively shifts the burden away from Etemadi to show that
the prior panel clearly erred. 4
The fact remains that Etemadi was asked a simple
question by his own counsel: “What denomination of
Christian[ity] do you belong to?” Etemadi replied with the
name of a church. He did not state a denomination, and he
did not state, “I do not belong to a denomination,” or “My
church has no denomination.” Pursuant to the
extraordinarily deferential standard of requiring clear error
that there was not substantial evidence, the prior panel could
rely on Etemadi’s answer.
Additionally, we must review Etemadi’s testimony
within the larger context of his religion-based asylum and
CAT claims. See Morgan v. Mukasey, 529 F.3d 1202, 1210
(9th Cir. 2008) (deciding a credibility claim by “[v]iewing
all the evidence in its context”). The Government’s
opposition to Etemadi’s religion-based asylum and CAT
claims was based on the idea that Etemadi had converted to
Christianity for the purpose of strengthening his asylum and
CAT applications, after Etemadi had admitted to giving false
testimony regarding documents submitted with his original
application. Upon questioning from his own counsel,
Etemadi testified that he “became familiar with” Christianity
in 1998 and later was baptized. Etemadi’s own attorney
attempted to rebut the Government’s position by stating
sarcastically: “Well, this is very convenient. You’ve become
a Christian while you’re in removal proceedings.”
4
Never mind the fact Etemadi does not argue any of these points in
his brief. The majority’s willingness to be advocates for Etemadi is a
running theme, as indicated by the majority’s decision to excuse waiver.
50 ETEMADI V. GARLAND
During cross-examination, the Government questioned
Etemadi about having previously testified falsely:
[Government’s Counsel:] Now, sir, what
made you decide to come to this Court today
and testify contrary to the testimony that you
provided under oath to this Court previously,
that three of the most critical documents in
your case are fraudulent?
[Etemadi:] My approach is Jesus Christ.
When the Government asked whether Etemadi’s admission
that he lied during his previous testimony was because the
Government submitted a forensics report showing Etemadi’s
supporting documents were fraudulent, Etemadi affirmed
that his reversal was made “solely upon the basis of [his]
conversion to Christianity.” Additionally, Etemadi,
remarking this time that he had converted in 1997 or 1998,
admitted that he had “come to [the immigration court] in the
year 2000 and lie[d] under oath that the[] documents were
true” because “[p]erhaps at that time, [he] was not so close
to Jesus Christ.” The Government asked, “But weren’t you
a Christian in the year 2000?” Etemadi replied by implying
that his “former thoughts,” alluding to his pre-conversion
mindset, had to caused him to continue to lie during the 2000
testimony, despite the fact that he had already been attending
church by that time. After Etemadi offered to have his pastor
testify at a later date, the Government noted that Etemadi had
“had five years to present [his] evidence.”
Etemadi submitted his original asylum application in
May 1997, and the IJ originally questioned Etemadi about
the veracity of that application in August 1997. A letter from
Etemadi’s pastor stated that Etemadi “ha[d] been faithfully
ETEMADI V. GARLAND 51
attending worship services of the Iranian Christian Church
in San Jose since April 1998,” after submission of Etemadi’s
original asylum application. The Government’s final
argument to the IJ—as represented in its post-hearing
brief—was that Etemadi’s “attempt mid-way through his
case to present an entirely new basis for asylum [(his
conversion to Christianity)] is self-serving and
questionable” and that “[h]is claim is self-serving and
incredible in light of the overall posture of [the] case.”
The IJ incorrectly wrote that Etemadi “stated that he was
baptized in the Christian faith prior to the commencement of
proceedings.” Etemadi never stated that he was baptized
prior to 1997. But Etemadi did not begin attending Christian
worship services until after the proceedings began. The prior
panel wrote that “Etemadi testified inconsistently regarding
the timing of his conversion.” Etemadi, 251 F. App’x at 389.
That is true, and that was at the heart of the Government’s
argument regarding Etemadi’s religion-based asylum and
CAT claims. Even on a first appeal from the BIA, “[t]he
cited evidence in the record, including a witness’s own
testimony, need not conclusively establish that the witness’s
testimony is false” to affirm an IJ’s adverse credibility
finding. Lalayan v. Garland, 4 F.4th 822, 836 (9th Cir.
2021). Under the even more deferential posture of this
appeal, it was not clear error for the prior panel to hold that
there was substantial evidence to affirm the IJ’s adverse
credibility determination based on Etemadi’s inconsistent
testimony about his conversion and how it affected his
decision to recant his prior reliance on fraudulent
documents.
52 ETEMADI V. GARLAND
2. Falsus in Uno, Falsus in Omnibus Maxim
The IJ also “believe[d] it appropriate to discount all
testimony offered by [Etemadi] in the” proceedings because
Etemadi had lied under oath about the veracity of certain
documents he submitted with his original application. The
prior panel relied on this finding to deny Etemadi’s petition
for review. Etemadi, 251 F. App’x at 389 (“The IJ also made
a general finding that all of Etemadi’s testimony was
rejected. Etemadi’s deliberate and knowing filing of forged
documents provided the IJ grounds to discount all of
Etemadi's testimony.”). The majority correctly asserts that
the IJ appears to have used the maxim falsus in uno, falsus
in omnibus. See Majority Opinion at 19 (citing Enying Li v.
Holder, 738 F.3d 1160, 1163 (9th Cir. 2013)). This doctrine
“is based on the logic that a person may mistakenly testify
wrongly and still be believable, but if a person testifies
falsely, willfully, and materially on one matter, then his
‘oath’ or word is not ‘worth anything’ and he is likely to be
lying in other respects.” Enying Li, 738 F.3d at 1163
(citation omitted).
With regard to the falsus maxim, in 2013, after the prior
panel decided Etemadi’s first appeal, we restricted use of the
maxim:
The maxim falsus in uno, falsus in omnibus
should not be applied when the truthfulness
of the witness has no bearing on the claim, as
is the case when the claim is based on
proveable fact such as having two children or
an undisputed ethnic classification. Here,
however, Li offers no evidence of her
concurrent claims other than her testimony;
whether the IJ found Li to be a liar as to part
ETEMADI V. GARLAND 53
of that testimony is entirely relevant, and
material, to both her claims.
Enying Li, 738 F.3d at 1167.
The majority contends that the falsus maxim does not
apply to Etemadi’s asylum and CAT claims based on
religious persecution because Etemadi had corroborating
evidence to back up those claims. See Majority Opinion at
20–21. The majority holds that, “[i]n such cases, the falsus
maxim may not be used to wipe out a claim that is
corroborated by verifiable documentary evidence or
testimony.” Id. at 20.
I am not “left with the definite and firm conviction that”
the prior panel “committed” a mistake with regard to
application of the falsus maxim. Anderson, 470 U.S. at 573.
First, we decided Enying Li in 2013. We affirmed the BIA
in Etemadi’s case in 2007. Our case law applying the falsus
maxim at the time of our decision in Etemadi does not
contain the same limit on the doctrine when an individual
submits corroborating evidence. See Lopez-Umanzor v.
Gonzales, 405 F.3d 1049, 1059 (9th Cir. 2005); Cvitkovic v.
United States, 41 F.2d 682, 684 (9th Cir. 1930); Cent. Cal.
Canneries Co. v. Dunkley Co., 247 F. 790, 793 (9th Cir.
1917). 5
5
The majority’s contention that these cases “are hardly on point” is
incorrect. Majority Opinion at 20–21. For the purposes of deciding
whether the law of the case doctrine applies, the question is not whether
these cases are exactly analogous to the case before the prior panel.
Instead, the question is whether the prior panel clearly erred in applying
our precedent concerning the falsus maxim. Based on the precedent that
existed at the time the prior panel rendered its decision, that decision was
54 ETEMADI V. GARLAND
Second, even applying Enying Li, it is not clear that the
IJ abused the falsus maxim. In Enying Li, we wrote that the
maxim “should not be applied when the truthfulness of the
witness has no bearing on the claim,” and then described
how Li had no corroborating evidence. 738 F.3d at 1167
(emphasis added). But here, Etemadi’s truthfulness at least
had some bearing on his claim of Christian conversion.
Etemadi did have corroborating evidence to show that he had
started attending church in 1998, but his own testimony
undermined this contention because he was inconsistent
about why he had recanted his earlier false testimony and the
relationship of his faith to that recantation. Etemadi “is the
same person who testified about both h[is] claims. Whether
[]he is a credible witness is central to any claim—religious
persecution or [political opinion]. H[is] credibility goes to
the heart of either and both claims.” Id. at 1166.
Third, the majority’s citation to Guan v. Barr, 925 F.3d
1022 (9th Cir. 2019), is equally unavailing. See Majority
Opinion at 21–22. Not only did we decide Guan twelve
years after the prior panel announced its judgment in
Etemadi’s first appeal, see supra n.5, but that case is also
distinguishable. In Guan, “[t]he BIA’s adverse credibility
finding, which was based on an apparent inconsistency in
Guan’s testimony about his knowledge that the government
officials were stealing from the general public, had nothing
to do with his claim that he expects to be tortured based on
his religious practices.” 925 F.3d at 1035. In contrast, here
not clear error because application of the falsus maxim in Enying Li was
not yet binding precedent. Both Enying Li and Guan v. Barr, 925 F.3d
1022 (9th Cir. 2019), post-date the prior panel’s decision in this case.
And the majority does not argue that either Enying Li or Guan are
“intervening controlling authority [that] makes reconsideration
appropriate.” Alaimalo, 645 F.3d at 1049.
ETEMADI V. GARLAND 55
the IJ made an adverse credibility finding for Etemadi’s
religion-based asylum claim, which the IJ then applied to
Etemadi’s religion-based CAT claim. Thus, the majority is
incorrect in stating that “[t]he IJ similarly denied Etemadi’s
religious-conversion CAT claim based on his discredited
political-asylum claim.” Majority Opinion at 22.
Ultimately, Etemadi “admit[ted] that []he made a
conscious decision to lie” about his supporting
documentation, which was “crucial to h[is] claim for
permanent relief. It doesn’t matter that the fact turned out to
be irrelevant” to the religious persecution claim. Singh v.
Holder, 643 F.3d 1178, 1181 (9th Cir. 2011). “What matters
is that the petitioner chose to lie to immigration authorities.
That always counts as substantial evidence supporting an
adverse credibility finding, unless the lie falls within [a]
narrow . . . exception” not relevant to this case. Id. It is
possible to argue that the IJ and the prior panel might have
erred in applying the falsus maxim. It is not possible to hold
that the prior panel clearly erred in holding that there was
substantial evidence to support the IJ’s application of the
falsus maxim.
3. Application of Kamalthas
Finally, the majority contends that the prior panel
misapplied Kamalthas v. INS, 251 F.3d 1279 (9th Cir. 2001).
See Majority Opinion at 22–24. In Kamalthas, we criticized
the BIA for addressing the petitioner’s CAT claim “‘in a
minimalistic and non-detailed manner’” and for
“overrel[ying] on its prior adverse credibility finding
against” the petitioner. Kamalthas, 251 F.3d at 1283–84
(quoting Mansour v. INS, 230 F.3d 902, 908 (7th Cir. 2000)).
We remanded the case, in part, because we were “not
comfortable with allowing a negative credibility
56 ETEMADI V. GARLAND
determination in the asylum context to wash over the torture
claim; especially when the prior adverse credibility
determination is not necessarily significant in this
situation.’” Id. at 1284 (quoting Mansour, 230 F.3d at 908);
see also Shrestha, 590 F.3d at 1048 (“An adverse credibility
determination is not necessarily a death knell to CAT
protection.”). We additionally chastised the BIA for
“conflat[ing] the burden of proof for an asylum claim with
that for relief under” CAT. Kamalthas, 251 F.3d at 1283.
Here, the IJ reviewed the relevant law and clearly
distinguished between the relevant standards for asylum and
CAT relief. The IJ’s discussion of the religious persecution
claim was short. However, the IJ “does not have to write an
exegesis on every contention.” Vilchez v. Holder, 682 F.3d
1195, 1201 (9th Cir. 2012) (citation and internal quotation
marks omitted). “When nothing in the record or the [IJ’s]
decision indicates a failure to consider all the evidence, a
general statement that [the agency] considered all the
evidence before [it] may be sufficient.” Cole v. Holder,
659 F.3d 762, 771 (9th Cir. 2011) (citation and internal
quotation marks omitted). The IJ listed all of Etemadi’s
documentary evidence, indicating that he considered that
evidence. While the majority argues that the IJ allowed the
adverse credibility finding to “wash over the torture claim,”
Kamalthas, 251 F.3d at 1284 (citation and internal quotation
marks omitted), we do allow an adverse credibility finding
to affect analysis of a CAT claim when the two claims “are
based on the same statements,” Singh v. Lynch, 802 F.3d
972, 977 (9th Cir. 2015) (citation and internal quotation
marks omitted); cf. Kamalthas, 251 F.3d at 1284 (noting that
“[w]e are not comfortable with allowing a negative
credibility determination in the asylum context to wash over
the torture claim; especially when the prior adverse
credibility determination is not necessarily significant in this
ETEMADI V. GARLAND 57
situation” (alteration in original) (emphasis added) (citation
and internal quotation marks omitted)).
The IJ determined that the adverse credibility finding
was highly relevant to Etemadi’s CAT claim. We relied on
that same finding on appeal. See Etemadi, 251 F. App’x
at 390. Our prior panel did not clearly violate our holding in
Kamalthas by relying on the IJ’s statements that he reviewed
all the relevant evidence, his citation of the appropriate legal
standards, and his short analysis of the CAT claim in
affirming his decision.
II. Waiver and Interpretation of 8 C.F.R. § 1003.2(c)(1)
One of the reasons that the BIA gave for denying
Etemadi’s motion to reopen was that Etemadi had “not
submitted an application for relief,” citing 8 C.F.R.
§ 1003.2(c)(1). Etemadi did not raise this issue in his
opening brief. The Government alerted us to Etemadi’s
failure to raise this issue and his consequential waiver, but
provided no briefing on the merits of the proper
interpretation of § 1003.2(c)(1). Even with notice from the
Government that he had waived this issue, Etemadi still
failed to even mention § 1003.2(c)(1) in his reply brief. 6
6
The majority posits that Etemadi instead “forfeited any challenge
to the BIA’s decision on this issue.” Majority Opinion at 25. The case
law on forfeiture versus waiver in the immigration context is not a model
of clarity. See, e.g., Santos-Santos v. Barr, 917 F.3d 486, 491 (6th Cir.
2019) (“As an initial matter, Santos-Santos has forfeited any challenge
to the [BIA’s] determination that he failed to overcome the presumption
of delivery of the notice of his hearing. Ramani v. Ashcroft, 378 F.3d
554, 558 (6th Cir. 2004) (holding that ‘[i]t is proper for an appellate court
58 ETEMADI V. GARLAND
“[O]n appeal, arguments not raised by a party in its
opening brief are deemed waived.” Smith v. Marsh,
194 F.3d 1045, 1052 (9th Cir. 1999). We regularly enforce
waiver in the immigration context. See, e.g., Nguyen v. Barr,
983 F.3d 1099, 1102 (9th Cir. 2020); Sung Kil Jang v. Lynch,
812 F.3d 1187, 1189 n.1 (9th Cir. 2015); Lopez-Vasquez v.
Holder, 706 F.3d 1072, 1079–80 (9th Cir. 2013); Rizk v.
to consider waived all issues not raised in an appellant’s briefs’).”)
(emphases added)).
We also have confused forfeiture and waiver in this context.
Compare Martinez-Serrano v. INS, 94 F.3d 1256, 1260 (9th Cir.1996)
(“He fails to address how the BIA abused its discretion by denying his
motion to reopen and reconsider its decision. Martinez-Serrano has
thereby waived this issue.”), with Cestari-Cuenca v. Mukasey, 302 F.
App’x 692, 694 (9th Cir. 2008) (“Cestari-Cuenca has forfeited any
challenge to the BIA’s denial of the motion to reconsider because she
failed to raise any argument related to the BIA’s basis for denying the
motion.” (citing Martinez-Serrano, 94 F.3d at 1260)); see also Austria
Pedraza v. Mukasey, 302 F. App’x 620, 621 (9th Cir. 2008) (“Austria
Pedraza has forfeited any challenges to the BIA’s order by failing to raise
in his opening brief any arguments related to the BIA’ s determination
that the motion to reopen was numerically barred. See Martinez-Serrano
v. INS, 94 F.3d 1256, 1259–60 (9th Cir.1996) (holding that issues which
are not specifically raised and argued in a party’s opening brief are
waived)”) (emphases added)).
It does not appear that the exceptions to waiver would also apply to
forfeiture. Thus, if the majority is correct that Etemadi actually forfeited
the § 1003.2(c)(1) issue, we would necessarily have to deny his petition
for review. Furthermore, we might lack subject matter jurisdiction to
even consider the issue if it is forfeited. See Rendon v. Mukasey,
520 F.3d 967, 972–73 (9th Cir. 2008).
Based on Martinez-Serrano, I believe that this case is properly
analyzed as one of waiver. See 94 F.3d at 1260. The majority implicitly
agrees, as the majority analyzes the case pursuant to our waiver
principles. See Majority Opinion at 26.
ETEMADI V. GARLAND 59
Holder, 629 F.3d 1083, 1091 n.3 (9th Cir. 2011). As the
majority notes, we have elucidated three exceptions to the
waiver rule. See Majority Opinion at 25–26 (citing Koerner
v. Grigas, 328 F.3d 1039, 1049 (9th Cir. 2003)). The
majority believes that “[a]ll three exceptions to the waiver
rule apply here.” Id. at 26 In my view, none of the three
exceptions applies.
First, it is not clear that “failure to” consider the
§ 1003.2(c)(1) issue “would result in manifest injustice.”
Koerner, 328 F.32d at 1048 (citation and internal quotation
marks omitted). For the reasons outlined above, I do not
believe that the prior panel committed clear error in
affirming the IJ’s original adverse credibility determination.
Excusing Etemadi’s wavier of the § 1003.2(c)(1) would not
result in a different outcome, as the prior panel’s affirmance
of the IJ’s decision means that Etemadi’s motion to reopen
necessarily fails.
Second, the § 1003.2(c)(1) issue is not “raised in the
appellee’s brief,” id. (citation and internal quotation marks
omitted), in a manner sufficient to excuse waiver. The
Government does note that the BIA denied Etemadi’s
motion to reopen for failing to comply with § 1003.2(c)(1).
Contrary to the majority’s contention, see Majority Opinion
at 26, the Government offers no meaningful analysis of
§ 1003.2(c)(1) and how that regulation should be interpreted.
The entirety of the Government’s “analysis” of
§ 1003.2(c)(1) is a single paragraph that: (1) quotes the text
of the regulation, and (2) cites a BIA decision interpreting
the regulation. Despite the Government offering no real
analysis of the issue, the majority sua sponte interprets
§ 1003.2(c)(1). See id. at 26–29. The majority even decides
what level of deference to afford the BIA’s interpretation of
§ 1003.2(c)(1), notwithstanding that the word “deference”
60 ETEMADI V. GARLAND
does not appear in either party’s briefs even once. See id.
at 29.
Third, and relatedly, the majority’s choice to decide the
§ 1003.2(c)(1) question “prejudice[s] the defense of the”
Government. Koerner, 328 F.32d at 1048 (citation and
internal quotation marks omitted). The majority ultimately
grants relief to Etemadi. Were the majority to refuse to
excuse Etemadi’s waiver, we would necessarily have to deny
Etemadi’s petition for review. But the Government is not
only prejudiced in this case, but in every future case
involving § 1003.2(c)(1). The majority’s decision binds
future panels of our court as to the application of
§ 1003.2(c)(1). Again, the majority undertakes this
analysis—involving administrative deference and regulatory
interpretation—despite neither party having briefed the
merits of the issue. Cf. Thompson v. Runnels, 705 F.3d 1089,
1100 (9th Cir. 2013) (holding that “[b]ecause the legal issue
has been fully addressed by both parties, and because it is a
simple and straightforward question of law, we do not abuse
our discretion in addressing it,” despite the parties not raising
the claim to the district court (emphasis added)).
The majority frames interpretation of § 1003.2(c)(1) as a
simple issue, but it is actually more complicated than it
appears. Aliyev v. Barr, 971 F.3d 1085 (9th Cir. 2020),
should guide our analysis of the regulation. In Aliyev, the
petitioner moved to reopen a previous asylum application.
Id. at 1085. Citing § 1003.2(c)(1), “the BIA denied
[Aliyev’s] motion because he did not attach a new asylum
application to it.” Id. We held that “[t]he plain and
unambiguous text of § 1003.2(c)(1) does not require
someone in [Aliyev’s] shoes to attach a new application for
relief to a motion to reopen.” Id. at 1086. But we
specifically noted that Aliyev “attached to his motion to
ETEMADI V. GARLAND 61
reopen his prior asylum application.” Id. Thus, “[i]n [that]
circumstance, the prior asylum application that [Aliyev]
sought to reopen [wa]s the ‘suitable or proper’ application to
attach.” Id.
In contrast, Etemadi did not attach any asylum or CAT
application to his motion to reopen, including his October
2000 amended application that contained his religious
persecution claim. See Majority Opinion at 27 n.5 (listing
the documents Etemadi submitted with his motion to reopen,
which do not include his prior asylum/CAT application).
Aliyev left open the question of whether failure to attach any
application violates § 1003.2(c)(1) by distinguishing a Third
Circuit decision. See Aliyev, 971 F.3d at 1087 (“[I]n Gen Lin
v. Attorney General, 700 F.3d 683, 689 n.5 (3d Cir. 2012),
the Third Circuit upheld the BIA’s denial of a motion to
reopen where the petitioner ‘did not file an accompanying
application for relief of any kind.’ By contrast here, [Aliyev]
did attach the relevant application for relief to his motion to
reopen.”). Other circuits agree with the Third Circuit. See,
e.g., Bi Feng Liu v. Holder, 560 F.3d 485, 491 (6th Cir.
2009); Palma-Mazariegos v. Keisler, 504 F.3d 144, 147 (1st
Cir. 2007) (per curiam); Waggoner v. Gonzales, 488 F.3d
632, 639 (5th Cir. 2007). The majority now answers the
question left open in Aliyev by creating a circuit split, all
without briefing from the parties.
The majority deflects from the circuit split it now creates
by attempting to distinguish these cases. See Majority
Opinion at 27–28. While Liu and Palma-Mazariegos
involved motions to reopen based on new grounds for relief,
the Sixth and Second Circuits did not rely on the fact that the
petitioners had asserted new claims. The language from both
of our sister circuits was unmistakably clear. For the Sixth
Circuit, that “Liu did not append an application for asylum
62 ETEMADI V. GARLAND
to his motion to reopen” was enough for his motion to be
“procedurally defaulted.” Liu, 560 F.3d at 491 (emphasis
added) (citing Tapia-Martinez v. Gonzales, 142 F. App’x
882, 884–85 (6th Cir. 2005) (Gibbons, J., joined by Boggs,
C.J., and Quist, J.)). And for the Second Circuit, “Palma’s
motion to reopen was for the purpose of acting on an
application for relief—to adjust status—yet was not
accompanied by that application.” Palma-Mazariegos,
504 F.3d at 147 (emphasis added). Neither circuit
distinguished the situation where an individual seeking to
reopen his or her case was applying for the same relief as
before. See also Waggoner, 488 F.3d at 639. Similarly, in
Lin, which the majority concedes “comes closest to” this
case, Majority Opinion at 28, the Third Circuit was clear that
the petitioner “did not file an accompanying application for
relief of any kind.” 700 F.3d at 689 n.5 (emphases added).
All of our sister circuits have relied on petitioners’ failure to
attach any application.
Language from our court too has suggested that a motion
to reopen requires a petitioner to attach an application. In
Romero-Ruiz v. Mukasey, 538 F.3d 1057 (9th Cir. 2008),
overruled on other grounds by Cheneau v. Garland,
997 F.3d 916 (9th Cir. 2021), the petitioner moved to
remand his claim, arguing that “he had become eligible for
cancellation of removal.” Id. at 1061. The BIA denied the
motion to remand, which the BIA treated as a motion to
reopen, because Romero-Ruiz “had failed to file an
application for cancellation of removal.” Id. We affirmed
the BIA because the motion “was not accompanied by an
application for cancellation of removal” and “a motion to
remand requires a completed application for relief.” Id.ETEMADI V. GARLAND 63
at 1064. 7 While the circumstances of Romero-Ruiz are
slightly different, our language in that case suggests that the
appropriate application should be attached to the motion to
reopen.
Additionally, the majority claims that we should not
defer to the BIA’s interpretation of § 1003.2(c)(1) because
the BIA’s interpretation of that regulation is not
“authoritative.” Majority Opinion at 29 (quoting Kisor v.
Wilkie, 139 S. Ct. 2400, 2416 (2019)). Although the BIA’s
decision in this case was unpublished, an unpublished
decision that relies on the same reasoning as a published
decision can be afforded deference. Cf. Route v. Garland,
996 F.3d 968, 975–78 (9th Cir. 2021) (deciding that the
BIA’s interpretation of a statute in such a context was
eligible for deference). The BIA previously applied
§ 1003.2(c)(1) in a published decision. See In re
Yewondwosen, 21 I. & N. Dec. 1025, 1026 (BIA 1997); see
also Aliyev, 971 F.3d at 1087 (citing Yewondwosen). 8 The
7
Notably, we also reviewed the BIA’s decision to deny relief on this
basis pursuant to the abuse of discretion standard, rather than giving it
de novo review. See Romero-Ruiz, 538 F.3d at 1064 (“Under the
circumstances present here, the BIA did not abuse its discretion in
determining that Romero-Ruiz did not satisfy the procedural
requirements for a remand motion.”).
8
The majority is correct that the individual seeking relief in
Yewondwosen originally applied for “relief from deportation” but then
moved to remand based on “an application for adjustment of status.”
21 I. & N. Dec. at 1025. But the BIA’s language in Yewondwosen
applies to all motions to reopen, regardless of whether the same or
different relief is requested: “the application form for any relief
requested must be supplied by the moving party.” Id. at 1026 (emphasis
added). Even if the BIA’s interpretation was not strictly necessary to
resolution of the individual’s claim in Yewondwosen, “[w]hen the BIA
64 ETEMADI V. GARLAND
BIA has relied on Yewondwosen in a number of unpublished
decisions. See, e.g., In re Abbas, 2013 WL 2608461, at *1
(BIA May 14, 2013); In re Ruben Sanchez, 2009 WL
1030729, at *2 (BIA Mar. 30, 2009); In re Ojo, 2008 WL
486864, at *1 (BIA Jan. 24, 2008). The majority now
overrules Yewondwosen sub silentio and disrupts BIA
practice. Without briefing, it is unclear to me whether the
BIA’s interpretation of § 1003.2(c)(1) is deserving (or
undeserving) of deference, especially in light of the recently-
announced Kisor framework.
The BIA denied Etemadi’s motion to reopen because of
his failure to comply with § 1003.2(c)(1), and Etemadi
neglected to even cite that regulation in either of his briefs.
Pursuant to our regular waiver principles, that would have
been the end of this case, and we should have simply
affirmed the BIA’s decision on that basis. Interpretation of
§ 1003.2(c)(1) is more complex than the majority makes it
seem. I discuss the above-cited precedent from our court,
our sister circuits, and the BIA not to show that the
majority’s interpretation of § 1003.2(c)(1) is necessarily
wrong, but only to highlight why this case, where the
petitioner has waived the issue, is not the proper vehicle to
make a pronouncement that will bind future panels of our
court.
The majority writes that “this issue has not been squarely
addressed by any other circuit.” Majority Opinion at 27. If
that is true, I am puzzled as to why the majority believes it
confronts an issue germane to the eventual resolution of the case, and
resolves it after a reasoned consideration in a published decision,
resolution of that particular issue is eligible for . . . deference, including
when the BIA relies on that reasoning in an unpublished decision.”
Route, 996 F.3d at 977 (citation and internal quotation marks omitted).
ETEMADI V. GARLAND 65
necessary to excuse waiver and decide complex questions of
deference and regulatory interpretation in this particular
case, without briefing, and in a manner that uniformly favors
Etemadi’s position.
III. Changed Country Conditions
Another ground that the BIA gave for denying Etemadi’s
motion to reopen was that Etemadi had “not demonstrated
changed country conditions or circumstances material to his
claim for relief.” Assuming that the prior panel’s affirmance
of the IJ, or Etemadi’s failure to comply with § 1003.2(c)(1),
did not doom Etemadi’s motion to reopen, the BIA stated:
[A]postasy has always been treated as a
serious crime [in Iran], and [Etemadi] has not
shown changed country conditions or
circumstances regarding conversion.
Similarly, [Etemadi] has not demonstrated
that Iran’s treatment of Christians has
worsened since the Immigration Judge’s
hearing. Rather, Iran’s treatment of
Christians is a continuation of those
conditions presented at the Immigration
Judge’s hearing.
A motion to reopen has four requirements:
A petitioner must (1) produce evidence that
conditions have changed in the country of
removal; (2) demonstrate that the evidence is
material; (3) show that the evidence was not
available and would not have been
discovered or presented at the previous
hearings; and (4) demonstrate that the new
evidence, when considered together with the
66 ETEMADI V. GARLAND
evidence presented at the original hearing,
would establish prima facie eligibility for the
relief sought.
Agonafer v. Sessions, 859 F.3d 1198, 1204 (9th Cir. 2017)
(citation and internal quotation marks omitted). As the
majority notes, “[t]he newly submitted evidence must be
‘qualitatively different’ from the evidence presented at the
previous hearing. Evidence that simply recounts previous
conditions presented at a previous hearing or that is
voluminous but redundant is not sufficient to show a change
in country conditions.” Id. (citations omitted); see Majority
Opinion at 31–32.
“We review the BIA’s denial of a motion to reopen for
an abuse of discretion.” Agonafer, 859 F.3d at 1203. The
Supreme Court has instructed us to be “[m]indful of the
[BIA’s] ‘broad discretion’” in deciding motions to reopen,
as the abuse of discretion standard is “deferential.” Kucana
v. Holder, 558 U.S. 233, 242 (2010) (citation omitted). “The
BIA abuses its discretion when its denial of a motion to
reopen is arbitrary, irrational or contrary to law.” Chandra
v. Holder, 751 F.3d 1034, 1036 (9th Cir. 2014) (citation and
internal quotation marks omitted).
The evidence that Etemadi submitted with his original
CAT application and his motion to reopen establishes that
the Iranian government persecutes Christians and
particularly targets Christian converts. For example,
according to a 2000 State Department report, “[o]ne U.S.-
based organization reported 8 deaths of evangelical
Christians at the hands of authorities in the past 11 years and
between 14 and 23 disappearances in the year between
November 1997 and November 1998.” Similarly, a 2015
State Department report noted that “[n]umerous Christians
ETEMADI V. GARLAND 67
remained imprisoned at year’s end.” While this evidence
shows that Christian converts in Iran face persecution, and
possibly even torture, the BIA did not abuse its discretion in
finding that the newer evidence is not “qualitatively
different” from Etemadi’s original evidence. Agonafer,
859 F.3d at 1204 (internal quotation marks omitted).
The legal framework for persecution of Christians and
Christian converts has not changed since Etemadi’s original
hearing. Both in 2002 and 2018, apostasy and proselytizing
are punishable by death. Of course, official governmental
policy is not the only evidence that torture is more likely than
not to occur. See Avendano-Hernandez v. Lynch, 800 F.3d
1072, 1081 (9th Cir. 2015).
While the Iranian government continues to persecute
Christian converts, the country reports attached to Etemadi’s
motion to reopen generally indicate that recent persecution
is not qualitatively different from persecution in prior years.
For example, in March 2017, the United Nations Special
Rapporteur for human rights in Iran noted that Christian
converts “continue to face arbitrary arrest, harassment and
detention.” Similarly, the 2015 State Department report
stated: “Muslim converts to Christianity reportedly
continued to face harassment, arrest, and detention” and
“Christians, particularly evangelicals and converts,
continued to experience disproportionate levels of arrests
and high levels of harassment and surveillance, according to
reports from exiled Christians.” There is also some evidence
that there has been an increase in harassment of Christians.
See Majority Opinion at 31–32 (citing the 2016 report from
the United States Commission on International Religious
Freedom (USCIRF)). However, faced with some evidence
of increased persecution of Christians in Iran, and other
evidence of continued persecution, the BIA’s conclusion that
68 ETEMADI V. GARLAND
Etemadi had “not demonstrated changed country
conditions” was not “arbitrary, irrational or contrary to law”
pursuant to the deferential abuse of discretion standard.
Chandra, 751 F.3d at 1036.
The majority points to reports showing that churches
have been shut down; that the Iranian government is
preventing the ordination of new ministers; and that
Christians were being arrested at social events. See Majority
Opinion at 32–34. CAT relief requires that the petitioner
show that “it is more likely than not that he or she would be
tortured if removed to the proposed country of removal.”
8 C.F.R. § 1208.16(c)(2) (emphasis added). Religious
freedom is a fundamental human rights principle, but it is not
clear that the persecution described by the majority rises to
the level of torture. See Wakkary v. Holder, 558 F.3d 1049,
1068 (9th Cir. 2009); Ahmed v. Keisler, 504 F.3d 1183, 1201
(9th Cir. 2007).
While Etemadi need only make a prima facie case for
CAT relief at this stage, that the majority relies on changed
conditions regarding general persecution of Christian
converts, rather than torture of those individuals, shows that
the BIA did not abuse its discretion in denying the motion to
reopen. The majority does not demonstrate that the recent
country reports constitute evidence that Iran has increased
its torture of Christians. Cf. Malty v. Ashcroft, 381 F.3d 942,
945–47 (9th Cir. 2004).
The majority’s evidence also is similar to the evidence
Etemadi submitted with his original CAT application. The
majority cites the 2016 USCIRF report to show how many
Christians have been “arbitrarily arrested and detained” in
the past decade. See Majority Opinion at 31–32. Etemadi’s
evidence that he submitted with his original application,
ETEMADI V. GARLAND 69
particularly the 1998 report from Iranian Christians
International, reveals similar levels of persecution of
Christians. The scores of Christians arrested and
interrogated over the course of a year in the late 1990s aligns
with the 2016 USCIRF reports that “[s]ince 2010, [Iranian]
authorities arbitrarily arrested and detained more than
550 Christians throughout the country.”
Evidence of persecution that could rise to the level of
torture has also been consistent. The majority notes that
“‘Christians who were arrested were reportedly subject to
severe physical and psychological mistreatment’ and that
prison officials withhold medical care from Christian
prisoners.” Id. The 1997 and 2000 State Department reports
contain similar evidence, with the 1997 report asserting that
a pastor who “was found dead in a public park” was “widely
believed to have been murdered by Iranian authorities.”
The majority believes that the persecution of house
churches is qualitatively different in Etemadi’s new
evidence. Although the 1998 Iranian Christians
International report described “waves of attacks,” the report
noted that after one bishop was killed “the small home
groups and house churches became endangered when the
government agents planted informers in these groups.”
There is no indication that the Iranian government stopped
attacking house churches after 1998, only to begin again in
more recent years. The 2014 Danish Immigration Service
report shows similar “monitoring [of] those who gather in
house churches.”
When we have held that the BIA abused its discretion in
a motion to reopen, it has been because the old and new
country reports had drastically different descriptions of the
relevant persecution. In Agonafer, for example, the
70 ETEMADI V. GARLAND
petitioner’s original application had “‘no evidence in the
record of any violence directed against homosexuals in
Ethiopia,’” but “at least two of the reports submitted with
Agonafer’s motion to reopen provided reports of violence
directed against homosexuals in Ethiopia since 2007,
including violence in connection with imprisonment.”
859 F.3d at 1206 (citation omitted). In contrast, there was a
great deal of evidence that Iran persecuted Christians, and in
particular Christian converts, at the time of Etemadi’s 2002
hearing, and there was still evidence of that persecution at
the time of Etemadi’s 2018 motion to reopen. Under these
circumstances, the BIA did not abuse its discretion in
holding that Etemadi did not show evidence of changed
country conditions.
“The reasons why motions to reopen are disfavored in
[removal] proceedings are comparable to those that apply to
petitions for rehearing, and to motions for new trials on the
basis of newly discovered evidence.” INS v. Abudu,
485 U.S. 94, 107 (1988). Our deferential standard for
reviewing the BIA’s denial of a motion to reopen is because
“[t]here is a strong public interest in bringing litigation to a
close as promptly as is consistent with the interest in giving
the adversaries a fair opportunity to develop and present
their respective cases.” Id.; see also Lona v. Barr, 958 F.3d
1225, 1234 (9th Cir. 2020). Given that deference, I cannot
say that the BIA’s comparison of conditions for Christians
in Iran in 2002 versus 2018 was “arbitrary, irrational or
contrary to law.” Chandra, 751 F.3d at 1036.
IV. Conclusion
The petitioner’s situation is one for which it would be
normal to feel empathy. The petitioner, who showed
evidence to the IJ and the prior panel that he converted to
ETEMADI V. GARLAND 71
Christianity, fears returning to Iran, a nation whose
government is anything but empathetic towards Christian
converts. However, the question presented in this case is not
whether Etemadi is a Christian or even whether it is “more
likely than not that he . . . would be tortured if removed to”
Iran. 8 C.F.R § 1208.16(c)(2). Instead, the questions
presented are whether we should cast aside a prior panel’s
disposition, whether we should excuse waiver and decide an
issue of first impression without briefing, and whether the
BIA abused its discretion in analyzing the Iranian
government’s persecution of Christians over the past thirty
years. For each of these questions, our precedent mandates
very deferential standards of review. The majority
disregards the questions presented in this case and bypasses
the deference we owe to the prior panel and the BIA. I
respectfully dissent.