Jagjit Bains v. Eric Holder, Jr. ( 2014 )


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  •                             NOT FOR PUBLICATION
    UNITED STATES COURT OF APPEALS                            FILED
    FOR THE NINTH CIRCUIT                             AUG 19 2014
    MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    JAGJIT SINGH BAINS,                              No. 09-71092
    Petitioner,                        Agency No. A072-683-448
    v.
    MEMORANDUM*
    ERIC H. HOLDER, Jr., Attorney General,
    Respondent.
    JAGJIT SINGH BAINS,                              No. 09-73359
    Petitioner,                        Agency No. A072-683-448
    v.
    ERIC H. HOLDER, Jr., Attorney General,
    Respondent.
    On Petition for Review of an Order of the
    Board of Immigration Appeals
    Argued and Submitted June 16, 2014
    Seattle, Washington
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by 9th Cir. R. 36-3.
    Before: REINHARDT and CHRISTEN, Circuit Judges, and SETTLE, District
    Judge.**
    Jagit Singh Bains, a prominent Sikh activist who, before coming to the
    United States, was detained, beaten with belts and sticks, and had his legs pressed
    with a heavy wooden roller by the Indian police, petitions for review of a Board of
    Immigration Appeals (BIA) decision denying his motion to reopen an in-absentia
    deportation order. Bains seeks to reopen his case so that he can apply for asylum,
    withholding of deportation, and protection under the Convention Against Torture
    based on changed circumstances in India. He also seeks to reopen based on
    ineffective assistance of counsel. We have jurisdiction under 
    8 U.S.C. § 1252
    (a)
    and grant the petition.1
    We review the BIA’s denial of a motion to reopen for abuse of discretion.
    Cano-Merida v. INS, 
    311 F.3d 960
    , 964 (9th Cir. 2002). The BIA abuses its
    discretion when it acts “arbitrarily, irrationally, or contrary to law.” Singh v. INS,
    
    213 F.3d 1050
    , 1052 (9th Cir. 2000).
    **
    The Honorable Benjamin H. Settle, District Judge for the U.S. District
    Court for the Western District of Washington, sitting by designation.
    1
    The parties are familiar with the facts of this case, so we will not
    recount them here.
    2
    1.     A party may generally only file one motion to reopen within ninety
    days of the entry of the final administrative order of removal. 8 U.S.C. §
    1229a(c)(7)(C)(i). This time limit does not apply, however, where the motion to
    reopen is “based on changed circumstances arising in the country of nationality or
    in the country to which deportation has been ordered, if such evidence is material
    and was not available and could not have been discovered or presented at the
    previous hearing.” 
    8 C.F.R. § 1003.2
    (c)(3)(ii).2 “The critical question is . . .
    whether circumstances have changed sufficiently that a petitioner who previously
    did not have a legitimate claim for asylum now has a well-founded fear of future
    persecution.” Malty v. Ashcroft, 
    381 F.3d 942
    , 945 (9th Cir. 2004). A petitioner
    need not show unrelated evidence of persecution. Instead, he must present new
    evidence that was previously unavailable and is “qualitatively different from the
    evidence presented at his asylum hearing.” 
    Id.
     A change in personal
    circumstances does not qualify as a change in country circumstances. See
    Najmabadi v. Holder, 
    597 F.3d 983
    , 991 (9th Cir. 2010). Finally, “[t]he BIA and
    this court are under an affirmative obligation to ‘accept as true the facts stated in
    2
    Bains argues that the BIA applied an incorrect standard in rejecting
    his motion to reopen, because it required him to show changed country conditions
    rather than changed circumstances. But the Board’s order denying his motion to
    reopen only mentioned changed circumstances, and this court uses the terms
    interchangeably. See, e.g., Toufighi v. Mukasey, 
    538 F.3d 988
    , 993 (9th Cir. 2008).
    3
    [petitioner’s] affidavit in ruling upon his motion to reopen unless [we find] those
    facts to be inherently unbelievable.’” Avagyan v. Holder, 
    646 F.3d 672
    , 678–79
    (9th Cir. 2011) (quoting Ghahremani v. Gonzales, 
    498 F.3d 993
    , 999 (9th Cir.
    2007)).
    Here, Bains presented new, material evidence that changes in India have
    increased his fear of persecution. The BIA made no finding that the facts alleged
    in Bains’s declaration are inherently unbelievable, so it was required to accept
    them as true. Avagyan, 
    646 F.3d at 679
    . Most significantly, Bains described a July
    2008 incident where Baljinder Singh, a friend who had visited Bains in the United
    States, was attacked, stabbed, and tortured by four men after returning to India.
    The attackers asked Singh questions about Bains, which Singh refused to answer.
    Singh’s account is supported by a hospital record documenting his injuries. Bains
    also declared that he received many phone calls from people in India threatening to
    kill him for printing materials criticizing the Indian government.
    The BIA denied Bains’s motion to reopen because it decided he alleged “no
    material change in India” and because it considered his allegations to show only a
    change in his personal circumstances. The BIA understood that the harm Bains
    faces is the result of activities he has engaged in since coming to this country. But
    if Bains’s allegations are accepted as true, his evidence establishes a continuation
    4
    of the activities he was engaged in while in India that resulted in him being beaten
    and physically abused by the police, and more recent and specific targeting of him
    in India. Bains alleges a serious increase in the intensity of the threat of harm he
    faces in India. This new “qualitatively different” evidence established a change of
    country conditions. Malty, 
    381 F.3d at 945, 2
    .     Because we grant the petition for review, we need not address whether
    the BIA abused its discretion in rejecting Bains ineffective assistance of counsel
    claim or whether time limitations on motions to reopen violate international
    agreements and deprive petitioners of due process when they are seeking relief
    under the Convention Against Torture.
    We GRANT the petition to review with instructions to reopen.
    5
    

Document Info

Docket Number: 09-71092, 09-73359

Judges: Reinhardt, Christen, Settle

Filed Date: 8/19/2014

Precedential Status: Non-Precedential

Modified Date: 11/6/2024