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 2021-07

Freyser Cornejo-Cornejo v. Merrick Garland ( 2021 )


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  •                               NOT FOR PUBLICATION                        FILED
UNITED STATES COURT OF APPEALS                        JUL 28 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FREYSER ARADEYLIN CORNEJO-                      No.    20-70400
CORNEJO,
Agency No. A215-885-921
Petitioner,
v.                                             MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 19, 2021**
Before:      SCHROEDER, SILVERMAN, and MURGUIA, Circuit Judges.
Freyser Aradeylin Cornejo-Cornejo, a native and citizen of Nicaragua,
petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) order
denying her motion to remand and dismissing her appeal from an immigration
judge’s (“IJ”) decision denying her application for asylum, withholding of
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
removal, and relief under the Convention Against Torture (“CAT”). We have
jurisdiction under
    8 U.S.C. § 1252
    . We review for abuse of discretion the BIA’s
denial of a motion to remand. Movsisian v. Ashcroft,
    395 F.3d 1095
    , 1098 (9th
Cir. 2005). We grant the petition for review and we remand.
We do not consider the materials Cornejo-Cornejo submitted with her
opening brief that are not part of the administrative record. See Fisher v. INS,
    79 F.3d 955
    , 963-64 (9th Cir. 1996) (en banc).
The BIA abused its discretion by failing to meaningfully consider the new
evidence Cornejo-Cornejo submitted with her motion to remand, including a letter
stating that she is on the Nicaraguan government’s list of individuals to be arrested,
detained, or tortured due to her political opinion, which is qualitatively different
than the evidence presented before the IJ. See Agonafer v. Sessions,
    859 F.3d 1198
    , 1206-07 (9th Cir. 2017) (holding the BIA abused its discretion in denying
petitioner’s motion to reopen because it “clearly disregarded or failed to give credit
to” the new evidence submitted by the petitioner, which was qualitatively different
from that presented to the IJ); see also Silva v. Garland,
    993 F.3d 705
    , 718 (9th
Cir. 2021) (BIA “must accept as true the facts asserted by the [movant], unless
they are inherently unbelievable” in the analysis of a motion to reopen (internal
citation and quotation marks omitted)). Thus, we grant the petition for review and
2                                    20-70400
remand to the agency for further proceedings consistent with this disposition. See
INS v. Ventura,
    537 U.S. 12
    , 16-18 (2002) (per curiam).
Cornejo-Cornejo’s removal is stayed pending a decision by the BIA.
The parties shall bear their own costs on appeal.
PETITION FOR REVIEW GRANTED; REMANDED.
3                                  20-70400