Daniel Agonafer v. Jefferson Sessions , 859 F.3d 1198 ( 2017 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DANIEL AGONAFER, No. 13-73122
Petitioner,
Agency No.
v. A091-681-612
JEFFERSON B. SESSIONS III, Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted May 16, 2017
San Francisco, California
Filed June 23, 2017
Before: William A. Fletcher and Richard C. Tallman,
Circuit Judges, and Paul C. Huck, * District Judge.
Opinion by Judge Huck
*
United States District Judge for the U.S. District Court for the
Southern District of Florida, sitting by designation.
2 AGONAFER V. SESSIONS
SUMMARY **
Immigration
The panel granted a petition for review of the Board of
Immigration Appeals’ denial of a motion to reopen removal
proceedings for reconsideration of Daniel Agonafer’s
eligibility for relief under the Convention Against Torture in
light of changed country conditions in Ethiopia.
The panel concluded that despite Agonafer’s criminal
conviction it had jurisdiction to review the petition for
review under the exception to the jurisdictional bar of 8
U.S.C. § 1252(a)(2)(C) for reviewing mixed questions of
law and fact. The panel also concluded that it had
jurisdiction because the Board’s denial of the motion to
reopen did not rely on Agonafer’s conviction, but rather was
a denial of his motion on the merits.
The panel held that the Board abused its discretion by
disregarding or discrediting the undisputed new evidence
submitted by Agonafer regarding increased violence toward
homosexuals in Ethiopia, including reports of violence by
both the government and private citizens.
The panel remanded for the Board to properly consider
the changed country conditions evidence Agonafer
submitted with his motion to reopen.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
AGONAFER V. SESSIONS 3
COUNSEL
Morgan Russell (argued), Anne E. Peterson, and Robert B.
Jobe, Law Office of Robert B. Jobe, San Francisco,
California, for Petitioner.
Dana M. Camilleri (argued); Anthony P. Nicastro, Senior
Litigation Counsel; Ernesto H. Molina, Jr., Assistant
Director; Benjamin C. Mizer, Principal Deputy Assistant
Attorney General; Office of Immigration Litigation, United
States Department of Justice, Washington, D.C.; for
Respondent.
OPINION
HUCK, District Judge:
This case concerns a petition for review of the Board of
Immigration Appeals’ (“BIA”) denial of Daniel Agonafer’s
motion to reopen removal proceedings to apply for
protection under the Convention Against Torture (“CAT”).
The core of the underlying CAT claim is that Agonafer fears
torture on account of his sexual orientation if he is removed
to his home country of Ethiopia. Agonafer filed his motion
to reopen over five years after the previous decision by the
BIA in his case. The BIA denied his motion to reopen,
finding that the motion did not fall within the exceptions to
the 90-day time limitation within which the motion must be
filed following the final removal order. The BIA also found
that the new evidence submitted did not demonstrate
changed country conditions in Ethiopia material to his claim
for relief under the CAT.
4 AGONAFER V. SESSIONS
We must decide whether we have jurisdiction over
Agonafer’s petition and, if so, whether the BIA abused its
discretion in denying Agonafer’s motion to reopen. First, we
have jurisdiction pursuant to the exception to the
jurisdictional bar of 8 U.S.C. § 1252(a)(2)(C) for reviewing
mixed questions of law and fact, as the petition here requires
us to apply the law to undisputed facts. Second, the BIA
abused its discretion by disregarding or discrediting the
undisputed new evidence submitted by Agonafer regarding
increased violence toward homosexuals in Ethiopia,
including reports of violence by both the government and
private citizens. Therefore, we grant Agonafer’s petition for
review.
I. Background
Agonafer came to the United States as a student in 1980
and became a lawful permanent resident in 1990. After a
series of convictions over the following decade, Agonafer
was placed in removal proceedings in 2003 and charged with
being inadmissible and removable as an alien convicted of a
crime involving moral turpitude. 1 The Immigration Judge
(“IJ”) granted Agonafer a waiver of inadmissibility in 2005
under former Immigration and Nationality Act (“INA”)
§ 212(c), 8 U.S.C. § 1182(c) (repealed 1996), 2 as well as
1
Agonafer pleaded guilty in 1993 to sexual battery and lewd acts
with a minor. His crimes of conviction are not relevant to this appeal
because deferral of removal under the CAT “has no criminal conviction
bar.” Owino v. Holder, 575 F.3d 956, 958 (9th Cir. 2009) (citing 8 C.F.R.
§ 1208.17).
2
Congress repealed INA § 212(c) as part of the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”). The
repeal did not apply retroactively to aliens, such as Agonafer, who
AGONAFER V. SESSIONS 5
withholding of removal under INA § 241(b)(3), 8 U.S.C.
§ 1231(b)(3). The Department of Homeland Security
(“DHS”) appealed the IJ’s decision, and the BIA vacated the
decision in 2006. On remand, the IJ reopened the case and
issued a written decision in June 2007, again granting relief
under INA § 212(c) and § 241(b)(3), and additionally
granting Agonafer’s application for CAT protection. The
DHS appealed the IJ’s ruling and, in 2007, the BIA reversed
the IJ again on all forms of relief.
We then dismissed in part and denied in part Agonafer’s
petition for review on February 6, 2012. See Agonafer v.
Holder, 467 F. App’x 753 (9th Cir. 2012). Regarding
Agonafer’s claim for CAT relief, we stated:
Finally, the evidence in the record does not
compel the conclusion that Agonafer will
more likely than not be tortured in Ethiopia.
Although there is a potential for
imprisonment as a result of homosexual
activity, there is no evidence in the record of
any violence directed against homosexuals in
Ethiopia, either inside or outside of the
prison system. Agonafer presented evidence
illustrating instances of the mistreatment of
political prisoners, but none of the evidence
established the required connection between
prisoner mistreatment and homosexuals.
Id. at 754–55 (emphasis added) (citation omitted).
pleaded guilty to crimes before the IIRIRA took effect. INS v. St. Cyr,
533 U.S. 289, 326 (2001).
6 AGONAFER V. SESSIONS
On June 21, 2013, Agonafer filed an untimely motion to
reopen with the BIA, claiming that changed country
conditions in Ethiopia should excuse his untimely filing and
allow him to reapply for deferral of removal under the CAT.
Agonafer attached to the motion fifteen documents relating
to the treatment of homosexual persons in Ethiopia from the
period between 2007 and 2013. On August 8, 2013, the BIA
denied his motion to reopen as untimely and found that
Agonafer “has not demonstrated a change in country
conditions material to his claim for relief, such that he is
more likely than not to be tortured by or at the instigation of
or with the consent or acquiescence of Ethiopian
authorities.” Rather, the BIA found that “[t]he evidence
reflects ongoing and substantially similar treatment of
homosexuals that existed at the time of the respondent’s
hearing” and noted that Agonafer has not “alleged receiving
any specific threats.”
II. Jurisdiction
We have jurisdiction to determine our own jurisdiction.
Malilia v. Holder, 632 F.3d 598, 601 (9th Cir. 2011). We
also “have jurisdiction when an alien appeals from the
[BIA]’s denial of a motion to reopen a removal proceeding.”
Mata v. Lynch, 135 S. Ct. 2150, 2154 (2015); Salazar-
Gonzalez v. Lynch, 798 F.3d 917, 920 (9th Cir. 2015); see
also 8 U.S.C. § 1252(b)(6) (“[A]ny review sought of a
motion to reopen or reconsider [a removal order] shall be
consolidated with the review of the [underlying] order.”).
However, we lack “jurisdiction to review any final order of
removal against an alien who is removable by reason of
having committed” a crime involving moral turpitude.
8 U.S.C. § 1252(a)(2)(C); see id. § 1182(a)(2)(A)(i)(I);
Marmolejo-Campos v. Holder, 558 F.3d 903, 907 (9th Cir.
2009) (en banc).
AGONAFER V. SESSIONS 7
We have recognized two exceptions to that jurisdictional
bar. We may review (1) questions of law or constitutional
claims, and (2) a denial of CAT “relief on the merits, for
failure to demonstrate the requisite factual grounds for relief,
rather than in reliance on the conviction.” Pechenkov v.
Holder, 705 F.3d 444, 448 (9th Cir. 2012). Regarding the
first exception, “we have jurisdiction to review the denial of
. . . CAT relief when a petitioner raises questions of law,
including mixed questions of law and fact, or constitutional
claims.” Brezilien v. Holder, 569 F.3d 403, 410 (9th Cir.
2009). “Mixed questions of law and fact refer to the
application of law to undisputed facts.” Gasparyan v.
Holder, 707 F.3d 1130, 1134 (9th Cir. 2013) (internal
quotation marks omitted). “[E]ven if our inquiry would
entail reviewing an inherently factual dispute, appellate
jurisdiction is preserved under 8 U.S.C. § 1252(a)(2)(D) so
long as the relevant facts are undisputed.” Ghahremani v.
Gonzales, 498 F.3d 993, 999 (9th Cir. 2007). Regarding the
second exception, when the agency “does not rely on an
alien’s conviction in denying CAT relief and instead denies
relief on the merits, none of the jurisdiction-stripping
provisions—[including] § 1252(a)(2)(C)—apply to divest
this court of jurisdiction.” Morales v. Gonzales, 478 F.3d
972, 980 (9th Cir. 2007).
The facts pertaining to Agonafer’s motion to reopen are
undisputed. Our review of the BIA’s denial of his motion to
reopen is a mixed question of law and fact because we must
apply the legal standard for prevailing on a motion to reopen
based on changed country conditions to the established facts
in the record. In Ghahremani, we held that we had
jurisdiction to review the denial of a motion to reopen
brought by an alien who had committed two crimes of moral
turpitude and an aggravated felony. See Ghahremani,
498 F.3d at 998. In that case, the petitioner argued that
8 AGONAFER V. SESSIONS
equitable tolling excused his untimely motion to reopen. Id.We held that jurisdiction was proper under 8 U.S.C.
§ 1252(a)(2)(D) because we were called upon to “apply the
legal standard for equitable tolling to established facts.” Id.
at 999. Here, jurisdiction is likewise proper because we are
called upon to apply the legal standard for prevailing on a
motion to reopen based on changed country conditions to the
established facts in this case.
We also have jurisdiction to review the petition because
the BIA’s denial of Agonafer’s motion to reopen did not rely
on his conviction of a crime involving moral turpitude. See
Morales, 478 F.3d at 977. Rather, the BIA denied his motion
on the merits by finding that he had “not demonstrated a
change in country conditions material to his claim for relief,
such that he is more likely than not to be tortured by or at the
instigation of or with the consent or acquiescence of
Ethiopian authorities.” Having determined that we have
jurisdiction, we next consider whether the BIA abused its
discretion in denying Agonafer’s motion to reopen.
III. Standard of Review
We review the BIA’s denial of a motion to reopen for an
abuse of discretion. Bonilla v. Lynch, 840 F.3d 575, 581 (9th
Cir. 2016). “The [BIA] has discretion to deny a motion to
reopen even if the party moving has made out a prima facie
case for relief.” 8 C.F.R. § 1003.2(a). However, the BIA
abuses its discretion when its denial is “arbitrary, irrational,
or contrary to law.” Singh v. INS, 295 F.3d 1037, 1039 (9th
Cir. 2002) (quoting Ahwazi v. INS, 751 F.2d 1120, 1122 (9th
Cir. 1985)). In considering a motion to reopen, the BIA must
accept as true the facts asserted by the petitioner, unless they
are “inherently unbelievable.” Limsico v. INS, 951 F.2d 210,
213 (9th Cir. 1991). The BIA “must show proper
consideration of all factors, both favorable and unfavorable,
AGONAFER V. SESSIONS 9
in determining whether to grant a motion to reopen and must
articulate its reasons for denying such a motion.” Bhasin v.
Gonzales, 423 F.3d 977, 983–84 (9th Cir. 2005) (citation
omitted).
IV. Discussion
A.
An alien may generally file only one motion to reopen
removal proceedings, and that motion must “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.” 8 U.S.C. § 1229a(c)(7)(A), (B).
Generally, a motion to reopen must be filed within ninety
days of the final administrative removal order. Id.
§ 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). However, the
ninety-day deadline and one-motion limit do not apply if the
motion to reopen is based on changed country conditions.
See 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R.
§ 1003.2(c)(3)(ii). The changed country conditions
exception likewise applies to motions to reopen to assert
CAT claims. See Go v. Holder, 744 F.3d 604, 609 (9th Cir.
2014) (“[W]e hold that the procedural requirements
specified in 8 C.F.R. § 1003.2(c) apply to CAT claims.”).
The exception applies “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).
To prevail on a motion to reopen on the basis of changed
country conditions, a petitioner must clear four hurdles. A
petitioner must (1) produce evidence that conditions have
changed in the country of removal; (2) demonstrate that the
10 AGONAFER V. SESSIONS
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 evidence
presented at the original hearing, would establish prima facie
eligibility for the relief sought.” Toufighi v. Mukasey,
538 F.3d 988, 996 (9th Cir. 2008) (internal quotation marks
omitted). A motion to reopen “shall be supported by
affidavits or other evidentiary material.” 8 C.F.R.
§ 1003.2(c)(1). “The critical question is not whether the
allegations bear some connection to a prior application, but
rather whether circumstances have changed sufficiently that
a petitioner who previously did not have a legitimate claim”
now does. Malty v. Ashcroft, 381 F.3d 942, 945 (9th Cir.
2004). The newly submitted evidence must be “qualitatively
different” from the evidence presented at the previous
hearing. Id. 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. See Najmabadi v. Holder, 597 F.3d
983, 989 (9th Cir. 2010).
In Malty, the petitioner “described only incidents of
harassment and discrimination” against Christians in Egypt
at his asylum hearing, which the IJ concluded “did not rise
to the level of persecution.” Malty, 381 F.3d at 944–45. Four
years later, the petitioner filed a motion to reopen with the
BIA in which he asserted changed circumstances in Egypt
that had arisen following the IJ’s decision, including “new
evidence detailing rising levels of violence against Egyptian
Coptic Christians generally and specific acts of violence
against his family in particular.” Id. at 944. The BIA
concluded that he had merely presented a “continuance of
the circumstances that gave rise to his first claim.” Id. at 945(internal quotation marks omitted). We granted review and
AGONAFER V. SESSIONS 11
held that the BIA abused its discretion because the
petitioner’s “new evidence [was] qualitatively different from
the evidence presented at his asylum hearing” four years
earlier. Id. The “new, previously unavailable evidence
indicat[ed] that the harassment had increased to the level of
persecution, both with respect to Coptic Christians generally
and with respect to [the petitioner’s] family specifically.” Id.at 945–46.
In Bhasin, the petitioner fled India following attacks
against her and her family and the disappearance of several
members of her family. Bhasin, 423 F.3d at 981. While the
IJ at the asylum hearing found that Bhasin had established a
“well-founded fear of persecution,” the IJ nevertheless
denied eligibility for asylum and withholding of removal
because Bhasin had failed to show that the persecution was
on account of one of the five enumerated grounds for such
relief. Id. at 982. The BIA affirmed, concluding that “Bhasin
had failed to establish persecution on account of membership
in her family social group.” Id. Bhasin then timely filed a
motion to reopen her proceedings in order to present
previously unavailable evidence regarding her “membership
in a particular social group.” Id. (internal quotation marks
omitted). That evidence included a sworn declaration that
her two daughters and her son-in-law received death threats
and subsequently disappeared. Id. at 982–83. The BIA
denied Bhasin’s motion to reopen. Id. at 983. We granted her
petition for review, holding that the BIA abused its
discretion in refusing to reopen the proceedings based on
“new evidence that if proved would have established prima
facie eligibility for relief” for asylum or withholding of
removal on account of her family social group. Id. at 987.
In Najmabadi, the petitioner applied for asylum seeking
to prevent her removal to her home country of Iran.
12 AGONAFER V. SESSIONS
Najmabadi, 597 F.3d at 985. The IJ concluded that “she had
not established past persecution or a well-founded fear of
future persecution.” Id. Four years later, Najmabadi filed a
petition to reopen her proceedings based on allegations that
circumstances in Iran had changed, including the changed
relationship between the United States and Iran following
the September 11, 2001 attacks, as well as “generalized
strife” inside Iran, such as attacks on activists and
restrictions on women. Id. The BIA denied the petition,
concluding that she failed to establish a level of change that
was linked to her particular circumstances, that the new
evidence that she submitted described only general
conditions that affected the population at large, and that the
new evidence demonstrated similar conditions to those
presented at her original hearing. Id. at 985–86. We denied
Najmabadi’s petition for review, holding that the new
evidence that she submitted with her petition to reopen
lacked the “individualized relevancy” that we required in
Malty and Bhasin. Id. at 989–90. We held that substantial
evidence supported the BIA’s conclusion that Najmabadi’s
evidence detailed conditions affecting the population at
large, and that her new evidence simply recounted
generalized conditions in Iran that failed to demonstrate that
“her predicament [was] appreciably different from the
dangers faced by her fellow citizens.” Id. at 990 (quoting
Singh v. INS, 134 F.3d 962, 967 (9th Cir. 1998)).
B.
Here, the government argues that the evidence that
Agonafer submitted with his motion to reopen does not
demonstrate that country conditions in Ethiopia have
materially changed, but simply “reflects ongoing and
substantially similar treatment of homosexuals that existed
at the time of [his 2005] hearing.” In support of this
AGONAFER V. SESSIONS 13
contention, the government points to Agonafer’s submission
during his 2005 immigration proceedings of an online article
from August 2002 on gay and lesbian affairs in Africa, in
which an interviewee claimed to “know two gays who were
executed by the government” in Ethiopia. The government
further maintains that Agonafer has failed to present any
evidence of “individualized relevancy,” such as incidents of
persecution of family members, as required by Najmabadi.
Agonafer argues that his new evidence shows a stark
deterioration in conditions for homosexuals in Ethiopia since
June 2007, the time of the IJ’s written decision in his
proceedings on remand. Agonafer highlights our holding in
his prior appeal that “there is no evidence in the record of
any violence directed against homosexuals in Ethiopia” and
that “none of the evidence established the required
connection between prisoner mistreatment and
homosexuals.” Agonafer, 467 F. App’x at 754–55. Agonafer
also maintains that the government’s arguments regarding
evidence of “individualized relevancy” are legally flawed
and not a basis on which the BIA relied.
With his motion to reopen, Agonafer submitted evidence
that as of 2012, homosexuals in Ethiopia have been subject
to increased persecution and violence. In particular contrast
to Agonafer’s evidence from 2007, Agonafer submitted an
August 27, 2012 Summary of the Norwegian Organization
for Asylum Seekers’ Report on Ethiopia, which noted that
“[m]embers of the Ethiopian lesbian, gay, bisexual and
transgender (LGBT) community are consistently subjected
to hate crimes and violence by both the government and
private citizens,” that “criminal cases are often fabricated
against homosexuals,” and that “[w]hile LGBTs are
incarcerated, they are exposed to violence by the police,
prison officers and fellow inmates.” The report further noted
14 AGONAFER V. SESSIONS
that “[t]here is very little transparency about mistreatment of
homosexuals in Ethiopia, as attacks on homosexuals are
rarely reported.” Additionally, the 2012 United States
Department of State’s Country Report on Human Rights
Practices for Ethiopia noted that “[t]here were some reports
of violence against lesbian, gay, bisexual, and transgender
(LGBT) individuals; reporting was limited due to fear of
retribution, discrimination, or stigmatization.” That report
further found that “[t]here were periodic detainments of
some in the LGBT community, combined with interrogation
and alleged physical abuse.” In contrast, the 2006 United
States Department of State’s Country Report on Human
Rights Practices for Ethiopia had merely noted that “[w]hile
society did not widely accept homosexuality, there were no
reports of violence against homosexuals.”
We conclude that the BIA abused its discretion because
it clearly disregarded or failed to give credit to the post-2007
evidence submitted by Agonafer, which demonstrates that
the country conditions regarding the treatment of
homosexuals in Ethiopia are qualitatively different from the
country conditions presented to the IJ in 2007. Whereas
before, we noted that there was “no evidence in the record of
any violence directed against homosexuals in Ethiopia,”
Agonafer, 467 F. App’x at 754, at least two of the reports
submitted with Agonafer’s motion to reopen provide reports
of violence directed against homosexuals in Ethiopia since
2007, including violence in connection with imprisonment.
Additionally, we reject the government’s contention that
Agonafer must present categorically different evidence of
“individual relevancy” from what he presented in his earlier
proceedings. It is undisputed that Agonafer is a homosexual
male. Given Agonafer’s sexual orientation and the evidence
of the treatment of homosexuals in Ethiopia, there is
AGONAFER V. SESSIONS 15
sufficient evidence that, if proved, would establish his prima
facie eligibility for deferral of removal under the CAT. See
Aguilar-Ramos v. Holder, 594 F.3d 701, 705 (9th Cir. 2010)
(“[A] CAT applicant may satisfy his burden with evidence
of country conditions alone.”).
The government’s argument that Agonafer has failed to
describe incidents of persecution of family members is
irrelevant given that Agonafer’s sole position before the BIA
was that he will be subject to torture if removed to Ethiopia
on account of his homosexuality—something independent
of the treatment of any of his family members in Ethiopia.
The evidence of violence against homosexuals, including
imprisonment coupled with violence, together with
Agonafer’s undisputed homosexuality, satisfy the
“individualized relevancy” required for a prima facie
showing of eligibility for CAT deferral.
While the BIA “does not have to write an exegesis on
every contention,” it is required to “consider the issues
raised, and announce its decision in terms sufficient to
enable a reviewing court to perceive that it has heard and
thought and not merely reacted.” Lopez v. Ashcroft, 366 F.3d
799, 807 n.6 (9th Cir. 2004) (internal quotation marks
omitted). In denying Agonafer’s motion to reopen, the BIA’s
conclusion that “[t]he evidence reflects ongoing and
substantially similar treatment of homosexuals that existed
at the time of the respondent’s hearing” disregarded the
newly submitted 2012 reports of recent persecution of and
violence towards homosexuals in Ethiopia. Because the BIA
failed to consider the issues raised by the new reports in a
manner showing that it “heard and thought and not merely
reacted” to Agonafer’s motion to reopen, Lopez, 366 F.3d at807 n.6, it “abused its discretion in dismissing the new
evidence as demonstrating a mere continuance of the
16 AGONAFER V. SESSIONS
previous circumstances.” Malty, 381 F.3d at 946.
Accordingly, the BIA’s denial of Agonafer’s motion to
reopen was arbitrary, irrational, or contrary to law.
For the reasons discussed above, the petition for review
is GRANTED, and the case is REMANDED to the BIA
with instructions to consider properly the changed country
conditions evidence that Agonafer submitted in his motion
to reopen.