Nguti v. Sessions

15-3461
Nguti v. Sessions
BIA
Montante, IJ
A095 896 806
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT
FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE
(WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 2nd day of March, two thousand eighteen.
5
6 PRESENT:
7 RICHARD C. WESLEY,
8 PETER W. HALL,
9 DENNY CHIN,
10 Circuit Judges.
11 _____________________________________
12
13 EDWIN FRU NGUTI,
14 Petitioner,
15
16 v. 15-3461
17 NAC
18 JEFFERSON B. SESSIONS III, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Cleland B. Welton, II, Quinn
24 Emanuel Urquhart & Sullivan, LLP,
25 New York, NY.
26
27 FOR RESPONDENT: Chad A. Readler, Acting Assistant
28 Attorney General; Shelley R. Goad,
29 Assistant Director; Kristen
30 Giuffreda Chapman, Trial Attorney,
31 Office of Immigration Litigation,
32 United States Department of Justice,
33 Washington, DC.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review is
4 GRANTED.
5 Petitioner Edwin Fru Nguti, a native and citizen of
6 Cameroon, seeks review of a September 28, 2015, decision of the
7 BIA affirming an April 14, 2014, decision of an Immigration
8 Judge (“IJ”) denying his motion to reopen. In re Edwin Fru
9 Nguti, No. A095 896 806 (B.I.A. Sept. 28, 2015), aff’g No. A095
10 896 806 (Immig. Ct. Buffalo Apr. 14, 2014). We assume the
11 parties’ familiarity with the underlying facts and procedural
12 history in this case.
13 We have reviewed both the IJ’s and the BIA’s opinions “for
14 the sake of completeness.” Wangchuck v. Dep’t of Homeland
15 Sec., 448 F.3d 524, 528 (2d Cir. 2006). The applicable
16 standards of review are well established. Jian Hui Shao v.
17 Mukasey, 546 F.3d 138, 168-69 (2d Cir. 2008). In his motion
18 to reopen, Nguti sought to file a successive asylum application,
19 asserting that conditions in Cameroon had changed such that he
20 has a well-founded fear of persecution on account of his support
21 for the opposition political party.
22 An alien seeking to reopen proceedings may file a motion
23 to reopen no later than 90 days after the date on which the final
2
1 administrative decision was rendered. 8 U.S.C.
2 § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). Although
3 Nguti’s motion to reopen was untimely filed, the IJ erred in
4 finding Nguti’s counsel’s admission of fault irrelevant to the
5 issue of timeliness. Indeed, a showing of ineffective
6 assistance of counsel may equitably toll the filing period for
7 a motion to reopen. See Iavorski v. U.S. INS, 232 F.3d 124,
8 134 (2d Cir. 2000); see also Yi Long Yang v. Gonzales, 478 F.3d
9 133, 143 (2d Cir. 2007) (concluding that a movant satisfies the
10 procedural requirements for raising an ineffective assistance
11 claim when the claim is clear on the face of the record).
12 The agency also erred in rejecting Nguti’s evidence. The
13 agency relied primarily on perceived inconsistencies between
14 Nguti’s 2002 asylum application and the successive application
15 submitted with his 2014 motion to reopen. Specifically, the
16 agency found that Nguti’s 2002 application asserted that
17 Cameroonian officials had arrested and beaten him on four
18 occasions, while, on his 2014 application, he checked a box
19 reflecting that he had not been harmed or mistreated in Cameroon
20 in the past, and his attached declaration stated that he had
21 been tortured without detail. However, Nguti’s 2014 asylum
22 application did not deny that he had been harmed in the past
23 in conflict with his first application. Question 1 on the
3
1 asylum application form asks the applicant to identify the
2 protected ground for the asylum claim; subparts A and B ask the
3 applicant to specify whether the claim is based on past harm
4 and/or a fear of future harm. Although question 1, subpart A
5 states, “Have you . . . ever experienced harm or mistreatment
6 or threats in the past by anyone,” when read in the context of
7 the introduction to question 1, Nguti’s “No” response merely
8 indicated that he was not applying for asylum based on past harm
9 but rather solely based on his fear of future harm.
10 In fact, Nguti was ineligible to apply for asylum based on
11 past harm in a successive asylum application filed more than
12 12 years after his arrival in the United States. See 8 U.S.C.
13 § 1158(a)(2)(B), (D). Furthermore, the agency erred in
14 faulting Nguti for omitting details of his past harm or evidence
15 to corroborate that harm given that they were not the basis of
16 his application. Cf. Pavlova v. INS, 441 F.3d 82, 90 (2d Cir.
17 2006) (concluding that the IJ erred in questioning an
18 applicant’s credibility based on her failure to provide
19 specific details in the general description of her claim
20 provided in her application).
21 In addition, the agency rejected a summons and a medical
22 certificate, explaining that the documents were not
23 authenticated and the chain of custody was not established.
4
1 However, the agency abused its discretion by failing to analyze
2 Nguti’s evidence of chain of custody: his uncle’s affidavit and
3 supporting evidence, and a receipt showing his father had mailed
4 copies from Cameroon. See Poradisova v. Gonzales, 420 F.3d 70,
5 81 (2d Cir. 2005) (recognizing that the agency has a duty to
6 consider evidence that materially bears on a movant’s claim).
7 The agency also declined to credit affidavits from Nguti’s
8 father and nephew because the authors had not signed them;
9 however, both letters are signed by notaries in front of whom
10 the authors purportedly appeared.
11 Because the agency’s errors infect all the bases for
12 denying Nguti’s motion to reopen, we cannot confidently predict
13 that remand would be futile. See Xiao Ji Chen v. U.S. Dep’t
14 of Justice, 471 F.3d 315, 339 (2d Cir. 2006). It also appears
15 that the IJ may have prejudged Nguti’s credibility and thus the
16 BIA may wish to assign a new IJ if remand is necessary.
17 For the foregoing reasons, the petition for review is
18 GRANTED, the BIA’s order is VACATED, and the case is REMANDED
19 for further proceedings consistent with this order. As we have
20 completed our review, any stay of removal that the Court
21 previously granted in this petition is VACATED, and any pending
22 motion for a stay of removal in this petition is DISMISSED as
23 moot. Any pending request for oral argument in this petition
5
1 is DENIED as moot. See also Fed. R. App. P. 34(a)(2)(B); Second
2 Circuit Local Rule 34.1(b).
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe, Clerk
6