Azer v. Holder

FILED
NOT FOR PUBLICATION MAY 20 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MAGDY SHEHATA AZER, No. 04-76231
Petitioner, Agency No. A074-809-366
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
MAGDY SHEHATA AZER, No. 05-71586
Petitioner, Agency No. A074-809-366
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted May 5, 2010
Pasadena, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: B. FLETCHER and PAEZ, Circuit Judges, and EZRA, District Judge.**
Before us are two petitions by Magdy Azer for review of two decisions by
the Board of Immigration Appeals (BIA). In number 04-76231, Azer petitions
from the BIA’s denial of his motion to reopen. In number 05-71586, he petitions
from the BIA’s subsequent denial of a motion styled “Motion to Reconsider;
Motion to Reopen.” We review the BIA’s denial of a motion to reopen for abuse
of discretion. Perez v. Mukasey, 516 F.3d 770, 773 (9th Cir. 2008). We grant the
first petition and dismiss the second as moot.
The BIA incorrectly determined that Azer’s motion to reopen was untimely.
A motion to reopen based on changed country conditions, provided that the
evidence in support of the motion “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), may be filed at any time. Malty v. Ashcroft, 381 F.3d 942, 945
(9th Cir. 2004). There is no dispute that Azer’s evidence is material and was not
available at the time of the 1997 asylum hearing.
Further, by considering only the timing of Azer’s motion to reopen, the BIA
abused its discretion. In doing so, the BIA effectively created a time limitation for
**
The Honorable David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
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motions to reopen based on changed country conditions. Such a limitation is
precluded by statute. 8 U.S.C. § 1229a(c)(7)(C)(ii); cf. Andia v. Ashcroft, 359 F.3d
1181, 1184 (9th Cir. 2004) (“As there is no time limitation for motions to reopen . .
. based on lack of notice, the IJ could not create one as a matter of discretion.”).
By focusing only on timing, the BIA failed to examine the evidence or the
equities weighing in Azer’s favor. Azer submitted evidence showing that since
1997, Egyptian Coptic Christians have faced increased persecution generally.
Importantly, his evidence also showed that Azer’s vocal and visible activities on
behalf of Egyptian Christians — all of which took place after 1997 — have
brought him to the attention of Islamic extremists in his native country. He
submitted a newspaper article, translated from the Arabic, stating that during
Friday prayers in Cairo, some mosques have publicly demanded Azer’s death for
his “continuous contempt of Islam.”1 Azer has also personally received death
threats for his public discussion of the conditions Coptic Christians face in Egypt.
By failing to mention, much less examine, any of this evidence, the BIA abused its
discretion. See, e.g., Mohammed v. Gonzales, 400 F.3d 785, 793 (9th Cir. 2005)
1
The article is undated, but as it mentions the events of September 11, 2001,
it was necessarily unavailable in 1997 and could not have been presented then.
3
(“[T]he BIA is obligated to consider and address in its entirety the evidence
submitted by a petitioner.”).
If Azer’s evidence is believed, as it must be at this stage, Malty, 381 F.3d at
947, Azer faces a substantial risk of being killed on account of his religion if he
returns to Egypt. In failing to give the equities weighing in Azer’s favor even a
“cursory and generalized analysis,” the BIA abused its discretion. Arrozal v. INS,
159 F.3d 429, 433 (9th Cir. 1998); see also Watkins v. INS, 63 F.3d 844, 850 (9th
Cir. 1995) (holding that BIA abused its discretion in denying a motion to reopen by
failing to consider “all relevant factors,” including “fear of persecution”).
To the extent the BIA denied Azer’s motion because it believed he filed his
motion only because he had been taken into custody, it abused its discretion by
making a credibility finding. See Malty, 381 F.3d at 947 (noting that a credibility
finding is generally impermissible at the motion-to-reopen stage). In any case, the
record shows that Azer hired a lawyer to file a motion to reopen before the
Department of Homeland Security took him into custody. See Wiedersperg v. INS,
896 F.2d 1179, 1183 (9th Cir. 1990) (holding that the BIA abused its discretion in
denying motion to reopen where its denial was based on “speculative grounds”).
Even were the timing of his motion motivated by his incarceration, we find no
authority that suggests it is a disqualifying circumstance.
4
The record also throws doubt on the BIA’s determination that Azer lacked
due diligence in pursuing his claim. He promptly retained new counsel after the
BIA’s initial dismissal of his appeal in May 2002, but the attorney was
incompetent and in June 2002 filed a frivolous motion to reopen, which the BIA
denied. A layman like Azer would have reasonably believed that the BIA’s denial
of that motion precluded relief. Indeed, the BIA itself erroneously concluded that
the denial of Azer’s first motion to reopen precluded consideration of further
motions for relief.
We conclude that the BIA abused its discretion by denying Azer’s motion to
reopen. We therefore grant the petition in number 04-76231 and remand to the
BIA with directions to reopen. We dismiss the petition in number 05-71586 as
moot.
GRANTED; REMANDED WITH DIRECTIONS (04-76231).
DISMISSED (05-71586).
5