Ninth Circuit Reverses Denial of Changed Country Conditions MTR

The Ninth Circuit has reversed the denial of a changed country conditions motion to reopen, finding that the new evidence presented was independent of a prior adverse credibility determination. Among other documents, the motion to reopen included Singh’s birth certificate, a letter from the Mann leader attesting to his membership in the party, and a letter from his mother stating that the police were looking for Singh. This evidence was independent of the facts that formed the prior credibility finding. Indeed, the IJ had expressly relied on the lack of such corroborating evidence to find Singh not credible. The prior adverse credibility finding thus logically could not have implicated the newly submitted evidence. 

The full text of Singh v. Garland can be found here: 

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/08/30/19-73107.pdf

Seventh Circuit Remands to Determine Citizenship of Ethnic Eritrean Born in Addis Ababa

The Seventh Circuit has remanded a motion to reopen for the agency to address whether an ethnic Eritrean born in Addis Ababa before the founding of Eritrea is properly considered to be an Eritrean citizen. The Court noted that the petitioner’s citizenship was relevant to the likelihood that he would be tortured if deported to Ethiopia.

The full text of Menghistab v. Garland can be found here:

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2022/D06-21/C:21-2099:J:Wood:aut:T:fnOp:N:2892707:S:0

Fifth Circuit Finds that Motion to Reopen Based on Changed Country Conditions is Number Barred

The Fifth Circuit has determined that a motion to reopen based on changed country conditions - although an exception to the 90-day filing deadline for motions to reopen - is subject the numerical limitations on motions to reopen. Although the Court recognized that a regulation exempts changed country conditions motions to reopen from the numerical bar, they found the regulation to exceed the terms of the statute, and thus, be invalid. The Court further suggested that only VAWA-based motions to reopen can be exempted from the numerical limitation.

The full text of Djie v. Garland can be found here:

https://www.ca5.uscourts.gov/opinions/pub/20/20-60448-CV0.pdf

Third Circuit Finds Ineffective Assistance of Counsel for Failure to Submit Corroborating Documents

The Third Circuit has determined that an attorney provided ineffective assistance of counsel by failing to present corroborating documentation of the existence of the applicant’s political party. Notably, the attorney had submitted a written denial of the allegations of wrongdoing. The court noted that “we have recognized that a lawyer cannot be expected to argue his own ineffective assistance.”

The court also criticized the Board’s determination that the assassination of the Haitian president was merely an incremental increase in political violence. “It is unclear to us what, exactly, the Board would consider an adequate change in country conditions if the assassination of the country’s leader is simply an ‘incremental increase’ in unrest.”

The full text of Saint Ford v. Attorney General can be found here:

https://www2.ca3.uscourts.gov/opinarch/211729p.pdf

Ninth Circuit Remands Motion to Reopen to Consider Heightened Risk to Evangelical Christians in Indonesia

The Ninth Circuit has remanded a motion to reopen based on changed country conditions because the agency failed to differentiate the heightened risk of harm to evangelical Christians in Indonesia - who proselytize as part of their faith - from the risk of harm to other non-evangelical Christians.

The full text of Nababan v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/11/23/18-72548.pdf

Sixth Circuit Finds Changed Country Conditions in DRC Due to New Political Party in Power

The Sixth Circuit has affirmed the agency’s finding that a member of UDPS (formerly, the primary opposition party in the Democratic Republic of the Congo) no longer qualified for asylum because the current president of DRC is a member of UDPS. This change of the party in power was sufficient to rebut the presumption of future persecution raised by the existence of past persecution.

The full text of Mbonga v. Garland can be found here:

opn.ca6.uscourts.gov/opinions.pdf/21a0269p-06.pdf

Ninth Circuit Permits Changed Country Conditions Argument Based on Change in Personal Circumstances Outside Applicant's Control

The Ninth Circuit has sustained the appeal of an asylum applicant who moved to reopen her proceedings after her abusive husband was deported to India, and her in-laws threatened to kill her if she returned. The court emphasized that a change in personal circumstances completely outside the applicant’s control can support reopening. The court also noted that increasing violence against women (especially widows) in India supported reopening of the case.

The full text of Kaur v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/06/21/18-72786.pdf

Third Circuit Clarifies Standards for Changed Country Conditions MTRs

The Third Circuit has clarified the standards for reopening a removal proceeding based on changed country conditions, noting that there is both a materiality standard and a prima facie standard that must be met. “Materiality requires that applicant’s evidence address the deficiencies of her application, while the prima facie standard requires that the evidence be sufficient to show a reasonable likelihood that the statutory requirements have been met. When an IJ denies relief upon finding that an applicant has failed to meet a particular element of the claim, the applicant moving to reopen must present evidence directly addressing the element the IJ found deficient. The applicant’s evidence, taken as a whole, is not material if it merely strengthens the other elements of her claim without addressing the element the IJ found deficient. But if the applicant presents new evidence that addresses the IJ’s findings and was previously unavailable, she clears the procedural hurdle. Then, if the new, material evidence of changed country conditions can show a reasonable likelihood that the statutory requirements [for relief] have been satisfied, she clears the substantive hurdle.”

The full text of Darby v. Attorney General can be found here:

https://www2.ca3.uscourts.gov/opinarch/202107p.pdf

Ninth Circuit Affirms Denial of Changed Country Conditions Motion to Reopen

The Ninth Circuit noted that a changed country conditions motion to reopen can be partially premised on a change in personal circumstances, but that it also must show a change in related country conditions. “Instead, Petitioner provided evidence of changes in his personal circumstances, along with evidence supporting his argument that, given his changed personal circumstances, he could now be persecuted or tortured based on current country conditions in Mexico. What is noticeably absent from Petitioner’s ‘hybrid’ changed conditions claim is evidence of actual changed country conditions between 2003 and his 2016 motion to reopen.”

The full text of Rodriguez v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/03/15/20-70240.pdf

Second Circuit finds that Petitioner does not Need to File a New I-589 with a Changed Country Conditions MTR

The Second Circuit has determined that a petitioner who sought reopening based on changed country conditions, and who had previously filed an asylum application in Immigration Court, was not required to file a new application with the motion to reopen.

The full text of Tanusantoso v. Barr can be found here:

https://law.justia.com/cases/federal/appellate-courts/ca2/18-1440/18-1440-2020-06-23.html

BIA Clarifies Standards for Changed Country Conditions MTR

The Board of Immigration Appeals has held that a respondent who was previously denied asylum on credibility grounds, and who seeks to reopen proceedings due to changed country conditions related to the same claim of persecution, must also present evidence to overcome the adverse credibility determination. “However, if newly submitted evidence is based on information independent of the prior adverse credibility finding, it must be addressed.”

The full text of Matter of F-S-N- can be found here:

https://www.justice.gov/eoir/page/file/1284876/download

Fifth Circuit Reverses Denial of Motion to Reopen Based on Changed Country Conditions for Honduran Women

The Fifth Circuit has remanded a motion to reopen filed by a Honduran woman based on changed country conditions related to gender violence. The court noted that she had “introduced voluminous and uncontroverted evidence that the regime established after the 2009 coup made changes that substantially reduced legal protections for women and dramatically impaired institutions within the government and civil society that protect women from gender-based violence. And the coup was accompanied by the rate of homicides of women doubling within a single year, which can hardly be described as incremental.”

The full text of Inestroza-Antonelli v. Barr can be found here:

http://www.ca5.uscourts.gov/opinions/pub/18/18-60236-CV0.pdf

First Circuit Remands Motion to Reopen Filed by Indigenous Guatemalan

The First Circuit has remanded a motion to reopen filed by an indigenous Guatemalan seeking asylum. The court concluded that conditions had worsened for indigenous activists, and that the deportation of a military leader responsible for atrocities against the indigenous community (including several of the petitioner’s relatives) also constituted a changed condition.

The full text of Perez-Tino v. Barr can be found here:

http://media.ca1.uscourts.gov/pdf.opinions/18-1860P-01A.pdf

Sixth Circuit Reopens Proceedings for Indigenous Guatemalan

The Sixth Circuit has granted a petition for review for an indigenous Guatemalan who became involved in labor rights activities on behalf of indigenous workers after being deported. The court held that his voluntary participation in these activities, combined with evidence that persecution of indigenous communities in Guatemala had intensified, was sufficient to warrant reopening.

The full text of Pablo Lorenzo v. Barr can be found here:

http://www.opn.ca6.uscourts.gov/opinions.pdf/19a0145p-06.pdf

First Circuit Recognizes "Dreadful" Conditions for LGBT Community in Uganda but Declines to Reopen Proceedings

The First Circuit has upheld the denial of a motion to reopen based on changed country conditions in Uganda for an LGBT asylum seeker, finding that the conditions have not materially changed, but have instead, been terrible for the LGBT community since before the applicant’s 2014 removal order.

“Put bluntly, the situation is dreadful — but it has been dreadful throughout the relevant period. The petitioner's submissions fail to show that the level of hostility, persecution, or other mistreatment intensified between May of 2014 (when the merits hearing concluded) and June of 2018 (when the petitioner's second motion to reopen was filed).”

“Let us be perfectly clear. We have no illusions about what is happening in Uganda with respect to LGBT individuals. We regard the views of the Ugandan government toward members of the LGBT community as benighted, and we know that the petitioner's life in her homeland may prove trying. But the conditions that confront LGBT individuals in Uganda, though disturbing, are not new. Those conditions have persisted for decades, and they have not materially changed in the relatively brief interval between the conclusion of the petitioner's 2014 merits hearing and the filing of her 2018 motion to reopen.”

The court did suggest that the Executive Branch has the authority to grant the applicant parole into the United States., given the humanitarian factors in the case.

The full text of Nantume v. Barr can be found here:

http://media.ca1.uscourts.gov/pdf.opinions/18-1911P-01A.pdf

First Circuit Finds Changed Country Conditions in Venzuela

The First Circuit has granted the appeal of a Venezuelan petitioner’s motion to reopen. The court noted that the country conditions showed a substantial increase in political prisoners, as well as severe mistreatment of political prisoners.

The full text of Cabas v. Barr can be found here: http://media.ca1.uscourts.gov/pdf.opinions/18-1630P-01A.pdf

Third Circuit Remands Changed Country Conditions Motion for Indonesian Christian of Chinese Ancestry

The Third Circuit has remanded a motion to reopen based on changed country conditions, filed by an Indonesian Christian of Chinese ancestry. The court chastised the Board of Immigration Appeals for cherry picking evidence and failing to consider the majority of the exhibits submitted with the motion.

The full text of Liem v. Attorney General can be found here:

https://www2.ca3.uscourts.gov/opinarch/181955p.pdf

First Circuit Sustains Appeal of Denied Motion to Reopen based on Changed Country Conditions

The First Circuit has sustained an appeal of a changed country conditions motion to reopen, filed by an Indonesian evangelical Christian.

“For aught that appears, the BIA seems to have evaluated the petitioner's motion to reopen as if he were a prototypical Indonesian Christian. The record, however, belies this assumption. In his motion to reopen, the petitioner asserted — and the government did not dispute — that the petitioner subscribes to a more particularized subset of the Christian faith: he is an evangelical Christian, for whom public proselytizing is a religious obligation. Yet, in terms of the prospect of persecution arising out of changed country conditions, the BIA wholly failed to evaluate whether and to what extent there is a meaningful distinction between Christians who practice their faith in private and evangelical Christians (such as the petitioner), for whom public proselytizing is a central tenet. So, too, the BIA neglected to consider whether country conditions had materially changed with respect to public and private reactions (including vigilante violence) toward evangelical Christians. Finally, the BIA neglected to consider whether attitudes in Indonesia had materially changed with respect to persons making public religious statements.”

“The record is replete with copious new evidence submitted by the petitioner and unavailable in 2006, which might well serve to ground a finding (or at least a reasonable inference) that country conditions have steadily deteriorated over the past twelve years. In particular, Islamic fundamentalist fervor seems to have intensified, such that evangelical Christians may now be at special risk in Indonesia. “

The court very forcefully differentiated the situation for non-Evangelical Christians from that of Evangelical Christians. “To be sure, the government tries to pigeonhole the petitioner's case as merely another link in a chain of four cases in which we have rejected claims by Indonesian Christians that country conditions have materially changed. This case, though, is readily distinguishable. None of the earlier cases involved an alien who held himself out to be an evangelical Christian. Accordingly, the religious beliefs of those aliens — and therefore their experiences with religious intolerance — were different in kind, not just in degree.”

The full text of Sihotang v. Sessions can be found here:

http://media.ca1.uscourts.gov/pdf.opinions/17-2183P-01A.pdf

Ninth Circuit Discusses Return of Abusive Spouse to Home Country as Grounds for Reopening Proceedings

In an unpublished decision, the Ninth Circuit determined that the return of an applicant's abusive spouse to her home country could qualify as changed country conditions that warranted reopening of her proceedings.  

The full text of Lopez v. Sessions can be found here: 

https://cdn.ca9.uscourts.gov/datastore/memoranda/2017/04/27/11-70271.pdf

Seventh Circuit Chastises BIA for Failing to Take Note of Widely Reported Country Conditions

Deng Arej was born in the southern part of Sudan, but later relocated to the northern part of Sudan.  He was admitted to the United States as a refugee before Sudan split into two countries.  As a result of a criminal conviction, he was ordered removed.  After 8 months of detention, he sought to reopen his case based on changed country conditions, including the rapidly worsening conditions in South Sudan.  The Immigration Judge denied his motion, finding that he had not demonstrated any material changed conditions.  The Board of Immigration Appeals (BIA) affirmed.

The Seventh Circuit reversed.  The Court noted that the BIA "ignored the growing violence in the south during this period."  Furthermore, a competent immigration service would not ignore world events. The dramatically worsening conditions in South Sudan have been widely reported, with the young nation described as “cracking apart” and United Nations officials raising concerns about genocide. Tens of thousands of civilians have been killed, every major cease‐fire that has been painstakingly negotiated by African and Western officials has been violated, and dangerous fissures are opening up within the South Sudanese military.  And time doesn’t stand still. The Board’s order dismissing Arej’s appeal from the immigration judge’s denial of his motion to reopen was issued on May 8, 2015—almost two years ago. Considering that Arej has not yet been removed and that the order was perfunctory, the Board should consider whether he should be allowed to present evidence concerning current conditions in the two Sudans."

The full text of Arej v. Sessions can be found here:

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2017/D03-28/C:15-2061:J:Posner:aut:T:fnOp:N:1937333:S:0