859 F.3d 1198 (9th Cir. 2017), 13-73122, Agonafer v. Sessions

Docket Nº:13-73122
Citation:859 F.3d 1198
Opinion Judge:HUCK, District Judge
Party Name:DANIEL AGONAFER, Petitioner, v. JEFFERSON B. SESSIONS III, Attorney General, Respondent
Attorney: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 Assis...
Judge Panel:Before: William A. Fletcher and Richard C. Tallman, Circuit Judges, and Paul C. Huck,[*] District Judge.
Case Date:June 23, 2017
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1198

859 F.3d 1198 (9th Cir. 2017)

DANIEL AGONAFER, Petitioner,

v.

JEFFERSON B. SESSIONS III, Attorney General, Respondent

No. 13-73122

United States Court of Appeals, Ninth Circuit

June 23, 2017

Argued and Submitted, San Francisco, California May 16, 2017

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A091-681-612.

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.

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.

Before: William A. Fletcher and Richard C. Tallman, Circuit Judges, and Paul C. Huck,[*] District Judge.

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.

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 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 Fed.Appx. 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).

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...

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