Agonafer v. Sessions

• Decision Date: 23 June 2017
• Docket Number: No. 13-73122,13-73122
• Citation: 859 F.3d 1198
• Parties: Daniel AGONAFER, Petitioner, v. Jefferson B. SESSIONS III, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

859 F.3d 1198

Daniel AGONAFER, Petitioner,
v.
Jefferson B. SESSIONS III, Attorney General, Respondent.

No. 13-73122

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 16, 2017, San Francisco, California
Filed June 23, 2017

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.

859 F.3d 1201

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

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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 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 , ––– U.S. ––––, 135 S.Ct. 2150, 2154, 192 L.Ed.2d 225 (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).

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

859 F.3d 1203

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 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. ...