Etemadi v. Garland, 18-72318

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBOGGS, CIRCUIT JUDGE
PartiesKami Etemadi, Petitioner, v. Merrick B. Garland, Attorney General, Respondent.
Docket Number18-72318
Decision Date09 September 2021

Kami Etemadi, Petitioner,
v.

Merrick B. Garland, Attorney General, Respondent.

No. 18-72318

United States Court of Appeals, Ninth Circuit

September 9, 2021


Argued and Submitted February 11, 2021 Pasadena, California

On Petition for Review of an Order of the Board of Immigration Appeals, Agency No. A074-808-492

Judith L. Wood (argued) and Beth S. Persky, Law Offices of Judith L. Wood, Los Angeles, California, for Petitioner.

Madeline Henley (argued), Trial Attorney; Leslie McKay, Senior Litigation Counsel; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

Before: Danny J. Boggs, [*] Milan D. Smith, Jr., and Mary H. Murguia, Circuit Judges.

SUMMARY[**]

Immigration

Granting Kami Etemadi's petition for review of the Board of Immigration Appeals' denial of a motion to reopen based on changed country conditions, and remanding, the panel held that: (1) the law-of-the-case doctrine did not require it to accept a prior panel's determination that Etemadi is not a Christian; (2) Etemadi was not required to reattach his application for relief to his motion to reopen; and (3) Etemadi demonstrated changed country conditions in Iran concerning the treatment of Christians and made a prima facie showing of entitlement to Convention Against Torture relief.

As an initial matter, the panel rejected the government's argument that Etemadi was foreclosed from CAT relief under the law-of-the-case doctrine. The panel concluded that an exception to the doctrine applied because the prior panel's decision was clearly erroneous as to its determination that Etemadi was not a Christian, and enforcement of the prior decision would work a manifest injustice. First, the panel explained that the prior panel clearly erred when it failed to correct or even acknowledge that a primary basis for the IJ's adverse credibility finding rested on a material error concerning whether Etemadi deliberately evaded a question concerning his Christian denomination. The panel wrote that the prior panel and the IJ also erred by failing to address the abundant evidence that Etemadi is a Christian. Next, the panel concluded that the prior panel clearly erred in accepting the IJ's application of the falsus in uno, falsus in omnibus maxim. The panel explained that, at most, an adverse credibility determination may be used to invalidate an applicant's testimony, but the falsus maxim may not be used to wipe out an entire claim that is corroborated by other evidence. The panel explained that the IJ must still examine the corroborating evidence. Because the IJ failed to do so here, the panel concluded that the prior panel clearly erred in affirming the IJ's determination. Finally, the panel concluded that pursuant to Kamalthas v. INS, 251 F.3d 1279 (9th Cir. 2001), the IJ erred in allowing the adverse credibility determination as to Etemadi's political opinion claim to wash over his unrelated CAT claim.

Addressing the Board's denial of the motion to reopen based on Etemadi's failure to include an application for relief, as required by 8 U.S.C. § 1003.2(c)(1), the panel first determined that Etemadi had not waived any challenge to the Board's interpretation of that provision. Next, considering the issue de novo, the panel concluded that Etemadi was not required to submit a new application because the text of § 1003.2(c)(1) makes a distinction between a motion to reopen proceedings and a motion to reopen proceedings for the purpose of submitting an application for relief. Here, Etemadi previously submitted an application for relief based on his religious persecution claim, and referred to it repeatedly in his motion to reopen in which he sought CAT relief on the same grounds. The panel concluded that Etemadi was required to do no more. The panel wrote that it also need not defer to the Board's interpretation of § 1003.2(c)(1) because there was no indication that the Board's interpretation was the agency's "authoritative" or "official" position on the issue. Moreover, even if the Board's interpretation was considered representative of the agency's official views, the panel concluded that the regulation was not genuinely ambiguous.

Next, the panel concluded that the Board abused its discretion in determining that Etemadi failed to establish changed country conditions or prima facie eligibility for CAT relief. First, the panel explained that on a motion to reopen the Board is required to accept as true the facts stated in an affidavit unless they are inherently unbelievable. Although an exception to the rule applies when the affidavit is contradicted by previous findings that are supported by substantial evidence, the panel concluded that the exception did not apply because the IJ, Board, and prior panel's findings that Etemadi was not a Christian were not supported by substantial evidence. The panel also concluded that the Board erred by failing to address compelling evidence showing that conditions had become qualitatively worse for Christians in Iran. The panel held that Etemadi established prima facie eligibility for CAT relief, and remanded for a new hearing to consider all evidence of Etemadi's Christian faith and whether Etemadi is more likely than not to face torture if removed to Iran.

Dissenting, Judge M. Smith wrote that the question presented in this case is not whether Etemadi is a Christian or even whether it is more likely than not that he would be tortured if removed to Iran, but rather whether the court should cast aside a prior panel's disposition, whether it should excuse waiver and decide an issue of first impression without briefing, and whether the Board abused its discretion in analyzing the Iranian government's persecution of Christians over the past thirty years. Judge M. Smith wrote that for each of these questions, precedent mandates very deferential standards of review, yet the majority disregards the questions presented and bypasses the deference owed to the prior panel and the Board.

Judge M. Smith wrote that, contrary to the majority's suggestion otherwise, the law-of-the case doctrine applies to a prior panel's application of the substantial evidence standard for IJ credibility determinations. Judge M. Smith wrote that the majority misunderstands the standard of review applicable to this case, explaining that when the court revisits a prior panel's affirmance of an IJ's factual determination, the standard is doubly deferential. The court must determine whether the prior panel clearly erred in holding that substantial evidence supported the IJ's adverse credibility finding. In other words, it must be left with the definite and firm conviction that any reasonable adjudicator would be compelled to conclude that the IJ's credibility determination did not meet the low bar of "more than a scintilla, but less than a preponderance" of the evidence. Judge M. Smith wrote that were the panel reviewing the IJ's adverse credibility determination under de novo review, or even on direct appeal pursuant to a substantial evidence standard, a reversal of the adverse credibility determination might be defensible. However, because it is governed by the doubly deferential standard, Judge M. Smith could not join the majority's analysis or conclusion.

Addressing the Board's interpretation of § 1003.2(c)(1), Judge M. Smith first wrote that in his view, none of the exceptions to waiver apply here. Judge M. Smith also explained that the majority decision creates a circuit split, all without briefing from the parties. Judge M. Smith wrote that without briefing, it was unclear whether the Board's interpretation of § 1003.2(c)(1) was deserving of deference, especially in light of the recently-announced Kisor framework. Judge M. Smith wrote that a case in which the petitioner has waived an issue is not the proper vehicle to make a pronouncement that will bind future panels of this court.

Judge M. Smith also wrote that while Etemadi need only make a prima facie case for CAT relief at this stage, the majority's reliance on changed conditions regarding general persecution of Christian converts, rather than torture of those individuals, shows that the Board did not abuse its discretion in denying the motion to reopen. Judge M. Smith also wrote that the majority does not demonstrate that the recent country reports constitute evidence that Iran has increased its torture of Christians.

OPINION

BOGGS, CIRCUIT JUDGE

Kami Etemadi, a citizen and native of Iran, came to the United States in 1996 and made a life in Los Angeles. After being introduced to an Iranian American church, he converted to Christianity and was baptized in 1999. The government maintains his faith is false, and endeavors to deport him. Etemadi desires to remain in the United States with his American wife and family. He fears that if he is deported to Iran, he will be tortured or killed for his faith. He has filed a motion to reopen, which the Board of Immigration Appeals (BIA) has denied. We face three questions: First, whether the law-of-the-case doctrine requires that we accept a prior Ninth Circuit panel's determination that the immigration judge's (IJ) finding that Etemadi is not a Christian was supported by substantial evidence. Second, whether Etemadi was required to reattach his application for relief to his motion to reopen. And third, whether Etemadi has demonstrated changed country conditions for Christians in Iran to warrant reopening his application under the Convention Against Torture. We grant Etemadi's petition and remand for a new hearing to consider all evidence of Etemadi's Christian faith and whether Etemadi is more likely than not to face torture if removed to Iran.

I. Jurisdiction and Standard of Review

The BIA's denial of a motion to reopen is a final order of removal, which this court has jurisdiction to review under 8 U.S.C. § 1252(a)(1). "A denial...

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