Etemadi v. Garland

• Decision Date: 09 September 2021
• Docket Number: No. 18-72318,18-72318
• Parties: Kami ETEMADI, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

12 F.4th 1013

Kami ETEMADI, Petitioner,

v.Merrick B. GARLAND, Attorney General, Respondent.

No. 18-72318

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 11, 2021 Pasadena, California

Filed September 9, 2021

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.

Dissent by Judge Milan D. Smith, Jr.

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 of a motion to reopen immigration proceedings is generally reviewed for abuse of discretion; however, where ... the issue presented is a ‘purely legal question,’ a de novo standard applies." Alali -Amin v. Mukasey , 523 F.3d 1039, 1041 (9th Cir. 2008) (quoting Cano-Merida v. INS , 311 F.3d 960, 964 (9th Cir. 2002) ).

II. FACTS AND PROCEDURE

Etemadi was served with a Notice to Appear in April 1997 and charged with removability under 8 U.S.C. § 1182(a)(6)(A)(i) as a noncitizen present in the United States without having been admitted or paroled. He sought the help of a man known as Reza Tabatabai, who Etemadi believed was an immigration lawyer. Etemadi had seen Tabatabai's immigration-assistance advertisements in a local magazine and Tabatabai had been recommended to Etemadi by people in the Iranian-American community. In truth, Tabatabai was neither a lawyer nor an immigration expert, but an "expert" in forging immigration documents and falsifying applications. Under Tabatabai's instruction, Etemadi conceded removability, and applied for asylum and withholding of removal under the Immigration and Nationality Act and protection under the Convention Against Torture (CAT) on account of his political opposition to the Iranian government. To improve Etemadi's chances of being granted asylum, Tabatabai embellished Etemadi's asylum application with falsehoods, forged documents, and directed Etemadi to lie to the IJ. Etemadi followed his instructions and falsely testified that the forged documents were authentic. In March 1999, the Federal Bureau of Investigation arrested Tabatabai, who shortly thereafter pleaded guilty to federal crimes, including those related to asylum fraud.

In 2000, no longer working with Tabatabai and having since become a Christian, Etemadi amended his application to add fear of religious persecution as a separate ground for relief.

At his merits hearing in 2002, Etemadi admitted that some documents he submitted in support of his political asylum application were forged and that he had misrepresented his past persecution in Iran based on his political opinion. In October 2002, the IJ issued an oral decision denying Etemadi any relief. The IJ found Etemadi's political-asylum claim to be frivolous. Although Etemadi responded to the IJ's questioning regarding his Christian faith, the IJ "discount[ed] all testimony offered by [Etemadi]." The IJ also determined that none of his claims—including the claim that he is a Christian and thus eligible for CAT relief—were credible. Despite repeated requests by Etemadi's lawyer, the IJ refused to hear from Etemadi's pastor to confirm that he was a sincere Christian and active member of the Iranian Christian Church in San Jose. The IJ's three-sentence CAT analysis misstated an important part of the record and ignored undisputed documentary evidence corroborating the claim that Etemadi is a Christian.

In May 2004, the BIA adopted the IJ's decision in a one-paragraph decision. The BIA decision analyzed none of the claims Etemadi raised on appeal, which included a challenge to the errors in the IJ's factfinding.

In October 2007, the Ninth Circuit denied Etemadi's petition for review and later petition for rehearing en banc in an unpublished opinion. See Etemadi v. Keisler , 251 F. App'x 388 (9th Cir. 2007). The prior panel concluded that substantial evidence supported the IJ's finding that Etemadi's political-asylum application was frivolous and that Etemadi is not a Christian. Id. at 389–90.

In May 2018, Etemadi filed a motion with the BIA to reopen his proceedings, based on changed country conditions for Christians in Iran. Alternatively, he asked the BIA to exercise its sua sponte reopening authority.

In August 2018, the BIA denied Etemadi's motion to reopen on three grounds. First, it held that Etemadi had not submitted the required application for relief. See 8 C.F.R. § 1003.2(c)(1). Second, the BIA determined that any evidence of changed country conditions for Christians was irrelevant because he was found not to be a Christian and that any challenge to his credibility determination was untimely. Third, the BIA found that, even if Etemadi is a Christian, he had failed to introduce adequate, previously unavailable evidence to demonstrate that conditions in Iran are worse now for Christians than at the time of his 2002 immigration hearing. The BIA found no exceptional situation warranted reopening sua sponte and also concluded that Etemadi's frivolous asylum claim barred him from adjustment of his status based on his marriage to a United States citizen. On August 21, 2018, Etemadi filed this petition for review. Although there is no time limit for a motion to reopen a withholding of removal claim based on changed country conditions, Etemadi raises on appeal only his CAT claim related to his Christian faith.

III. ANALYSIS

A. The Law-of-the-Case Doctrine

The government argues that the law-of-the-case doctrine forecloses Etemadi from CAT relief because the prior panel accepted the agency's determination that he is not a Christian. See Etemadi , 251 F. App'x at 389. The "doctrine states that the decision of an appellate court on a legal issue must be followed in all subsequent proceedings in the same case." In re Rainbow Mag., Inc. , 77 F.3d 278, 281 (9th Cir. 1996) (quoting Herrington v. Cnty. of Sonoma , 12 F.3d 901, 904 (9th Cir. 1993) ).

The law-of-the-case doctrine is "a guide to discretion." United States v. Alexander , 106 F.3d 874, 876 (9th Cir. 1997) ; see also United States v. Lewis , 611 F.3d 1172, 1179 (9th Cir. 2010) (citing Messenger v. Anderson , 225 U.S. 436, 444, 32 S.Ct. 739, 56 L.Ed. 1152 (1912) ). It "is not a doctrine of inescapable application." Ferreira v. Borja , 93 F.3d 671, 674 (9th Cir. 1996). Still, "a prior decision should be followed unless (1) the decision is clearly erroneous and its enforcement would work a manifest injustice; (2) intervening controlling authority makes reconsideration appropriate; or (3) substantially different evidence was adduced at a subsequent trial." Alaimalo v. United States , 645 F.3d 1042, 1049 (9th Cir. 2011) (citing Hegler v. Borg , 50 F.3d 1472, 1475 (9th Cir. 1995) ). The prior panel accepted the agency's determination that Etemadi is not a Christian, which was not a legal determination but a mixed question of law and fact because it required the prior panel to apply a legal standard to disputed facts. "When a mixed question of law and fact is presented, the standard of review turns on whether factual matters or legal matters predominate." United States v. Mateo-Mendez , 215 F.3d 1039, 1042 (9th Cir. 2000) (quotation omitted). In Etemadi's appeal to the prior panel, the factual issues were predominant because there was no dispute that the substantial-evidence legal standard applied to the Agency's factual determinations. The dispute among the parties primarily concerned the weight of the evidence regarding the agency's determination that Etemadi is not a Christian.

Because the law-of-the-case doctrine applies to legal issues, and because the prior panel decided a facts-predominant mixed question of law and fact, the law-of-the-case doctrine likely does not apply here at all. But even if it does, the first exception to the law-of-the-case doctrine applies to Etemadi's case.

Clear Error

While we do not make the decision to reject the prior panel's conclusion lightly, the prior panel's decision was clearly erroneous and enforcing it against Etemadi would be unjust. "[A] finding is ‘clearly erroneous’ when[,] although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Anderson v. City of Bessemer City , 470 U.S. 564, 573, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985) (quotation omitted). If deported now,...