Smith v. Holder

• Decision Date: 09 September 2010
• Docket Number: No. 08-2571,08-2571
• Citation: 627 F.3d 427
• Parties: John SMITH, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

627 F.3d 427

John SMITH,^* Petitioner,

v.Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 08-2571.

United States Court of Appeals,First Circuit.

Heard April 7, 2010.

Decided Sept. 9, 2010.

Kerry E. Doyle, with whom Graves & Doyle was on brief, for petitioner.

Hillel R. Smith, Attorney, Office of Immigration Litigation, Civil Division, with whom Tony West, Assistant Attorney General, and Greg D. Mack, Senior Litigation Counsel, were on brief, for respondent.

Before TORRUELLA, LIPEZ, and HOWARD, Circuit Judges.

LIPEZ, Circuit Judge.

Petitioner John Smith seeks review of a decision of the Board of Immigration Appeals (BIA) denying his motion to reopen his removal proceedings so that he could apply for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). In his motion, Smith cited changed country conditions and new evidence that was unavailable to him during the proceedings on his initial application for adjustment of status. Because we conclude that the BIA committed errors of law in deciding that Smith had not shown changed country conditions or made a prima facie case for relief, thereby abusing its discretion, we grant the petition for review and remand for further proceedings consistent with this opinion.

I.

The evidence presented by Smith is fairly summarized as follows. Smith was born in Zimbabwe. He is from a large family and his parents worked. He became an active member of the Zimbabwe National Students Union (ZINAZU), an organization that was opposed to the Zimbabwe African National Union (ZANU-PF) government then in power in Zimbabwe. Smith held a position in ZINAZU and also joined the Zimbabwe Unity Movement, a political movement seeking to unseat ZANU-PF in the 1990 general election. He had a leadership role in that organization. As a result of his political activities, Smith was arrested and detained multiple times, first in the early 1990s, again a few years later, and finally a few years after that. On all three occasions, he was beaten severely and threatened with further harm to himself and his family.

After his last, most severe detention and beating, Smith decided to leave Zimbabwe in an act of self-preservation. He entered the United States in the mid-1990s on a visa. He attended a college and then a university and earned a degree. Smith worked for two years as an environmental design engineer before becoming a civil engineer with a firm in the United States, where he worked until several years ago. During those years, he continued to pursue his education. In 2003, he earned a graduate degree from a university. From 2004 to 2007, he again attended a university he had previously attended while he worked towards a second graduate degree.

A. Adjustment of Status

In the late 1990s, Smith married Sarah Jones, an American citizen, with whom he later had a son, also named John.¹ Smith and Jones sought to adjust his immigration status based on their marriage by filing an I-130 visa petition and applying for adjustment of Smith's immigration status. Smith's application for adjustment of status was initially denied when Jones withdrew her support, but was reopened sometime in the early 2000s after Jones filed another I-130 visa petition on Smith's behalf. Smith's second application was also denied in the mid-2000s, after a hearing before an immigration judge. Although the immigration judge found Smith to be credible and that his marriage was bona fide, she cited Jones's failure to appear in support of Smith in refusing to adjust his status. The immigration judge granted Smith voluntary departure with an alternate order of removal to Zimbabwe. Smith's appeal of that decision was dismissed by the BIA. In a brief opinion, the BIA stated that the outcome was "an understandable and appropriate exercise ofthe Immigration Judge's discretion to deny adjustment of status."

B. Motion to Reopen

In the late 2000s, more than a year after his appeal was dismissed, Smith filed a pro se motion to reopen his removal proceedings with the BIA so that he could apply for asylum, withholding of removal, and CAT protection. In the motion, Smith stated that he feared being persecuted and tortured if returned to Zimbabwe. That argument was based, in part, on his past persecution by the reigning ZANU-PF regime. As required to excuse his failure to file a motion to reopen within the ninety-day statutory window, see 8 C.F.R. § 1003.2(c)(3)(ii), Smith argued that in the time since the BIA dismissed his appeal in the mid-2000s, conditions in Zimbabwe had changed dramatically for the worse for those who, like him, had been active opponents of the ZANU-PF or whose families had been labeled as opposition.

In support of his motion to reopen, Smith submitted an affidavit describing his earlier persecution for his earlier activism against the ZANU-PF. He also detailed more recent violence against his family in Zimbabwe.² According to Smith, his family has been harassed, intimidated, and physically attacked for allegedly sympathizing with neighboring white farmers. He described two violent attacks in the mid-2000s, one in which his father was attacked violently, and another in which a cousin who lived with close family was killed by the ZANU-PF youth militia. In the late 2000s, the family was targeted once again for its political sympathies. The April 2008 elections in Zimbabwe resulted in the withdrawal of the candidate of the opposition, Movement for Democratic Change (MDC), due to ZANU-PF-directed violence that made it impossible to conduct a free and fair election. According to Smith, his family did not vote in the elections. Nevertheless, shortly after the election, ZANU-PF youth militia invaded Smith's parents' home in retaliation for the heavy support the MDC received in the elections in the area where they lived. The family's home was destroyed and his family members were attacked. Another individual was killed. Smith's family members escaped to another country.³

Smith also submitted evidence that failed asylum seekers who were returned to Zimbabwe were being subjected to harsh interrogation by the government's Central Intelligence Organization (CIO). He included a judicial opinion from the United Kingdom in which the court concluded, based on extensive testimony, that because failed asylum applicants are not channeled to the immigration authorities, but are instead immediately screened and interrogated by the central intelligence arm, they face a heightened risk of physical violence. The court made this finding after hearing credible testimony that beatings are "a systemic feature of a CIO investigation," particularly for opponents of the ZANU-PF.

Finally, Smith's motion to reopen included country reports and other documents showing that both government and non-governmental organization observers agreed that human rights abuses by theZANU-PF were worsening in Zimbabwe. For example, a U.S. State Department Country Report on Human Rights Practices in Zimbabwe shows, among other things, that ZANU-PF-sponsored torture in Zimbabwe increased almost threefold between 2006 and 2007 (from 1,185 incidents to 3,463 incidents). The State Department reports also describe a "systematic government-sponsored campaign to dismantle the opposition party's structures" prior to the 2008 elections through violence directed at supporters, expulsion of villagers who supported the MDC, and withholding of government-supplied food aid from MDC supporters. A 2006 report from Human Rights Watch concluded, similarly, that "[v]iolent repression of civil society activists by state authorities in Zimbabwe continues to escalate."

C. The BIA's Order

The BIA denied Smith's motion to reopen, concluding that it was not timely because it had not been filed within ninety days of the final decision on his application for adjustment of status, as required by 8 C.F.R. § 1003.2(c)(2). Although recognizing that there is an exception to the ninety-day time limit for motions to reopen where an alien is seeking asylum and withholding of removal based on changed circumstances in the country of nationality or the country to which removal has been ordered, see 8 C.F.R. § 1003.2(c)(3)(ii), the BIA found that Smith had not demonstrated "that conditions have materially changed for him in Zimbabwe."

The BIA rejected Smith's claim that conditions in Zimbabwe worsened for opposition supporters before and after the 2008 elections. The Board found that "[e]vidence that the ZANU-PF has been abusing individuals who voted for the MDC in the April 2008 elections is immaterial to [Smith]" because "he was not even present in Zimbabwe" during the elections and does not claim to have voted in them. The BIA dismissed Smith's evidence of violence against his family, noting "the mere fact that [Smith's] family was targeted ... standing alone, does not make a prima facie showing that the respondent himself may face persecution on account of a protected ground under the Act or torture upon his repatriation."

Similarly, the BIA reasoned that evidence that "state-sponsored abuse of opposition activists in Zimbabwe has increased in the last few years, standing alone, does not reflect material [sic] changed country conditions for the respondent." The BIA found that Smith had not identified "evidence that would indicate that conditions have deteriorated or otherwise changed for individuals like himself who were politically active in Zimbabwe so long ago."

Finally, the Board rejected the evidence Smith introduced showing that Britain had granted asylum to a Zimbabwean national because of the danger to rejected asylum seekers who are returned to Zimbabwe. The BIA called that information "immaterial to the respondent" because he would not be removed "under that process." The BIA asserted that Smith's claim was also "speculative" because "United States-based asylum proceedings are required by law ... to remain confidential." The BIA noted that the fact that the...