Vahora v. Eric H. Holder Jr.

• Decision Date: 05 April 2011
• Docket Number: No. 08–71618.,08–71618.
• Parties: Ayubbhai VAHORA, aka A.A. Vahora, aka Ayu Bhai A. Vahora, Petitioner,v.Eric H. HOLDER Jr.,* Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

641 F.3d 1038
11 Cal. Daily Op. Serv. 4061
2011 Daily Journal D.A.R. 4920

Ayubbhai VAHORA, aka A.A. Vahora, aka Ayu Bhai A. Vahora, Petitioner,
v.
Eric H. HOLDER Jr.,* Attorney General, Respondent.

No. 08–71618.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 31, 2009.Filed April 5, 2011.

[641 F.3d 1039]

Robert B. Jobe and Arwin Swink, Law Office of Robert B. Jobe, San Francisco, CA, for the petitioner-appellant.Tracie N. Jones, Trial Attorney, Office of Immigration Litigation, U.S. Department of Justice, Washington, DC, for the respondent-appellee.On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A096–152–895.Before: ALEX KOZINSKI, Chief Judge, STEPHEN REINHARDT, Circuit Judge, and ROBERT J. TIMLIN,^** Senior District Judge.Opinion by Judge TIMLIN; Dissent by Chief Judge KOZINSKI.

OPINION TIMLIN, District Judge:

Ayubbhai Vahora (“Vahora”), a native and citizen of India, petitions for review of the Board of Immigration Appeals (“BIA”) dismissal of his appeal of the Immigration Judge's (“IJ”) denial of his application for asylum. The IJ denied his application for asylum because he did not file it within one year of his arrival in the United States, as

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required by 8 C.F.R. § 208.4(a)(2), and because he did not demonstrate “changed circumstances” sufficient to excuse his late filing under 8 C.F.R. § 208.4(a)(5). We conclude that it was error not to find “changed circumstances” that warrant an exception to the one-year filing requirement, and we will grant the petition.

I. FACTS AND PROCEDURAL HISTORY¹

Vahora is a native and citizen of India who grew up and lived in the state of Gujarat in India. His parents are deceased, and he has four living siblings, two brothers and two sisters. He is married and has three daughters. His entire family remains in India.

Vahora and his family are Sunni Muslim, and the village in which they live is predominantly Hindu. Vahora was a member of the local Sunni Muslim committee in Gujarat. Prior to his entry into the United States, Vahora experienced three separate incidents of harassment and violence because of his religious affiliation. In 1992, the mosque in Vahora's town was destroyed by Hindus, and he was subsequently put in charge of the efforts to rebuild the mosque. During construction, Vahora saw young Hindu people attempting to demolish the walls of the mosque, so he went to the police station to lodge a report. Then he held a meeting at his house for the Muslim community to discuss the situation. After the meeting came to an end, the police came to Vahora's house and arrested him. The police detained Vahora for five days, during which time he was beaten 12–14 times for 10–12 minutes at a time. He was beaten so severely that he could not walk properly and received medical treatment. He was released after a friend paid a bribe. After his release, he was fired from his job by his Hindu employer.

On February 15, 1998, supporters of the Hindu nationalist Bhartiya Janta party (“BJP”) came to Vahora's house and told him to instruct other Muslims to support the BJP. He refused, and one of the BJP supporters told him that, if he did not support the BJP, he and his family “would have to bear the brunt of the consequences.” After the election, in which the BJP candidate lost, Hindus came to Vahora's house and harassed him with verbal abuse.

On September 28, 2000, in an effort to avoid further harassment, Vahora left India for a trip to London. Vahora admitted at the hearing before the IJ that he also applied for a visa to enter the United States at that time, but was denied because he did not submit a sponsor letter. A little over a month later, he returned to India, and three days later, he was once again arrested by the police and taken to the police station. The police alleged that he had gone to London to create plans to cause disturbance “in the Hindu areas” and detained him for fifteen days, during which time they beat him once or twice a day and alleged he was a traitor against the national interest. While in police custody, Vahora was not allowed to meet with anyone or contact his family or a lawyer. He was not charged with a crime, and he did not have any court hearings. Once again, to be released, his family paid a bribe.

After his release, Vahora returned to London and stayed for four months. During this time, back in India, the police would come and question his wife about his

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whereabouts. Vahora admitted that he feared for his life while in London, but said at the hearing that he “was not thinking in terms of asylum” at the time he was in London and hoped he could return to India once the situation improved.

However, instead of returning to India, Vahora obtained a passport under a false name and entered the United States on April 5, 2001. Vahora admitted that he went to the United States after being in London, because he feared returning to India as the police continued to come to his house every few weeks and ask his wife about his whereabouts.

Vahora testified at the asylum hearing that he was not thinking of seeking asylum when he entered the United States, but that changed in February 2002, when Hindu rioting broke out in the Gujarat region.² Hindu fundamentalists burned down his family's house and farmhouse in late February. In August 2002, Vahora's brother, Karim, attempted to file a complaint with the police against those who destroyed the house. In response, the police arrested him, and his whereabouts are unknown.

In September 2002, a Hindu temple in the region was attacked, sparking further rioting in the region. The portions of the Vahora family's house that had been rebuilt were destroyed again. Vahora's other brother, Husman, then went to the police to find out where Karim was, but the police warned him he would be arrested if he asked more questions. Fearing for his life, he fled to live in hiding. His family has been unable to locate him since that time. On December 16, 2002, Vahora filed an affirmative application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). On March 3, 2004, the IJ issued an oral decision finding Vahora removable and denying his application for asylum. The IJ pretermitted the asylum application because it was not filed within a year of his arrival in the United States, rejecting Vahora's argument that he demonstrated changed circumstances materially affecting his eligibility for asylum relief which excused his untimely application. The IJ reasoned as follows:

The respondent knew upon entering the United States that conditions of the riots were causing troubles back in his homeland and that if he went back, it was reasonable to believe that he might have some difficulty ...

The fact that the respondent's home was destroyed or his farm house was destroyed and his brother Karim disappeared is not an extraordinary circumstance or change because there was considerable unrest in respondent's home area at the time he left there. Furthermore, since there was civil unrest continuing from the riots, the respondent should have known that it was quite likely that his brother Karim could encounter being arrested or that his brother Husman might leave home ...

Vahora appealed the IJ's decision to the BIA, and the BIA remanded for “further proceedings, if necessary, and for a further decision by the [IJ] addressing [Vahora's] applications for withholding and deferral of removal.” On remand, the IJ granted Vahora withholding of removal and protection under CAT but reaffirmed its prior decision

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concerning Vahora's asylum application. Vahora again appealed, and the BIA affirmed, concluding that “no basis [exists] to disturb the [IJ's] conclusion that the destruction of [Vahora's] property and his brothers' disappearance do not constitute the requisite changed or extraordinary circumstances to except him from the 1–year filing deadline, particularly in light of the experiences and conditions that [Vahora] described having endured that caused him to flee from India.” The BIA remanded the case to the IJ for the DHS to complete its investigation and examination and for entry of an order as provided by 8 C.F.R. § 1003.47(h). On April 10, 2008, the IJ entered a summary of the oral decision which reflected that Vahora's asylum application was pretermitted because it was not timely filed and because he did not demonstrate “changed” or “extraordinary” circumstances to excuse his late filing.

This petition for review followed.

II. ANALYSIS A. Jurisdiction

We have jurisdiction pursuant to 8 U.S.C. § 1252. We may review “the agency's application of the changed ... circumstances exception to undisputed facts” as it relates to the one-year filing rule. Dhital v. Mukasey, 532 F.3d 1044, 1049 (9th Cir.2008); Ramadan v. Gonzales, 479 F.3d 646, 649–50 (9th Cir.2007) (holding that the BIA's application of the changed circumstances exception to undisputed facts presents a mixed question of fact and law subject to our review under section 106 of the REAL ID Act). Here, as the facts underlying Vahora's claim of changed circumstances are not in dispute, we have jurisdiction over the merits of the BIA's determination that Vahora did not demonstrate changed circumstances.

B. Standard of Review

Under 8 U.S.C. § 1158(a)(2)(B), an applicant has the burden of proving by clear and convincing evidence that he applied for asylum within one year of his arrival in the United States or, to the satisfaction of the IJ, that he qualifies for an exception to the one-year deadline for the existence of “changed circumstances.” See also 8 C.F.R. § 208.4. On review, we must decide whether substantial evidence supports the BIA's conclusion that Vahora has not shown “changed circumstances” so that his asylum application should have been considered notwithstanding its late filing. Dhital, 532 F.3d at 1050. Where, as here, the BIA adopts the...