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Ninth Circuit Criticizes The BIA For Failing To Exercise Thoughtfulness When Analyzing New Evidence In An Ethiopian Torture Case

By Susan E. Hill, June 27, 2017

Last Friday, the Ninth Circuit ruled on a case that gives good guidance on two potentially complex issues.  In Agonafer v. Sessions, the Court first examined its jurisdiction to consider a late-filed Motion to Reopen a removal/deportation case for purposes of considering protection under the Convention Against Torture (CAT).  Such motions generally have a deadline of 90 days, but Agonafer filed his about five years after he was ordered removed.  There is an exception to the 90-day deadline for “changed country conditions,” and he argued that conditions in Ethiopia had changed and grown more dangerous for homosexuals, such as himself.

However, he also had a criminal conviction which normally could have prevented the Ninth Circuit from taking jurisdiction over his case.  The Court first had to determine whether it had jurisdiction to hear his appeal, and if so, then it had to determine whether his motion was filed too late.

Jurisdictional issues can be complex, and it is a frequent subject in the appeals that Hill & Piibe files with the Ninth Circuit.  Many petitioners do not catch this issue, and have their appeals denied because they fail to convince the Court that it has the power to even hear their cases.  In Agonafer’s case, the Court confirmed that an exception allowed it to take jurisdiction if Agonafer was raising a mixed question of law and fact.  And indeed he was, because he was asking the Court to apply “the legal standard for prevailing on a motion to reopen based on changed country conditions to the established facts in the record.”

Moving on, the Ninth Circuit then examined whether the lower appellate court (the Board of Immigration Appeals (BIA)) had abused its discretion when denying Agonafer’s motion to reopen for being late.  The “changed country conditions” deadline exception can be a tricky one to establish, because the immigration courts have a tendency to hold that conditions are not “changed,” but are merely “ongoing.”

In Agonafer’s case, the Department of Homeland Security made its typical argument: that homosexuals were in the same danger now as they were when the immigration court last considered his case five years beforehand.  The DHS also required that Agonafer show “individualized relevancy,” meaning evidence that demonstrated he would be targeted personally.  This is far more narrow than looking at general treatment of homosexuals in the nation and concluding that all homosexuals, including Agonafer, could be in danger.

The Ninth Circuit granted Agonafer’s appeal, and its decision will be an important foothold for future petitioners because it criticized the BIA for making generalized rejections of Agonafer’s evidence.  Agonafer had pointed to details in the news reports he submitted, which showed that violence against homosexuals had increased in Ethiopia.  The Court held that the BIA failed to show that it had “heard and thought” about these details, and instead it “merely reacted” by dismissing the evidence as a mere continuance of previous circumstances.  Furthermore, the Ninth Circuit also rejected the burdensome notion of “individualized relevancy” since all homosexuals were at risk of harm.

“Changed country conditions” is an issue that Hill & Piibe has had to litigate many times, and it is frustrating when immigration courts pay little attention to new evidence.  This new case is very welcome precedent for future appeals.

Photo by CEphoto, Uwe Aranas

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