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Agonafer v. Sessions

United States Court of Appeals, Ninth Circuit

June 23, 2017

Daniel Agonafer, Petitioner,
v.
Jefferson B. Sessions III, Attorney General, Respondent.

          Argued and Submitted May 16, 2017 San Francisco, California

         On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A091-681-612

          Morgan Russell (argued), Anne E. Peterson, and Robert B. Jobe, Law Office of Robert B. Jobe, San Francisco, California, for Petitioner.

          Dana M. Camilleri (argued); Anthony P. Nicastro, Senior Litigation Counsel; Ernesto H. Molina, Jr., Assistant Director; Benjamin C. Mizer, Principal Deputy Assistant Attorney General; Office of Immigration Litigation, United States Department of Justice, Washington, D.C.; for Respondent.

          Before: William A. Fletcher and Richard C. Tallman, Circuit Judges, and Paul C. Huck, [*] District Judge.

         SUMMARY[**]

         Immigration

         The panel granted a petition for review of the Board of Immigration Appeals' denial of a motion to reopen removal proceedings for reconsideration of Daniel Agonafer's eligibility for relief under the Convention Against Torture in light of changed country conditions in Ethiopia.

         The panel concluded that despite Agonafer's criminal conviction it had jurisdiction to review the petition for review under the exception to the jurisdictional bar of 8 U.S.C. § 1252(a)(2)(C) for reviewing mixed questions of law and fact. The panel also concluded that it had jurisdiction because the Board's denial of the motion to reopen did not rely on Agonafer's conviction, but rather was a denial of his motion on the merits.

         The panel held that the Board abused its discretion by disregarding or discrediting the undisputed new evidence submitted by Agonafer regarding increased violence toward homosexuals in Ethiopia, including reports of violence by both the government and private citizens.

         The panel remanded for the Board to properly consider the changed country conditions evidence Agonafer submitted with his motion to reopen.

          OPINION

          HUCK, District Judge:

         This case concerns a petition for review of the Board of Immigration Appeals' ("BIA") denial of Daniel Agonafer's motion to reopen removal proceedings to apply for protection under the Convention Against Torture ("CAT"). The core of the underlying CAT claim is that Agonafer fears torture on account of his sexual orientation if he is removed to his home country of Ethiopia. Agonafer filed his motion to reopen over five years after the previous decision by the BIA in his case. The BIA denied his motion to reopen, finding that the motion did not fall within the exceptions to the 90-day time limitation within which the motion must be filed following the final removal order. The BIA also found that the new evidence submitted did not demonstrate changed country conditions in Ethiopia material to his claim for relief under the CAT.

         We must decide whether we have jurisdiction over Agonafer's petition and, if so, whether the BIA abused its discretion in denying Agonafer's motion to reopen. First, we have jurisdiction pursuant to the exception to the jurisdictional bar of 8 U.S.C. § 1252(a)(2)(C) for reviewing mixed questions of law and fact, as the petition here requires us to apply the law to undisputed facts. Second, the BIA abused its discretion by disregarding or discrediting the undisputed new evidence submitted by Agonafer regarding increased violence toward ...


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