and Submitted May 16, 2017 San Francisco, California
Petition for Review of an Order of the Board of Immigration
Appeals Agency No. A091-681-612
Russell (argued), Anne E. Peterson, and Robert B. Jobe, Law
Office of Robert B. Jobe, San Francisco, California, for
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.
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.
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.
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.
panel remanded for the Board to properly consider the changed
country conditions evidence Agonafer submitted with his
motion to reopen.
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.
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 ...