Daniel Agonafer v. Jefferson Sessions
2017 U.S. App. LEXIS 11190
| 9th Cir. | 2017Background
- Daniel Agonafer, a lawful permanent resident, faced removal based on prior criminal convictions; earlier IJ grants of relief (including CAT) were reversed by the BIA and earlier Ninth Circuit review found no evidence of violence against homosexuals in Ethiopia.
- In June 2013 Agonafer filed a motion to reopen more than five years after the final order, relying on changed country conditions in Ethiopia related to treatment of homosexuals to seek CAT deferral.
- He submitted post-2007 documentary evidence (including 2012 Norwegian Refugee Council/Asylum report and 2012 U.S. State Department report) describing increased violence, fabricated charges, detention, and abuse of LGBT persons in Ethiopia.
- The BIA denied the untimely motion, finding the evidence showed an ongoing, not materially changed, situation and that Agonafer had not alleged specific threats or individualized incidents.
- The Ninth Circuit held it had jurisdiction (mixed question of law and fact; BIA denied on merits not based on conviction) and concluded the BIA abused its discretion by disregarding or discrediting the undisputed post-2007 evidence showing qualitatively different country conditions material to CAT relief.
- The case was remanded to the BIA with instructions to properly consider Agonafer’s changed-country-conditions evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction to review denial of motion to reopen by an alien convicted of a crime involving moral turpitude | Agonafer: Court may review mixed questions of law and fact and motions denied on merits (not based on conviction) | DHS: §1252(a)(2)(C) strips jurisdiction because of petitioner’s criminal conviction | Court: Jurisdiction exists — mixed legal/factual issue and BIA denial rested on merits, not conviction (exception applies) |
| Timeliness/changed country conditions exception to 90-day rule for motions to reopen | Agonafer: Post-2007 evidence shows materially changed, worse conditions for LGBT in Ethiopia, excusing untimeliness | DHS: New evidence only shows a continuation of preexisting conditions; earlier record included reports of possible executions; no individualized incidents shown | Court: BIA abused discretion — new 2012 reports are qualitatively different and show violence and abuse, satisfying materiality and prima facie showing for CAT deferral |
| Requirement for individualized relevancy to establish prima facie eligibility | Agonafer: His undisputed sexual orientation plus country-condition evidence suffices; need not show family persecution | DHS: Must show individualized incidents or family-related persecution | Court: Individualized relevancy satisfied by petitioner’s identity (homosexual male) combined with country-condition evidence; family incidents not required for his CAT claim |
Key Cases Cited
- Owino v. Holder, 575 F.3d 956 (9th Cir.) (deferral under CAT not barred by criminal conviction)
- Ghahremani v. Gonzales, 498 F.3d 993 (9th Cir. 2007) (jurisdiction exists to apply legal standards to undisputed facts on motions to reopen)
- Malty v. Ashcroft, 381 F.3d 942 (9th Cir. 2004) (new evidence qualitatively different may require reopening)
- Bhasin v. Gonzales, 423 F.3d 977 (9th Cir. 2005) (new evidence establishing prima facie eligibility supports reopening)
- Najmabadi v. Holder, 597 F.3d 983 (9th Cir. 2010) (generalized country evidence insufficient absent individualized relevance)
- Toufighi v. Mukasey, 538 F.3d 988 (9th Cir. 2008) (elements to prevail on changed country conditions motion to reopen)
- Morales v. Gonzales, 478 F.3d 972 (9th Cir. 2007) (BIA denial on merits, not relying on conviction, preserves jurisdiction)
- INS v. St. Cyr, 533 U.S. 289 (2001) (repeal of INA § 212(c) not retroactive for qualifying aliens)