Kami Etemadi v. Merrick Garland
12f4th1013
| 9th Cir. | 2021Background
- Kami Etemadi, an Iranian national, came to the U.S. in 1996; he converted to Christianity and was baptized in 1999 and later sought relief based on religious persecution and CAT protection.
- Early proceedings: Etemadi was represented by an adviser who committed asylum fraud; Etemadi admitted submitting forged documents and giving false testimony regarding his political-asylum claim, and the IJ found him not credible and denied asylum, withholding, and CAT relief.
- The BIA affirmed the IJ in a brief order; a prior Ninth Circuit panel (2007) affirmed, concluding substantial evidence supported the IJ’s adverse-credibility finding and that Etemadi was not a Christian.
- In 2018 Etemadi moved to reopen based on changed country conditions for Christians in Iran (seeking CAT relief). The BIA denied reopening for: (1) failure to attach an application under 8 C.F.R. §1003.2(c)(1); (2) untimeliness and that he is not a Christian; and (3) insufficient new country‑conditions evidence.
- This Ninth Circuit panel (majority) granted the petition: it held the law‑of‑the‑case doctrine did not bar reconsideration, that Etemadi need not reattach an application, and that he showed changed country conditions and a prima facie CAT claim; the case is remanded for a new hearing. Judge Milan D. Smith, Jr. dissented, emphasizing deference to the prior panel and the BIA and arguing the majority erred on standards of review and waiver.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether law-of-the-case requires acceptance of prior panel’s determination that Etemadi is not a Christian | Prior-panel decision was clearly erroneous because the IJ relied on a material factual error, ignored corroborating church documents and pastor testimony, and misapplied the falsus in uno doctrine | Prior panel correctly applied the substantial‑evidence standard; law‑of‑the‑case forecloses relitigation | Majority: exception to law‑of‑the‑case applies (prior panel clearly erred; enforcement would produce manifest injustice); remand ordered |
| Whether §1003.2(c)(1) required reattaching a new application to the motion to reopen | Etemadi had previously filed a CAT application and his motion referenced it; the regulation distinguishes motions to reopen generally from motions to reopen "for the purpose of submitting an application for relief" so no new application was required | BIA’s interpretation required attaching the appropriate application; failure to attach is fatal (and waived/forfeited) | Majority: de novo review — no new application required where the original application is in the record and motion seeks relief on same grounds; BIA’s unpublished view not entitled to deference here |
| Whether the IJ/BIA could apply falsus in uno/falsus in omnibus to discard corroborated CAT evidence and let an adverse credibility finding on asylum "wash over" CAT claim (Kamalthas issue) | The IJ improperly used falsus maxim to wipe out corroborated documentary and third‑party evidence; Kamalthas prohibits letting an adverse credibility finding on one claim automatically foreclose CAT relief | Government: adverse‑credibility findings and falsus maxim can defeat related claims where testimony is central and uncorroborated | Majority: IJ/BIA misapplied the falsus maxim and violated Kamalthas by failing to assess corroboration; CAT claim needs fresh consideration |
| Whether Etemadi showed changed country conditions and prima facie entitlement to CAT relief | Country‑condition reports (post‑2002) show qualitatively worse treatment of Christians/house churches, arrests at social events, withheld medical care and increased prison abuse — sufficient for prima facie CAT showing | Government: country reports show continued persecution but not a qualitative increase or a clear showing of increased torture; BIA’s denial was within its discretion | Majority: BIA abused its discretion by failing to consider qualitative changes and corroborating evidence; Etemadi made a prima facie CAT showing and case remanded for determination on the merits (dissent disagreed) |
Key Cases Cited
- Kamalthas v. INS, 251 F.3d 1279 (9th Cir. 2001) (adverse credibility on asylum cannot automatically extinguish a distinct CAT claim)
- Biestek v. Berryhill, 139 S. Ct. 1148 (2019) (defines substantial‑evidence standard for administrative factfinding)
- Anderson v. City of Bessemer City, 470 U.S. 564 (1985) (clear‑error standard explained)
- Farah v. Ashcroft, 348 F.3d 1153 (9th Cir. 2003) (deference in IJ credibility findings under substantial evidence review)
- Enying Li v. Holder, 738 F.3d 1160 (9th Cir. 2013) (limits on falsus in uno when claims are corroborated)
- Guan v. Barr, 925 F.3d 1022 (9th Cir. 2019) (agency must consider corroborating evidence for CAT even after adverse credibility finding)
- Aliyev v. Barr, 971 F.3d 1085 (9th Cir. 2020) (interpretation of §1003.2(c)(1) — when prior application in record may suffice)
- Kisor v. Wilkie, 139 S. Ct. 2400 (2019) (framework for deference to agency interpretations of its own rules)
- Agonafer v. Sessions, 859 F.3d 1198 (9th Cir. 2017) (changed‑country‑conditions standard; new evidence must be qualitatively different)