USCA4 Appeal: 21-2344 Doc: 33 Filed: 05/16/2023 Pg: 1 of 15
UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 21-2344
BEATRICE NWUCHENG ANAGHO,
Petitioner,
v.
MERRICK B. GARLAND, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals.
Argued: January 24, 2023 Decided: May 16, 2023
Before NIEMEYER and QUATTLEBAUM, Circuit Judges, and FLOYD, Senior Circuit Judge.
Petition denied by unpublished opinion. Judge Quattlebaum wrote the opinion, in which Judge Niemeyer concurred. Judge Floyd wrote a dissent.
ARGUED: Elsy Marleni Ramos Velasquez, CLARK HILL PLC, Washington, D.C., for Petitioner. Sanya Sarich Kerksiek, UNITED STATES DEPARMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Thomas K. Ragland, CLARK HILL PLC, Washington, D.C., for Petitioner. Brian Boynton, Principal Deputy Assistant Attorney General, Jessica A. Dawgert, Senior Litigation Counsel, Elizabeth K. Ottman, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. USCA4 Appeal: 21-2344 Doc: 33 Filed: 05/16/2023 Pg: 2 of 15
Unpublished opinions are not binding precedent in this circuit.
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QUATTLEBAUM, Circuit Judge:
Beatrice Nwucheng Anagho, a native and citizen of Cameroon, petitions for review
of the Board of Immigration Appeals’ order denying her motion to reopen her requests for
asylum, withholding of removal and protection under the Convention Against Torture
(“CAT”). The Board concluded that the new evidence she presented did not show
materially changed country conditions that would affect her eligibility for relief and
protection from removal. Because we find that the Board’s decision was not arbitrary,
capricious or contrary to law, we deny Anagho’s petition for review.
I.
Anagho arrived in the United States in 2003 on a B-2 visa. 1 Shortly after that, she
applied for asylum and withholding of removal. The Department of Homeland Security
issued Anagho a Notice to Appear, charging her as removable as a noncitizen who
remained in the United States for longer than permitted. See 8 U.S.C. § 1227(a)(1)(B).
Anagho, through counsel, conceded the charge of removability and submitted an updated
application for asylum, withholding of removal and protection under CAT. Anagho
claimed she had suffered past persecution and had a well-founded fear of future persecution
from the Cameroonian government based on her activities with the Southern Cameroons
1 B-2 visas are for nonimmigrants traveling to the United States temporarily for tourism. See 8 U.S.C. § 1101 (a)(15)(B).
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National Council (“SCNC”). In 2008, an Immigration Judge (“IJ”) issued an adverse
credibility finding and denied Anagho’s application. The Board affirmed in 2009.
In 2012, Anagho first moved to reopen her proceedings. That motion was denied.
In 2019, Anagho again moved to reopen her proceedings based on changed country
conditions in Cameroon. The Board’s denial of that second motion is appealed here.
An alien generally may file one motion to reopen within ninety days of a final order
of removal. 8 U.S.C. § 1229a(c)(7). By statute, if a motion to reopen is based on changed
country conditions, the ninety-day time limit does not apply. Id. § 1229a(c)(7)(C)(ii). And
by regulation, changed country conditions create an exception to limiting an alien to a
single motion. 8 C.F.R. § 1003.2(c)(3)(ii). The Board often refers to this as the “changed
country conditions exception” to the time and numerical limitations on motions to reopen,
and we have previously recognized this exception. Wanrong Lin v. Holder, 771 F.3d 177,
182 (4th Cir. 2014).
As a second motion, filed years after the Board’s initial determination, Anagho’s
motion to reopen was untimely and numerically barred in the absence of changed country
conditions. And to satisfy the changed country conditions exception, she was required to
establish that her evidence regarding changed country conditions “is material and was not
available and could not have been discovered or presented at the previous proceeding.”
A.R. 3–4 (citing 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii)). Notably, “[t]he
petitioner carries a ‘heavy burden;’ he or she must show that the ‘new evidence offered
would likely change the result in the case.’” Wanrong Lin, 771 F.3d at 183 (quoting In re
Coelho, 20 I. & N. Dec. 464, 473 (BIA 1992)).
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Anagho’s motion to reopen based on changed country conditions in Cameroon
stated that:
[O]ver the past several years, what used to be a simmering but largely quiet tension between two peoples—the Francophone majority and the Anglophone minority—that occasionally flared into violence has become a massive conflict in which, in the words of the Washington Post, ‘Hundreds have died, close to 500,000 have been displaced, and activists have been rounded up and jailed.’ The country is on ‘the brink of civil war.’
A.R. 15 (internal citations omitted).
As evidence of the changed country conditions, Anagho submitted 10 exhibits,
including an expert report by Dr. Charlotte Walker-Said (“Walker-Said Report”) and the
U.S. Department of State’s Cameroon Country Reports on Human Rights Practices for
2018 (“2018 Human Rights Report”). Based on the developments in Cameroon, Anagho
argued that she “has a well-founded fear 2 that Cameroonian authorities will persecute and
torture her if she is removed to Cameroon because of her undisputed membership in the
SCNC and her equally undisputed identity as an Anglophone.” A.R. 15.
In analyzing Anagho’s motion, the Board stated that “[t]o determine whether the
evidence accompanying [Anagho’s] motion demonstrates a material change in country
conditions that would justify reopening, [it] compare[s] the evidence submitted with the
motion with the country conditions that existed at the time of [Anagho’s] last hearing in
2008.” A.R. 4 (citing Matter of S-Y-G-, 24 I. & N. Dec. 247, 253 (B.I.A. 2007)). The Board
2 An individual “may qualify as a refugee . . . [if] he or she has a well-founded fear of future persecution.” 8 C.F.R. § 1208.13(b).
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further stated that “incremental or incidental changes are insufficient to meet the changed
country conditions exception.” A.R. 4. (citing Matter of S-Y-G-, 24 I. & N. Dec. at 257).
Based on this framework, the Board found that Anagho failed to satisfy the changed
country conditions exception. For purposes of her motion, the Board accepted as true that
she “is an Anglophone and current member of the SCNC who has participated in protests
in the United States.” A.R. 4. It also noted that it does “not discount the extremely
disturbing conditions in Cameroon.” A.R. 4. However, it ultimately held that the current
“extremely disturbing conditions” did not represent a material change from the conditions
that existed to threaten Anagho’s safety at the time of her 2008 hearing. A.R. 4.
In coming to this conclusion, the Board compared evidence from the Walker-Said
Report and the 2018 Human Rights Report with evidence from the U.S. Department of
State’s Cameroon Country Reports on Human Rights Practices for 2006 (“2006 Human
Rights Report”), which Anagho submitted at her initial hearing. It noted information from
these sources about increased persecution and violence against all Anglophones and
particularly those involved in political protests.
However, in finding that the changes were not material, the Board explained that
evidence showed that in 2006, “Cameroon’s human rights record remained poor, and that
the government continued to commit numerous human rights abuses.” A.R. 5. Specifically,
the 2006 Human Rights Report indicated that Cameroonian “authorities arbitrarily arrested
and detained SCNC members and other Anglophone citizens advocating secession, local
human rights monitors and activists, participants in unauthorized demonstrations, and other
individuals perceived as government critics.” A.R. 5. Additionally, the 2006 Human Rights
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Report “indicated that the Cameroonian government restricted citizens’ freedoms of
speech, press, assembly, and association.” A.R. 5. The Board also noted that the Walker-
Said Report stated “that Anglophone citizens of Cameroon had been staging nonviolent
protests and being harmed by the Cameroonian government as early as May 2007, and the
Cameroonian authorities have long targeted Anglophone activists.” A.R. 5.
With respect to Anagho’s specific situation, the Board concluded that:
[T]he proffered evidence does not reflect that the government or any other person or organization in Cameroon has exhibited or expressed an interest in the respondent. Her past encounters with authorities were discounted in the [IJ’s] decision [due to the adverse credibility finding,] and therefore her current claim is based only on activities which have arisen since her departure from Cameroon. The respondent has not established that any threat to her safety in Cameroon has escalated since the time of her 2008 merits hearing such that reopening based on changed country conditions is warranted.
A.R. 5.
Anagho timely petitioned for us to review the Board’s denial of her motion to
reopen. We have jurisdiction to review the Board’s decision pursuant to 8 U.S.C. § 1252.
II.
Our standard of review places a heavy burden on a petitioner who wishes us to
overturn the denial of a motion to reopen based on changed country conditions. We review
such denials for abuse of discretion. Garcia Hernandez v. Garland, 27 F.4th 263, 266 (4th
Cir. 2022). As such, we grant a petition only if the Board’s decision is “arbitrary,
capricious, or contrary to law.” Id. at 266. The Board’s “denial of a motion to reopen is
reviewed with extreme deference, given that motions to reopen are disfavored because
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every delay works to the advantage of the deportable [non-citizen] who wishes merely to
remain in the United States.” Sadhvani v. Holder, 596 F.3d 180, 182 (4th Cir. 2009)
(internal quotation marks omitted). “Even so . . . the BIA abuses its discretion when it fails
to offer a reasoned explanation for its decision, distorts or disregards important aspects of
the alien’s claim.” Nken v. Holder, 585 F.3d 818, 821 (4th Cir. 2009) (quoting Hussain v.
Gonzales, 477 F.3d 153, 155 (4th Cir. 2007) (internal quotation marks omitted)).
III.
Anagho argues that the Board abused its discretion because its decision “defies the
reality on the ground in Cameroon.” Pet.’s Op. Br. 6. She argues that the country conditions
report and expert testimony she submitted show a “profound escalation in violence.” Id. at
7. As evidence that the Board abused its discretion, Anagho cites a recent unpublished
Board decision that granted a motion to reopen with a similar procedural history and was
“filed by a Cameroonian respondent who alleged that country conditions had materially
changed.” Id. at 9.
In response, the Attorney General argues that the Board properly compared the
evidence presented in Anagho’s motion to reopen with the country conditions evidence she
presented at the time of her first removal hearing and “provided a detailed, reasonable
explanation as to why it did not find conditions were materially altered.” Resp. Br. 11.
According to the Attorney General, the evidence presented in Anagho’s motion to reopen
is “largely cumulative” of the original evidence: “similar abhorrent acts” to those described
in the motion to reopen were regularly occurring in Cameroon at the time of Anagho’s first
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proceeding. Id. And with respect to Anagho’s citation of the recent Board decision granting
a motion to reopen under similar circumstances, the Attorney General highlights that
unpublished decisions by the Board are not binding precedent and that the “Board is
required to consider every case on its own merits based on the specific evidence
submitted.” Resp. Br. 26 (citing Matter of Vazquez, 25 I. & N. Dec. 817, 822 n.5 (B.I.A.
2012); Matter of Gomez-Gomez, 23 I. & N. Dec. 522, 525 (B.I.A. 2002)). The Attorney
General also points out that in the case relied upon by Anagho, “the Board relied upon new
evidence that the Cameroonian government was actively targeting the movant’s family
members ‘to discourage [him] from continuing his anti-government political activities in
the United States.’” Resp. Br. 26–27. In contrast, Anagho has presented no evidence that
the government “exhibited or expressed any interest in” her. Resp. Br. 27 (citing A.R. 5).
Considering both parties’ arguments and the record, we conclude the Board did not
act in a manner that was arbitrary, capricious or contrary to law in finding that Anagho
“has not established that any threat to her safety in Cameroon has escalated since the time
of her 2008 merits hearing such that reopening based on changed country conditions is
warranted.” A.R. 5. While there is evidence from which the Board could have concluded
the conditions have sufficiently changed, there was also evidence in the record indicating
that Anagho failed to establish that country conditions in Cameroon “were materially
different from those conditions at the time of [her] original removal proceedings.” See
Wanrong Lin, 771 F.3d at 185 (citing 8 C.F.R. § 1003.2(c)(3)(ii)). And when the BIA
catalogues a petitioner’s submissions, evaluates the evidence and explains why the
evidence fails to meet the heavy burden, its decision “falls far short of arbitrariness.” Id.
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So, regardless of the determination we would have reached were we sitting in the Board’s
shoes, under our standard of review, we must deny Anagho’s petition.
PETITION DENIED
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FLOYD, Senior Circuit Judge, dissenting:
The outcome here turns on whether the Board of Immigration Appeals (the “Board”)
abused its discretion by concluding that Petitioner Beatrice Anagho failed to present
evidence of materially changed country conditions within Cameroon sufficient to justify
reopening her immigration proceedings. My fine colleagues in the majority conclude that
the Board “did not act in a manner that was arbitrary, capricious or contrary to law in
finding that Anagho ‘has not established that any threat to her safety in Cameroon has
escalated since the time of her 2008 merits hearing such that reopening based on changed
country conditions is warranted.’” Majority Op. 9 (quoting Administrative Record (A.R.)
5). But I cannot share that view.
The majority and I agree that the Cameroonian government had a poor human-rights
record in 2008 and often perpetrated abuses—Anagho’s evidence at her merits hearing
illustrated as much. To be sure, the country-conditions evidence that she subsequently
presented at the reopening stage in 2019 did not necessarily illustrate a change in kind.
Instead of portraying novel categories of violent acts, it depicted profound exacerbation of
existing violence. This change in the degree of violence in Cameroon is no less than
staggering. The only rational conclusion that may be drawn from Anagho’s reopening
evidence is that country conditions today are materially different than they were in 2008.
The Board’s contrary conclusion, to my mind, defies commonsense and compels remand.
Thus, I respectfully dissent.
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As the majority correctly conveys, we review the denial of a motion to reopen for
abuse of discretion. INS v. Doherty, 502 U.S. 314, 323 (1992); Mosere v. Mukasey, 552
F.3d 397, 400 (4th Cir. 2009); see 8 C.F.R. § 1003.2(a) (2022) (discussing reopening of a
case before the Board). The Board abuses its discretion if the decision is “arbitrary,
irrational, or contrary to law.” Wanrong Lin v. Holder, 771 F.3d 177, 182 (4th Cir. 2014)
(simplified). The Board’s “denial of a motion to reopen is reviewed with extreme
deference, given that motions to reopen are disfavored because every delay works to the
advantage of the deportable [noncitizen] who wishes merely to remain in the United
States.” Sadhvani v. Holder, 596 F.3d 180, 182 (4th Cir. 2009) (simplified). But, even
amidst this deferential standard, the Board unquestionably “abuses its discretion when it
fails to offer a reasoned explanation for its decision, [or] distorts or disregards important
aspects of [a noncitizen’s] claim.” Nken v. Holder, 585 F.3d 818, 821 (4th Cir. 2009)
(simplified).
If a motion to reopen is based on changed country conditions, the noncitizen must
show that current conditions are materially different from those that existed at the time of
the original removal proceeding. See Lin, 771 F.3d at 185, 188. At least one of our sister
circuits has denied relief when a noncitizen’s evidence portrays no more than an
“incremental change,” rather than “a significant shift in country conditions from those that
existed” previously. Inestroza-Antonelli v. Barr, 954 F.3d 813, 817 (5th Cir. 2020). The
noncitizen thus “carries a heavy burden” and “must show that the new evidence offered”
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is not only relevant but “would likely change the result in the case.” Lin, 771 F.3d at 183
The previously unavailable evidence that Anagho presented at the reopening stage
sufficiently portrays a material shift in country conditions from those that existed in 2008.
Rather, the record at reopening is replete with evidence portraying just how dire the
situation in Cameroon has become in the time since Anagho’s merits hearing. The Board’s
contrary conclusion that conditions remained materially unchanged defies rationality, and
thus constitutes an abuse of discretion.
I plainly acknowledge that the State Department’s 2005 and 2006 reports—
available at the time of Anagho’s 2008 removal hearing—portrayed a situation in which
the predominantly Francophone Cameroonian government persecuted Anglophone
activists. But the Department’s 2018 report starkly contrasts with the mere unrest and
miscellaneous abuses described a decade earlier. Instead, the 2018 report states that “[t]he
sociopolitical crisis that began in the Northwest and Southwest Regions in late 2016 over
perceived marginalization developed into an armed conflict between government forces
and separatist groups. The conflict resulted in serious human rights violations and abuses
by government forces and Anglophone separatists.” A.R. 198. The State Department’s
reports from 2005 and 2006 do not describe the same degree of violence between the
competing groups, nor do they describe the situation as a crisis. Amnesty International also
recognizes a crisis beginning in 2016 with the failure of various institutions within
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Cameroon and the government’s excessive use of deadly force against separatists. See, e.g.,
A.R. 324–26.
In 2019, the Washington Post reported that over 500,000 people had been displaced
by the conflict in the two years prior, and that Cameroon was on “the brink of civil war.”
A.R. 750. Similarly, Anagho’s expert states that the number of Anglophone Cameroonians
fleeing to Nigeria increased from 7,500 between October 2016 through 2017 to 35,000 in
2019. A.R. 168. The United Nations executed an Emergency Response Plan, endeavoring
to provide shelter and other relief to displaced persons and refugees. A.R. 220. The only
reasonable conclusion that we may draw from the fact of this exodus is that the very nature
of the conflict fundamentally changed in the last decade—newly expanding victimization
beyond the spheres of high-ranking activists to now include the greater populous of the
Anglophone minority.
The government’s contention that any change in conditions is immaterial and
instead represents only a marginal deterioration of the situation in Cameroon is
unpersuasive. To be sure, at the time of Anagho’s initial merits hearing, the evidence that
she presented conveyed tensions between the Southern Cameroon National Council
(SCNC)—an Anglophone advocacy group—and the government. But mere tensions and
the targeted persecution of particularly zealous Anglophone activists is simply
incomparable to a quasi-civil war displacing hundreds of thousands of innocents. Thus, the
totality of the evidence compels the finding of a material change in country conditions
since Anagho’s hearing in 2008.
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Having met her burden of demonstrating materially changed conditions, Anagho
“must [also] show that the new evidence offered” is not only relevant but “would likely
change the result in [her] case.” Lin, 771 F.3d at 183 (simplified). The Board found that
Anagho did not credibly recount the details of her past encounters with the Cameroonian
government or the extent of her involvement in the SCNC. But it is undisputed that Anagho
is an Anglophone Cameroonian, and that she is a member of the SCNC—regardless of
lesser or greater participation in the group.
Given that the situation in Cameroon has evolved into a crisis that impacts not only
high-ranking SCNC members but also lesser members and even Anglophones generally, a
changed result in Anagho’s case is likely. Consequently, remand for consideration of
Anagho’s asylum eligibility in light of the current state of Cameroon seems the appropriate
path forward. I respectfully dissent.