Edith Waithira v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 15, 2021
• Docket: 20-73201
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION DEC 15 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

EDITH GATHONI WAITHIRA, No. 20-73201

Petitioner, Agency No. A089-299-703

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Argued and Submitted November 18, 2021 San Francisco, California

Before: THOMAS and McKEOWN, Circuit Judges, and MOLLOY,** District Judge.

Edith Waithira, a citizen of Kenya, petitions for review of the Board of

Immigration Appeals’ (BIA) order denying her motion to reopen. Waithira

brought her motion to reopen on two grounds. We have jurisdiction under 8

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Donald W. Molloy, United States District Judge for the District of Montana, sitting by designation. U.S.C. § 1252. We grant in part and deny in part the petition for review. We

review the BIA’s denial of a motion to reopen for abuse of discretion. Agonafer v.

Sessions, 859 F.3d 1198, 1203 (9th Cir. 2017).

I

The BIA acted within its discretion in denying Waithira’s motion to reopen

based on ineffective assistance of counsel. The BIA concluded that Waithira failed

to show that equitable tolling applied to her claim, in part because her “general

assertions about the timing of her efforts” were “insufficient to establish that she

exercised due diligence.” After reviewing the applicable time periods, we

conclude that the BIA did not abuse its discretion in reaching that conclusion.

II

The BIA abused its discretion in denying Waithira’s motion to reopen to

reapply for asylum, withholding of removal, and relief under the Convention

Against Torture (CAT) on the basis of changed country conditions. The BIA

rejected certain evidence submitted with the motion because it was not

“independent” of Waithira’s prior claims of persecution by the Mungiki, which the

Immigration Judge (IJ) had found to lack credibility. In doing so, the BIA ran

afoul of this Court’s longstanding rule that it may not make adverse credibility

determinations on a motion to reopen, either directly, see Bhasin v. Gonzales, 423

2 F.3d 977, 986–87 (9th Cir. 2005), or via the falsus maxim, see Yang v. Lynch, 822

F.3d 504, 509 (9th Cir. 2016). Here, the BIA’s decision relied almost exclusively

on the prior adverse credibility finding without independently considering the

newly tendered evidence of events that occurred after the previous hearing. That

evidence was not rendered logically irrelevant by the prior adverse credibility

finding. Accordingly, the BIA was required to credit the evidence unless it was

"inherently unbelievable." Id. at 508.

On remand, the BIA should conduct its review of changed country

conditions and prima facie eligibility for relief based on the full record. Further,

the BIA should be careful to give individualized consideration to Waithira’s prima

facie eligibility for relief under the CAT, which can be established on a separate

factual predicate from her asylum and withholding of removal claims. See

Kamalthas v. INS, 251 F.3d 1279, 1280 (9th Cir. 2001) (noting that “country

conditions alone can play a decisive role in granting relief under the Convention”).

Each party shall bear its own costs.

PETITION GRANTED IN PART, DENIED IN PART, REMANDED.