Vahora v. Holder

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

AYUBBHAI VAHORA, aka A.A. 
Vahora, aka Ayu Bhai A. Vahora,
No. 08-71618
Petitioner,
v.  Agency No.
A096-152-895
ERIC H. HOLDER JR.,* Attorney
OPINION
General,
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Argued and Submitted
August 31, 2009—Pasadena, California

Filed April 5, 2011

Before: Alex Kozinski, Chief Judge, Stephen Reinhardt,
Circuit Judge, and Robert J. Timlin,**
Senior District Judge.

Opinion by Judge Timlin;
Dissent by Chief Judge Kozinski

*Eric Holder Jr. is substituted for his predecessor, Michael B. Mukasey,
as Attorney General of the United States, pursuant to Fed. R. App. P.
43(c)(2).
**The Honorable Robert J. Timlin, United States District Judge for the
Central District of California, sitting by designation.

4471
4474 VAHORA v. HOLDER

COUNSEL

Robert B. Jobe and Arwin Swink, Law Office of Robert B.
Jobe, San Francisco, California for the petitioner-appellant.
 VAHORA v. HOLDER 4475
Tracie N. Jones, Trial Attorney, Office of Immigration Litiga-
tion, U.S. Department of Justice, Washington, DC for the
respondent-appellee.

OPINION

TIMLIN, District Judge:

Ayubbhai Vahora (“Vahora”), a native and citizen of India,
petitions for review of the Board of Immigration Appeals
(“BIA”) dismissal of his appeal of the Immigration Judge’s
(“IJ”) denial of his application for asylum. The IJ denied his
application for asylum because he did not file it within one
year of his arrival in the United States, as required by 8 C.F.R.
§ 208.4(a)(2), and because he did not demonstrate “changed
circumstances” sufficient to excuse his late filing under 8
C.F.R. § 208.4(a)(5). We conclude that it was error not to find
“changed circumstances” that warrant an exception to the
one-year filing requirement, and we will grant the petition.

I.

FACTS AND PROCEDURAL HISTORY1

Vahora is a native and citizen of India who grew up and
lived in the state of Gujarat in India. His parents are deceased,
and he has four living siblings, two brothers and two sisters.
He is married and has three daughters. His entire family
remains in India.

Vahora and his family are Sunni Muslim, and the village in
which they live is predominantly Hindu. Vahora was a mem-
ber of the local Sunni Muslim committee in Gujarat. Prior to
his entry into the United States, Vahora experienced three
1
The facts described in this opinion are contained in Vahora’s testimony
at his asylum hearing, which the IJ found to be credible.
4476 VAHORA v. HOLDER
separate incidents of harassment and violence because of his
religious affiliation. In 1992, the mosque in Vahora’s town
was destroyed by Hindus, and he was subsequently put in
charge of the efforts to rebuild the mosque. During construc-
tion, Vahora saw young Hindu people attempting to demolish
the walls of the mosque, so he went to the police station to
lodge a report. Then he held a meeting at his house for the
Muslim community to discuss the situation. After the meeting
came to an end, the police came to Vahora’s house and
arrested him. The police detained Vahora for five days, during
which time he was beaten 12-14 times for 10-12 minutes at
a time. He was beaten so severely that he could not walk
properly and received medical treatment. He was released
after a friend paid a bribe. After his release, he was fired from
his job by his Hindu employer.

On February 15, 1998, supporters of the Hindu nationalist
Bhartiya Janta party (“BJP”) came to Vahora’s house and told
him to instruct other Muslims to support the BJP. He refused,
and one of the BJP supporters told him that, if he did not sup-
port the BJP, he and his family “would have to bear the brunt
of the consequences.” After the election, in which the BJP
candidate lost, Hindus came to Vahora’s house and harassed
him with verbal abuse.

On September 28, 2000, in an effort to avoid further harass-
ment, Vahora left India for a trip to London. Vahora admitted
at the hearing before the IJ that he also applied for a visa to
enter the United States at that time, but was denied because
he did not submit a sponsor letter. A little over a month later,
he returned to India, and three days later, he was once again
arrested by the police and taken to the police station. The
police alleged that he had gone to London to create plans to
cause disturbance “in the Hindu areas” and detained him for
fifteen days, during which time they beat him once or twice
a day and alleged he was a traitor against the national interest.
While in police custody, Vahora was not allowed to meet with
anyone or contact his family or a lawyer. He was not charged
 VAHORA v. HOLDER 4477
with a crime, and he did not have any court hearings. Once
again, to be released, his family paid a bribe.

After his release, Vahora returned to London and stayed for
four months. During this time, back in India, the police would
come and question his wife about his whereabouts. Vahora
admitted that he feared for his life while in London, but said
at the hearing that he “was not thinking in terms of asylum”
at the time he was in London and hoped he could return to
India once the situation improved.

However, instead of returning to India, Vahora obtained a
passport under a false name and entered the United States on
April 5, 2001. Vahora admitted that he went to the United
States after being in London, because he feared returning to
India as the police continued to come to his house every few
weeks and ask his wife about his whereabouts.

Vahora testified at the asylum hearing that he was not
thinking of seeking asylum when he entered the United States,
but that changed in February 2002, when Hindu rioting broke
out in the Gujarat region.2 Hindu fundamentalists burned
down his family’s house and farmhouse in late February. In
August 2002, Vahora’s brother, Karim, attempted to file a
complaint with the police against those who destroyed the
house. In response, the police arrested him, and his where-
abouts are unknown.

In September 2002, a Hindu temple in the region was
attacked, sparking further rioting in the region. The portions
2
Vahora’s account of the rioting in Gujarat is corroborated by a Human
Rights Watch report detailing violence in the region: “The violence in
2002 started with an attack in Godhra on a train carrying Hindus. Fifty-
nine people died when a train carriage caught fire. In a retaliatory spree
by Hindu mobs, hundreds of Muslims were slaughtered, tens of thousands
were displaced, and their property was destroyed. Two years later, Mus-
lims still live in fear because their attackers remain free and continue to
make threats, particularly against those involved in prosecutions.”
4478 VAHORA v. HOLDER
of the Vahora family’s house that had been rebuilt were
destroyed again. Vahora’s other brother, Husman, then went
to the police to find out where Karim was, but the police
warned him he would be arrested if he asked more questions.
Fearing for his life, he fled to live in hiding. His family has
been unable to locate him since that time. On December 16,
2002, Vahora filed an affirmative application for asylum,
withholding of removal, and protection under the Convention
Against Torture (“CAT”). On March 3, 2004, the IJ issued an
oral decision finding Vahora removable and denying his
application for asylum. The IJ pretermitted the asylum appli-
cation because it was not filed within a year of his arrival in
the United States, rejecting Vahora’s argument that he dem-
onstrated changed circumstances materially affecting his eli-
gibility for asylum relief which excused his untimely
application. The IJ reasoned as follows:

The respondent knew upon entering the United
States that conditions of the riots were causing trou-
bles back in his homeland and that if he went back,
it was reasonable to believe that he might have some
difficulty . . .

The fact that the respondent’s home was destroyed
or his farm house was destroyed and his brother
Karim disappeared is not an extraordinary circum-
stance or change because there was considerable
unrest in respondent’s home area at the time he left
there. Furthermore, since there was civil unrest con-
tinuing from the riots, the respondent should have
known that it was quite likely that his brother Karim
could encounter being arrested or that his brother
Husman might leave home . . .

Vahora appealed the IJ’s decision to the BIA, and the BIA
remanded for “further proceedings, if necessary, and for a fur-
ther decision by the [IJ] addressing [Vahora’s] applications
for withholding and deferral of removal.” On remand, the IJ
 VAHORA v. HOLDER 4479
granted Vahora withholding of removal and protection under
CAT but reaffirmed its prior decision concerning Vahora’s
asylum application. Vahora again appealed, and the BIA
affirmed, concluding that “no basis [exists] to disturb the
[IJ’s] conclusion that the destruction of [Vahora’s] property
and his brothers’ disappearance do not constitute the requisite
changed or extraordinary circumstances to except him from
the 1-year filing deadline, particularly in light of the experi-
ences and conditions that [Vahora] described having endured
that caused him to flee from India.” The BIA remanded the
case to the IJ for the DHS to complete its investigation and
examination and for entry of an order as provided by 8 C.F.R.
§ 1003.47(h). On April 10, 2008, the IJ entered a summary of
the oral decision which reflected that Vahora’s asylum appli-
cation was pretermitted because it was not timely filed and
because he did not demonstrate “changed” or “extraordinary”
circumstances to excuse his late filing.

This petition for review followed.

II

ANALYSIS

A. Jurisdiction

We have jurisdiction pursuant to 8 U.S.C. § 1252. We may
review “the agency’s application of the changed . . . circum-
stances exception to undisputed facts” as it relates to the one-
year filing rule. Dhital v. Mukasey, 532 F.3d 1044, 1049 (9th
Cir. 2008); Ramadan v. Gonzales, 479 F.3d 646, 649-50 (9th
Cir. 2007) (holding that the BIA’s application of the changed
circumstances exception to undisputed facts presents a mixed
question of fact and law subject to our review under section
106 of the REAL ID Act). Here, as the facts underlying
Vahora’s claim of changed circumstances are not in dispute,
we have jurisdiction over the merits of the BIA’s determina-
tion that Vahora did not demonstrate changed circumstances.
4480 VAHORA v. HOLDER
B. Standard of Review

Under 8 U.S.C. § 1158(a)(2)(B), an applicant has the bur-
den of proving by clear and convincing evidence that he
applied for asylum within one year of his arrival in the United
States or, to the satisfaction of the IJ, that he qualifies for an
exception to the one-year deadline for the existence of
“changed circumstances.” See also 8 C.F.R. § 208.4. On
review, we must decide whether substantial evidence supports
the BIA’s conclusion that Vahora has not shown “changed
circumstances” so that his asylum application should have
been considered notwithstanding its late filing. Dhital, 532
F.3d at 1050. Where, as here, the BIA adopts the IJ’s decision
while adding its own reasons, this court reviews both deci-
sions. Kataria v. INS, 232 F.3d 1107, 1112 (9th Cir. 2002).

C. Changed Circumstances

Vahora contends that his failure to file his asylum applica-
tion within one year of the date of his arrival in the United
States should be excused under the changed circumstances
exception.3 Pursuant to 8 U.S.C. § 1158(a)(2)(D), “[a]n
[untimely] application for asylum of an alien may be consid-
ered . . . if the alien demonstrates to the satisfaction of the
Attorney General the existence of changed circumstances
which materially affect the applicant’s eligibility for asylum.”
The Department of Justice (“DOJ”) regulations, 8 C.F.R.
§ 208.4(a)(4)(i)(a), provide a nonexhaustive list of examples
of changed circumstances, including “[c]hanges in conditions
in the applicant’s country of nationality” and “changes in the
applicant’s circumstances that materially affect the applicant’s
eligibility for asylum. . . .”
3
Vahora has not contended that his asylum application is timely under
the extraordinary circumstances exception. We therefore do not consider
that exception here. Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir.
1996).
 VAHORA v. HOLDER 4481
In rejecting his claim of changed circumstances, the IJ rea-
soned that Vahora had already experienced significant mis-
treatment and harassment by the police before he left India
and it was reasonable for him to believe he would experience
difficulties if he went back. Further, the IJ noted Vahora
“knew upon entering the United States that conditions of the
riots were causing troubles back in his homeland and that if
he went back, it was reasonable to believe that he might have
some difficulty . . . The fact that the respondent’s home was
destroyed or his farm house was destroyed and his brother
Kari disappeared is not an extraordinary circumstance or
change because there was considerable unrest in respondent’s
area at the time he left there.” The BIA affirmed the IJ’s find-
ing, “particularly in light of the experiences and conditions
[Vahora] described having endured that caused him to flee
from India.”

[1] We hold that Vahora demonstrated “changed circum-
stances” justifying the untimely filing of his asylum applica-
tion, and that substantial evidence did not support the IJ’s
finding to the contrary. To begin with, the IJ plainly erred
with regard to the significance of the change in conditions in
India while Vahora was in the United States. As Vahora’s tes-
timony and country-conditions evidence show, the Gujarat
riots beginning in February 2002 were “India’s worst reli-
gious violence in decades.” Although there had been ongoing
tension between Muslims and Hindus in India prior to that
time period and a number of incidents of violence related to
that tension, these riots left an estimated 2000 Muslims dead.
According to the United States Department of State Interna-
tional Religious Freedom Report 2003, the riots also wreaked
other havoc: “[i]n addition, 100,000 Muslims were forcibly
displaced from their homes, causing them to reside in make-
shift camps throughout Gujarat. There were also numerous
reports of the rape of Muslim women and girls. The Govern-
ment closed the camps in mid-June, forcing the displaced to
return to burnt houses and destroyed property, with the perpe-
trators still at large. The Gujarat state government and the
4482 VAHORA v. HOLDER
police were criticized for failing to stop the violence, and in
some cases participating or encouraging it.”

The IJ’s characterization of the rioting as simply more of
the same “considerable unrest” that had previously occurred
in India is unsupported in light of the evidence presented at
the hearing. Further, the IJ’s assertion that these riots occurred
prior to the time that Vahora entered the United States is
incorrect, as is the suggestion that Vahora knew upon entering
the United States that riots were causing trouble in India.

[2] Moreover, the rioting directly impacted the Vahora
family in a very serious fashion. Vahora testified at the asy-
lum hearing regarding the impact on his family. Because the
IJ found Vahora credible, we must accept his testimony as
true without corroboration. See Vukmirovic v. Ashcroft, 362
F.3d 1247, 1251 (9th Cir. 2004). He testified that, during the
period of initial rioting, his family’s house and farmhouse
were burned down. Then in August 2002, past the one year
deadline to file his asylum application, a series of truly devas-
tating events occurred to Vahora’s family. Vahora’s brother
Karim attempted to file a complaint with the police against
the Hindu people he believed burned down their home. The
police arrested him and he has not been seen since. Vahora’s
other brother, Husman, then demanded that the police give
him information about Karim, and the police responded that
they would also arrest him. Fearing for his life, Husman fled
his home and lives in hiding, if indeed he is still alive.

[3] According to the IJ and the BIA, these events and their
effect on Vahora were insufficient to show a material effect
on his eligibility for asylum, because Vahora had already
experienced mistreatment in India and should have expected
it would continue if he returned. Their interpretation of
“changed circumstances” is that once an applicant for asylum
has experienced circumstances that arguably would establish
a colorable claim for asylum within the statutory time period
for filing, that applicant must file his application timely, or be
 VAHORA v. HOLDER 4483
permanently barred from doing so, regardless of what circum-
stances occur afterwards. In essence, the IJ and BIA interpret
“changed circumstances” as requiring the applicant to show
that, prior to the change in circumstances, the applicant could
not have filed a meritorious application, and that the change
in circumstances resulted in an application that could succeed.4
This is not, however, the law of our circuit.

[4] Our law does not require that “changed circumstances”
constitute an entirely new conflict in an asylum applicant’s
country of origin, nor does it preclude an individual who has
always feared persecution from seeking asylum because the
risk of that persecution increases. See Fakhry v. Mukasey, 524
F.3d 1057, 1063 (9th Cir. 2008). “[T]here can be ‘changed
circumstances which materially affect the applicant’s eligibil-
ity for asylum’ even if the alien always meant to apply for
asylum and always feared persecution.” Id. at 1064. An appli-
4
Our dissenting colleague not only shares this view, but asserts that it
is what the “plain language of the statute” says. See Dissenting Opinion
at 4490. The dissent would read “materially affect the applicant’s eligibili-
ty,” 8 U.S.C. § 1158(a)(2)(D), to say “first make the applicant eligible
for.” “Material,” however, does not mean “dispositive.” See Black’s Law
Dictionary, Material (8th ed. 2004) (“Having some logical connection
with the consequential facts . . . . cf. Relevant”). Instead, a “material”
effect on eligibility for asylum is an effect that increases, in a non-trivial
way, the applicant’s likelihood of success in his application. A worsening
of country conditions that substantially increases the chance that asylum
will be granted “materially affects the applicant’s eligibility” for asylum.
Were “eligibility for asylum” a matter of a known quantum of evidence,
then the dissent might be correct that the only “material” effect on eligibil-
ity is the marginal effect that pushes an applicant over the line from “not
eligible” to “eligible.” As we illustrate below, see Opinion at 4487-88,
however, it is virtually impossible to know before filing an asylum appli-
cation whether an agency adjudicator will find that it contains sufficient
evidence to prove that the applicant both is eligible for and deserves asy-
lum. In a system of human, rather than robotic, adjudicators, it would con-
stitute a lack of understanding of the practical working of the legal system
to suggest seriously that the change we describe is simply “from ‘eligible’
to ‘still eligible,’ ” Dissenting Opinion at 4490, rather than from “possibly
eligible” to “much more likely eligible.”
4484 VAHORA v. HOLDER
cant is not required to file for asylum when his claim appears
to him to be weak; rather he may wait until circumstances
change and the new facts make it substantially more likely
that his claim will entitle him to relief. Id. In such cases, we
may recognize changed circumstances. Id.5

[5] Further, the interpretation of the changed circum-
stances exception posited by the IJ and the BIA (as well as the
dissent) is contrary to the intent of Congress and the purpose
of 8 U.S.C. §1158(a)(2)(D). It is true, as the dissent points
out, that Congress’s paramount objective in enacting the one-
year bar was to prevent fraudulent claims. See 141 Cong. Rec.
E1635 (daily ed. Aug. 3, 1995). However, Congressional one-
year bar proponents were equally concerned with ensuring
that the United States remain a safe haven for legitimate asy-
lum seekers fleeing persecution in their home countries. In
fact, Senator Orrin Hatch, one of the one-year deadline’s
major proponents, stated that he “share[d] the . . . concern that
we continue to ensure that asylum is available for those with
legitimate claims for asylum” and that he was ‘committed to
ensuring that those with legitimate claims for asylum are not
returned to persecution, particularly for technical deficien-
cies.” 142 Cong. Rec. S11838-40 (daily ed. Sept. 30, 1996)
(statement of Sen. Orrin Hatch).

[6] The proposed exceptions to the one year bar for
changed circumstances and extraordinary circumstances were
5
It is the dissent, not the opinion of the court, that would create a con-
flict with Fakhry. See Dissenting Opinion at 4492-93. Fakhry discussed
the relative strength of an asylum application before and after claimed
changed circumstances, and did not hold, as the dissent would, that an
applicant must prove that his application was previously too weak to be
granted and now is strong enough, in an absolute sense. See 524 F.3d at
1064 (discussing changes that make an “application much stronger”). The
language in Fakhry cited by the dissent, concerning an applicant with a
previously “weak” or “meritless” case for asylum, was by the opinion’s
own terms merely one hypothetical situation. See Fakhry, 524 F.3d at
1063-64.
 VAHORA v. HOLDER 4485
intended to be broad. In fact, the original Senate version of
the filing deadline for asylum applications contained a broad
“good cause” exception which was not ultimately included in
the final law but instead was converted into the “changed cir-
cumstances” and “extraordinary circumstances” exceptions.
See 142 Cong. Rec. S11839-40. Senator Hatch commented
that the new, revised exceptions were broad enough to likely
cover that which would have been covered by the good cause
exception. See id. When asked what the intent was in creating
the “changed circumstances exception, Senator Hatch stated
that “the exception is intended to deal with circumstances that
changed after the applicant entered the United States and that
are relevant to the applicant’s eligibility for asylum. The
changed circumstances provision will deal with situations like
those in which the situation in the alien’s home country may
have changed, the applicant obtains more information about
likely retribution he or she might face if the applicant returned
home.” Id. (emphasis added).

[7] The narrow interpretation of the changed circumstances
exception urged by the IJ and BIA (as well as by the dissent)
would turn what Congress intended completely on its head.
Vahora has a legitimate, non-fraudulent asylum claim. The
conditions in his home country have changed greatly, due to
increased persecution of Sunni Muslims based on religion and
nationality. According to the congressional proponents of the
one-year bar and its exceptions, Vahora is precisely the type
of asylum applicant they did not want to be returned to perse-
cution in his home country.6
6
The dissent’s restrictive interpretation of Section 1158(a)(2)(D) also
undermines the training manual given to asylum officers by the Depart-
ment of Homeland Security (“DHS”). The DHS manual provides an
example of changed circumstances that is instructive in Vahora’s case:
“Applicant is a member of XYZ party in his country. He is briefly jailed
in September 1999.” He arrives in the U.S. in November 1999 and files
for asylum in December 2000. On the day of the interview, XYZ members
are still routinely being jailed.” In such a case, the manual instructs that
4486 VAHORA v. HOLDER
[8] Prior to the change in country conditions, Vahora may
or may not have had a strong enough claim to qualify for asy-
lum within one year of his arrival in the United States. The
fact that, on remand from Vahora’s first appeal to the BIA,
the IJ found that Vahora was eligible for withholding of
removal suggests that, based upon the evidence available at
that time, an asylum application filed in 2001 might well have
been granted. See Singh v. INS, 134 F.3d 962, 971 (9th Cir.
1998) (stating that the standard for withholding of deportation
is “more stringent” than the showing required for asylum); see
Bolanos-Hernandez v. INS, 767 F.2d 1277, 1288 (9th Cir.
1984). However, Vahora did not have the luxury of such 20-
20 hindsight during the time period his application should
ordinarily have been filed.7 Indeed, whether or not the IJ
would have found Vahora to have a well-founded fear of per-
secution at the time of his arrival in the United States, we
know that Vahora did not perceive that he met that standard,
because he did not fear future persecution, but rather expected
to be able to return home when tensions subsided. The desire
to wait for an asylum claim to mature is entirely consistent

asylum officers should find no changed circumstances but warns that, as
in Vahora’s case, “if conditions for XYZ members worsened after the
applicant departed his country, he may be eligible for the changed circum-
stances exception.” See U.S. Dep’t of Homeland Sec., Asylum Officer
Basic Training Course: One-Year Filing Deadline, 9 (2009) (available at
http://www.uscis.gov/files/article/One-Year-Filing-Deadline.pdf).
7
The dissent, however, does possess such hindsight, which is what
enables it to rely on both the fact that the IJ ultimately deemed Vahora’s
testimony credible and on decisions of this court that post-date Vahora’s
asylum application by six to eight years to suggest that Vahora should
have known his claim was strong enough all along. See Dissenting Opin-
ion at 4492-93. The relevant inquiry is instead what Vahora could have
known when he decided not to apply for asylum during his first year in
the country: that the only evidence he had in his favor was his testimony,
which may or may not be believed, that he had been persecuted in the past.
 VAHORA v. HOLDER 4487
with a reluctance to abandon one’s homeland until conditions
at home become substantially more dangerous.8

Certainly Vahora could not have known that whatever IJ
would be assigned to his case would have viewed the evi-
dence in the same manner as the IJ who ultimately found him
eligible for withholding of removal. Individual IJs grant asy-
lum applications at wildly different rates from one another,
even those who sit in the same location and whose randomly
assigned cases reflect the same mix of applicants’ countries of
origin. See Jaya Ramji-Nogales et al. Refugee Roulette: Dis-
parities in Asylum Adjudication, 60 STAN. L. REV. 295, 333-
39 (2007). For example, among cases such as Vahora’s
involving Indian asylum applicants, heard in Immigration
Court in San Francisco, the average grant rate for all IJs
between 2002 and 2004 was 52 percent, but one judge granted
asylum in only 3 percent while another granted asylum in 84
8
We therefore do not share the dissent’s fear of a horde of “[i]llegal
immigrants” who will “now sit on their asylum claims indefinitely,
assured that virtually any change in country conditions . . . will excuse
their lateness.” Dissenting Opinion at 4490. We cannot conceive of a rea-
son why any immigrant who intends to seek asylum and has an asylum
claim he believes to be meritorious would withhold filing and wait, in the
perverse hope that conditions in his homeland might deteriorate, rather
than file his application when he is eligible. An immigrant who intends all
along to seek asylum and has a claim that he is confident will succeed
would be most unwise to let the clock run past the one-year mark, given
the chance that circumstances will not significantly worsen and his claim
will be permanently barred. Our rule simply provides no incentive for the
general behavior the dissent describes.
Further, the reality facing asylum applicants today is that the DHS
rejects the vast majority of late-filed asylum applications, finding no appli-
cable exception. See Philip G. Schrag, Rejecting Refugees: Homeland
Security’s Administration of the One-Year Bar to Asylum, 52 Wm. &
Mary L. Rev. 651, 653 (2010). Since the filing deadline went into effect
in 1998, the DHS has rejected more than 15,000 asylum applications,
involving more than 21,000 refugees who would very likely have won
asylum in this country, if it were not for the filing deadline. Id. Our deci-
sion today seems unlikely to alter this landscape and open the floodgates,
despite the dissent’s fears.
4488 VAHORA v. HOLDER
percent. Id. at 337 fig. 26. The same broad variance in grant
rates is reported for asylum officers, the agency staff members
who first review asylum applications prior to their referral
(when not granted) to IJs. See id. at 313-25.

To make out a claim for asylum, an alien who has demon-
strated past persecution must nonetheless overcome efforts by
the government to prove that his fear of future persecution is
not well-founded or that he could avoid persecution by relo-
cating internally. See Deloso v. Ashcroft, 393 F.3d 858, 863-
64 (9th Cir. 2005). Vahora’s ability to establish a well-
founded fear of persecution was materially affected by the
rioting in 2002 and its impact on his family in 2002. Estrada-
Posadas v. INS, 924 F.2d 916, 918 (9th Cir. 1991) (“A ‘well-
founded fear’ is both subjective and objective in that an alien
must have a genuine fear of persecution and provide evidence
that would support a reasonable fear of persecution.”).

[9] Further, this court has viewed ongoing family safety in
the country of origin as a relevant factor in assessing a request
for asylum. See Mendez-Efrain v. INS, 813 F.2d 279 (9th Cir.
1987) (noting that similarly situated members of the petition-
er’s family continued to reside without incident on the family
farm in the alleged zone of danger); Aruta v. INS, 80 F.3d
1389, 1395 (9th Cir. 1996); Estrada v. INS, 775 F.2d 1018,
1021-22 (9th Cir. 1985) (“The absence of harassment of an
alien’s family tends to reduce the probability of persecu-
tion.”).

[10] Prior to the rioting that occurred in February and
March 2002, Vahora’s family remained in India without inci-
dent. The ongoing safety of his family could have been
viewed by the IJ as mitigating a well-founded fear of persecu-
tion, if Vahora had filed an asylum application prior to the
disappearance of his brothers. Therefore, the harassment of
both of Vahora’s brothers by the police, and the arrest and
subsequent silence from one and the flight and subsequent
silence from the other, materially affected his eligibility for
 VAHORA v. HOLDER 4489
asylum by making substantially less likely the possibility that
his application would be denied on the basis that his family
could remain safely in India. Again, applicants should not be
required prematurely to take a risk that their applications will
be denied.

[11] Taking into account the appropriate standard, the dis-
appearance of Vahora’s brothers, the destruction of Vahora’s
home, and the unrest following the destruction of the Swami
Narayn temple in September 2002 undoubtedly did “materi-
ally affect the applicant’s eligibility for asylum” as required
by 8 C.F.R. § 208.4(a)(4)(i)(a). The changes in Vahora’s cir-
cumstances are precisely the kind that, under Fakhry, permit
an asylum applicant to finally seek asylum, notwithstanding
the one-year limitation, once his claim grew substantially
stronger. Fakhry, 524 F.3d at 1063. We therefore hold that the
circumstances shown by Vahora constitute “changed circum-
stances” justifying the untimely filing of his asylum applica-
tion; thus we grant his petition for review.

[12] The government requests that we remand for the BIA
to consider whether Vahora delayed unreasonably after learn-
ing of the changed circumstances before filing his asylum
application. A delay must be “reasonable under the circum-
stances.” 8 C.F.R. § 1208.4(a)(4)(ii); see Husyev v. Mukasey,
528 F.3d 1172, 1182 (9th Cir. 2008) (“[T]he term ‘reasonable
period’ . . . suggests an amount of time that is to be deter-
mined on the basis of all the factual circumstances of the
case.”). Vahora learned of the attacks on his family home and
the arrest and disappearance of one brother and the flight into
hiding of the other brother in September and October of 2002.
He filed for asylum on December 16th. On the basis of
Vahora’s circumstances, a time period of two months in
which to ascertain what had happened to his family property
and his brothers, to decide whether to remain in the United
States, and to consult with an attorney and prepare an asylum
application is eminently reasonable. We therefore remand for
4490 VAHORA v. HOLDER
the BIA to consider the merits of Vahora’s asylum application
in the first instance.

PETITION GRANTED and REMANDED.

Chief Judge KOZINSKI, dissenting:

The majority makes mincemeat of the one-year filing
requirement. Illegal immigrants can now sit on their asylum
claims indefinitely, assured that virtually any change in coun-
try conditions will excuse their lateness. This is contrary to
the text and purpose of the statute, and runs roughshod over
our precedent.

While a worsening of country conditions can sometimes
constitute a “changed circumstance,” see Fakhry v. Mukasey,
524 F.3d 1057 (9th Cir. 2008); see also 8 C.F.R.
§ 208.4(a)(4)(i)(A), this worsening must “materially affect the
applicant’s eligibility for asylum,” 8 U.S.C. § 1158(a)(2)(D).
What must be materially altered isn’t the country conditions,
but the alien’s eligibility. Going from “eligible” to “still eligi-
ble” is no change at all, much less a material one. Under the
plain language of the statute, a petitioner must show that,
prior to the changed circumstances, he was ineligible for asy-
lum.

Congress enacted IIRIRA “to expedite the physical
removal of those aliens not entitled to admission to the United
States.” Coyt v. Holder, 593 F.3d 902, 906 (9th Cir. 2010);
see also Morales-Izquierdo v. Gonzales, 486 F.3d 484, 494
(9th Cir. 2007) (en banc) (“Congress’ ambitious purpose
behind IIRIRA was to enable the prompt admission of those
who are entitled to be admitted, [and] the prompt exclusion or
removal of those who are not . . . .” (internal quotation mark
omitted)). Congress adopted the one-year limitation period as
part of IIRIRA’s statutory scheme because it found that “[t]he
 VAHORA v. HOLDER 4491
asylum system has been abused by those who seek to use it
as a means of ‘backdoor’ immigration.” H.R. Rep. No. 104-
469, pt. 1, at 107 (1996). As the Second Circuit observed,
“Congress intended the one-year deadline to prevent persons
who had resided in the United States for an extended period
of time from applying for asylum as an afterthought, after
overstaying their visas or failing to obtain citizenship through
another means.” Joaquin-Porras v. Gonzales, 435 F.3d 172,
180 (2d Cir. 2006) (citing H.R. Rep. No. 104-469, pt. 1, at
116). Finding a “changed circumstance” exception whenever
a new development is “non-trivial,” maj. op. at 4483 n.4, “un-
dermine[s] the one-year deadline’s clear purpose of focusing
the asylum process on those who have recently fled persecu-
tion in their home countries,” Joaquin-Porras, 435 F.3d at
180.

The majority argues that Congress intended the exceptions
to the one-year deadline to be broad by virtue of the fact that
it expressly rejected an expansive “good cause” exception in
favor of the significantly more limited “changed circum-
stances” exception. Maj. op. at 4484-85. But see Luciana v.
Att’y Gen. of the U.S., 502 F.3d 273, 277 (3d Cir. 2007)
(describing the exceptions as “narrow”). Such reasoning not
only defies logic, but ignores the Supreme Court’s instruction
that when “construing provisions . . . in which a general state-
ment of policy is qualified by an exception, [we] read the
exception narrowly in order to preserve the primary operation
of the provision.” Knight v. Comm’r, 552 U.S. 181, 190
(2008) (omission in original) (quoting Comm’r v. Clark, 489
U.S. 726, 739 (1989)) (internal quotation mark omitted).
Reading the “changed circumstances” exception narrowly is
necessary not just to preserve the primary operation of the
one-year filing deadline, but to keep the exception from swal-
lowing it whole.

Requiring a petitioner to show that he was previously ineli-
gible for asylum dovetails with our interpretation of the stat-
ute’s parallel exception for “extraordinary circumstances.” 8
4492 VAHORA v. HOLDER
U.S.C. § 1158(a)(2)(D); cf. Husyev v. Mukasey, 528 F.3d
1172, 1180 (9th Cir. 2008) (looking to case law interpreting
the “parallel issue” of “changed circumstances” to interpret
the “extraordinary circumstances” provision). We recently
interpreted this exception to require a petitioner to show that
extraordinary circumstances “prevented him from timely fil-
ing an asylum application.” Toj-Culpatan v. Holder, 612 F.3d
1088, 1091 (9th Cir. 2010) (per curiam). It is similarly reason-
able to infer that Congress meant the “changed circum-
stances” exception to apply only where, prior to the change,
petitioner could not file for asylum because he was ineligible.
Although the exceptions are different—extraordinary circum-
stances must “directly relate[ ] to the failure to meet the 1-
year deadline,” while changed circumstances must “materially
affect the applicant’s eligibility for asylum,” 8 C.F.R.
§ 208.4(a)(4)-(5)—both are limited exceptions for situations
where an applicant couldn’t file earlier, because he was pre-
vented by extraordinary circumstance or prevented by his
inability to meet all the requirements for asylum.

Fakhry v. Mukasey, 524 F.3d 1057 (9th Cir. 2008), adopts
precisely this approach to “changed circumstances.” Fakhry
holds that, because asylum requires “both subjectively genu-
ine and objectively reasonable” fear of persecution, a peti-
tioner may be able to show changed circumstances based on
a worsening of country conditions (the objective prong), even
when he always feared persecution (the subjective prong).
Fakhry, 524 F.3d at 1063 (quoting Al-Harbi v. INS, 242 F.3d
882, 888 (9th Cir. 2001)) (internal quotation marks omitted).
We allowed Fakhry’s claim to go forward because “a likely
purpose of the exception [is] to excuse late applications when
an alien previously had a weak or nonexistent case for asy-
lum.” Id. (emphasis added). “Why,” we asked, “should [an
applicant] be penalized for declining to clog the immigration
courts with a meritless application?” Id. at 1064 (emphasis
added). The majority creates a square conflict with Fakhry:
Where, as here, the asylum-seeker has a meritorious asylum
 VAHORA v. HOLDER 4493
claim from day one, the exception must give way to the over-
riding purpose of the deadline discussed above.

Vahora can’t argue he couldn’t file within a year of his
arrival in the United States because he didn’t have a meritori-
ous asylum claim; his claim was quite strong from day one.
He credibly testified that after a meeting was held at his home
to discuss the destruction of the local mosque by Hindu
youths, “the[ police] took [him] to Mahla police station and
they put [him] in a room. They started beating [him] as well
as calling [him] names using bad language. And they were
alleging that [he] was a Muslim and creating disturbance in
the area of Hindus.” Vahora also testified about another time
he was arrested, when the police detained him for fifteen days
and “beat [him] once or twice every day, every time, and [he]
was beaten from 25 to 30 times . . . . saying that [he] was a
traitor against the national interest and wanted some kind of
disturbance in their Hindu areas.” He testified that “[t]he
police would beat [him] with the leather belts and batons.
They would beat [him] with the hands as well as the boots.
The police would hold [him] by [his] hair and strike [his]
head against the wall.” This evidence of past religious perse-
cution, if believed, would be more than enough to meet the
requirements for asylum. See, e.g., Zhao v. Mukasey, 540
F.3d 1027, 1028, 1031 (9th Cir. 2008) (petitioners credibly
testified police officer beat them for religious practices); see
also, e.g., Kamalyan v. Holder, No. 05-76408, 2010 WL
3325840, at *1-2 (9th Cir. Aug. 25, 2010) (petitioner credibly
testified police detained and beat him for being a Jehovah’s
Witness); Li v. Holder, 559 F.3d 1096, 1107-08 (9th Cir.
2009) (petitioner credibly testified police beat him once and
detained him at a labor camp for fifteen days, where he was
beaten by fellow detainees). The majority doesn’t disagree.

Given the clear evidence of religious persecution that
Vahora suffered before he left India, any deterioration of
country conditions couldn’t have affected his already strong
claim for asylum. In Vahora’s case, we need not even specu-
4494 VAHORA v. HOLDER
late: We know he would have been granted asylum because
the IJ relied exclusively on events before Vahora fled India to
grant him relief under the more stringent standard for with-
holding of removal. See Singh v. INS, 134 F.3d 962, 971 (9th
Cir. 1998). Without an effect on his eligibility, there can be
no changed circumstances, regardless of how much country
conditions may have deteriorated.

But what if Vahora had applied for asylum as soon as he
arrived and was denied relief? If country conditions subse-
quently worsened, he would in no way be punished for his dil-
igence in filing his initial claim. See Malty v. Ashcroft, 381
F.3d 942, 945 (9th Cir. 2004). The regulations expressly con-
template that an asylum seeker’s case might improve after his
first application is rejected: 8 C.F.R. § 1003.2(c)(3)(ii) allows
aliens to “reapply for asylum or withholding of deportation
based on changed circumstances arising in the country of
nationality.” Such applicants are exempted from the time lim-
its that normally apply to motions to reopen, meaning that
they’re free to reapply for asylum whenever they believe they
have a stronger claim. See id. § 1003.2(c)(3). The regulatory
scheme anticipates that some asylum applicants may have
borderline cases at the start, and expresses a preference that
they timely announce their presence in the United States by
filing an asylum application within a year of entry—with the
possibility of reopening their case if it later becomes stronger
—rather than hiding in the weeds until they feel like applying.

Country conditions change constantly, often going from
bad to worse. Letting asylum applicants decide when things
are bad enough to warrant an asylum application undermines
Congress’s effort to make asylum applicants present their
claims promptly. Allowing a petitioner who has a strong
claim to wait until his claim gets even stronger renders the
one-year limit imposed by Congress meaningless. The only
way to give effect to the statutory scheme is to require a peti-
tioner who has a plausible claim for asylum to present it
within one year of entering the United States or within a rea-
 VAHORA v. HOLDER 4495
sonable time after he develops such a claim, if this happens
after the one-year period has elapsed.

The majority’s mischief reveals the larger problem with
reviewing the BIA’s determination at all. See Ramadan v.
Keisler, 504 F.3d 973 (9th Cir. 2007) (O’Scannlain, J., dis-
senting from denial of rehearing en banc). Every other circuit
to have addressed the issue—ten in all—has found that we
lack jurisdiction to review the “changed circumstances”
exception because it is a “discretionary [decision] committed
to the Executive Branch.” Jarbough v. Att’y Gen. of the
United States, 483 F.3d 184, 190 (3d Cir. 2007). In the immi-
gration context, the need for national uniformity is paramount
so that the BIA can bring its expertise to bear on these diffi-
cult and fact-intensive issues, see Kaganovich v. Gonzalez,
470 F.3d 894, 897-98 (9th Cir. 2006), and to avoid forum-
shopping “by those who seek to use [asylum] as a means of
‘backdoor’ immigration,” H.R. Rep. No. 104-469, pt. 1, at
107. Yet, in three short years, we have gutted the statutory
mandate so that changed circumstances need be demonstrated
not “to the satisfaction of the Attorney General,” 8 U.S.C.
§ 1158(a)(2)(D), but to the satisfaction of two judges on an
appellate panel. This usurpation of executive power directly
contravenes the Real ID Act, and the majority’s sweeping
expansion of the changed circumstances exception reveals
just why we should never have started down this path to begin
with. We were wrong in failing to take Ramadan en banc.
Fortunately, we will now have an opportunity to correct that
error.

***

With one swift blow, the majority pretty much knocks out
the one-year filing deadline for asylum claims, showing once
again that no statute, no matter how clear, is safe from usurpa-
tion by judges willing to engage in creative interpretation. It’s
a tired game, and I’ll have no part in it.