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NOT FOR PUBLICATION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.
3