                                                                           FILED
                            NOT FOR PUBLICATION                             MAY 20 2010

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



MAGDY SHEHATA AZER,                              No. 04-76231

              Petitioner,                        Agency No. A074-809-366

  v.
                                                 MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,

              Respondent.



MAGDY SHEHATA AZER,                              No. 05-71586

              Petitioner,                        Agency No. A074-809-366

  v.

ERIC H. HOLDER, Jr., Attorney General,

              Respondent.



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

                        Argued and Submitted May 5, 2010
                              Pasadena, California


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: B. FLETCHER and PAEZ, Circuit Judges, and EZRA, District Judge.**

      Before us are two petitions by Magdy Azer for review of two decisions by

the Board of Immigration Appeals (BIA). In number 04-76231, Azer petitions

from the BIA’s denial of his motion to reopen. In number 05-71586, he petitions

from the BIA’s subsequent denial of a motion styled “Motion to Reconsider;

Motion to Reopen.” We review the BIA’s denial of a motion to reopen for abuse

of discretion. Perez v. Mukasey, 516 F.3d 770, 773 (9th Cir. 2008). We grant the

first petition and dismiss the second as moot.

      The BIA incorrectly determined that Azer’s motion to reopen was untimely.

A motion to reopen based on changed country conditions, provided that the

evidence in support of the motion “is material and was not available and could not

have been discovered or presented at the previous hearing,” 8 C.F.R. §

1003.2(c)(3)(ii), may be filed at any time. Malty v. Ashcroft, 381 F.3d 942, 945

(9th Cir. 2004). There is no dispute that Azer’s evidence is material and was not

available at the time of the 1997 asylum hearing.

      Further, by considering only the timing of Azer’s motion to reopen, the BIA

abused its discretion. In doing so, the BIA effectively created a time limitation for



       **
             The Honorable David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.

                                          2
motions to reopen based on changed country conditions. Such a limitation is

precluded by statute. 8 U.S.C. § 1229a(c)(7)(C)(ii); cf. Andia v. Ashcroft, 359 F.3d

1181, 1184 (9th Cir. 2004) (“As there is no time limitation for motions to reopen . .

. based on lack of notice, the IJ could not create one as a matter of discretion.”).

      By focusing only on timing, the BIA failed to examine the evidence or the

equities weighing in Azer’s favor. Azer submitted evidence showing that since

1997, Egyptian Coptic Christians have faced increased persecution generally.

Importantly, his evidence also showed that Azer’s vocal and visible activities on

behalf of Egyptian Christians — all of which took place after 1997 — have

brought him to the attention of Islamic extremists in his native country. He

submitted a newspaper article, translated from the Arabic, stating that during

Friday prayers in Cairo, some mosques have publicly demanded Azer’s death for

his “continuous contempt of Islam.”1 Azer has also personally received death

threats for his public discussion of the conditions Coptic Christians face in Egypt.

By failing to mention, much less examine, any of this evidence, the BIA abused its

discretion. See, e.g., Mohammed v. Gonzales, 400 F.3d 785, 793 (9th Cir. 2005)




      1
        The article is undated, but as it mentions the events of September 11, 2001,
it was necessarily unavailable in 1997 and could not have been presented then.

                                           3
(“[T]he BIA is obligated to consider and address in its entirety the evidence

submitted by a petitioner.”).

      If Azer’s evidence is believed, as it must be at this stage, Malty, 381 F.3d at

947, Azer faces a substantial risk of being killed on account of his religion if he

returns to Egypt. In failing to give the equities weighing in Azer’s favor even a

“cursory and generalized analysis,” the BIA abused its discretion. Arrozal v. INS,

159 F.3d 429, 433 (9th Cir. 1998); see also Watkins v. INS, 63 F.3d 844, 850 (9th

Cir. 1995) (holding that BIA abused its discretion in denying a motion to reopen by

failing to consider “all relevant factors,” including “fear of persecution”).

      To the extent the BIA denied Azer’s motion because it believed he filed his

motion only because he had been taken into custody, it abused its discretion by

making a credibility finding. See Malty, 381 F.3d at 947 (noting that a credibility

finding is generally impermissible at the motion-to-reopen stage). In any case, the

record shows that Azer hired a lawyer to file a motion to reopen before the

Department of Homeland Security took him into custody. See Wiedersperg v. INS,

896 F.2d 1179, 1183 (9th Cir. 1990) (holding that the BIA abused its discretion in

denying motion to reopen where its denial was based on “speculative grounds”).

Even were the timing of his motion motivated by his incarceration, we find no

authority that suggests it is a disqualifying circumstance.


                                           4
        The record also throws doubt on the BIA’s determination that Azer lacked

due diligence in pursuing his claim. He promptly retained new counsel after the

BIA’s initial dismissal of his appeal in May 2002, but the attorney was

incompetent and in June 2002 filed a frivolous motion to reopen, which the BIA

denied. A layman like Azer would have reasonably believed that the BIA’s denial

of that motion precluded relief. Indeed, the BIA itself erroneously concluded that

the denial of Azer’s first motion to reopen precluded consideration of further

motions for relief.

        We conclude that the BIA abused its discretion by denying Azer’s motion to

reopen. We therefore grant the petition in number 04-76231 and remand to the

BIA with directions to reopen. We dismiss the petition in number 05-71586 as

moot.

        GRANTED; REMANDED WITH DIRECTIONS (04-76231).

        DISMISSED (05-71586).




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