                                                                           FILED
                              NOT FOR PUBLICATION                           DEC 17 2010

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




                              FOR THE NINTH CIRCUIT



JAMES MWANGI MURIUKI; ANNA                       No. 06-71754
WAMUYU MWANGI,
                                                 Agency Nos. A095-302-244
               Petitioners,                                 A095-302-245

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

               Respondent.



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

                       Argued and Submitted October 7, 2010

                                 Pasadena, California

Before:        WARDLAW and W. FLETCHER, Circuit Judges, and LYNN, **
               District Judge.




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
            The Honorable Barbara M. Lynn, United States District Judge for the
Northern District of Texas, sitting by designation.
      Petitioners James Mwangi Muriuki and Anna Wamuyu Mwangi petition for

review of the Board of Immigration Appeals’ (“BIA”) March 7, 2006 decision.

For the reasons stated below, we grant and remand in each case.

      1. James Muriuki

      Factual determinations by the BIA are reviewed for “substantial evidence.”

Shirazi-Parsa v INS, 14 F.3d 1424, 1427 (9th Cir. 1994). Where the BIA relies on

an adverse credibility finding to deny an asylum application, the BIA must provide

a “legitimate articulable basis” for its findings and must offer “a specific, cogent

reason for any stated disbelief.” Shah v. INS., 220 F.3d 1062, 1067 (9th Cir. 2000)

(internal quotation marks and citations omitted). An adverse credibility finding “is

improper when an IJ fails to address a petitioner’s explanation for a discrepancy or

inconsistency.” Kaur v. Ashcroft, 379 F.3d 876, 887 (9th Cir. 2004).

      Here, the IJ and the BIA relied on a number of alleged inconsistencies and

implausibilities in Mr. Muriuki’s testimony to support the adverse credibility

finding, but they failed to address Mr. Muriuki’s explanations. For example, the IJ

and the BIA found the story of the 1998 attack on Mrs. Mwangi contained internal

contradictions because the petitioners alternatively referred to the attackers as

“Kalenjin” or “Mungiki.” But Mr. Muriuki provided documentary evidence that

the Mungiki, though predominantly Kikuyu, include Kalenjin. Further, Mr.


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Muriuki at no time definitively stated that he was sure the attackers were Kalenjin.

Further still, evidence in the record portrays the Mungiki as a cult shrouded in

mystery that often acts as a gang for hire regardless of ethnic affinity. The IJ and

the BIA failed to address these explanations.

      The IJ and the BIA also did not respond to Mr. Muriuki’s explanation that he

did not simply “see” his lawyer once but rather “retained” him. The IJ and the BIA

also failed to address his explanation that the inconsistency in his certificate of

service and his oral testimony was “window dressing” the Kenyan government

provided to allay donor country concerns. The IJ and the BIA even seemed to have

ignored evidence in the record in one instance: both stated that Mr. Muriuki did

nothing to protect his children when in fact he stated that he took them to their

uncle’s house.

      In sum, the adverse credibility finding is not supported by substantial

evidence in the record. Because the IJ and BIA failed to address many of Mr.

Muriuki’s explanations for perceived inconsistencies, we remand on an open

record for a renewed credibility finding. See Soto-Olarte, 555 F.3d 1089, 1096

(9th Cir. 2009). We also remain unsure whether the threats against Mr. Muriuki

rise to the level of persecution or, in the alternative, whether the government would

be able to rebut his subjective fear of future persecution with objective evidence.


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Because the IJ and the BIA did not address these issues, we remand to the BIA for

further proceedings.




      2. Anna Wamuyu Mwangi

      Applicants for asylum must file within one year of arriving in the United

States. 8 U.S.C. § 1158(a)(2)(B). However, an exception is made for a change in

circumstances materially affecting the ability of an applicant to apply for asylum.

Id. at (a)(2)(D). The implementing regulations provide three examples of

“changed circumstances” which include “changes in applicable U.S. law.” 8

C.F.R. § 208.4(a)(4)(i)(B). Applicants who file untimely applications based on

“changed circumstances” must do so within a reasonable period of time after the

changed circumstances. Id. at (a)(4)(ii). The regulations do not specify whether

“changes in applicable U.S. law” refers only to statutory law or also refers to

caselaw.

      While Mr. Muriuki and Mrs. Mwangi’s cases were on appeal before the

BIA, we decided Mohammed v. Gonzales, 400 F.3d 785 (9th Cir. 2005). In

Mohammed, we characterized female genital mutilation (“FGM”) as a “permanent

and continuing act of persecution” and held that women who suffered FGM in the




                                          4
past are entitled to an irrebutable presumption that they will be subjected to future

persecution. Id. at 800-01.

      Prior to our decision in Mohammed, Mrs. Mwangi’s chance of being granted

asylum on the basis of FGM was quite uncertain. Until Mohammed, some courts

and the BIA had limited relief to women who claimed a future fear of FGM. See,

e.g., Abankwah v. INS, 185 F.3d 18 (2nd Cir. 1999); In Re Kasinga, 21 I. & N.

Dec. 357 (BIA 1996). Our Circuit had “not yet ruled on whether female genital

mutilation rises to the level of persecution.” Mohammed, 400 F.3d at 796.

Mohammed changed the legal landscape in two ways. First, it characterized the

harm of already-performed FGM as permanent and continuing persecution. Id. at

800. Prior caselaw had focused on the actual procedure of FGM, rather than the

stigma and lasting physical and psychological impacts, as persecution. See

Kasinga, 21 I. & N. Dec. at 365. Second, Mohammed created an irrebutable

presumption that women who suffered already-performed FGM had a well founded

fear of future persecution in their home countries. Mohammed, 400 F.3d at 801.

      Within two months of the Mohammed decision, while Mr. Muriuki’s appeal

to the BIA was pending, Mrs. Mwangi filed a Motion for Remand. (Mrs. Mwangi

was a derivative applicant on her husband’s application.) In an affidavit

accompanying her motion she argued that the Mohammed decision was a change in


                                           5
U.S. law materially affecting her ability to apply for asylum, and that her untimely

filing should be excused pursuant to 8 U.S.C. § 1158(a)(2)(D) and the

implementing regulations at 8 C.F.R. § 208.4(a)(4)(i). In her brief before the BIA

in support of her motion she presented the issue in much the same language.

      The BIA did not respond to Mrs. Mwangi’s contention. The BIA incorrectly

interpreted her reference to Mohammed in her motion as a claim of ineffective

assistance of counsel. By failing to consider the merits of Mrs. Mwangi’s

argument in her Motion for Remand, the BIA abused its discretion. See Romero

Ruiz v. Mukasey, 538 F.3d 1057, 1062 (9th Cir. 2008). See also Mohammed, 400

F.3d at 791 (holding that the BIA abused its discretion in issuing an “incomplete”

and “nonsensical” opinion that failed to consider the documentary evidence

submitted by the petitioner); Maravilla v. Ashcroft, 381 F.3d 855, 858 (9th Cir.

2004) (holding that it was an abuse of discretion for the BIA to fail to

consider the merits of a petitioner’s claim). We remand to the BIA to consider in

the first instance whether a change in caselaw, such as Mohammed, is a change in

applicable U.S. law within the meaning of 8 C.F.R. § 208.4(a)(4)(i).

      For the foregoing reasons, the petition is granted. We REVERSE and

REMAND both Mr. Muriuki’s and Mrs. Mwangi’s petitions.




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