                                                                              FILED
                            NOT FOR PUBLICATION                               MAR 18 2013

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


TIN WIN,                                         No. 08-73738

              Petitioner,                        Agency No. A075-728-631

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

              Respondent.


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

                            Submitted March 5, 2013**
                               Pasadena, California

Before: GOODWIN, WARDLAW, and GOULD, Circuit Judges.

       Tin Win, a native and citizen of Burma, petitions for review of the Board of

Immigration Appeals’ (“BIA”) dismissal of his appeal from an Immigration

Judge’s (“IJ”) denial of his application for asylum as untimely. Under 8 U.S.C. §



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
1252(a)(2)(D), we have jurisdiction over questions involving the application of the

“changed circumstances” rule for excusing delayed asylum applications, see 8

U.S.C. § 1158(a)(2)(D), as long as the underlying facts are undisputed.1

See Ramadan v. Gonzales, 479 F.3d 646, 650 (9th Cir. 2007). Because we

conclude that the agency improperly applied the “changed circumstances”

standard, we grant Win’s petition and remand for consideration of Win’s asylum

application on the merits.

      The BIA and the IJ misapplied the statute when they concluded that Win had

failed to show changed circumstances that would materially affect his eligibility

for asylum that occurred more than one year after his arrival in the United States.

See 8 U.S.C. § 1158(a)(2)(B). Although Win held out hope that he might be able

to safely return to Burma, in 2000, he learned that a former political associate had

been arrested in Burma, that the individual had informed on him to the police, and

that Burmese authorities were actively pursuing him, leading him to conclude that

he could never return to Burma because he would again be imprisoned and beaten



      1
       Although the IJ initially made an adverse credibility determination, the BIA
subsequently remanded for reconsideration of Win’s credibility, and the IJ granted
Win withholding of removal on remand. We thus treat the facts of Win’s petition
as undisputed. See Lopez-Alvarado v. Ashcroft, 381 F.3d 847, 851 (9th Cir. 2004)
(“Absent an explicit adverse credibility finding, a witness’s testimony must be
accepted as true.”).

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because of his political activities. “By the Government’s own admission, the arrest

was further evidence of the persecution that [Win] suffered in [Burma],” which

would strengthen his claim for asylum and help rebut any attempt by the

government to prove that his fear of persecution was not well-founded. Singh v.

Holder, 656 F.3d 1047, 1053 (9th Cir. 2011) (internal quotation marks omitted).

Win may “still qualify for the changed circumstances exception even if the relevant

circumstances do not create a new basis of persecution but simply provide further

evidence of the type of persecution already suffered.” Id.; accord Vahora v.

Holder, 641 F.3d 1038, 1044 (9th Cir. 2011); Fakhry v. Mukasey, 524 F.3d 1057,

1063 (9th Cir. 2008). Thus, Win has established “the existence of changed

circumstances which materially affect the applicant’s eligibility for asylum,” 8

U.S.C. § 1158(a)(2)(D), an exception to the one-year bar, and his asylum

application may be considered. Id.

      Petition GRANTED; REMANDED.




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