               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 08a0685n.06
                          Filed: November 6, 2008

                                          No. 07-3805

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT



MICHEL NIYIBIZI, ESPERANCE                     )
NIYIBIZI, AUGUSTE NIYIBIZI, and                )
OLGA NIYIBIZI,                                 )
                                               )        ON PETITION FOR REVIEW
       Petitioners-Appellants,                 )        OF AN ORDER OF THE
                                               )        BOARD OF IMMIGRATION
MICHAEL B. MUKASEY, United                     )        APPEALS
States Attorney General,                       )
                                               )                     OPINION
       Respondent-Appellee.                    )


Before: BOGGS, Chief Judge; and MOORE and CLAY, Circuit Judges.

       KAREN NELSON MOORE, Circuit Judge. Petitioners, Michel Niyibizi ("Michel"),

Esperance Niyibizi ("Esperance"), Auguste Niyibizi ("Auguste"), and Olga Niyibizi ("Olga")

(referred to jointly as "the Niyibizis"), seek review of the denial by the Board of Immigration

Appeals ("BIA") of their motion to reopen their removal proceedings. The Niyibizis argue that the

BIA abused its discretion in finding that their untimely motion to reopen was not excused by

changed country conditions. For the reasons explained below, we GRANT the petition for review

and REMAND to the BIA for consideration on the merits.

                               I. FACTS AND PROCEDURE

       The facts of this case are undisputed. Michel, his wife Esperance, and their two children,

Auguste and Olga, are citizens of Rwanda. Michel entered the United States on May 30, 1997, on
a non-immigrant student visa. At some point, Esperance, Auguste, and Olga followed him to the

United States. Shortly after Michel arrived, on September 7, 1997, he filed an application for asylum

and withholding of removal for himself with the Immigration and Naturalization Service ("INS")1

He claimed that he had a well-founded fear of persecution in Rwanda based on: (1) his mixed

HutuTutsi ethnicity and (2) his affiliation with various groups in Rwanda. His application was

denied. On December 14, 1997, Michel was served with a Notice to Appear ("NTA"), which stated

that he was removable under 8 U.S.C. § 1227(a)(1)(B) (2000). He filed a second application for

asylum on July 2, 1999, reiterating his previously denied claims.

        Esperance filed a separate asylum application for herself, Auguste, and Olga on September

2, 1999. On December 14, 1999, this application was referred to the immigration court. The INS

issued NTAs to Esperance and the children. The Niyibizis then filed a joint third application on May

26, 2000, for asylum, withholding of removal, and relief under the Convention Against Torture,

which reiterated the claims Michel made in his previous applications.

        Ultimately, after a two-day hearing, the immigration judge ("IJ") denied the Niyibizis'

application. The IJ specifically found that both Michel and Esperance lacked credibility. The IJ

ordered that the Niyibizis be removed. This decision was appealed to the BIA on November 10,

2004.

        While the appeal to the BIA was pending, the U.S. Department of Justice, beginning in 2005,

used Michel as an interpreter and translator in a highly publicized terrorism prosecution, United

States v. Karake, 443 F. Supp. 2d 8 (D.D.C. 2006). Members of the Armed Forces for Liberation for



        1
       'The INS was replaced by the Department of Homeland Security's Bureau of Immigration
and Customs Enforcement and Bureau of Citizenship and Immigration Services in 2003.

                                                 2
Rwanda ("ALIR"), an extremist Hutu group, were prosecuted.2 2 The court found that the Tutsi

Rwandan government had subjected the defendants to "solitary confinement, positional torture, and

repeated physical abuse" to extract confessions. Id. at 94. This finding led the court to suppress the

confessions of the defendants, see id., which ultimately led to an unsuccessful prosecution.

       Meanwhile, the BIA affirmed the IP s decision on February 1, 2006, and entered a final order

of removal, specifically finding that the IF s adverse credibility finding was not clearly erroneous.

The Niyibizis did not appeal. However, on January 16, 2007, the Niyibizis filed a motion to reopen

removal proceedings, accompanied by a new application for asylum. This application was based on

a claim of changed country conditions. Specifically, the Niyibizis argued: (1) because Michel aided

the U.S. Department of Justice in its failed attempt to prosecute ALIR members that uncovered the

fact that the Rwandan government tortured individuals, the Niyibizis now have a well-founded fear

of future prosecution by either the ALIR or the Rwandan government; and (2) French/Rwandan

diplomatic relations had completely deteriorated and any suspected French sympathizers, like the

Niyibizis, would be in danger in Rwanda.3 On May 31, 2007, the BIA denied the motion to reopen,

finding the motion untimely and that the Niyibizis failed to show changed country conditions.

Specifically, the BIA stated:




       2
       Three members of the group were charged in "a four-count indictment relating to the March
1, 1999 killings of two American tourists in Bwindi Impenetrable National Forest . . . in
southwestern Uganda." Karake, 443 F. Supp. 2d at 12.
       3
         The Niyibizis claim that, in November, 2006, the Rwandan government severed all
diplomatic relations with France and sponsored anti-French protests. This was in response to a
French magistrate issuing an international arrest warrant for Rwandan government officials in
relation to the shooting down of former Rwandan President Juvenal Habyarimana's plane. Because
we will not reach this claim, discussed below, we will not determine the validity of these facts.

                                                  3
       [A] motion to reopen may be filed beyond the 90-day limit based on evidence of
       changed country circumstances, [but] the respondents have presented no persuasive
       evidence showing such changed circumstances in Rwanda.

       Further, and even more importantly, the new evidence does not elevate the
       respondents' claim for relief to one of credibility.

J.A. at 5 (BIA Dec. 5/31/07). The Niyibizis timely appealed.

                                         II. ANALYSIS

       We review the denial of a motion to reopen proceedings for an abuse of discretion. INS v.

Doherty, 502 U.S. 314, 323 (1992); Alizoti v. Gonzales, 477 F.3d 448, 451 (6th Cir. 2007) (citing

INS v. Abudu, 485 U.S. 94, 96 (1988)). An abuse of discretion occurs when "the denial of

[the]motion to reopen . . . was made without a rational explanation, inexplicably departed from

established policies, or rested on an impermissible basis such as invidious discrimination against

aparticular race or group." Allabani v. Gonzales, 402 F.3d 668, 675 (6th Cir. 2005) (quoting Balani

v. INS, 669 F.2d 1157, 1161 (6th Cir. 1982)) (addition and omission in Allabani). When determining

whether the BIA abused its discretion, we may look only at "the basis articulated in the decision and

. . . may not assume that the [BIA] considered factors that it failed to mention in its

opinion."Daneshvar v. Ashcroft, 355 F.3d 615, 626 (6th Cir. 2004). We review legal determinations

made by the BIA de novo. Harchenko v. INS, 379 F.3d 405, 409 (6th Cir. 2004).

       An applicant for asylum has ninety days from "the date of entry of a final administrative order

of removal" in which to file a motion to reopen removal proceedings. 8 U.S.C. § 1229a(c)(7)(C)(i);

8 C.F.R. § 1003.2(c)(2). However, there is no time limit to file a motion to reopen proceedings

"based on changed country conditions arising in the country of nationality or the country to which

removal has been ordered. . . ." 8 U.S.C. § 1229a(c)(7)(C)(ii); accord 8 C.F.R. § 1003.2(c)(3)(ii).



                                                 4
The motion must be accompanied by "such evidence [that] is material and was not available and

would not have been discovered or presented at the previous proceeding." 8 U.S.C. §

1229a(c)(7)(C)(ii); accord Allabani, 402 F.3d at 675 (noting that an untimely motion to reopen

proceedings "shall not be granted unless it appears to the [BIA] that evidence sought to be offered

is material and was not available and could not have been discovered or presented at the former

hearing") (internal quotation marks omitted). Evidence of changes in personal circumstances, not

accompanied by a change in country conditions, is not sufficient to support an untimely motion to

reopen. See Haddad v. Gonzales, 437 F.3d 515, 517-18 (6th Cir. 2006) (holding that divorce in this

country was a personal decision that did not constitute a changed country condition in Jordan); Bah

v. Gonzalez, 230 F. App'x 547, 550 (6th Cir. 2007) (unpublished opinion) (holding that giving birth

to a female child in this country who may be subjected to genital mutilation upon return to Guinea

was a changed personal circumstance); Vuthi v. Gonzales, 209 F. App'x 470, 473 (6th Cir. 2006)

(unpublished opinion) (holding that an applicant's fear of her husband's "ill will. . . based on her

younger son's death and her older son's imprisonment" was a change in personal circumstances, not

a change in the country conditions of Albania); Zheng v. United States Dep't of Justice, 416 F.3d

129, 130-31 (2d Cir. 2005) (holding that arriving in this country while pregnant in violation of

China's population control policies was a change in personal circumstances); Guan v. B.I,A., 345

F.3d 47 (2d Cir. 2003) (same). Further, the evidence must show that the change in country conditions

has caused an individualized threat of harm to the applicant. See Harchenko, 379 F.3d at 410 (stating

that an alien must provide "reasonably specific information showing a real threat of individual

persecution").




                                                 5
       It is undisputed that the Niyibizis filed their petition to reopen after the ninety-day filing

deadline. Thus, in order to gain relief, the motion must be supported by material evidence of changed

country conditions that was not available at the time of the prior proceedings. See 8 U.S.C. §

1229a(c)(7)(C)(ii); 8 C.F.R. § 1003 .2(c)(3)(ii). The BIA held the Niyibizis' motion to be untimely,

stating that they had "presented no persuasive evidence" of changed country conditions. We find that

the BIA abused its discretion in coming to this conclusion.

       The Niyibizis claim two changes to the county conditions of Rwanda: (1) Michel worked as

a translator for the U.S. Department of Justice in a highly publicized prosecution of three members

of the Hutu ALIR, a prosecution that revealed that Rwandan government officials engaged in the

torture of Hutus; and (2) a rapid and dramatic deterioration of diplomatic relations between Rwanda

and France occurred. We agree with the Niyibizis' first claim; Michel' s work as a translator for the

United States government in a high-profile terrorism case, coupled with the information about the

Rwandan government torturing the defendants in that case, constitutes a changed country condition

sufficient to support the motion to reopen proceedings.4

       The Attorney General ("AG") argues that Michel' s work as a translator was an "employment

decision" and, citing the above-mentioned cases, contends that such a decision constitutes a change

only to his personal circumstances, which cannot support an untimely motion to reopen proceedings.

Government Br. at 22-23. However, the AG misunderstands both our precedent and the Niyibizis'

claim. Michel does not claim a purely personal change, but rather a personal change coupled with

a change in country conditions. This is not a situation that the above-cited cases address. In every


       4
        Because we find a changed country condition in regard to Michel' s work and the revelations
about torture, we do not reach the issue of whether the demise of French/Rwandan relations would
constitute changed country conditions.

                                                 6
one of those cases, the only changed condition that the petitioner raised was a change in the

petitioner's circumstances. For instance, in Haddad, Jordan's views of divorce did not change, only

the petitioner's marital status changed; thus, we appropriately denied the petition for review that was

based solely on the petitioner's divorce. Haddad, 437 F.3d at 517-18. Similarly, there was no

allegation in Zheng or Guan that China's one-child policy had changed or in Bah that female genital

mutilation was a recent development in Guinea. These cases dealt solely with a static country

condition that would now affect the applicant due to a personal choice the applicant made while in

this county.

       The case before us, however, is quite different. Not only did the Karake case reveal that the

Tutsi goverment which came to power in Rwanda after the 1994 genocide also tortures individuals,

specifically the defendants in that case, but the case did so with the open assistance of Michel acting

as a translator for the U.S. prosecution. This evidence is sufficient to demonstrate changed country

conditions because it reveals disturbing new information about the Rwandan government's abusive

treatment of prisoners, and tends to indicate a more pervasive lack of respect for basic rights. See

443 F. Supp. 2d at 54-59 (recounting "horrifying stories regarding [the Rwandan government's] use

of physical and psychological torture"). The district court's findings in the Karake case thus provide

material evidence of changed country conditions in Rwanda that was not available at the time the

Niyibizis filed their initial application for asylum, as the Karake case involved events that took place

"primarily between 1999 and 2003," id. at 15, and the district court's opinion was not issued until

August of 2006. Furthermore, the fact that Michel was personally involved in exposing the Rwandan

government's use of torture has likely earned him few friends in the Rwandan government. He

therefore can show an individualized threat of harm, given his unique position as a U.S.


                                                   7
government translator in a case that exposed Rwanda's human-rights violations. Thus, the Niyibizis'

claim satisfies the changed country conditions requirement and supports the motion to reopen

proceedings.

        Further, the BIA denied the Niyibizis' motion without giving a "rational explanation."

Allabani, 402 F.3d at 675. The BIA opinion states: "[The respondents have presented no persuasive

evidence showing such changed circumstances in Rwanda. Further, and even more importantly, the

new evidence does not elevate the respondents' claim for relief to one of credibility." J.A. at 5 (BIA

Dec. 5/31/07) (emphasis added). Because we can look only to what the BIA said in its opinion in

determining if there has been an abuse of discretion, see Daneshvar, 355 F.3d at 626, we must

assume the BIA relied heavily on the earlier finding that the Niyibizis were not credible. This

reliance was in error; the Niyibizis' credibility at the earlier hearing before an IJ has no bearing on

the current claim for relief The Niyibizis do not seek asylum for the reasons originally rejected by

the BIA; rather, they seek asylum based on the current changed country conditions regarding

Rwanda. The evidence supporting this new claim is not testimonial evidence from Michel himself,

but rather the United States district court's findings in Karake and several letters from various U.S.

Department of Justice officials. Therefore, the Niyibizis' credibility is not at issue in this new claim

and should not have been relied on by the BIA when denying the motion to reopen.5 Further, the

facts that were in issue, whether there were changed conditions in Rwanda, were summarily




        5
         For the same reason, the AG's argument that the Niyibizis cannot overcome the adverse
credibility finding of the original IJ and, therefore, cannot demonstrate prima facie eligibility for the
underlying relief sought must also fail. As stated above, the credibility of the Niyibizis is not an issue
in this proceeding because the evidence supporting the new asylum application is not based on
testimony of the Niyibizis.

                                                    8
dismissed by the BIA in one quick sentence, completely lacking any explanation. Thus, we hold that

the BIA' s decision to deny the motion to reopen was an abuse of discretion.

       As to the issue of credibility, it is deeply troubling how cavalierly the U.S. government cast

aside the personal risks that Michel assumed in order to assist our country in its prosecution of

terrorists who took American lives in a brutal and callous fashion. Indeed, the Joint Appendix

includes letters from Assistant U.S. Attorney Brenda J. Johnson dated September 2, 2005, October

6, 2005, and December 7, 2005, each requesting that Michel travel to Washington, D.C. and assist

in the Karake case, observing that Michel would "meet with prosecutors to discuss matters relating

to the [Karake] case," and noting that Michel would be contacted by a representative of the U.S.

Department of Justice's "Victim Witness Assistance Unit." J.A. at 21-25.

       More troubling is that the same Department of Justice that trusted Michel to work on a

sensitive terrorism case in 2005-06 claims that Michel is not credible enough to remain in the United

States. Assistant U.S. Attorney Jonathan M. Malis wrote on November 29, 2006, that the U.S.

government was "dismayed to learn that Mr. Niyibizi[] is experiencing the immigration difficulties"

he was facing. J.A. at 18. AUSA Malis noted "[Michel] Niyibizi's important service to the

government in [the Karake] case," that "[Michel] Niyibizi has provided valuable assistance to the

government in the prosecution of the [Karake] case, . . . translated numerous documents from

Kinyarwanda into English[,] [and] served as an interpreter for the government during meetings,

witness interviews, and court appearances." Id. In sum, AUSA Malis wrote, "we came to rely

heavily on [Michel] Niyibizi for his language skills." Id. Although IJ Robert Newberry, in his oral

decision of October 18, 2004, had deemed Michel not credible and had said Michel's "story is

completely made up," referring to Michel's request for asylum and withholding of removal, J.A. at


                                                 9
319 (IJ' s Oral Dec. 10/18/04), nonetheless the U.S. Department of Justice relied within one year's

time on Michel's truthfulness as an interpreter. And after the Department of Justice began relying on

Michel's veracity and ability to interpret for the U.S. prosecution in the 2005-06 Karake terrorism

proceedings, the BIA affirmed the IF s denial of asylum on February 1, 2006, holding that "the

Immigration Judge's adverse credibility finding is not clearly erroneous." J.A. at 267 (BIA Dec.

2/1/06). The BIA then on May 31, 2007 denied the Niyibizis' motion to reopen on grounds of

untimeliness.

       The position the AG asks this court to take in this case would require this court to stamp with

approval one of two realities. Either the U.S. government has permitted an individual who is so

untrustworthy as to require removal from the United States to translate documents and witness

testimony for the government in a critical terrorism case, or the U.S. government has sent a message

that this country treats very poorly those who would risk their lives to help us pursue terrorists.

Neither reality is one we are willing to endorse.

                                       III. CONCLUSION

For these reasons, we GRANT the petition for review and REMAND to the BIA with the direction

that it consider on the merits the Niyibizis' motion to reopen.




                                                    10
       BOGGS, Chief Judge, dissenting. Rwanda is a country with a tragic and tortured past, and

an uncertain and unpleasant present. It is understandable that persons such as Mr. Niyibizi would

want to get out and be in United States. The Nyizibizis did, and tried to stay here with a story that

was found not credible, a decision that was affirmed at every level.



       Nevertheless, he was not a bad person – he had skills – and the United States sought to use

those skills in a laudable endeavor to prosecute those responsible for murders of Americans (while

sparing Frenchmen) in Rwanda.



       Quite probably, in my opinion, that service ought to merit him favorable consideration in one

of the many ways that the United States government and Attorney General can provide it, in letting

him stay, in recompense. However, that’s an “ought” – that’s not law. So, in this case we have to

look at law.



       In considering whether Niyibizi has demonstrated “changed country conditions,” we have

to be clear as to who is on what side. The Rwandan government wanted to punish the alleged

murderers; so did the United States; so did, apparently, Niyibizi – that’s the side he was helping.



       Unfortunately for all on that side, the United States district court didn’t agree with their case

– it made findings (over vociferous objections of the Department of Justice, the side Niyibizi was

helping), that were deeply embarrassing to the Rwandan government. See United States v. Karake,

443 F. Supp. 2d 8, 62-86 (reviewing the accounts of torture and abuse by the Rwandan government


                                                  11
and concluding “the conditions under which defendants were held . . . the abuse and mistreatment

they endured while being interrogated shock the conscience”).



       So, with that background, let’s examine the claim of changed country conditions.



       At some points, it appears that the changed conditions cited by the majority is that “we” now

know that the Rwandan government tortures some people (or at least that one United States court

says so). There is no indication that these events, lamentable as they may be, which occurred over

a 15-month period from 2001 to 2003, are really “changed” from the time the Niyibizis’ first

application was decided in 2004. Nor is there any indication that any general changes are relevant

to him personally.



       Indeed, the State Department Country report from 2000 (the one that would have been

relevant at the time of the application) indicates that prison conditions were harsh and torture used.

These are the same revelations as in Karake. Each country report between 2001 and 2004 also made

similar claims, with reports of torture increasing and decreasing but there is a baseline of tough

conditions, and “credible” allegations of torture against both prison officials and soldiers. If

anything, there is steady improvement with less harsh language used toward the middle of the 2000s.



       Even if this does constitute a change in country conditions, it is not explained why it is

material to Niyibizi’s asylum application. For example, if Nazi Germany “changed” conditions by

persecuting Buddhists as well as Jews, that would be a changed condition for Buddhists, but would


                                                 12
not affect the ability of atheists to reopen an asylum application because their individual risk of

persecution would remain unchanged. Niyibizi is not thought to be a murderer or in any way

associated with the anti-government forces found tortured in Karake – in fact, he was helping to

prosecute them.



       At other points, and more plausibly, there is an intimation that the failure of the prosecution

and the embarrassment of the Government of Rwanda by the holding of a federal judge would

redound to the personal detriment of Niyibizi – a “when the team loses, you fire the coach”

philosophy.



       But that is the epitome of a personal change in condition.



       I think precedent and legal structure compel us to find no abuse of discretion here – and urge

the Attorney General to look at this case and use some part of his voluminous arsenal of discretion

to permit Niybizi to stay for his services to our country and system of justice.



       The logic of the court’s charge that the BIA decided without “rational explanation” is weak.

The BIA clearly says that there is no evidence of changed conditions – and it is right. By adding a

word on credibility, which the court now finds fatal, it did no more than note that nothing in the new

application added to the credibility of personal danger against Niyibizi.




                                                 13
       Finally, with regard to the comment as to the “troubling” government action by the BIA’s

decision, or the government lawyers’ defense of it, I would think it quite the opposite. It would be

much more troubling if the Department of Justice’s relatively independent BIA, or the government

lawyers charged with defending the BIA’s decision, could be pressured by Department of Justice

prosecutors, because of Niybizi’s assistance, to “fix” a BIA decision directly, or now “throw” this

appeal. There is, to be sure, tension between the use of Niyibizi as a translator and the finding that

he was not credible. But these are not mutually exclusive “realities” – people, especially people that

are in extremely high stakes situations (staying or leaving the United States for a dangerous home

country), sometimes lie or fabricate because of the stress of the situation or the horror of the

alternative to their desired outcome. The IJ felt that was the case here. Those people are not always

universally untrustworthy or bad people – and, indeed, Niyibizi proved to be neither, admirably

helping our government and his government in the failed prosecution in Karake – and this court does

not need to pretend this is so. A denial of this petition for review would not put the imprimatur of

our court on an alleged impropriety by the Justice Department, it would only insist that when asylum

applications are reviewed, we emphasize the legal requirements of the Immigration and

Naturalization Act. Again, it is my hope the Attorney General exercises his discretion in favor of

Niyibizi, but that hope should not alter the stringent requirements for reopening a failed asylum

application.




                                                 14
