                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             AUG 19 2014

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

JAGJIT SINGH BAINS,                              No. 09-71092

              Petitioner,                        Agency No. A072-683-448

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

              Respondent.



JAGJIT SINGH BAINS,                              No. 09-73359

              Petitioner,                        Agency No. A072-683-448

  v.

ERIC H. HOLDER, Jr., Attorney General,

              Respondent.


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

                       Argued and Submitted June 16, 2014
                              Seattle, Washington


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

      Jagit Singh Bains, a prominent Sikh activist who, before coming to the

United States, was detained, beaten with belts and sticks, and had his legs pressed

with a heavy wooden roller by the Indian police, petitions for review of a Board of

Immigration Appeals (BIA) decision denying his motion to reopen an in-absentia

deportation order. Bains seeks to reopen his case so that he can apply for asylum,

withholding of deportation, and protection under the Convention Against Torture

based on changed circumstances in India. He also seeks to reopen based on

ineffective assistance of counsel. We have jurisdiction under 8 U.S.C. § 1252(a)

and grant the petition.1

      We review the BIA’s denial of a motion to reopen for abuse of discretion.

Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir. 2002). The BIA abuses its

discretion when it acts “arbitrarily, irrationally, or contrary to law.” Singh v. INS,

213 F.3d 1050, 1052 (9th Cir. 2000).




          **
             The Honorable Benjamin H. Settle, District Judge for the U.S. District
Court for the Western District of Washington, sitting by designation.
      1
            The parties are familiar with the facts of this case, so we will not
recount them here.

                                           2
      1.     A party may generally only file one motion to reopen within ninety

days of the entry of the final administrative order of removal. 8 U.S.C. §

1229a(c)(7)(C)(i). This time limit does not apply, however, where the motion to

reopen is “based on changed circumstances arising in the country of nationality or

in the country to which deportation has been ordered, if such evidence 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).2 “The critical question is . . .

whether circumstances have changed sufficiently that a petitioner who previously

did not have a legitimate claim for asylum now has a well-founded fear of future

persecution.” Malty v. Ashcroft, 381 F.3d 942, 945 (9th Cir. 2004). A petitioner

need not show unrelated evidence of persecution. Instead, he must present new

evidence that was previously unavailable and is “qualitatively different from the

evidence presented at his asylum hearing.” Id. A change in personal

circumstances does not qualify as a change in country circumstances. See

Najmabadi v. Holder, 597 F.3d 983, 991 (9th Cir. 2010). Finally, “[t]he BIA and

this court are under an affirmative obligation to ‘accept as true the facts stated in

      2
             Bains argues that the BIA applied an incorrect standard in rejecting
his motion to reopen, because it required him to show changed country conditions
rather than changed circumstances. But the Board’s order denying his motion to
reopen only mentioned changed circumstances, and this court uses the terms
interchangeably. See, e.g., Toufighi v. Mukasey, 538 F.3d 988, 993 (9th Cir. 2008).

                                           3
[petitioner’s] affidavit in ruling upon his motion to reopen unless [we find] those

facts to be inherently unbelievable.’” Avagyan v. Holder, 646 F.3d 672, 678–79

(9th Cir. 2011) (quoting Ghahremani v. Gonzales, 498 F.3d 993, 999 (9th Cir.

2007)).

      Here, Bains presented new, material evidence that changes in India have

increased his fear of persecution. The BIA made no finding that the facts alleged

in Bains’s declaration are inherently unbelievable, so it was required to accept

them as true. Avagyan, 646 F.3d at 679. Most significantly, Bains described a July

2008 incident where Baljinder Singh, a friend who had visited Bains in the United

States, was attacked, stabbed, and tortured by four men after returning to India.

The attackers asked Singh questions about Bains, which Singh refused to answer.

Singh’s account is supported by a hospital record documenting his injuries. Bains

also declared that he received many phone calls from people in India threatening to

kill him for printing materials criticizing the Indian government.

      The BIA denied Bains’s motion to reopen because it decided he alleged “no

material change in India” and because it considered his allegations to show only a

change in his personal circumstances. The BIA understood that the harm Bains

faces is the result of activities he has engaged in since coming to this country. But

if Bains’s allegations are accepted as true, his evidence establishes a continuation


                                          4
of the activities he was engaged in while in India that resulted in him being beaten

and physically abused by the police, and more recent and specific targeting of him

in India. Bains alleges a serious increase in the intensity of the threat of harm he

faces in India. This new “qualitatively different” evidence established a change of

country conditions. Malty, 381 F.3d at 945,

      2.     Because we grant the petition for review, we need not address whether

the BIA abused its discretion in rejecting Bains ineffective assistance of counsel

claim or whether time limitations on motions to reopen violate international

agreements and deprive petitioners of due process when they are seeking relief

under the Convention Against Torture.

      We GRANT the petition to review with instructions to reopen.




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