     15-3461
     Nguti v. Sessions
                                                                                       BIA
                                                                                Montante, IJ
                                                                               A095 896 806

                              UNITED STATES COURT OF APPEALS
                                  FOR THE SECOND CIRCUIT

                                    SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT
FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE
(WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1        At a stated term of the United States Court of Appeals for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   2nd day of March, two thousand eighteen.
 5
 6   PRESENT:
 7            RICHARD C. WESLEY,
 8            PETER W. HALL,
 9            DENNY CHIN,
10                 Circuit Judges.
11   _____________________________________
12
13   EDWIN FRU NGUTI,
14        Petitioner,
15
16                       v.                                          15-3461
17                                                                   NAC
18   JEFFERSON B. SESSIONS III, UNITED
19   STATES ATTORNEY GENERAL,
20        Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                     Cleland B. Welton, II, Quinn
24                                       Emanuel Urquhart & Sullivan, LLP,
25                                       New York, NY.
26
27   FOR RESPONDENT:                     Chad A. Readler, Acting Assistant
28                                       Attorney General; Shelley R. Goad,
29                                       Assistant Director; Kristen
30                                       Giuffreda Chapman, Trial Attorney,
31                                       Office of Immigration Litigation,
32                                       United States Department of Justice,
33                                       Washington, DC.
1         UPON DUE CONSIDERATION of this petition for review of a

2    Board of Immigration Appeals (“BIA”) decision, it is hereby

3    ORDERED, ADJUDGED, AND DECREED that the petition for review is

4    GRANTED.

5         Petitioner Edwin Fru Nguti, a native and citizen of

6    Cameroon, seeks review of a September 28, 2015, decision of the

7    BIA affirming an April 14, 2014, decision of an Immigration

8    Judge (“IJ”) denying his motion to reopen.     In re Edwin Fru

9    Nguti, No. A095 896 806 (B.I.A. Sept. 28, 2015), aff’g No. A095

10   896 806 (Immig. Ct. Buffalo Apr. 14, 2014).     We assume the

11   parties’ familiarity with the underlying facts and procedural

12   history in this case.

13        We have reviewed both the IJ’s and the BIA’s opinions “for

14   the sake of completeness.”    Wangchuck v. Dep’t of Homeland

15   Sec., 448 F.3d 524, 528 (2d Cir. 2006).     The applicable

16   standards of review are well established.     Jian Hui Shao v.

17   Mukasey, 546 F.3d 138, 168-69 (2d Cir. 2008).     In his motion

18   to reopen, Nguti sought to file a successive asylum application,

19   asserting that conditions in Cameroon had changed such that he

20   has a well-founded fear of persecution on account of his support

21   for the opposition political party.

22        An alien seeking to reopen proceedings may file a motion

23   to reopen no later than 90 days after the date on which the final

                                    2
1    administrative decision was rendered.      8 U.S.C.

2    § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2).      Although

3    Nguti’s motion to reopen was untimely filed, the IJ erred in

4    finding Nguti’s counsel’s admission of fault irrelevant to the

5    issue of timeliness.   Indeed, a showing of ineffective

6    assistance of counsel may equitably toll the filing period for

7    a motion to reopen.    See Iavorski v. U.S. INS, 232 F.3d 124,

8    134 (2d Cir. 2000); see also Yi Long Yang v. Gonzales, 478 F.3d

9    133, 143 (2d Cir. 2007) (concluding that a movant satisfies the

10   procedural requirements for raising an ineffective assistance

11   claim when the claim is clear on the face of the record).

12       The agency also erred in rejecting Nguti’s evidence.      The

13   agency relied primarily on perceived inconsistencies between

14   Nguti’s 2002 asylum application and the successive application

15   submitted with his 2014 motion to reopen.      Specifically, the

16   agency found that Nguti’s 2002 application asserted that

17   Cameroonian officials had arrested and beaten him on four

18   occasions, while, on his 2014 application, he checked a box

19   reflecting that he had not been harmed or mistreated in Cameroon

20   in the past, and his attached declaration stated that he had

21   been tortured without detail.       However, Nguti’s 2014 asylum

22   application did not deny that he had been harmed in the past

23   in conflict with his first application.       Question 1 on the

                                     3
1    asylum application form asks the applicant to identify the

2    protected ground for the asylum claim; subparts A and B ask the

3    applicant to specify whether the claim is based on past harm

4    and/or a fear of future harm.   Although question 1, subpart A

5    states, “Have you . . . ever experienced harm or mistreatment

6    or threats in the past by anyone,” when read in the context of

7    the introduction to question 1, Nguti’s “No” response merely

8    indicated that he was not applying for asylum based on past harm

9    but rather solely based on his fear of future harm.

10       In fact, Nguti was ineligible to apply for asylum based on

11   past harm in a successive asylum application filed more than

12   12 years after his arrival in the United States.   See 8 U.S.C.

13   § 1158(a)(2)(B), (D).   Furthermore, the agency erred in

14   faulting Nguti for omitting details of his past harm or evidence

15   to corroborate that harm given that they were not the basis of

16   his application.   Cf. Pavlova v. INS, 441 F.3d 82, 90 (2d Cir.

17   2006) (concluding that the IJ erred in questioning an

18   applicant’s credibility based on her failure to provide

19   specific details in the general description of her claim

20   provided in her application).

21       In addition, the agency rejected a summons and a medical

22   certificate, explaining that the documents were not

23   authenticated and the chain of custody was not established.

                                     4
1    However, the agency abused its discretion by failing to analyze

2    Nguti’s evidence of chain of custody: his uncle’s affidavit and

3    supporting evidence, and a receipt showing his father had mailed

4    copies from Cameroon.   See Poradisova v. Gonzales, 420 F.3d 70,

5    81 (2d Cir. 2005) (recognizing that the agency has a duty to

6    consider evidence that materially bears on a movant’s claim).

7    The agency also declined to credit affidavits from Nguti’s

8    father and nephew because the authors had not signed them;

9    however, both letters are signed by notaries in front of whom

10   the authors purportedly appeared.

11       Because the agency’s errors infect all the bases for

12   denying Nguti’s motion to reopen, we cannot confidently predict

13   that remand would be futile.    See Xiao Ji Chen v. U.S. Dep’t

14   of Justice, 471 F.3d 315, 339 (2d Cir. 2006).   It also appears

15   that the IJ may have prejudged Nguti’s credibility and thus the

16   BIA may wish to assign a new IJ if remand is necessary.

17       For the foregoing reasons, the petition for review is

18   GRANTED, the BIA’s order is VACATED, and the case is REMANDED

19   for further proceedings consistent with this order.   As we have

20   completed our review, any stay of removal that the Court

21   previously granted in this petition is VACATED, and any pending

22   motion for a stay of removal in this petition is DISMISSED as

23   moot.   Any pending request for oral argument in this petition

                                    5
1   is DENIED as moot.   See also Fed. R. App. P. 34(a)(2)(B); Second

2   Circuit Local Rule 34.1(b).

3                                 FOR THE COURT:
4                                 Catherine O’Hagan Wolfe, Clerk




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