                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              APR 22 2014

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

GUANZHEN LING,                                   No. 10-73455

              Petitioner,                        Agency No. A098-462-411

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

              Respondent.


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

                            Submitted April 10, 2014**
                               Pasadena, California

Before: THOMAS, M. SMITH, and CHRISTEN, Circuit Judges.

       Guanzhen Ling petitions for review of the Board of Immigration Appeals’

(BIA) order denying his motion to reopen for reapplication for asylum based on

events that transpired after his original applications for asylum, withholding of



        *
             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).
removal, and protection under the Convention Against Torture were denied by an

Immigration Judge (IJ).

      The government argues that Ling’s motion to reopen was properly denied on

the basis of his prior adverse credibility finding, and that this outcome is consistent

with our rule that facts stated in affidavits supporting a motion to reopen must be

accepted as true for purposes of deciding the motion unless “inherently

unbelievable,” Najmabadi v. Holder, 597 F.3d 983, 990 (9th Cir. 2010). We

disagree. The BIA did not deem the affidavits supporting Ling’s motion inherently

unbelievable, and it is not possible to accept those facts as true and also to

conclude that Ling is not entitled to have his motion granted.

      Our decision in Limsico v. INS, 951 F.2d 210 (9th Cir. 1991), is inapposite.

There, we concluded that “[a]lthough Limsico’s affidavits, if taken as true, showed

him to be of good moral character, the evidence developed at the prior hearing

demonstrated otherwise.” Id. at 213. We merely held that “[t]he Board may

properly consider both” the affidavits (taken as true) and specific evidence to the

contrary that was developed at a prior hearing. Id. at 214. We agreed that Limsico

failed to make a prima facie case, even if all the facts in his affidavits were true.

Id. at 213–14. Here, by contrast, the BIA concluded that Ling did not overcome

his prior adverse credibility determination, and discounted the affidavits filed with


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his motion to reopen, reasoning that “[t]he only corroborating evidence concerning

threats made against him is the statement from his wife, an interested witness who

is not subject to cross-examination.” This approach is incompatible with the

requirement that the BIA accept the facts stated in Ling’s affidavits as true unless

inherently unbelievable. Najmabadi, 597 F.3d at 990.

      Young Sun Shin v. Mukasey, 547 F.3d 1019 (9th Cir. 2008), cert. denied, 557

U.S. 905 (2009), does not support the government’s position. An alien seeking to

reopen proceedings must show that new evidence would likely change the result in

the case, id. at 1025, but when the evidence consists of uncontroverted facts stated

in affidavits, the BIA must simply accept the facts as true and evaluate the motion

on this basis. See Najmabadi, 597 F.3d at 990. Accordingly, we grant the petition

for review and remand to the BIA with instructions to reopen proceedings.

      PETITION FOR REVIEW GRANTED; REMANDED.




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