                                                                              FILED
                            NOT FOR PUBLICATION                               MAR 24 2015

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



                            FOR THE NINTH CIRCUIT


DAVID SINGUI,                                    No. 10-71872

              Petitioner,                        Agency No. A072-538-658

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

              Respondent.



DAVID SINGUI, AKA Mpoupe Singui,                 No. 11-70160

              Petitioner,                        Agency No. A072-538-658

  v.

ERIC H. HOLDER, Jr., Attorney General,

              Respondent.


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

                       Argued and Submitted March 2, 2015
                              Pasadena, California


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: PREGERSON, FERNANDEZ, and NGUYEN, Circuit Judges.

      Petitioner David Singui petitions for review of the Board of Immigration

Appeals’ (“BIA”) denial of his untimely-filed motions to reopen proceedings. We

grant the petitions and remand with instructions to reopen Singui’s deportation

proceedings.

      1. Singui first argues that the BIA used the wrong standard in denying his

motions because it required him to show changed country conditions rather than

changed circumstances arising in the country. However, the BIA used both terms

interchangeably, as we have in our case law. See, e.g., Toufighi v. Mukasey, 538

F.3d 988, 993-94 (9th Cir. 2008); Malty v. Ashcroft, 381 F.3d 942, 945-47 (9th Cir.

2004). Therefore, the BIA did not apply the wrong standard to evaluate Singui’s

motions.

      2. Next, Singui argues that the BIA erred in concluding that he failed to

show changed circumstances in Cameroon, which is an exception that permits

untimely-filed motions to reopen. 8 C.F.R. § 1003.2(c)(2), (3). Singui submitted

new evidence that was not available at the time of the proceedings before the

Immigration Judge (“IJ”). The evidence included emails from another anti-

government activist who said that he was detained in 2008 and that the authorities

specifically asked him about Singui, several articles showing that the government


                                         2
continues to mistreat activists like Singui, and a 2010 news article stating that

Singui’s name appears on a government “black list” of individuals known for anti-

government political activism. We conclude that the BIA erred in rejecting

Singui’s evidence. First, in denying relief, the IJ previously found that Singui was

not credible, based in part on the lack of corroborating documentary evidence.

Singui’s new documents—the previously unavailable emails and

articles—therefore undermine part of the IJ’s rationale in making the adverse

credibility finding. See Bhasin v. Gonzales, 423 F.3d 977, 985-86 (9th Cir. 2005)

(ruling that the BIA abused its discretion by denying a motion to reopen where

new evidence “completely undermined” the IJ’s rationale for denying the

petitioner’s asylum application). Second, while the evidence Singui presented to

the IJ was principally a showing of past mistreatment in Cameroon, Singui’s new

materials suggest Cameroon has in recent years both targeted him specifically and

persecuted a man who participated in the same political activism as Singui. His

new evidence therefore appears “qualitatively different” from the evidence

previously presented to the IJ. See Malty, 381 F.3d at 945-47 (ruling that the BIA

should have reopened where new evidence showed persecutors in Egypt were

specifically targeting the petitioner and attacking similarly-situated family




                                          3
members, in contrast to previous evidence limited to incidents of harassment and

discrimination).

      Third, the BIA improperly faulted Singui for failing to submit an affidavit in

support of his motions to reopen, but the relevant regulation permits the

submission of evidentiary material without an accompanying sworn statement. See

8 C.F.R. § 1003.2(c)(1); Indradjaja v. Holder, 737 F.3d 212, 219 (2d. Cir. 2013)

(stating that 8 C.F.R. § 1003.2(c)(1) “does not mandate that any affidavit be

submitted, let alone require one specifically from the petitioner.”). Finally, the

BIA’s conclusion that Singui’s evidence merely shows a continuation of the same

conditions in Cameroon fails to recognize sufficiently that facts supporting

changed circumstances will almost always relate to the original claim. Thus, “[t]he

critical question is not whether the allegations bear some connection to a prior

application, but rather 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, 381 F.3d at 945.

      PETITIONS GRANTED with instructions to reopen.




                                          4
                                                                                FILED
Singui v. Holder, Nos. 10-71872, 11-70160
                                                                                 MAR 24 2015
FERNANDEZ, Circuit Judge, dissenting:                                        MOLLY C. DWYER, CLERK
                                                                              U.S. COURT OF APPEALS

      In my opinion the BIA properly decided that Singui had not submitted

sufficient supporting evidence to justify reopening in light of changed country

conditions. In fact, he filed no affidavits swearing to the truth of his statements or

authenticating or otherwise justifying his claims. That is a particular problem

where, as here, he had been found to lack credibility in the original proceeding for

a multitude of reasons. As the IJ stated, Singui’s “application for asylum was

replete with inconsistencies and discrepancies.”1 The majority’s denigration of the

BIA’s reliance on the lack of affidavits overlooks the Supreme Court’s statements

regarding the alien’s heavy burden2 and the importance of affidavits,3 which have

particular bite here in light of the prior adverse credibility determination.4 In fine,

Singui’s presentation was so weak that the BIA could properly determine that it did

not rise to the level of a prima facie case; the BIA did not abuse its discretion.

Thus, I respectfully dissent.


      1
       One of the grounds (the statement about the arrest of four individuals) was
both inconsistent and uncorroborated.
      2
       INS v. Abudu, 485 U.S. 94, 108–11, 108 S. Ct. 904, 913–15, 99 L. Ed. 2d
90 (1988); see also Young Sun Shin v. Mukasey, 547 F.3d 1019, 1025 (9th Cir.
2008).
      3
       See INS v. Jong Ha Wang, 450 U.S. 139, 143, 101 S. Ct. 1027, 1030, 67 L.
Ed. 2d 123 (1981) (per curiam).
      4
       See Toufighi v. Mukasey, 538 F.3d 988, 995 (9th Cir. 2008).
