GARFIELD GREENWOOD V. MERRICK GARLAND, No. 17-72389 (9th Cir. 2022)
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Petitioner asserted that changed circumstances in his native Jamaica— a spike in violence against members of the People’s National Party—justified his untimely second motion to reopen. Because an Immigration Judge in an earlier proceeding found Petitioner not credible and questioned his actual identity, the Board of Immigration Appeals (“Board”) ruled that the new evidence of political violence did not matter because Petitioner may not even be a member of the People’s National Party.
The Ninth Circuit denied in part and dismissed in part holding that the Board may rely on a previous adverse credibility determination to deny a motion to reopen if that earlier finding still factually undermines the petitioner’s new argument. The court concluded that the Board did not abuse its discretion in denying Petitioner’s motion to reopen. The court explained that to prevail on a motion to reopen alleging changed country conditions where the persecution claim was previously denied on adverse credibility grounds, the respondent must either overcome the prior credibility determination or show that the new claim is independent of the evidence that was found to be not credible.
Here, Petitioner did not challenge the adverse credibility finding but instead argued that his new evidence was independent of the evidence that was found to be not credible. The court rejected that argument. The court explained that the IJ had previously found Petitioner’s testimony about his identity not credible, thus undermining his entire claim. Moreover, Petitioner’s claims remained the same throughout his proceedings. The court concluded that the basis of Petitioner's motion to reopen therefore remained intertwined with his credibility problem.
Court Description: Immigration. Denying in part and dismissing in part Garfield Greenwood’s petition for review of the Board of Immigration Appeals’ denial of his motion to reopen based on changed country conditions, the panel held that the Board may rely on a previous adverse credibility determination to deny a motion to reopen if that earlier finding still factually undermines the petitioner’s new argument. Greenwood, AKA Errol Brown and Ivan Daniel, asserted that changed circumstances in his native Jamaica— a spike in violence against members of the People’s National Party—justified his untimely second motion to reopen. Because an Immigration Judge in an earlier proceeding found Greenwood not credible and questioned his actual identity, the Board ruled that the new evidence of political violence did not matter because Greenwood may not even be a member of the People’s National Party. The panel concluded that the Board did not abuse its discretion in denying Greenwood’s motion to reopen. Agreeing with Matter of F-S-N-, 28 I. & N. Dec. 1 (BIA 2020), the panel explained that to prevail on a motion to reopen alleging changed country conditions where the persecution claim was previously denied on adverse credibility grounds, the respondent must either overcome the prior credibility determination or show that the new claim is GREENWOOD V. GARLAND 3 independent of the evidence that was found to be not credible. Here, Greenwood did not challenge the adverse credibility finding, but instead argued that his new evidence was independent of the evidence that was found to be not credible. The panel rejected that argument. The panel explained that the IJ had previously found Greenwood’s testimony about his identity not credible, thus undermining his entire claim. Moreover, Greenwood’s claims remained the same throughout his proceedings—a fear of violence on account of political party membership. The panel concluded that the basis of Greenwood’s motion to reopen therefore remained intertwined with his credibility problem. The panel wrote that its decision was consistent with precedent requiring the Board to accept as true facts asserted in a motion to reopen unless they are “inherently unbelievable,” explaining that concerns of fair play and substantial justice, which generally arise because motions to reopen are decided without benefit of a hearing, do not apply if the IJ, who first heard the petitioner’s evidence, found the petitioner lacked credibility on the very grounds for which he seeks relief. The panel also rejected Greenwood’s argument that the adverse credibility determination was inconsequential and not pertinent to his asylum proceeding, explaining that Greenwood’s deception in using multiple false names and filing a fraudulent application for a United States passport went right to the issue in the case: his identity, including whether he really is a member of the claimed political party. The panel concluded that it lacked jurisdiction to review the Board’s discretionary determination that Greenwood 4 GREENWOOD V. GARLAND failed to establish exceptional circumstances to warrant sua sponte reopening.
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