Etemadi v. Garland, No. 18-72318 (9th Cir. 2021)Annotate this Case
The Ninth Circuit granted a petition for review of the BIA's decision denying petitioner's motion to reopen based on changed country conditions. Petitioner fears persecution if he is deported to Iran based on his Christian faith.
The panel concluded that, because the law-of-the-case doctrine applies to legal issues, and because the prior panel decided a facts-predominant mixed question of law and fact, the law-of-the-case doctrine likely does not apply here at all. Furthermore, even if it does, the first exception to the law-of-the-case doctrine applies to petitioner's case. After reviewing the record, the panel concluded that the prior panel's decision, which was unsupported by substantial evidence, was clearly erroneous and enforcing it against petitioner would be unjust. In this case, the prior panel ignored the IJ's factual and legal errors; the prior panel accepted the IJ's incorrect application of the falsus maxim; and the prior panel accepted the IJ's violation of Kamalthas v. INS, 251 F.3d 902 (7th Cir. 2000). The panel also concluded that petitioner had not waived any challenge to the Board's interpretation of 8 U.S.C. 1003.2(c)(1), and determined on de novo review that petitioner was not required to include a new application for relief when he had previously submitted an application for relief based on his religious persecution claim. Finally, the panel concluded that the Board abused its discretion in determining that plaintiff failed to establish changed country conditions or prima facie eligibility for CAT relief. Accordingly, the panel remanded for further proceedings.