Nken v. Holder

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JEAN MARC NKEN, 

Petitioner,

v.

 No. 08-1813

ERIC H. HOLDER, JR., Attorney

General,

Respondent.



On Petition for Review of an Order

of the Board of Immigration Appeals.

Argued: September 22, 2009

Decided: October 30, 2009

Before MOTZ and KING, Circuit Judges, and

Mark S. DAVIS, United States District Judge for the

Eastern District of Virginia,

sitting by designation.

Petition for review granted; vacated and remanded by pub-

lished opinion. Judge Motz wrote the opinion, in which Judge

King and Judge Davis joined.

COUNSEL

ARGUED: Lindsay Claire Harrison, JENNER & BLOCK,

LLP, Washington, D.C., for Petitioner. Lindsay E. Williams,

2 NKEN v. HOLDER

UNITED STATES DEPARTMENT OF JUSTICE, Washing-

ton, D.C., for Respondent. ON BRIEF: Jared O. Freedman,

JENNER & BLOCK, LLP, Washington, D.C., for Petitioner.

Gregory G. Katsas, Assistant General Counsel, Civil Divi-

sion, David V. Bernal, Assistant Director, Jennifer Paisner

Williams, Senior Litigation Counsel, UNITED STATES

DEPARTMENT OF JUSTICE, Office of Immigration Litiga-

tion, Washington, D.C., for Respondent.

OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

Jean Marc Nken, a citizen of Cameroon, petitions for

review of the order of the Board of Immigration Appeals

("BIA") denying his motion to reopen his removal proceed-

ings. Because the BIA did not explain why Nken’s new evi-

dence failed to demonstrate a change of country conditions,

we grant the petition and remand to the BIA for further pro-

ceedings.

I.

In 2001, Nken applied for asylum, withholding of removal,

and protection under the Convention Against Torture, alleging

that he had suffered persecution in his home country of Cam-

eroon and feared further persecution should he return. An

immigration judge ("IJ") held a hearing on Nken’s applica-

tion, at which Nken testified. Highlighting inconsistencies in

Nken’s testimony, the IJ denied relief and ordered him

deported to Cameroon. Nken appealed to the BIA, which

remanded the case, noting that although the IJ apparently had

relied on credibility judgments to justify her order, she had

not made a specific adverse credibility finding. On remand in

2005, the IJ made such a finding, which, over a year later, the

BIA affirmed.

NKEN v. HOLDER 3

Over the next two years, Nken filed two unsuccessful

motions to reopen his removal proceedings. On May 7, 2008,

Nken filed a third motion to reopen based on changed country

conditions in Cameroon.* With his motion, Nken presented,

for the first time (1) a handwritten letter, dated March 18,

2008, from his brother in Cameroon, describing the danger

Nken would face if he returned there; (2) photographs of

Nken at a political demonstration outside the Cameroon

Embassy in Washington; and (3) news articles about

increased authoritarianism in Cameroon.

The handwritten letter from Nken’s brother, translated from

French, includes the following statements in support of

Nken’s claim of changed country conditions in Cameroon:

We wish you were here, but the recent events that

have hit our country and the repressions which fol-

lowed, pushed me to ask you not to come back

home.

...

Even myself I was arrested and I was brought to the

lake, where the gendarmes were listing all the stu-

dents from the 1990s and those who were members

of the demonstrations. I wouldn’t be released if my

name was on those lists. This is why I am begging

you not to come back to the country, because it is

really dangerous for you being one of those with

problems from the past.

...

*Generally, applicants can file only one motion to reopen, and must file

that motion within ninety days of the BIA’s final order of removal. 8

U.S.C. § 1229a(c)(7)(A), (C)(i) (2006). However, the statute offers an

exception for motions, like Nken’s third motion, which allege conditions

in the applicant’s country have changed. Id. § 1229a(c)(7)(C)(ii).

4 NKEN v. HOLDER

[M]ilitants like you and those who know a lot about

the political problems from the past are the ones get-

ting attention. Therefore, there is no question that if

you are coming in the country with any pretext your

life will be in a real danger.

(emphasis added).

The BIA denied Nken’s motion to reopen. In its short

order, the BIA noted the existence of the photos, the news

articles, and the letter from Nken’s brother, and then offered

three paragraphs of analysis of this evidence. In two of those

paragraphs, the BIA dismissed the photographs as immaterial

and the news articles as unrelated to Nken’s claim. The third

paragraph reads in its entirety:

On review, we find that the respondent has not pre-

sented sufficient facts or evidence to establish that

his motion falls within the "changed country condi-

tions" exception to the time limitation for motions to

reopen set forth at section 240(c)(7)(C)(ii) of the

Act. Notably, the respondent has failed to submit his

own statement or asylum application articulating his

persecution claim based on recent reports of civil

unrest in Cameroon. The respondent’s failure to set

forth his asylum claim based on recent events in

Cameroon is significant in this case where the Immi-

gration Judge’s adverse credibility determination

remains undisturbed. Also, it is well established that

tragic and widespread savage violence resulting from

civil war or military strife is not persecution.

(citation omitted). The BIA then concluded, stating that "[t]he

respondent’s motion for reopening based on changed country

conditions is denied."

Nken petitioned for review in this court and moved for a

stay of removal pending the outcome of his appeal. Following

NKEN v. HOLDER 5

circuit precedent, Teshome-Gebreegziabher v. Mukasey, 528

F.3d 330 (4th Cir. 2008), we denied Nken’s motion for a stay

in an unpublished order. Nken then applied to the Supreme

Court for a stay of removal pending resolution of his petition

for review, and asked, alternatively, that the Court grant cer-

tiorari to resolve a circuit split as to the appropriate standard

governing such stays. The Supreme Court granted certiorari

and vacated our order, agreeing with Nken that the correct

standard for obtaining a stay of removal is the "traditional"

four-factor test that balances the applicant’s likelihood of suc-

cess on the merits, the injury to the applicant if the stay is

denied, the injury to the government if the stay is granted, and

the public interest. Nken v. Holder, 129 S. Ct. 1749, 1760-62

(2009). The Supreme Court remanded the case to us "for

application of the traditional criteria." Id. at 1754.

At oral argument before us, the Government represented

that it would not remove Nken from the country before the

resolution of this appeal, including the entry of our mandate.

This representation, Nken agrees, renders moot the question

of whether the "traditional criteria" entitle Nken to a stay.

Accordingly, the only issue remaining is whether we should

grant Nken’s petition for review of the BIA’s denial of his

motion to reopen.

II.

A.

Courts review the BIA’s denial of a motion to reopen for

abuse of discretion, and grant a petition for review only if the

BIA decision is arbitrary, capricious, or contrary to law. Mas-

sis v. Mukasey, 549 F.3d 631, 636 (4th Cir. 2008). We give

such BIA decisions "extreme deference." Barry v. Gonzales,

445 F.3d 741, 744 (4th Cir. 2006). Even so, as we recently

explained, the BIA "abuses its discretion when it fails to offer

a reasoned explanation for its decision, distorts or disregards

important aspects of the alien’s claim." Hussain v. Gonzales,

6 NKEN v. HOLDER

477 F.3d 153, 155 (4th Cir. 2007) (internal quotation marks

omitted).

B.

In SEC v. Chenery Corp., 318 U.S. 80, 94 (1943), the

Supreme Court established that "the process of review

requires that the grounds upon which the administrative

agency acted be clearly disclosed and adequately sustained."

The Court thus held that "an administrative order cannot be

upheld unless the grounds upon which the agency acted . . .

were those upon which its action can be sustained." Id. at 95.

In recent years, the Supreme Court has specifically applied

the Chenery rule to petitions seeking review of BIA orders.

Thus the Court has explained that when a BIA order does not

demonstrate that the agency has considered an issue, "the

proper course, except in rare circumstances, is to remand to

the agency for additional investigation or explanation." INS v.

Ventura, 537 U.S. 12, 16 (2002) (per curiam) (internal quota-

tion marks omitted). This is so because a "‘judicial judgment

cannot be made to do service for an administrative judg-

ment.’" Id. (quoting Chenery, 318 U.S. at 88); see also Gon-

zales v. Thomas, 547 U.S. 183, 186–87 (2006) (holding that

remand to the BIA is the appropriate remedy). As we recently

explained in following Chenery to remand a similar case to

the BIA for further proceedings, "we cannot review the BIA’s

decision [when] the BIA has given us nothing to review." Li

Fang Lin v. Mukasey, 517 F.3d 685, 693–94 (4th Cir. 2008).

With these principles in mind, we turn to the case at hand.

III.

In denying Nken’s motion to reopen, the BIA held that

Nken had "not presented sufficient facts or evidence to estab-

lish that his motion falls within the ‘changed country condi-

tions’ exception." Although the BIA acknowledged receipt of

NKEN v. HOLDER 7

the new letter from Nken’s brother, it offered no explanation

as to why that letter—Nken’s strongest new evidence—

provided insufficient justification for reopening the proceed-

ings.

The Government maintains that, given the IJ’s previous

adverse credibility determination, the BIA’s acknowledge-

ment of Nken’s brother’s letter provides a sufficient basis for

us to affirm. That argument fails because although the BIA

did mention the IJ’s 2005 adverse credibility determination as

to Nken, it did not tie that determination to the 2008 letter

from his brother. Specifically, the BIA did not explain how

the prior adverse credibility determination with respect to

Nken himself rendered the recent letter from Nken’s brother

unbelievable. Nor did the BIA explain why its adverse credi-

bility determination as to Nken means that the facts set forth

in his brother’s letter do not justify reopening the removal

proceedings.

Of course, it is possible, as the Government argues, that the

BIA thought the letter from Nken’s brother unworthy of

belief. But it is also possible, as Nken maintains, that the BIA

arbitrarily refused to give the contents of that letter any

weight, or that the BIA found the letter credible but misread

it as including only general statements about unrest, and not

particular threats to Nken. From the text of the BIA order, we

simply do not know.

In such circumstances, a reviewing court must remand to

the administrative agency. Established precedent dictates that

a court may not guess at what an agency meant to say, but

must instead restrict itself to what the agency actually did say.

The Supreme Court established this rule in Chenery, and spe-

cifically applied it to BIA orders in Ventura and Thomas.

As we did in Lin, 517 F.3d at 693, our sister circuits have

consistently followed this guidance and applied the Chenery

rule in BIA cases similar to that at hand. See, e.g., Poradisova

8 NKEN v. HOLDER

v. Gonzales, 420 F.3d 70, 78 (2d Cir. 2005) ("When an appli-

cant moves to reopen his case based on worsened country

conditions, and introduces previously unavailable reports that

materially support his original application, the BIA has a duty

to consider these reports and issue a reasoned decision based

thereon, whether or not these reports are clearly determina-

tive." (emphasis omitted)); Vente v. Gonzales, 415 F.3d 296,

302 (3d Cir. 2005) ("When deficiencies in the BIA’s decision

make it impossible for us to meaningfully review its decision,

we must vacate that decision and remand so that the BIA can

further explain its reasoning." (internal quotation marks omit-

ted)); Sagaydak v. Gonzales, 405 F.3d 1035, 1040 (9th Cir.

2005) ("We think it goes without saying that IJs and the BIA

are not free to ignore arguments raised by a petitioner.");

Mengistu v. Ashcroft, 355 F.3d 1044, 1047 (7th Cir. 2004)

("[A]s we tirelessly repeat, an agency opinion that fails to

build a rational bridge between the record and the agency’s

legal conclusion cannot survive judicial review." (citation

omitted)).

Accordingly, because it is not apparent from the BIA order

that it considered the crux of Nken’s argument, we grant

Nken’s petition for review and remand the case to the BIA for

further proceedings.

PETITION FOR REVIEW GRANTED;

VACATED AND REMANDED