Garfield Greenwood v. Merrick Garland

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GARFIELD GREENWOOD, AKA Errol No. 17-72389

Brown, AKA Ivan Daniel,

Petitioner, Agency No.

A076-186-391

v.

MERRICK B. GARLAND, Attorney OPINION

General,

Respondent.

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted March 9, 2022 *

Pasadena, California

Filed June 16, 2022

Before: Sandra S. Ikuta, Kenneth K. Lee, and

Danielle J. Forrest, Circuit Judges.

Opinion by Judge Lee

*

The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

2 GREENWOOD V. GARLAND

SUMMARY **

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

**

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

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.

COUNSEL

Katherine A. Owen, Law Offices of Zulu Ali, Riverside,

California, for Petitioner.

Brian Boynton, Acting Assistant Attorney General; Melissa

Neiman-Kelting, Assistant Director; Jessica A. Dawgert,

Senior Litigation Counsel; Lori B. Warlick and Thanh Lieu

Duong, Trial Attorneys; Office of Immigration Litigation,

Civil Division, United States Department of Justice,

Washington, D.C.; for Respondent.

OPINION

LEE, Circuit Judge:

We hold that the Board of Immigration Appeals (BIA)

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.

And our holding means that we must reject the argument

advanced by Garfield Greenwood, AKA Errol Brown and

Ivan Daniel. He 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. But the Immigration Judge (IJ) in an

earlier proceeding found him not credible and questioned his

actual identity. The BIA thus ruled that the new evidence of

political violence does not matter because Greenwood may

GREENWOOD V. GARLAND 5

not even be a member of the People’s National Party. We

agree, and deny in part and dismiss in part the petition. We

have jurisdiction under 8 U.S.C. § 1252.

BACKGROUND

In 1997, Garfield Greenwood tried to enter the United

States using a passport in the name of “Errol Brown,”

claiming to be a native of Jamaica and citizen of Canada.

The Immigration and Naturalization Service (INS)—the

former agency then mainly responsible for immigration

enforcement—determined that Greenwood was

inadmissible for not being in possession of a valid travel

document, not having a valid visa, and attempting to enter

the United States by fraud. See 8 U.S.C.

§§ 1182(a)(7)(A)(i)(I), (7)(B)(i)(I), (6)(C)(i). The INS then

ordered him administratively removed from the United

States under 8 U.S.C. § 1225(b)(1)(A)(i).

Greenwood later reentered the United States, and the

U.S. Department of Homeland Security (DHS) reinstated the

prior administrative removal order against him under the

name of “Errol Brown.” Greenwood stated that his

“complete and correct name” is “Garfield Greenwood” but

that he had used the names “Errol Brown” and “Ivan

Daniel.” He applied for withholding of removal and

protection under the Convention Against Torture. Before

the IJ, Greenwood claimed that he feared returning to

Jamaica because of his membership in the People’s National

Party and political violence by the opposing Jamaica Labor

Party, including the murder of his brother and nephew.

The IJ denied Greenwood’s application. The IJ found

that Greenwood lacked the credibility to establish his true

identity and that it “call[ed] into question his credibility with

his overall testimony regarding his claim.” The IJ based this

6 GREENWOOD V. GARLAND

determination on Greenwood’s use of multiple fake names,

his fraudulent passport, and an inability to establish his true

identity. The BIA affirmed the denial, and this court denied

his petition. See Greenwood v. Holder, 535 F. App’x 572

(9th Cir. 2013).

The next year, Greenwood moved to reopen, claiming

changed circumstances: after recent elections in Jamaica,

political violence had worsened. The BIA denied the

motion, holding that it was untimely, that the evidence of

changed conditions was insufficient, and that in any case the

evidence was not material to Greenwood because of the prior

adverse credibility finding against him. This court again

denied Greenwood’s petition for review. See Greenwood v.

Lynch, 656 F. App’x 336 (9th Cir. 2016).

Greenwood then filed a second motion to reopen, the

subject of this case. He again claimed changed country

conditions in Jamaica, claiming that his nephew was recently

murdered as a political payback. He also included a news

report about political violence in Jamaica, and a human

rights report about country conditions in Jamaica.

Greenwood further requested that the BIA reopen his

proceedings sua sponte.

The BIA denied the motion. It held that the alleged

change in country conditions was not material to Greenwood

because the IJ had earlier found Greenwood not credible

about his identity. It also declined to reopen the case sua

sponte because his case did not present “exceptional

circumstances.”

STANDARD OF REVIEW

The court reviews the BIA’s denial of a motion to reopen

for abuse of discretion. Nababan v. Garland, 18 F.4th 1090,

GREENWOOD V. GARLAND 7

1094 (9th Cir. 2021). The BIA abuses its discretion when its

decision is arbitrary, irrational, or contrary to law. Id.

ANALYSIS

I. The BIA Did Not Abuse its Discretion in Holding the

New Evidence Immaterial Because Greenwood

Lacked Credibility to Establish His Identity.

An alien may file one motion to reopen within ninety

days after a final removal order. 8 U.S.C. § 1229a(c)(7)(A),

(C); 8 C.F.R. § 1003.2(c)(2). An exception to that rule

applies if the motion is “based on changed country

conditions arising in the country of nationality” and “such

evidence is material and was not available and would not

have been discovered or presented at the previous

proceeding.” § 1229a(c)(7)(C)(ii). Greenwood invokes this

exception, given that he earlier moved to reopen and that his

second motion was filed more than ninety days after the

removal order.

Greenwood asserted changed conditions in Jamaica,

claiming that “the opposing party Jamaican Labor Party

would harm Petitioner who is part of the People’s National

Party.” To support his motion, Greenwood presented an

article about political strife and violence in Jamaica, a human

rights report, and his own declaration about his experiences

with political violence in Jamaica. Because Greenwood had

earlier moved to reopen based on the same reasons, the only

new piece of information was that his nephew was allegedly

murdered in 2017.

The BIA did not abuse its discretion in denying the

motion. It properly found that Greenwood lacked the

credibility to establish his identity. Without the credibility

to assert that he is a member of the People’s National Party,

8 GREENWOOD V. GARLAND

it does not matter whether political violence against that

party has worsened in Jamaica. This case is similar to Matter

of F-S-N- in which the BIA held that “to prevail on a motion

to reopen alleging changed country conditions where the

persecution claim was previously denied based on an

adverse credibility finding in the underlying proceedings, the

respondent must either overcome the prior determination or

show that the new claim is independent of the evidence that

was found to be not credible.” 28 I. & N. Dec. 1, 3 (BIA

2020). If the materiality of the evidence on changed country

conditions “is contingent, in part or in whole, on factors that

were determined to lack credibility and have not been

rehabilitated, the respondent’s ability to successfully

establish prima facie eligibility may be undermined.” Id.

at 4.

We agree that the BIA’s reasoning and conclusion in

Matter of F-S-N- is a correct interpretation of the

requirement in § 1229a(c)(7)(C)(ii) that an otherwise

untimely motion to reopen must be based on evidence of

changed country conditions that “is material.” 1 The BIA can

thus reject a motion to reopen by relying on a previous

adverse credibility determination if that earlier finding

factually undermines the petitioner’s new claim. In

layman’s terms, an earlier untruthful statement still remains

1

See also Kaur v. BIA, 413 F.3d 232, 234 (2d Cir. 2005)

(“[E]vidence submitted by petitioner in support of . . . motion was not

‘material’ because it did not rebut the adverse credibility finding that

provided the basis for the IJ’s denial of petitioner’s underlying asylum

application.”); Zhang v. Mukasey, 543 F.3d 851, 855 (6th Cir. 2008)

(holding that the denial of a motion to reopen was not abuse of discretion

where petitioner “made no attempt—either before the Board or this

court—to rehabilitate her credibility”).

GREENWOOD V. GARLAND 9

untruthful and can undercut a petitioner’s new claim in a

later proceeding.

Here, Greenwood does not challenge the BIA’s adverse

credibility finding. His argument hinges on showing that the

current claim “is independent of the evidence that was found

to be not credible.” F-S-N-, 28 I. & N. Dec. at 3. But the IJ

found that Greenwood’s testimony about his identity was not

credible, which undermined his entire testimony—including

his membership in a political party, whether he and his

family suffered violence, and if that violence was politically

related. Further, his claims have remained the same

throughout his proceedings. See Greenwood, 656 F. App’x

336; Greenwood, 535 F. App’x 572. The basis of

Greenwood’s motion to reopen—a fear of violence on

account of political party membership—thus remains

intertwined with his credibility problem.

Our precedent also underscores that the BIA did not

abuse its discretion. In Toufighi v. Mukasey, 538 F.3d 988,

994 (9th Cir. 2008), the petitioner feared persecution in Iran

because he claimed to have converted to Christianity. But

the BIA “found that the newly available evidence presented

by Toufighi relating to persecution of Christians in Iran was

irrelevant because the IJ had already determined that

Toufighi had not converted to Christianity.” Id. The court

agreed, holding “the new evidence regarding persecution of

apostates immaterial” because “it had already been

conclusively determined that he was not an apostate, and that

Iranian officials would not impute this status to him.” Id. at

996–97. We thus held that “the Board did not abuse its

discretion in concluding that his evidence of changed

country conditions was not ‘material’ to his claim.” Id.

at 997.

10 GREENWOOD V. GARLAND

The reasoning of Toufighi applies here. The IJ found that

Greenwood lacked the credibility to establish his true

identity and that it “call[ed] into question his credibility with

his overall testimony regarding his claim.” Greenwood’s

claim that he is a member of the People’s National Party is

thus not credible. Just as in Toufighi, the new evidence of

political violence in Jamaica is not material to his claim

because he lacks the credibility to connect those conditions

to himself.

Our decision today is consistent with our precedent that

“[i]n considering a motion to reopen, the BIA must accept as

true the facts asserted by the petitioner, unless they are

‘inherently unbelievable.’” Agonafer v. Sessions, 859 F.3d

1198, 1203 (9th Cir. 2017) (quoting Limsico v. INS, 951 F.2d

210, 213 (9th Cir. 1991)). The origin of this holding traces

to our concern that “because motions to reopen are decided

without benefit of a hearing, common notions of fair play

and substantial justice generally require that the Board

accept as true the facts stated in an alien’s affidavits in ruling

on his or her motion.” Reyes v. INS, 673 F.2d 1087, 1090

(9th Cir. 1982). In contrast, “where some of the evidence is

developed at a hearing, the [Board] is of course free to

interpret that evidence free from inferences in favor of the

moving party.” Limsico, 951 F.2d at 213.

These concerns of fair play and substantial justice 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. This is especially so where the

petitioner (like Greenwood here) does not challenge the

adverse credibility determination. Greenwood already

presented evidence at a hearing before the IJ, and the IJ

found him to lack credibility about his purported

membership in that political party. It would defy common

GREENWOOD V. GARLAND 11

sense to require the BIA to accept as true the assertions that

the IJ previously found incredible.

Greenwood also argues that the adverse credibility

determination is “inconsequential and not pertinent” to his

asylum proceeding. He relies on Bassene v. Holder,

737 F.3d 530, 536–37 (9th Cir. 2013), in which the court

held that it was error to make an adverse credibility

determination because an asylum applicant had omitted

certain details on an application form where that form was

not meant to elicit such details. But Greenwood’s deception

goes far beyond those bounds. He has several times gone by

false names such that the IJ found that he could not establish

Greenwood’s true identity. And Greenwood was convicted

of filing a fraudulent application for a United States passport

under a false name. This deception goes right to the issue in

the case: his identity, including whether he really is a

member of the claimed political party. Greenwood’s

credibility has been undermined at its core, and so it is very

much “consequential and pertinent” to his claims for relief.

In sum, the BIA did not abuse its discretion in denying

his motion to reopen.

II. This Court Lacks Jurisdiction to Review the BIA’s

Decision Not to Reopen a Case Sua Sponte for

Exceptional Circumstances.

Greenwood also petitions the court to review the BIA’s

decision to deny reopening his case sua sponte. The BIA

may at any time, in its discretion, reopen sua sponte any

case. 8 C.F.R. § 1003.2(a). But this court lacks jurisdiction

to review discretionary decisions by the BIA not to reopen a

case sua sponte.

12 GREENWOOD V. GARLAND

In Ekimian v. INS, 303 F.3d 1153, 1158–60 (9th Cir.

2002), the court held that it lacked jurisdiction to review the

BIA’s refusal to reopen sua sponte because the “exceptional

situation” standard used by the agency did not provide a

sufficiently meaningful standard to permit appellate review.

“Ekimian’s holding that the ‘exceptional situation’

benchmark does not provide a sufficiently meaningful

standard to permit judicial review remains good law.”

Bonilla v. Lynch, 840 F.3d 575, 586 (9th Cir. 2016).

In declining to reopen Greenwood’s case sua sponte, the

BIA cited only to “exceptional circumstances” and offered

no legal or constitutional basis. This court thus lacks

jurisdiction.

CONCLUSION

We DENY in part Greenwood’s petition as to his motion

to reopen based on changed country conditions, and

DISMISS in part his petition seeking review of the BIA’s

exercise of its sua sponte discretion.