concluding that the agency had erred as a matter of law by requiring that "an asylum applicant, in order to excuse a delay in filing beyond the one-year deadline, demonstrate that he would not have been eligible for asylum had he applied before the change"
How later courts described this case
- concluding that the agency had erred as a matter of law by requiring that "an asylum applicant, in order to excuse a delay in filing beyond the one-year deadline, demonstrate that he would not have been eligible for asylum had he applied before the change"
- holding that the IJ’s decision was not based on substantial evidence where it “failed to consider several critical pieces of evidence”
- remanding because the BIA categorically determined that “incremental change” (or change that strengthened an applicant’s pre-existing fear of persecution) could not satisfy the changed circumstances exception
- exercising jurisdiction where the petitioner sought to “determine as a matter of law whether the IJ improperly required that they prove something not required by the statute”
Written by the judges who cited it.
The opinion
*434 MERRITT, Circuit Judge,
concurring.
I join Judge Moore’s opinion sending this case back to the BIA for reconsideration. In addition to the reasons she gives based on asylum, the most recent State Department Country Report for 2013 for Zimbabwe states that President Robert Mugabe was reelected on July 31, 2013, in an election that “was neither fair nor credible,” using “a process effectively negating the right of citizens to choose their government.” The 2013 Report describes the current situation in the country as follows:
The most important human rights problems remained the government’s targeting for torture, abuse, arrest, and harassment members of non-ZANU-PF parties and civil society activists; partisan application of the rule of law by security forces and the judiciary; the government’s compulsory acquisition of private property and restrictions on civil liberties.
A 21-page Report follows this language. It describes in detail human rights violations that run the gamut from widespread rape to widespread slavery. This is certainly no place for the United States to send this family of five, who are non-ZANU-PF with a history of political activism. The Report describes violations of the Convention Against Torture that this family could probably not escape. The BIA should reconsider its former position when it took no action. The 2013 Country Report would be a good place for the BIA to start its reconsideration.