15-3461 Nguti v. Sessions BIA Montante, IJ A095 896 806 

### UNITED STATES COURT OF APPEALS **FOR THE SECOND CIRCUIT** 

## SUMMARY ORDER

**RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED**  **ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT**  = **S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED**  **WITH THIS**  **COURT, A**  **PARTY MUST**  **CITE EITHER**  **THE FEDERAL**  **APPENDIX OR**  **AN ELECTRONIC**  **DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY**  **OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for**  1 **the Second Circuit, held at the Thurgood Marshall United States** 2 **Courthouse, 40 Foley Square, in the City of New York, on the** 3 **2 nd**  **day of March, two thousand eighteen.** 4 5 **PRESENT:** 6 **RICHARD C. WESLEY,** 7 **PETER W. HALL,** 8 **DENNY CHIN,** 9 Circuit Judges. 10

**_____________________________________** 11 12 **EDWIN FRU NGUTI,** 13 Petitioner **,** 14 15 **v. 15-3461** 16 **NAC** 17 **JEFFERSON B. SESSIONS III, UNITED** 18 **STATES ATTORNEY GENERAL,** 19 Respondent **.** 20

**_____________________________________** 21 22 **FOR PETITIONER:** Cleland B. Welton, II, Quinn 23 Emanuel Urquhart & Sullivan, LLP, 24 New York, NY. 25 26 **FOR RESPONDENT:** Chad A. Readler, Acting Assistant 27 Attorney General; Shelley R. Goad, 28 Assistant Director; Kristen 29 Giuffreda Chapman, Trial Attorney, 30 Office of Immigration Litigation, 31 United States Department of Justice, 32 Washington, DC. 332 UPON DUE CONSIDERATION of this petition for review of a 1 Board of Immigration Appeals (“BIA”) decision, it is hereby 2 ORDERED, ADJUDGED, AND DECREED that the petition for review is 3

GRANTED. 4 Petitioner Edwin Fru Nguti, a native and citizen of 5 Cameroon, seeks review of a September 28, 2015, decision of the 6 BIA affirming an April 14, 2014, decision of an Immigration 7 Judge (“IJ”) denying his motion to reopen. In re Edwin Fru 8 Nguti, No. A095 896 806 (B.I.A. Sept. 28, 2015), aff’g No. A095 9 896 806 (Immig. Ct. Buffalo Apr. 14, 2014). We assume the 10 parties’ familiarity with the underlying facts and procedural 11 history in this case. 12 We have reviewed both the IJ’s and the BIA’s opinions “for 13 the sake of completeness.” Wangchuck v. Dep’t of Homeland 14

Sec. , 448 F.3d 524, 528 (2d Cir. 2006). The applicable 15 standards of review are well established. Jian Hui Shao v. 16 Mukasey , 546 F.3d 138, 168-69 (2d Cir. 2008). In his motion 17

to reopen, Nguti sought to file a successive asylum application, 18 asserting that conditions in Cameroon had changed such that he 19 has a well-founded fear of persecution on account of his support 20 for the opposition political party. 21 An alien seeking to reopen proceedings may file a motion 22 to reopen no later than 90 days after the date on which the final 233 administrative decision was rendered. 8 U.S.C. 1 § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). Although 2 Nguti’s motion to reopen was untimely filed, the IJ erred in 3 finding Nguti’s counsel’s admission of fault irrelevant to the 4 issue of timeliness. Indeed, a showing of ineffective 5 assistance of counsel may equitably toll the filing period for 6 a motion to reopen. See Iavorski v. U.S. INS , 232 F.3d 124, 7 134 (2d Cir. 2000); see also Yi Long Yang v. Gonzales , 478 F.3d 8 133, 143 (2d Cir. 2007) (concluding that a movant satisfies the 9 procedural requirements for raising an ineffective assistance 10 claim when the claim is clear on the face of the record). 11 The agency also erred in rejecting Nguti’s evidence. The 12 agency relied primarily on perceived inconsistencies between 13 Nguti’s 2002 asylum application and the successive application 14 submitted with his 2014 motion to reopen. Specifically, the 15 agency found that Nguti’s 2002 application asserted that 16 Cameroonian officials had arrested and beaten him on four 17 occasions, while, on his 2014 application, he checked a box 18 reflecting that he had not been harmed or mistreated in Cameroon 19 in the past, and his attached declaration stated that he had 20 been tortured without detail. However, Nguti’s 2014 asylum 21 application did not deny that he had been harmed in the past 22 in conflict with his first application. Question 1 on the 234 asylum application form asks the applicant to identify the 1 protected ground for the asylum claim; subparts A and B ask the 2 applicant to specify whether the claim is based on past harm 3 and/or a fear of future harm. Although question 1, subpart A 4 states, “Have you . . . ever experienced harm or mistreatment 5 or threats in the past by anyone,” when read in the context of 6 the introduction to question 1, Nguti’s “No” response merely 7 indicated that he was not applying for asylum based on past harm 8 but rather solely based on his fear of future harm. 9 In fact, Nguti was ineligible to apply for asylum based on 10 past harm in a successive asylum application filed more than 11 12 years after his arrival in the United States. See 8 U.S.C. 12 § 1158(a)(2)(B), (D). Furthermore, the agency erred in 13 faulting Nguti for omitting details of his past harm or evidence 14 to corroborate that harm given that they were not the basis of 15 his application. Cf. Pavlova v. INS , 441 F.3d 82, 90 (2d Cir. 16 2006) (concluding that the IJ erred in questioning an 17 applicant’s credibility based on her failure to provide 18 specific details in the general description of her claim 19 provided in her application). 20 In addition, the agency rejected a summons and a medical 21 certificate, explaining that the documents were not 22 authenticated and the chain of custody was not established. 235 However, the agency abused its discretion by failing to analyze 1 Nguti’s evidence of chain of custody: his uncle’s affidavit and 2 supporting evidence, and a receipt showing his father had mailed 3 copies from Cameroon. See Poradisova v. Gonzales , 420 F.3d 70, 4 81 (2d Cir. 2005) (recognizing that the agency has a duty to 5 consider evidence that materially bears on a movant’s claim). 6 The agency also declined to credit affidavits from Nguti’s 7 father and nephew because the authors had not signed them; 8 however, both letters are signed by notaries in front of whom 9 the authors purportedly appeared. 10 Because the agency’s errors infect all the bases for 11 denying Nguti’s motion to reopen, we cannot confidently predict 12 that remand would be futile. See Xiao Ji Chen v. U.S. Dep’t 13 of Justice , 471 F.3d 315, 339 (2d Cir. 2006). It also appears 14 that the IJ may have prejudged Nguti’s credibility and thus the 15 BIA may wish to assign a new IJ if remand is necessary. 16 For the foregoing reasons, the petition for review is 17 GRANTED, the BIA’s order is VACATED, and the case is REMANDED 18 for further proceedings consistent with this order. As we have 19 completed our review, any stay of removal that the Court 20 previously granted in this petition is VACATED, and any pending 21 motion for a stay of removal in this petition is DISMISSED as 22 moot. Any pending request for oral argument in this petition 236 is DENIED as moot. See also Fed. R. App. P. 34(a)(2)(B); Second 1 Circuit Local Rule 34.1(b). 2

FOR THE COURT: 3 Catherine O’Hagan Wolfe, Clerk 4