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.

1 At a stated term of the United States Court of Appeals for 

2 the Second Circuit, held at the Thurgood Marshall United States 

3 Courthouse, 40 Foley Square, in the City of New York, on the 

2nd 4 day of March, two thousand eighteen. 

5 

6 PRESENT: 

7 RICHARD C. WESLEY,

8 PETER W. HALL, 

9 DENNY CHIN,

10 Circuit Judges. 

11 _____________________________________ 

12 

13 EDWIN FRU NGUTI, 

14 Petitioner, 

15 

16 v. 15-3461 

17 NAC 

18 JEFFERSON B. SESSIONS III, UNITED 

19 STATES ATTORNEY GENERAL, 

20 Respondent. 

21 _____________________________________ 

22 

23 FOR PETITIONER: Cleland B. Welton, II, Quinn 

24 Emanuel Urquhart & Sullivan, LLP, 

25 New York, NY. 

26 

27 FOR RESPONDENT: Chad A. Readler, Acting Assistant 

28 Attorney General; Shelley R. Goad, 

29 Assistant Director; Kristen 

30 Giuffreda Chapman, Trial Attorney, 

31 Office of Immigration Litigation, 

32 United States Department of Justice, 

33 Washington, DC. 
2

1 UPON DUE CONSIDERATION of this petition for review of a 

2 Board of Immigration Appeals (“BIA”) decision, it is hereby 

3 ORDERED, ADJUDGED, AND DECREED that the petition for review is 

4 GRANTED. 

5 Petitioner Edwin Fru Nguti, a native and citizen of 

6 Cameroon, seeks review of a September 28, 2015, decision of the 

7 BIA affirming an April 14, 2014, decision of an Immigration 

8 Judge (“IJ”) denying his motion to reopen. In re Edwin Fru 

9 Nguti, No. A095 896 806 (B.I.A. Sept. 28, 2015), aff’g No. A095 

10 896 806 (Immig. Ct. Buffalo Apr. 14, 2014). We assume the 

11 parties’ familiarity with the underlying facts and procedural 

12 history in this case. 

13 We have reviewed both the IJ’s and the BIA’s opinions “for 

14 the sake of completeness.” Wangchuck v. Dep’t of Homeland 

15 Sec., 448 F.3d 524, 528 (2d Cir. 2006). The applicable 

16 standards of review are well established. Jian Hui Shao v. 

17 Mukasey, 546 F.3d 138, 168-69 (2d Cir. 2008). In his motion 

18 to reopen, Nguti sought to file a successive asylum application, 

19 asserting that conditions in Cameroon had changed such that he 

20 has a well-founded fear of persecution on account of his support 

21 for the opposition political party. 

22 An alien seeking to reopen proceedings may file a motion 

23 to reopen no later than 90 days after the date on which the final 
3

1 administrative decision was rendered. 8 U.S.C. 

2 § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). Although 

3 Nguti’s motion to reopen was untimely filed, the IJ erred in 

4 finding Nguti’s counsel’s admission of fault irrelevant to the 

5 issue of timeliness. Indeed, a showing of ineffective 

6 assistance of counsel may equitably toll the filing period for 

7 a motion to reopen. See Iavorski v. U.S. INS, 232 F.3d 124, 

8 134 (2d Cir. 2000); see also Yi Long Yang v. Gonzales, 478 F.3d 

9 133, 143 (2d Cir. 2007) (concluding that a movant satisfies the 

10 procedural requirements for raising an ineffective assistance 

11 claim when the claim is clear on the face of the record). 

12 The agency also erred in rejecting Nguti’s evidence. The 

13 agency relied primarily on perceived inconsistencies between 

14 Nguti’s 2002 asylum application and the successive application 

15 submitted with his 2014 motion to reopen. Specifically, the 

16 agency found that Nguti’s 2002 application asserted that 

17 Cameroonian officials had arrested and beaten him on four 

18 occasions, while, on his 2014 application, he checked a box 

19 reflecting that he had not been harmed or mistreated in Cameroon 

20 in the past, and his attached declaration stated that he had 

21 been tortured without detail. However, Nguti’s 2014 asylum 

22 application did not deny that he had been harmed in the past 

23 in conflict with his first application. Question 1 on the 
4

1 asylum application form asks the applicant to identify the 

2 protected ground for the asylum claim; subparts A and B ask the 

3 applicant to specify whether the claim is based on past harm 

4 and/or a fear of future harm. Although question 1, subpart A 

5 states, “Have you . . . ever experienced harm or mistreatment 

6 or threats in the past by anyone,” when read in the context of 

7 the introduction to question 1, Nguti’s “No” response merely 

8 indicated that he was not applying for asylum based on past harm 

9 but rather solely based on his fear of future harm. 

10 In fact, Nguti was ineligible to apply for asylum based on 

11 past harm in a successive asylum application filed more than 

12 12 years after his arrival in the United States. See 8 U.S.C. 

13 § 1158(a)(2)(B), (D). Furthermore, the agency erred in 

14 faulting Nguti for omitting details of his past harm or evidence 

15 to corroborate that harm given that they were not the basis of 

16 his application. Cf. Pavlova v. INS, 441 F.3d 82, 90 (2d Cir. 

17 2006) (concluding that the IJ erred in questioning an 

18 applicant’s credibility based on her failure to provide 

19 specific details in the general description of her claim 

20 provided in her application). 

21 In addition, the agency rejected a summons and a medical 

22 certificate, explaining that the documents were not 

23 authenticated and the chain of custody was not established. 
5

1 However, the agency abused its discretion by failing to analyze 

2 Nguti’s evidence of chain of custody: his uncle’s affidavit and 

3 supporting evidence, and a receipt showing his father had mailed 

4 copies from Cameroon. See Poradisova v. Gonzales, 420 F.3d 70, 

5 81 (2d Cir. 2005) (recognizing that the agency has a duty to 

6 consider evidence that materially bears on a movant’s claim). 

7 The agency also declined to credit affidavits from Nguti’s 

8 father and nephew because the authors had not signed them; 

9 however, both letters are signed by notaries in front of whom 

10 the authors purportedly appeared. 

11 Because the agency’s errors infect all the bases for 

12 denying Nguti’s motion to reopen, we cannot confidently predict 

13 that remand would be futile. See Xiao Ji Chen v. U.S. Dep’t 

14 of Justice, 471 F.3d 315, 339 (2d Cir. 2006). It also appears 

15 that the IJ may have prejudged Nguti’s credibility and thus the 

16 BIA may wish to assign a new IJ if remand is necessary. 

17 For the foregoing reasons, the petition for review is 

18 GRANTED, the BIA’s order is VACATED, and the case is REMANDED 

19 for further proceedings consistent with this order. As we have 

20 completed our review, any stay of removal that the Court 

21 previously granted in this petition is VACATED, and any pending 

22 motion for a stay of removal in this petition is DISMISSED as 

23 moot. Any pending request for oral argument in this petition 
6

1 is DENIED as moot. See also Fed. R. App. P. 34(a)(2)(B); Second 

2 Circuit Local Rule 34.1(b). 

3 FOR THE COURT: 

4 Catherine O’Hagan Wolfe, Clerk