Tin Win v. Eric H. Holder Jr. , 511 F. App'x 663 ( 2013 )

FILED
NOT FOR PUBLICATION MAR 18 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TIN WIN, No. 08-73738
Petitioner, Agency No. A075-728-631
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 5, 2013**
Pasadena, California
Before: GOODWIN, WARDLAW, and GOULD, Circuit Judges.
Tin Win, a native and citizen of Burma, petitions for review of the Board of
Immigration Appeals’ (“BIA”) dismissal of his appeal from an Immigration
Judge’s (“IJ”) denial of his application for asylum as untimely. Under 8 U.S.C. §
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
1252(a)(2)(D), we have jurisdiction over questions involving the application of the
“changed circumstances” rule for excusing delayed asylum applications, see 8
U.S.C. § 1158(a)(2)(D), as long as the underlying facts are undisputed.1
See Ramadan v. Gonzales, 479 F.3d 646, 650 (9th Cir. 2007). Because we
conclude that the agency improperly applied the “changed circumstances”
standard, we grant Win’s petition and remand for consideration of Win’s asylum
application on the merits.
The BIA and the IJ misapplied the statute when they concluded that Win had
failed to show changed circumstances that would materially affect his eligibility
for asylum that occurred more than one year after his arrival in the United States.
See 8 U.S.C. § 1158(a)(2)(B). Although Win held out hope that he might be able
to safely return to Burma, in 2000, he learned that a former political associate had
been arrested in Burma, that the individual had informed on him to the police, and
that Burmese authorities were actively pursuing him, leading him to conclude that
he could never return to Burma because he would again be imprisoned and beaten
1
Although the IJ initially made an adverse credibility determination, the BIA
subsequently remanded for reconsideration of Win’s credibility, and the IJ granted
Win withholding of removal on remand. We thus treat the facts of Win’s petition
as undisputed. See Lopez-Alvarado v. Ashcroft, 381 F.3d 847, 851 (9th Cir. 2004)
(“Absent an explicit adverse credibility finding, a witness’s testimony must be
accepted as true.”).
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because of his political activities. “By the Government’s own admission, the arrest
was further evidence of the persecution that [Win] suffered in [Burma],” which
would strengthen his claim for asylum and help rebut any attempt by the
government to prove that his fear of persecution was not well-founded. Singh v.
Holder, 656 F.3d 1047, 1053 (9th Cir. 2011) (internal quotation marks omitted).
Win may “still qualify for the changed circumstances exception even if the relevant
circumstances do not create a new basis of persecution but simply provide further
evidence of the type of persecution already suffered.” Id.; accord Vahora v.
Holder, 641 F.3d 1038, 1044 (9th Cir. 2011); Fakhry v. Mukasey, 524 F.3d 1057,
1063 (9th Cir. 2008). Thus, Win has established “the existence of changed
circumstances which materially affect the applicant’s eligibility for asylum,” 8
U.S.C. § 1158(a)(2)(D), an exception to the one-year bar, and his asylum
application may be considered. Id.Petition GRANTED; REMANDED.
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