GARFIELD GREENWOOD , AKA Errol Brown, AKA Ivan Daniel v. MERRICK B. GARLAND , Attorney General

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GARFIELD G REENWOOD , AKA Errol
Brown, AKA Ivan Daniel,
Petitioner,
v.
M ERRICK B. GARLAND , Attorney
General,
Respondent.
No. 17-72389
Agency No.
A076-186-391
OPINION
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).

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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.

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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

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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

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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

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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,

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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,

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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”).

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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.

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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

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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.

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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.

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