Guanzhen Ling v. ERIC H. HOLDER, Jr., Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GUANZHEN LING,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 10-73455
Agency No. A098-462-411
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 10, 2014 **
Pasadena, California
Before: THOMAS, M. SMITH, and CHRISTEN, Circuit Judges.
Guanzhen Ling petitions for review of the Board of Immigration Appeals’
(BIA) order denying his motion to reopen for reapplication for asylum based on
events that transpired after his original applications for asylum, withholding of
FILED
APR 22 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

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removal, and protection under the Convention Against Torture were denied by an
Immigration Judge (IJ).
The government argues that Ling’s motion to reopen was properly denied on
the basis of his prior adverse credibility finding, and that this outcome is consistent
with our rule that facts stated in affidavits supporting a motion to reopen must be
accepted as true for purposes of deciding the motion unless “inherently
unbelievable,” Najmabadi v. Holder, 597 F.3d 983, 990 (9th Cir. 2010). We
disagree. The BIA did not deem the affidavits supporting Ling’s motion inherently
unbelievable, and it is not possible to accept those facts as true and also to
conclude that Ling is not entitled to have his motion granted.
Our decision in Limsico v. INS, 951 F.2d 210 (9th Cir. 1991), is inapposite.
There, we concluded that “[a]lthough Limsico’s affidavits, if taken as true, showed
him to be of good moral character, the evidence developed at the prior hearing
demonstrated otherwise.” Id. at 213. We merely held that “[t]he Board may
properly consider both” the affidavits (taken as true) and specific evidence to the
contrary that was developed at a prior hearing. Id. at 214. We agreed that Limsico
failed to make a prima facie case, even if all the facts in his affidavits were true.
Id. at 213–14. Here, by contrast, the BIA concluded that Ling did not overcome
his prior adverse credibility determination, and discounted the affidavits filed with
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his motion to reopen, reasoning that “[t]he only corroborating evidence concerning
threats made against him is the statement from his wife, an interested witness who
is not subject to cross-examination.” This approach is incompatible with the
requirement that the BIA accept the facts stated in Ling’s affidavits as true unless
inherently unbelievable. Najmabadi, 597 F.3d at 990.
Young Sun Shin v. Mukasey, 547 F.3d 1019 (9th Cir. 2008), cert. denied, 557
U.S. 905 (2009), does not support the government’s position. An alien seeking to
reopen proceedings must show that new evidence would likely change the result in
the case, id. at 1025, but when the evidence consists of uncontroverted facts stated
in affidavits, the BIA must simply accept the facts as true and evaluate the motion
on this basis. See Najmabadi, 597 F.3d at 990. Accordingly, we grant the petition
for review and remand to the BIA with instructions to reopen proceedings.
PETITION FOR REVIEW GRANTED; REMANDED.
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