Sinharib A. Thomas v. MERRICK B. GARLAND, Attorney General

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NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SINHARIB A. THOMAS,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 19-72235
Agency No. A090-904-828
MEMORANDUM*
On Petition for Review of an Order
From the Board of Immigration Appeals
Argued and Submitted October 6, 2020
Submission Deferred October 7, 2020
Resubmitted April 1, 2021
Seattle, Washington
Before: GRABER and W. FLETCHER, Circuit Judges, and FREUDENTHAL, **
District Judge
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Nancy D. Freudenthal, United States District Judge for
the District of Wyoming, sitting by designation.
FILED
APR 5 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Sinharib A. Thomas, a native of Iraq and an Assyrian Christian, petitions for
review of an order of the Board of Immigration Appeals (“BIA”) denying his
motion to reopen as untimely. We have jurisdiction under 8 U.S.C. § 1252, and we
review the denial for abuse of discretion. Agonafer v. Sessions, 859 F.3d 1198,
1202–03 (9th Cir. 2017). We grant the petition.
The BIA abused its discretion in concluding that country conditions had not
changed materially with respect to Thomas’ eligibility for relief under the
Convention Against Torture (“CAT”). The BIA was required to consider whether
country conditions changed materially such that Thomas “would more likely than
not experience torture ‘inflicted by, or at the instigation of, or with the consent or
acquiescence of, a public official . . . or other person acting in an official
capacity.’” Santos-Ponce v. Wilkinson, 987 F.3d 886, 891 (9th Cir. 2021) (quoting
8 C.F.R. § 1208.18(a)(1)). Affidavits and other evidentiary material in the record
describe new threats of severe violence and human rights abuses by self-ascribed
anti-American and anti-Christian militias that are now official parts of the Iraqi
security apparatus and have effective control of many areas throughout central and
southern Iraq. Although the 2008 State Department Report documents general
instability, violence, kidnapping, torture, and death, the material change supporting
Thomas’ CAT claim is the undisputed evidence of violence and human rights

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abuses against minorities by militias acting either as the government itself, or with
widespread impunity in Iraq.
Further, Thomas’ evidence has the requisite “individualized relevancy.”
Najmabadi v. Holder, 597 F.3d 983, 989–90 (9th Cir. 2010); Agonafer, 859 F.3d at
1206. Thomas specifically identified how his predicament is appreciably different
from the dangers faced by his fellow citizens: he has no Iraqi identification, does
not speak Arabic, has “a clearly Christian last name,” has no knowledge of Iraqi
culture, and has “Christian and Assyrian themed tattoos that will make it easy for
[certain] groups to target [him].” Those circumstances, combined with restrictions
on movement within Iraq, elevate his potential for visibility and change his
likelihood to be targeted for torture by or with the acquiescence of the Iraqi state.
The record details the various checks at multiple security checkpoints in Iraq,
making it extremely difficult for someone like Thomas to travel to a safe location.
Further, the lack of certain identity documents at a checkpoint would likely result
in arbitrary arrest, detention, and torture. This is especially true for single men
who are not fluent in Iraqi Arabic and cannot demonstrate residence in Iraq,
because they would come under intense scrutiny due to suspicion of ISIS
affiliation.
PETITION GRANTED. The case is REMANDED to the BIA with the
instruction to reopen proceedings.

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