Vahora

Robert B. Jobe and Arwin Swink, Law Office of Robert B. Jobe, San Francisco, CA, for the petitioner-appellant.

Tracie N. Jones, Trial Attorney, Office of Immigration Litigation, U.S. Department of Justice, Washington, DC, for the respondent-appellee.

Before: ALEX KOZINSKI, Chief Judge, STEPHEN REINHARDT, Circuit Judge, and ROBERT J. TIMLIN, [**] Senior District Judge.

Opinion by Judge TIMLIN; Dissent by Chief Judge KOZINSKI.

TIMLIN, District Judge:

Ayubbhai Vahora ("Vahora"), a native and citizen of India, petitions for review of the Board of Immigration Appeals ("BIA") dismissal of his appeal of the Immigration Judge's ("IJ") denial of his application for asylum. The IJ denied his application for asylum because he did not file it within one year of his arrival in the United States, as required by 8 C.F.R. § 208.4 (a)(2), and because he did not demonstrate "changed circumstances" sufficient to excuse his late filing under 8 C.F.R. § 208.4 (a)(5). We conclude that it was error not to find "changed circumstances" that warrant an exception to the one-year filing requirement, and we will grant the petition.

Vahora is a native and citizen of India who grew up and lived in the…

Opinion by Judge TIMLIN; Dissent by Chief Judge KOZINSKI.

OPINION

Ayubbhai Vahora (“Vahora”), a native and citizen of India, petitions for review of the Board of Immigration Appeals (“BIA”) dismissal of his appeal of the Immigration Judge’s (“U”) denial of his application for asylum. The IJ denied his application for asylum because he did not file it within one year of his arrival in the United States, as *1040 required by 8 C.F.R. § 208.4 (a)(2), and because he did not demonstrate “changed circumstances” sufficient to excuse his late filing under 8 C.F.R. § 208.4 (a)(5). We conclude that it was error not to find “changed circumstances” that warrant an exception to the one-year filing requirement, and we will grant the petition.

I.

FACTS AND PROCEDURAL HISTORY

Vahora is a native and citizen of India who grew up and lived in the state of Gujarat in India. His parents are deceased, and he has four living siblings, two brothers and two sisters. He is married and has three daughters. His entire family remains in India.

Vahora and his family are Sunni Muslim, and the village in which they live is predominantly Hindu. Vahora was a member of the local Sunni Muslim committee in…

dissenting:

The majority makes mincemeat of the one-year filing requirement. Illegal immigrants can now sit on their asylum claims indefinitely, assured that virtually any change in country conditions will excuse their lateness. This is contrary to the text and purpose of the statute, and runs roughshod over our precedent.

While a worsening of country conditions can sometimes constitute a “changed circumstance,” see Fakhry v. Mukasey, 524 F.3d 1057 (9th Cir.2008); see also 8 C.F.R. § 208.4 (a)(4)(i)(A), this worsening must “materially affect the applicant’s eligibility for asylum,” 8 U.S.C. § 1158 (a)(2)(D). What must be materially altered isn’t the country conditions, but the alien’s eligibility. Going from “eligible” to “still eligible” is no change at all, much less a material one. Under the plain language of the statute, a petitioner must show that, prior to the changed circumstances, he was ineligible for asylum.

Congress enacted IIRIRA “to expedite the physical removal of those aliens not entitled to admission to the United States.” Coyt v. Holder, 593 F.3d 902, 906 (9th Cir.2010); see also Morales-Izquierdo v. Gonzales, 486 F.3d 484, 494 (9th Cir.2007) (en banc)…