Unreported / Non-Citable
Background
Gordian Dizeh Afungchwi, a native and citizen of Cameroon, petitioned for review of a Board of Immigration Appeals (BIA) decision dismissing his appeal from an Immigration Judge’s (IJ) denial of asylum. The IJ determined that Afungchwi would be entitled to asylum but for the Circumvention of Lawful Pathways Rule (CLP Rule), which creates a rebuttable presumption of asylum ineligibility for noncitizens who unlawfully crossed the southern border between May 11, 2023, and May 11, 2025, after traveling through a third country. The agency concluded Afungchwi failed to rebut this presumption. The Ninth Circuit had jurisdiction under 8 U.S.C. § 1252 and reviewed both the IJ and BIA decisions because the BIA adopted the IJ’s findings while adding its own reasoning.
The Court’s Holding
The Ninth Circuit granted the petition and remanded for further proceedings. The court held that Afungchwi demonstrated by a preponderance of the evidence that exceptionally compelling circumstances existed at the time of his entry, thereby rebutting the CLP Rule’s presumption of ineligibility. The court found it undisputed that Afungchwi was kidnapped by armed men the night he arrived in Mexico, held captive and beaten for three days until his family paid a $5,000 ransom, and crossed into the United States the night he reached Tijuana after his release. Because the CLP Rule provides that an alien who demonstrates an imminent threat of kidnapping ‘shall necessarily rebut the presumption,’ and Afungchwi experienced actual kidnapping, he satisfied the standard. The BIA erred by focusing on the absence of harm in Tijuana while ignoring that Afungchwi spent mere hours there before crossing the border.
Key Takeaways
- The CLP Rule’s presumption of asylum ineligibility is rebutted if an applicant demonstrates by a preponderance of the evidence any enumerated exceptionally compelling circumstance, including an imminent threat of kidnapping.
- Actual kidnapping and captivity for three days in Mexico, followed by immediate flight to the U.S. border, constitutes an ‘exceptionally compelling circumstance’ that necessarily rebuts the presumption under 8 C.F.R. § 1208.33(a)(3)(ii).
- The agency may not disregard the totality of an applicant’s journey by isolating the final hours in a border city when the applicant faced kidnapping and ransom demands immediately upon arrival in the transit country.
- The court did not need to reach the validity of the CLP Rule because Afungchwi qualified for asylum even assuming the rule’s validity.
- The petitioner’s emergency motion to stay removal was granted.
Why It Matters
This memorandum disposition clarifies the application of the CLP Rule’s rebuttal provision, holding that actual kidnapping in a transit country immediately preceding U.S. entry satisfies the ‘exceptionally compelling circumstances’ standard as a matter of law. The decision reinforces that the agency must consider the entirety of an applicant’s transit experience and cannot defeat rebuttal by narrowly focusing on the absence of harm during a brief final stop. While not precedential under Ninth Circuit Rule 36-3, the ruling provides guidance on the low threshold for rebutting the presumption when enumerated circumstances like kidnapping are proven.
The memorandum is nonprecedential, but its application of the regulation is direct: proof of an enumerated circumstance necessarily rebuts the presumption. The panel assumed the rule was valid and did not decide the broader challenge to it. On remand, the agency must proceed consistently with the panel’s conclusion that Afungchwi is entitled to asylum.