In early 2011, the published version, redacted for petitioner's safety, the First Circuit issued a decision that not only remanded an asylum case—a barely occurring development in these parts—but also created positive asylum law—a never heard of development in these parts.  Smith v. Holder, 2010WL5116668 (1st Cir. 2010)[1] was published on December 16, 2010 (the case was issued in a redacted version from its original, issued previously under seal), creating helpful precedent for asylum seekers.   The case arose in the Circuit after the Board of Immigration Appeals (“BIA” or “Board”) denied the Respondent’s Motion to Reopen based upon Changed Country Conditions to permit him to apply for asylum from Zimbabwe.

 The decision does two important things in this Circuit: 

 (1) Smith established a standard for Changed Country Conditions Motions to Reopen that will permit applicants in the First Circuit to rely upon “Changed Country Conditions” as a basis to reopen an asylum case (or apply in the first instance) without having to show a change in government or a radically different situation on the ground in the home country.  In other words, even significant incremental change from prior conditions can be considered “Changed Country Conditions.”  Furthermore, the Court required the Board to consider all changes in the country, regardless of whether the Respondent was present when these incidents or “changes” occurred.  Furthermore, the Court found that the Board erred by failing to consider all factors present by the Respondent in support of his motion together as a whole.

(2)  The Circuit also clearly delineated, for the first time, the legal standard for meeting the prima facie case requirement to support a “Changed Country Conditions” Motion to Reopen.  The Circuit remanded to the Board by stating that they had failed to properly evaluate Mr. Smith’s prima facie case and in so doing explicitly stated that prima facie evaluations must consider past persecution claims in addition to the new evidence submitted to support the Motion to Reopen.  Cases in the First Circuit prior to Smith v. Holder considered the prima facie standard, but uniformly avoided the opportunity to create a definitive standard.  Smith met the issue directly and has now created a prima facie standard that is generous to the Respondents:  “Changed Country Conditions” Motions to Reopen must present new events and evidence to support the initial claim to reopen, but once “Change Country Conditions” have been shown, a court must consider not only the evidence of any new “changed” conditions, but also any evidence of past persecution as well in determining whether the Respondent has established a prima facie case for asylum, withholding or CAT relief.