Afungchwi: A Recent Kidnapping Rebutted the Asylum Pathways Presumption

Nonprecedential memorandum: The October 13, 2026 decision is not precedent except as provided by Ninth Circuit Rule 36-3.

Summary of the Decision

In Afungchwi v. Blanche, No. 25-7956 (9th Cir. Oct. 13, 2026), the United States Court of Appeals for the Ninth Circuit granted a petition for review of a Board of Immigration Appeals (BIA) decision that affirmed an Immigration Judge's (IJ) denial of asylum under the Circumvention of Lawful Pathways (CLP) Rule. The panel held that the agency committed legal error when it determined that a noncitizen who was kidnapped in Mexico, held for ransom, and crossed the border hours after arriving in Tijuana failed to rebut the CLP presumption of asylum ineligibility.

The panel consisted of Judges W. Fletcher, Friedland, and De Alba. The matter was submitted September 16, 2026, in Portland without oral argument. Afungchwi, slip op. at 1.

Factual Background and Procedural Posture

The petitioner, Gordian Dizeh Afungchwi, is a native and citizen of Cameroon. He traveled through Mexico before entering the United States. On the night of his arrival in Mexico, armed men kidnapped Afungchwi and held him captive for three days, during which he was beaten. His captors released him only after his family paid a $5,000 ransom. Immediately upon release, Afungchwi fled to Tijuana and crossed the border into the United States that same night, completing a total stay in Mexico of roughly five days.

In immigration court proceedings, the IJ concluded that Afungchwi established statutory eligibility for asylum "but for the Circumvention of Lawful Pathways Bar." The BIA agreed with and incorporated the IJ's findings while adding its own reasoning, placing primary emphasis on the fact that Afungchwi "did not claim to have been harmed or threatened in Tijuana." See Afungchwi v. Blanche, No. 25-7956, slip op. at 4 (9th Cir. Oct. 13, 2026). Afungchwi petitioned the Ninth Circuit for judicial review and filed an emergency motion to stay removal.

Statutory and Regulatory Framework

The CLP Rule establishes a rebuttable presumption of asylum ineligibility for noncitizens who enter the United States across the southern border between May 11, 2023, and May 11, 2025, after transiting through a third country without utilizing designated lawful pathways. The panel described this framework under 8 C.F.R. § 1208.33(a). Afungchwi, slip op. at 2–3. However, the regulation explicitly provides that an applicant rebuts this presumption by proving by a preponderance of the evidence that exceptionally compelling circumstances existed at the time of entry.

Under 8 C.F.R. § 1208.33(a)(3)(i), exceptionally compelling circumstances include demonstrating that the applicant, at the time of entry, faced an imminent and extreme threat to life or safety, such as an imminent threat of rape, kidnapping, torture, or murder. The regulation specifies that proving any enumerated circumstance "shall necessarily rebut the presumption." 8 C.F.R. § 1208.33(a)(3)(ii).

Standards of Review

The panel reviewed both agency decisions because the BIA incorporated specific IJ findings and added its own reasoning. The memorandum relied on Bhattarai for reviewing both incorporated agency decisions, on Urquia-Yanez for de novo review of legal questions and substantial-evidence review of factual findings, and on Urias-Orellana for its mixed-question framework. The kidnapping and flight facts were undisputed; the error concerned application of the regulatory rebuttal to those facts. Afungchwi, slip op. at 2–4.

Court's Legal Analysis and Rebuttal Holding

The Ninth Circuit held that the agency erred in concluding Afungchwi failed to rebut the CLP presumption. It was undisputed that Afungchwi was kidnapped by armed men, held captive for three days, beaten, and released only upon payment of a $5,000 ransom. Because he was held captive for three of his roughly five days in Mexico and fled directly to the border, Afungchwi experienced an actual kidnapping and ongoing imminent threat. See Afungchwi, slip op. at 3–4.

The panel explicitly rejected the agency's reliance on the absence of a separate threat in Tijuana: The BIA ignored the critical fact that Afungchwi spent mere hours in Tijuana prior to crossing. Because fleeing actual captivity immediately across the border demonstrated exceptionally compelling circumstances by a preponderance of the evidence, Afungchwi necessarily rebutted the presumption under 8 C.F.R. § 1208.33(a)(3)(ii) and was entitled to asylum. See Afungchwi, slip op. at 4.

Interplay with Lawful Pathways Validity Litigation

In a footnote, the panel acknowledged its prior decision in Garcia Morales v. Blanche, which held that the CLP Rule is inconsistent with the asylum statute. The October 13 opinion reported that the mandate in Garcia Morales had not yet issued. The panel did not need to rely on Garcia Morales to resolve Afungchwi's petition because Afungchwi was eligible for asylum under the regulatory rebuttal exception even assuming the CLP Rule's validity. See Afungchwi, slip op. at 2 n.2.

Disposition

The Ninth Circuit granted the petition for review, granted the emergency motion to stay removal, and remanded the matter to the BIA for further proceedings consistent with its memorandum disposition. See Afungchwi, slip op. at 4.

Narrow Limits and Practical Application

As an unpublished memorandum disposition under Ninth Circuit Rule 36-3, Afungchwi v. Blanche is nonprecedential. The decision does not establish a universal rule that every transit crime automatically overcomes the CLP presumption, nor does it resolve the ultimate validity of the CLP Rule nationwide. Rather, it underscores that administrative adjudicators cannot impose a requirement for a separate border-city threat on this undisputed record of kidnapping and immediate flight.

For related legal guidance on evidence preparation, read our practical analysis on rebutting the Asylum Pathways presumption with transit threat evidence. Applicants seeking consultation on individual asylum records can contact our immigration-law services.

The result concerned Afungchwi’s individual record and the IJ’s otherwise-favorable eligibility finding. It does not establish that every applicant who experienced a transit crime is entitled to asylum. The panel granted review and remanded; its separate emergency stay ruling also appears in the disposition. Afungchwi, slip op. at 2, 4.