FILED
NOT FOR PUBLICATION DEC 26 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KHUSHAL SHARIFI, No. 10-72873
Petitioner, Agency No. A029-778-528
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted December 4, 2013
Pasadena, California
Before: PREGERSON and CHRISTEN, Circuit Judges, and SILVER, Senior
District Judge.**
Khushal Sharifi, a native and citizen of Afghanistan, petitions for review of
the Board of Immigration Appeals’s (“BIA”) denial of his motion to reopen
removal proceedings based on changed country conditions.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Roslyn O. Silver, Senior District Judge for the U.S.
District Court for the District of Arizona, sitting by designation.
We have jurisdiction pursuant to 8 U.S.C. § 1252, and we grant the petition
for review. In 1991, the Immigration Judge (“IJ”) denied Sharifi’s initial
applications for asylum and withholding of removal. In 1994, the BIA affirmed
the IJ’s decision on adverse credibility grounds and ordered Sharifi excluded and
deported. Fifteen years later, Sharifi sought to reopen his exclusion proceedings
based on evidence of changed country conditions. He also submitted an updated
application for asylum, withholding of removal, and relief under the Convention
Against Torture. In August 2010, the BIA denied Sharifi’s motion to reopen as
untimely. The BIA also concluded that Sharifi failed to establish materially
changed country conditions which would excuse the ninety-day time limit to
reopen.
We review the BIA’s denial of a motion to reopen for abuse of discretion.
Hamazaspyan v. Holder, 590 F.3d 744, 747 (9th Cir. 2009). A petitioner may file
a motion to reopen an asylum application at any time if it “is based on changed
country conditions arising in the country of nationality . . . if such evidence is
material and was not available and would not have been discovered or presented at
the previous proceeding.” 8 U.S.C. §1229a(c)(7)(C)(ii). To prevail, the petitioner
“need only establish a prima facie case for relief, and need not conclusively
establish that he warrants relief.” Ordonez v. INS, 345 F.3d 777, 785 (9th Cir.
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2003). This court may reverse the BIA’s decision if it is “arbitrary, irrational, or
contrary to law.” Perez v. Mukasey, 516 F.3d 770, 773 (9th Cir. 2008) (internal
quotation marks omitted).
Here, evidence does not support the BIA’s determination that Sharifi failed
to establish materially changed country conditions. The increased power of the
Taliban in Afghanistan and Sharifi’s brother’s capture by the organization in 2009
demonstrated “qualitatively different” evidence of changed country conditions to
warrant reopening. Najmabadi v. Holder, 597 F.3d 983, 987 (9th Cir. 2010) (citing
Malty v. Ashcroft, 381 F.3d 942, 945 (9th Cir. 2004)).
Sharifi did not face the same dangers in 1994 that he now faces should he
return. When the BIA first reviewed Sharifi’s application for relief, Hizb-e-Islami
was at the height of its power and the Taliban was barely (if at all) in existence.
Today, the Taliban commits horrendous atrocities, including large scale massacres,
against its political enemies, including Hizb-e-Islami.
Afghanistan is now a more dangerous place for opponents of the Taliban.
The 2009 Country Report states that “[p]ersistent Taliban and antigovernment
activity, interfactional fighting between regional warlords, and criminal activity
resulted in hundreds of unlawful killings and civilian casualties.” The Taliban has
also claimed responsibility for acts of mass violence against political targets.
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Indeed, “Taliban and insurgent attacks [have] escalated in both number and
complexity.” The record also supports Sharifi’s position that the Taliban targets
those with associations to Hizb-e-Islami. Moreover, the Afghan government is
unable to protect civilians from the Taliban’s persistent violence, as the “security
situation in the country deteriorated significantly during the year [2009], and
civilian casualties rose accordingly.”
Contrary to the BIA’s ruling, the Taliban’s detention, abuse, and kidnapping
of Sharifi’s brother was also sufficiently material to Sharifi’s claim to warrant a
remand, as persecution of family members can be evidence of a material change in
country conditions. Malty, 381 F.3d at 946. A letter from the Afghanistan
Ministry of Interior plainly states that the Taliban detained Sharifi’s brother and
that Sharifi is similarly in danger:
Khushal Sharifi who resides in the United States of
America, if he returns to the country of Afghanistan, due
to his past [he] will be under a severe threat of harm, like
his brother . . . . Therefore, he should under no
circumstances return to Afghanistan.
Sharifi’s evidence of changed country conditions establishes that circumstances
have significantly worsened in Afghanistan for those with ties to Hizb-e-Islami
generally, and for Sharifi’s family specifically. Malty, 381 F.3d at 946. Sharifi’s
evidence is also “qualitatively different” from the evidence presented on appeal to
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the BIA in 1994. Najmabadi, 597 F.3d at 987. Whereas Sharifi testified that in
1989 his father and uncle were killed while fighting with the mujahideen against
the Soviet-backed Afghan government, Sharifi’s brother, on the other hand, was
kidnapped by the Taliban after returning to Afghanistan in 2009. The reasons
behind each incident are entirely different.
Because the government does not argue that the facts alleged in the Ministry
of Interior document and Sharifi’s declaration are not “inherently unbelievable,”
Malty, 381 F.3d at 947, and must be taken as true, Bhasin v. Gonzales, 423 F.3d
977, 987 (9th Cir. 2005), Sharifi has sufficiently established the danger and
persecution he would face because of his ties to Hizb-e-Islami.
Accordingly, the BIA abused its discretion in dismissing Sharifi’s new and
previously unavailable evidence of persecution. We therefore grant the petition for
review and remand to the BIA with instructions to reopen proceedings. See Malty,
381 F.3d at 948.
PETITION GRANTED; REMANDED.
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