FILED
NOT FOR PUBLICATION JUN 27 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JUAN FRANCISCO BERNABE, No. 10-73754
Petitioner, BIA-1:A092-404-759
v.
ERIC H. HOLDER, Jr., Attorney General, MEMORANDUM*
Respondent.
On Petition for Review of an Order of
the Board of Immigration Appeals
Argued and Submitted June 6, 2014
Pasadena, California
Before: FISHER and MURGUIA, Circuit Judges, and BATTAGLIA, District
Judge.**
Juan Francisco Bernabe (“Bernabe”), a native and citizen of Guatemala,
petitions for review of an order of the Board of Immigration Appeals (“BIA”)
denying his untimely motion to reopen based on changed country circumstances.
We have jurisdiction pursuant to 8 U.S.C. § 1252. Because the BIA conducted a
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Anthony J. Battaglia, United States District Judge for
the Southern District of California, sitting by designation.
de novo review rather than expressly adopting the IJ’s decision as its own, we
review only the BIA’s decision. Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir.
2004). Reviewing for abuse of discretion, Malty v. Ashcroft, 381 F.3d 942, 945
(9th Cir. 2004), we deny in part and grant in part the petition for review, and
remand for further proceedings.1
First, we reject Bernabe’s contention that the BIA applied the incorrect legal
standard when determining whether he presented a material change in country
conditions in Guatemala sufficient to warrant an exception to the ninety-day time
limit applicable to motions to reopen. 8 U.S.C. § 1229a(c)(7)(C)(i)-(ii) (requiring
that a petitioner show a material change in country conditions, and that such
evidence was not available or could not have been discovered or presented at the
previous hearing to file a motion to reopen after the ninety-day time limit).
Bernabe contends that Malty, cited in the BIA’s opinion, is inapposite because he
is alleging a new source of persecution rather than a continuance of circumstances.
However, the standard set forth in Malty is not limited to cases wherein a petitioner
produces evidence of persecution that was related to the initial claim. Instead,
“[i]n Malty v. Ashcroft, we held that in order for evidence to be ‘material,’ ‘not
1
Because the parties are familiar with the facts and procedural history we do
not restate them here except as necessary to explain our decision.
2
available,’ and not able to have ‘been discovered or presented at the previous
hearing,’ it must be ‘qualitatively different’ from the evidence presented at the
previous hearing.” Najmabadi v. Holder, 597 F.3d 983, 987 (9th Cir. 2010)
(quoting Malty, 381 F.3d at 945–46). This standard applies equally to allegations
of new persecution or to a continuance of circumstances. Therefore, the BIA
applied the correct legal standard.
However, the BIA abused its discretion by failing to provide a reasoned
explanation for finding that the 2005 and 2009 State Department reports did not
support Bernabe’s contentions. Bernabe’s motion to reopen was based on
incidents of forced eviction of indigenous Mayans, criminalized social protests,
and violence arising out of conflict over the development and resource extraction
of land occupied by the indigenous Mayan people. The BIA, however, never
addressed or even acknowledged any of these contentions. Instead, the BIA
opinion merely block quoted generalized statements from the 2005 and 2009 State
Department reports regarding indigenous peoples’ underrepresentation in politics,
limited educational opportunities, poverty, and experience of pervasive
discrimination—none of which equated to Bernabe’s actual allegations. Therefore,
the BIA abused its discretion because it never squarely addressed Bernabe’s
contentions, i.e., that conditions in Guatemala had materially changed since 2005
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as a result of forced evictions and the persecution of indigenous Mayans
surrounding anti-mining social protest. See, e.g., Bhasin v. Gonzales, 423 F.3d
977, 983 (9th Cir. 2005) (“[T]he Board must show proper consideration of all
factors, both favorable and unfavorable, in determining whether to grant a motion
to reopen, and must articulate its reasons for denying such a motion.” (internal
citation omitted)); Sagaydak v. Gonzales, 405 F.3d 1035, 1040 (9th Cir. 2005)
(“We think it goes without saying that IJs and the BIA are not free to ignore
arguments raised by a petitioner.”).
Moreover, some of the evidence submitted by Bernabe post-dated the 2009
State Department report. Therefore, although Bernabe has not rebutted the
presumption that the BIA considered all the evidence, the BIA abused its discretion
when it failed to analyze the content of the evidence, especially because the 2009
State Department report described incidents similar to incidents included in
Bernabe’s evidence. See Movsisian v. Ashcroft, 395 F.3d 1095, 1098 (9th Cir.
2005) (stating that it is well settled “that the BIA abuses its discretion when it fails
to provide a reasoned explanation for its actions”); Larita-Martinez v. INS, 220
F.3d 1092, 1095–96 (9th Cir. 2000) (finding that a petitioner attempting to
establish that the Board violated his due process rights by failing to consider
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relevant evidence must overcome the presumption that the Board did review all the
evidence).
Finally, the BIA’s citation to the IJ’s decision did not incorporate the IJ’s
materiality finding. The BIA cited to and agreed with the IJ’s decision only as to
whether conditions in Guatemala had changed sufficiently to reopen proceedings,
an issue it reviewed de novo.
Accordingly, we grant in part and deny in part the petition for review. We
express no opinion on the merits of Bernabe’s motion. Rather, we remand the
petition to the BIA for it to consider Bernabe’s argument and evidence, and to
provide a reasoned explanation of its decision. Costs on appeal are awarded to
petitioner. See Fed. R. App. P. 39(a)(4).
PETITION FOR REVIEW DENIED IN PART; GRANTED AND
REMANDED IN PART.
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