Juan Gonzalez Hermosillo v. Eric Holder, Jr.

FILED
NOT FOR PUBLICATION JUL 30 2014

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JUAN RAMON GONZALEZ No. 12-71218
HERMOSILLO; GREYSSI ROSAURA
GONZALEZ FLORES, Agency Nos. A095-200-456
A095-200-454
Petitioners,

v. MEMORANDUM*

ERIC H. HOLDER, Jr., Attorney General,

Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Submitted July 22, 2014**

Before: GOODWIN, CANBY, and CALLAHAN, Circuit Judges.

Juan Ramon Gonzalez Hermosillo and Greyssi Rosaura Gonzalez Flores,

natives and citizens of Mexico, petition for review of an order of the Board of

Immigration Appeals (“BIA”) denying their motion to reopen removal

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
proceedings. We review for abuse of discretion the denial of a motion to reopen

and review de novo questions of law. Najmabadi v. Holder, 597 F.3d 983, 986

(9th Cir. 2010). We deny in part and grant in part the petition for review and

remand.

The BIA did not abuse its discretion by denying petitioners’ untimely and

successive motion to reopen based on changed country conditions, where

petitioners failed to present any evidence to show that conditions in Mexico had in

fact changed from the time of their initial removal hearing. See 8 C.F.R.

§ 1003.2(c); see also Najmabadi, 597 F.3d at 987 (requiring that evidence of

changed country conditions “be ‘qualitatively different’ from the evidence

presented at the previous hearing” (citation omitted)).

In view of the limited country-conditions evidence submitted with

petitioners’ motion, the BIA conducted an adequately individualized analysis of

the claim. See Shooshtary v. INS, 39 F.3d 1049, 1051 (9th Cir. 1994) (“[T]he

preciseness we require of the Board depends upon the preciseness of the proof

offered by the petitioner.”).

Because petitioners did not establish that any exception to the filing deadline

applies, the BIA did not need to reach the merits of petitioners’ application for

asylum and withholding of removal. See 8 C.F.R. § 1003.2(c)(3).

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 However, while the BIA’s decision states that petitioners failed to

demonstrate error by former counsel, the record before us is inadequate to

determine whether the BIA addressed several of petitioners’ allegations of

ineffective assistance, including the allegation that former counsel had untimely

filed their first motion to reopen. See Doissaint v. Mukasey, 538 F.3d 1167, 1170

(9th Cir. 2008) (“IJs and the BIA are not free to ignore arguments raised by a

petitioner.” (citation omitted)). Accordingly, we remand the case to the BIA for

further consideration of petitioners’ motion to reopen based on a claim of

ineffective assistance of counsel. See Andia v. Ashcroft, 359 F.3d 1181, 1184

(9th Cir. 2004) (per curiam) (“If we conclude that the BIA’s decision cannot be

sustained upon its reasoning, we must remand to allow the agency to decide any

issues remaining in the case.”). We express no opinion as to the merits of this

claim.

Each party shall bear its own costs for this petition for review.

PETITION FOR REVIEW DENIED in part; GRANTED in part;

REMANDED.

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