Ricardo Rivera-Gomez v. Eric Holder, Jr.

FILED
NOT FOR PUBLICATION SEP 03 2014

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

FOR THE NINTH CIRCUIT

RICARDO RIVERA-GOMEZ, No. 12-70147

Petitioner, Agency No. A079-156-166

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 August 4, 2014
Pasadena, California

Before: REINHARDT, WARDLAW, and CALLAHAN, Circuit Judges.

Ricardo Rivera-Gomez (“Rivera”), a native and citizen of Honduras,

petitions for review of an order of the Board of Immigration Appeals (“BIA”)

dismissing his appeal of an immigration judge’s (“IJ”) denial of his motion to

reopen, and denying a second motion to reopen filed before the BIA. We have

jurisdiction under 8 U.S.C. § 1252(a), and we grant the petition and remand.

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
The BIA abused its discretion by concluding that Rivera’s newly-produced

evidence describing recent attacks against his family by the Mara 18 and the 2009

military coup in Honduras was not “qualitatively different” from the evidence that

Rivera could have presented at his previous hearing in 2003. See Najmabadi v.

Holder, 597 F.3d 983, 987 (9th Cir. 2010). Although the gang killed Rivera’s

brother in 2001, the recent rape of and attack on his sister and death threats to his

sister-in-law and niece clarify the reason why the gang has pursued Rivera.

Contrary to the IJ’s and government’s position, Rivera’s persecution is not because

he won a soccer game. Mara 18 has hunted him and his family for the past ten

years because Rivera’s refusal to join the gang and his family’s escape from

Honduras “hurt the Mara 18 by taking [Rivera] away.” Additionally, it was not

until 2010 that Rivera learned that he and his family were on the gang’s

countrywide hit list. This evidence was not available in 2003, and it constitutes

changed circumstances materially affecting Rivera’s eligibility for asylum. See

Malty v. Ashcroft, 381 F.3d 942, 946 (9th Cir. 2004).

Furthermore, the 2009 military coup has substantially increased the levels of

gang violence in Honduras. According to one of Rivera’s experts, “The military

coup d’etat . . . represent[s] the most serious setback[] for human rights and the

rule of law in Honduras since the height of political violence in the 1980s.”

2
Indeed, another one of his experts concluded that, “There are no functional state

institutions that can provide Mr. Rivera Gomez the protection necessary to survive

the gang retaliation for his opposition to gang culture.” The BIA’s opinion does

not discuss any of the evidence describing changed country conditions. It does not

even make mention of the highly significant 2009 military coup. This failure to

consider the evidence presented was an abuse of discretion. See Ali v. Holder, 637

F.3d 1025, 1031 (9th Cir. 2011).

Even if we assume that the BIA alternatively concluded that Rivera failed to

establish his prima facie eligibility for relief, recent decisions by the BIA and our

circuit concerning the test for social group membership warrant remanding this

petition for reconsideration. See, e.g., Pirir-Boc v. Holder, 750 F.3d 1077 (9th Cir.

2014); Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013) (en banc); Matter

of M-E-V-G-, 26 I. & N. Dec. 227 (BIA 2014); Matter of W-G-R-, 26 I. & N. Dec.

208 (BIA 2014).1

We GRANT the petition and REMAND with instructions to reopen

Rivera’s proceedings and evaluate his claims on the merits.

1
We express no view as to whether Rivera is actually eligible for relief under
the developing standards articulated in the recent decisions referenced above.