FILED
NOT FOR PUBLICATION DEC 10 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CRUZ LOPEZ-VASQUEZ, AKA Cruz No. 11-70901
Lopez Vazquez and DAVID PEREZ-
LOPEZ, Agency Nos. A077-838-364
A077-838-365
Petitioners,
v. MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 20, 2014**
San Francisco, California
Before: THOMAS, Chief Judge, and REINHARDT and CHRISTEN, Circuit
Judges.
Cruz Lopez-Vasquez and her son David Perez-Lopez, both natives and
citizens of Guatemala, petition for review of the Board of Immigration Appeals’s
*
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).
(“BIA”) decision denying their motion to reopen removal proceedings. We have
jurisdiction under 8 U.S.C. § 1252 and review the BIA’s denial of petitioners’
motion for abuse of discretion. Tadevosyan v. Holder, 743 F.3d 1250, 1252 (9th
Cir. 2014).
We grant the petition for review for the reasons set forth below. Because the
parties are familiar with the factual and procedural history of this case, we need not
recount it here.
I
“‘A motion to reopen is a traditional procedural mechanism in immigration
law with a basic purpose that has remained constant – to give aliens a means to
provide new information relevant to their cases to the immigration authorities.’”
Meza-Vallejos v. Holder, 669 F.3d 920, 924 (9th Cir. 2012) (quoting Azarte v.
Ashcroft, 394 F.3d 1278, 1283 (9th Cir. 2005)). Under the Illegal Immigration
Reform and Immigrant Responsibility Act (“IIRIRA”), every alien subject to
removal has the statutory right to file one motion to reopen with the BIA. 8 U.S.C.
§ 1229a(c)(7)(A). Although that motion ordinarily must be filed within ninety
days of the entry of the removal order, IIRIRA creates an exception to this general
rule for any alien who seeks to reopen asylum proceedings in order to present new
evidence of “changed country condition arising in [his or her] country of
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nationality or the country to which removal has been ordered.” Id.
§§ 1229a(c)(7)(C)(i)-(ii). Because petitioners’ motion here is based on changed
country conditions in Guatemala, their motion is not time-barred.
Nor is it barred by the “departure rule.” That rule provides that a “motion to
reopen or a motion to reconsider shall not be made by or on behalf of a person who
is the subject of exclusion, deportation, or removal proceedings subsequent to his
or her departure from the United States.” 8 C.F.R. § 1003.2(d). The BIA held that
petitioners were precluded from moving to reopen under this rule because they had
been removed from the United States in 2004, more than five years before they
filed the instant motion. However, the BIA issued its decision before we decided
Reyes-Torres v. Holder, 645 F.3d 1073, 1076 (9th Cir. 2011), which held that the
departure rule does not preclude an alien from moving to reopen after he or she has
been removed. As we explained in that case, construing the departure rule to
preclude a previously removed alien from filing a motion to reopen would
undermine IIRIRA’s guarantee that every alien subject to removal has the right to
file such a motion. See id. at 1077 (“After reviewing the statutes, we determined
that ‘the intent of Congress is clear,’ and that ‘in passing IIRIRA, Congress
anticipated that petitioners would be able to pursue relief after departing from the
United States.’” (quoting Coyt v. Holder, 593 F.3d 902, 906 (9th Cir. 2010)).
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Thus, as in Reyes-Torres, petitioners’ prior removal from the United States does
not preclude them from exercising their statutory right to file a motion to reopen.
II
Generally, a “motion to reopen proceedings shall not be granted unless it
appears to the BIA that evidence sought to be offered is material and was not
available and could not have been discovered or presented at the former hearing.”
8 C.F.R. § 1003.2(c)(1). An alien who seeks to reopen removal proceedings to
pursue relief based on changed country conditions must clear “four hurdles”:
“(1) he ha[s] to produce evidence that conditions ha[ve] changed in [his country of
nationality]; (2) the evidence ha[s] to be ‘material;’ (3) the evidence must not have
been available and would not have been discovered or presented at the previous
proceeding; and (4) he ha[s] to demonstrate that the new evidence, when
considered together with the evidence presented at the original hearing, would
establish prima facie eligibility for the relief sought.” Toufighi v. Mukasey, 538
F.3d 988, 996 (9th Cir.2008) (internal quotation marks and citation omitted).
Petitioners in this case submitted a sworn statement from Lopez-Vasquez
describing how, in 2006, her aunt-in-law was kidnaped and murdered by anti-
government guerillas for refusing to disclose the whereabouts of petitioners and
other relatives. Lopez-Vasquez asserted that the people who murdered her aunt-in-
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law were the same people who had harassed her and her son before they fled
Guatemala the first time. She also provided a municipal death certificate as further
evidence of her aunt-in-law’s death.
The BIA held that petitioners’ evidence was not sufficient to establish prima
facie eligibility for asylum. It concluded that, “[a]side from [Lopez-Vasquez]’s
statement, there is no objective evidence that the respondents would be targeted on
account of a protected ground.” However, the BIA was required to accept the new
facts alleged in Lopez-Vasquez’s declaration as true unless it determined that they
were “inherently unbelievable.” Najmabadi v. Holder, 597 F.3d 983, 990 (9th Cir.
2010). The BIA did not make such a finding nor provide any other reasons for
disregarding the facts alleged in the declaration.
Accepting those facts as true, Lopez-Vasquez’s declaration offers sufficient
evidence that conditions in Guatemala have materially changed. The murder of
petitioners’ relative – which occurred after their initial asylum application was
denied – shows that the anti-government guerillas who had previously threatened
members of petitioners’ family are now willing to use deadly force to threaten and
target petitioners themselves. We have held that similar evidence of an increase in
the severity of persecution feared may provide a legitimate basis for reopening
removal proceedings based on changed country conditions. See De Silva v.
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Holder, 2014 WL 4087901, at *1 (9th Cir. Aug. 20, 2014) (granting petition for
review of the BIA’s denial of a motion to reopen based on petitioner’s sworn
statement that, after the denial of his first asylum application, police-aided gangs
murdered his brother based on the brother’s imputed political opinion). Because
petitioners’ evidence in this case is material, was not previously available, and is
sufficient to establish their prima facie eligibility for asylum, petitioners have
cleared the necessary hurdles to prevail on their motion to reopen.
PETITION GRANTED.
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