Daniel Pereyra v. Loretta E. Lynch

FILED
NOT FOR PUBLICATION
OCT 07 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

DANIEL PEREYRA, No. 15-71227

Petitioner, Agency No. A036-311-676

v
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,

Respondent.

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

Submitted October 5, 2016**
Pasadena, California

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

Daniel Pereyra appeals from the Board of Immigration Appeals’ order

denying his motion to reopen his immigration proceedings. As the parties are

familiar with the facts, we do not recount them here. We have jurisdiction

pursuant to 8 U.S.C. § 1252, and we deny the petition.

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Pereyra failed to file his motion to reopen within ninety days of the date the

final administrative decision was rendered and, therefore, the motion was time-

barred unless it was “based on changed circumstances arising in the country of

nationality . . . if such evidence [was] material and was not available and could not

have been discovered or presented at the previous hearing.” 8 C.F.R.

§ 1003.2(c)(3)(ii); see also 8 U.S.C. § 1229a(c)(7)(C)(ii). To prevail on a motion

to reopen based on changed country conditions, an individual must “clear four

hurdles”: (1) he must produce evidence that conditions have changed in the

country of nationality; (2) the evidence has 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 must “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. 2007) (citations omitted).

1. The BIA did not abuse its discretion in concluding that Pereyra failed to

show changed circumstances in Argentina. The evidence that Pereyra submitted

did not show that conditions have worsened for Protestants in Argentina since the

election of Pope Francis. Cf. Malty v. Ashcroft, 381 F.3d 942, 944-46 (9th Cir.

2004) (holding that petitioner established changed circumstances where old

2
evidence showed that petitioner had been “taunted” and subjected to “persistent

harassment” in Egypt due to his Christianity and new evidence documented arrests,

torture, and murders of Egyptian Christians as well as violence against petitioner’s

family).

2. The BIA did not abuse its discretion in concluding that Pereyra failed to

establish prima facie eligibility for asylum or withholding of removal. “To

establish asylum eligibility, an applicant must show that he is unable or unwilling

to return to his country of nationality ‘because of persecution or a well-founded

fear of persecution on account of race, religion, nationality, membership in a

particular social group, or political opinion.’” Madrigal v. Holder, 716 F.3d 499,

503 (9th Cir. 2013) (quoting 8 U.S.C. § 1101(a)(42)(A)). “The standard of proof

required to establish eligibility for withholding is higher than the standard for

establishing eligibility for asylum.” Halaim v. INS, 358 F.3d 1128, 1132 (9th Cir.

2004). An individual is eligible for withholding of removal if he demonstrates a

“clear probability of persecution” because of a protected ground. Id. (quoting

Pedro-Mateo v. INS, 224 F.3d 1147, 1150 (9th Cir. 2000)) (internal quotation

marks omitted).

Here, substantial evidence supports the BIA’s determination that Pereyra did

not demonstrate that Protestants in Argentina are subject to treatment rising to the

3
level of persecution. The evidence that Pereyra submitted shows that Argentina

protects religious freedom, and there were no reports of abuses of religious

freedom. Although there have been reports of societal discrimination based on

religious affiliation, this does not rise to the level of persecution. See Fisher v.

INS, 79 F.3d 955, 961 (9th Cir. 1996) (“Persecution is an extreme concept, which

ordinarily does not include discrimination on the basis of race or religion, as

morally reprehensible as it may be.” (internal quotation marks and citation

omitted)). Furthermore, even if Catholics in Argentina receive special treatment,

that does not show that a Protestant has a well-founded fear of persecution,

especially considering Argentina’s efforts to protect religious freedom.

Accordingly, the BIA did not abuse its discretion in denying Pereyra’s

motion to reopen as untimely.

PETITION FOR REVIEW DENIED.