Opinion
16-71237
10-11-2022
HEBER CHAVEZ-LARA, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.
NOT FOR PUBLICATION
Submitted July 25, 2022 [**]San Francisco, California
On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A075-477-647
ORDER
The memorandum disposition filed on July 27, 2022, is amended, and an amended memorandum disposition and Judge Baker's dissent are filed concurrently with this order.
With the memorandum disposition so amended, Judges Graber and Wardlaw have voted to deny the petition for panel rehearing. Judge Baker has voted to grant the petition for panel rehearing. The petition for panel rehearing (Docket No. 54) is DENIED. No further petitions for rehearing will be accepted.
Before: GRABER and WARDLAW, Circuit Judges, and BAKER,[***] International Trade Judge. Dissent by Judge BAKER
AMENDED MEMORANDUM [*]
Petitioner Heber Chavez-Lara, a native and citizen of Mexico, timely seeks review of the Board of Immigration Appeals' ("BIA") denial of his 2016 motion to reopen proceedings. Petitioner was ordered removed in 1997 but sought reopening in order to apply for asylum and other forms of relief from removal. Reviewing the BIA's denial for abuse of discretion, Nababan v. Garland, 18 F.4th 1090, 1094 (9th Cir. 2021), we grant the petition and remand for further proceedings.
A petitioner generally must file a motion to reopen within 90 days of the entry of a final order of removal. 8 U.S.C. § 1229a(c)(7)(C)(i). But that time limit does not apply if the motion "is based on changed country conditions arising in the country of nationality or the country to which removal has been ordered, if such evidence is material and was not available and would not have been discovered or presented at the previous proceeding." Id. § 1229a(c)(7)(C)(ii); see also 8 C.F.R. § 1003.2(c)(3)(ii) (similar wording). To qualify, Petitioner must:
(1) produce evidence that conditions have changed in the country of removal; (2) demonstrate that the evidence is material; (3) show that the evidence was not available and would not have been discovered or presented at the previous hearings; and (4) demonstrate prima facie eligibility for the relief sought.Hernandez-Ortiz v. Garland, 32 F.4th 794, 804 (9th Cir. 2022) (ellipsis omitted) (citation omitted).
Petitioner sufficiently alleged membership in the particular social group of his family to put the BIA "on notice" of the claim that he sought asylum on the ground of membership in his family and that conditions in Mexico with respect to his family had changed. Bare v. Barr, 975 F.3d 952, 960 (9th Cir. 2020). In his asylum application, Petitioner asserted fear due to his membership in a particular social group. He then immediately described the harm to his family that occurred after his original removal hearing and his resulting fear, which arises from his membership in the family. For example, extortionists have threatened his parents that, if his parents refuse to pay, the extortionists will kill Petitioner because of his relationship with his parents. Additionally, when Petitioner's aunt and uncle refused to pay extortionists, the extortionists killed Petitioner's cousin. Petitioner corroborated his application with his own affidavit and with letters from his aunt, cousin, mother, and father. In his motion to reopen, Petitioner described in detail the harm to his family when asserting that country conditions had changed.
Despite Petitioner's having raised the issue, the BIA did not consider his membership in the family as a potential ground for relief. The BIA did not mention the evidence of harm to the family. The BIA did not consider whether Petitioner had shown a material change in country conditions with respect to the family. And the BIA did not consider whether Petitioner had shown prima facie eligibility for relief because of his membership in the particular social group of his family.
1. The BIA legally erred by failing to consider whether Petitioner had shown a material change in country conditions with respect to his family. If Petitioner's family is a particular social group, then the evidence of harm to his family could constitute a material change in country conditions. See Salim v. Lynch, 831 F.3d 1133, 1138 (9th Cir. 2016) (holding that the relevant inquiry is "whether the motion to reopen demonstrates a change in country conditions with respect to the petitioner's current basis for relief" (emphasis added)). Before Petitioner's initial hearing, no harm had come to any of his family members. But by the time he filed the motion to reopen, several of his family members had been harmed in Mexico. Cases involving a change in personal circumstances, such as Chandra v. Holder, 751 F.3d 1034 (9th Cir. 2014), and Rodriguez v. Garland, 990 F.3d 1205 (9th Cir. 2021), are in apposite. Unlike in those cases, where the petitioner personally took transformative action during the relevant period, Petitioner was a member of his family both at the time of his initial hearing and at the time he filed his motion to reopen. The pertinent changes at issue here-the harm and threats directed toward Petitioner's family members-occurred in Mexico to members of Petitioner's proposed social group, his family. In short, this case involves an alleged change in country conditions, not an alleged change in personal circumstances.
2. For the same reasons, if Petitioner's family is a particular social group, then evidence of harm to his family is material.
3. The harm to the family occurred after Petitioner's original removal hearing and thus, at that time, no evidence of harm to his family could have been discovered or was available.
4. Finally, the BIA legally erred by failing to consider whether Petitioner established prima facie eligibility for relief due to his membership in the particular social group of his family. See, e.g., Rios v. Lynch, 807 F.3d 1123, 1126 (9th Cir. 2015) (holding that the petitioner had sufficiently raised the issue of his family as a particular social group to the BIA and that "[t]he BIA did not address this social group claim-a failure that constitutes error and requires remand"). Petitioner's evidence arguably suggests that his fear arises from membership in the family. See Ayala v. Sessions, 855 F.3d 1012, 1021 (9th Cir. 2017) (holding that a petitioner who faced extortion for both economic reasons and because of membership in a family had established that membership in the family was "a reason" for the persecution); see also Kaur v. Garland, 2 F.4th 823, 834-35 (9th Cir. 2021) (holding that the feared harm was due to membership in the family and not merely a personal vendetta where the petitioner was accused of causing her husband's death). Yet, as noted, the BIA did not consider his membership in the family as a potential ground for relief. See also Nababan, 18 F.4th at 1096 (granting the petition and remanding on the ground that "the BIA committed legal error because it did not assess the individualized risk of persecution that Petitioners face due to their identity as evangelical Christians").
The BIA ruled that Petitioner failed to demonstrate nexus to a protected ground, citing a case that rejected as a particular social group "returning Mexicans from the United States." This sentence appears, in context, to mean simply that Petitioner failed to pinpoint a proper particular social group, which we have held is error here. To the extent that the BIA intended to reject a causal connection, because the BIA failed to consider Petitioner's family to be a particular social group its order cannot logically be read to reject a nexus between Petitioner's family and the harm suffered.
5. Because the BIA did not consider the issues, we express no view on whether Petitioner has established material changes in country conditions with respect to his family or whether Petitioner has established prima facie eligibility due to membership in the proposed particular social group of his family. See Navas v. INS, 217 F.3d 646, 658 n.16 (9th Cir. 2000) (holding that we may not consider an issue that was not addressed by the BIA).
Petition GRANTED and REMANDED for further proceedings.
BAKER, International Trade Judge, dissenting:
I respectfully dissent from the amended memorandum disposition's conclusion that the Board of Immigration Appeals (BIA) abused its discretion in denying
Heber Chavez-Lara's motion to reopen proceedings from a quarter-century ago. The BIA found that Chavez-Lara failed to demonstrate changed country conditions in Mexico since his 1997 removal order, and that in any event the evidence he submitted-generalized fear of violence to his family from drug cartels-does not establish his prima facie eligibility for asylum or withholding of removal. Under the deferential standard of review, we should deny his petition for review.
Even if changes to a family's conditions can constitute "changed country conditions" for purposes of 8 U.S.C. § 1229a(c)(7)(C)(ii) as the logic of our circuit precedent counter intuitively implies, in my view the BIA reasonably explained why Chavez-Lara's evidence of the (more recent) threats to his family did not establish his prima facie eligibility for asylum or withholding of removal. The BIA explained that his evidence demonstrated "a continuation of the same conditions, i.e., . . . crime, violence, and civil strife in Mexico," and that this evidence "does not demonstrate that respondent has fears that differ from the populace as a whole" (emphasis added). The BIA then noted that exposure to "[g]eneralized violence in Mexico, largely associated with drug trafficking and cartels, does not establish the respondent's prima facie eligibility for asylum or withholding of removal."
Circuit precedent appears to recognize that a family may constitute a "particular social group" for purposes of 8 U.S.C. § 1158(b)(1)(B)(i), which requires that an applicant for asylum show that "race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for persecuting the applicant." See, e.g., Rios v. Lynch, 807 F.3d 1123, 1126 (9th Cir. 2015) (stating that a petitioner's family is a "particular social group" for asylum purposes); Salim v. Lynch, 831 F.3d 1133, 1138 (9th Cir. 2016) (holding that the relevant inquiry is "whether the motion to reopen demonstrates a change in country conditions with respect to the petitioner's current basis for relief") (emphasis added).
"[A] reviewing court must uphold even a decision of less than ideal clarity if the agency's path may reasonably be discerned." Garland v. Ming Dai, 141 S.Ct. 1669, 1679 (2021) (cleaned up). "All that we require is that the Board provide a comprehensible reason for its decision sufficient for us to conduct our review and to be assured that the petitioner's case received individualized attention." Ghaly v. INS, 58 F.3d 1425, 1430 (9th Cir. 1995) (citing Castillo v. INS, 951 F.2d 1117, 1121 (9th Cir. 1991)).
Although, as the majority notes, the BIA did not use the word "family," its reasoning is plain enough. Because Chavez-Lara's evidence only showed a threat to his family from the generalized crime and violence plaguing Mexico, the BIA found that his family was not "singled out on account of a protected ground." Delgado-Ortiz v. Holder, 600 F.3d 1148, 1151 (9th Cir. 2010). We must uphold that factual determination unless it was "arbitrary, irrational, or contrary to law." Rodriguez v. Garland, 990 F.3d 1205, 1209 (9th Cir. 2021); see also Ming Dai, 141 S.Ct. at 1678 ("The only question for judges reviewing the BIA's factual determinations is whether any reasonable adjudicator could have found as the agency did.") (emphasis in original). As the BIA's factual determination that Chavez-Lara's family suffered from the same crime and violence plaguing all Mexican citizens rather than being targeted on a protected ground is not "irrational, arbitrary, or contrary to law," we should deny his petition for review. I respectfully dissent.
[*] 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).
[***] The Honorable M. Miller Baker, Judge for the United States Court of International Trade, sitting by designation.