Heber Chavez-Lara v. Merrick Garland

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 27 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT HEBER CHAVEZ-LARA, No. 16-71237 Petitioner, Agency No. A075-477-647 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted July 25, 2022** San Francisco, California Before: GRABER and WARDLAW, Circuit Judges, and BAKER,*** International Trade Judge. Petitioner Heber Chavez-Lara timely seeks review of the Board of Immigration Appeals’ ("BIA") denial of his 2016 motion to reopen proceedings. * 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. 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). Petitioner sufficiently alleged membership in the particular social group of his family to put the BIA "on notice" of the claim. 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 to kill him because of his relationship with his parents and because of his parents’ refusal to pay. Additionally, when Petitioner’s aunt and uncle refused to pay extortionists, the extortionists killed Petitioner’s cousin. Petitioner 2 corroborated his application with his own affidavit and with letters from his aunt, cousin, mother, and father. The harm to the family occurred after Petitioner’s original removal hearing and thus, at that time, was unavailable and could not have been discovered. The evidence is relevant to a claim of persecution on account of family membership. Accordingly, if Petitioner has shown prima facie eligibility for relief, then he is entitled to reopening. See Hernandez-Ortiz v. Garland, 32 F.4th 794, 804 (9th Cir. 2022) (describing the requirements for reopening due to changed country conditions). The BIA legally erred by failing …

Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals