NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 27 2020 FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS JOSE JUAN BAUTISTA, AKA Juan No. 18-72101 Patino, Agency No. A074-629-552 Petitioner, v. MEMORANDUM* WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted May 15, 2020 Portland, Oregon Before: BYBEE and VANDYKE, Circuit Judges, and CHHABRIA,** District Judge. Partial Concurrence and Partial Dissent by Judge VANDYKE Petitioner Jose Juan Bautista, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (BIA) decision denying his motion to * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Vince Chhabria, United States District Judge for the Northern District of California, sitting by designation. reopen proceedings. Because the parties are familiar with the facts, we will not recite them here except as necessary. We have jurisdiction under 8 U.S.C. § 1252. We grant in part and deny in part the petition for review. “We review for abuse of discretion the BIA’s denial of a motion to reopen.” He v. Gonzales, 501 F.3d 1128, 1130 (9th Cir. 2007). The BIA abuses its discretion when it “makes an error of law” or when it draws a conclusion that is “illogical . . . implausible . . . or . . . without support in inferences that may be drawn from the facts in the record.” United States v. Hinkson, 585 F.3d 1247, 1261–62 (9th Cir. 2009) (en banc) (internal quotation marks omitted). An alien who has received a final order of removal but has obtained new evidence supporting his claim for relief may ask the BIA to reopen proceedings and reconsider his case. 8 U.S.C. §1229a(c)(7). The alien has ninety days from the date on which the final removal order is entered to file the motion. Id. § 1229a(c)(7)(C)(i). However, if the motion to reopen includes a claim for asylum based on changed country conditions, then this deadline does not apply, so long as the “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). “[A] motion to reopen will not be granted unless the [alien] establishes a prima facie case of eligibility for the underlying relief sought.” Ordonez v. INS, 345 F.3d 2 777, 785 (9th Cir. 2003) (quoting In re S-V-, 22 I. & N. Dec. 1306 (B.I.A. 2000)). An alien has established a prima facie case for relief when “the evidence reveals a reasonable likelihood that the statutory requirements for relief have been satisfied.” Id. And, “facts presented in affidavits supporting a motion to reopen must be accepted as true unless inherently unbelievable.” Bhasin v. Gonzales, 423 F.3d 977, 987 (9th Cir. 2005). Here, the BIA denied Bautista’s motion to reopen as untimely, concluding that the exception to the ninety-day filing deadline for changed country ...
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