PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 20-1678 NAPOLEON GARCIA HERNANDEZ, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Submitted: January 28, 2022 Decided: March 2, 2022 Before MOTZ, THACKER, and QUATTLEBAUM, Circuit Judges. Petition for review granted; vacated and remanded by published opinion. Judge Quattlebaum wrote the opinion, in which Judge Motz and Judge Thacker joined. ON BRIEF: Benjamin J. Osorio, Alexandra Ribe, MURRAY OSORIO PLLC, Fairfax, Virginia, for Petitioner. Brian Boynton, Acting Assistant Attorney General, Cindy S. Ferrier, Assistant Director, Brendan P. Hogan, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. QUATTLEBAUM, Circuit Judge: Napoleon Garcia Hernandez, a native and citizen of Honduras, petitions for review of an order of the Board of Immigration Appeals (“BIA”) dismissing his appeal of the Immigration Judge’s (“IJ”) denial of his motion to reopen removal proceedings. For the reasons below, we grant the petition and vacate and remand to the BIA for further proceedings consistent with this opinion. I. In 2005, Garcia Hernandez entered the United States without inspection. A.R. 608, 762. In May 2018, the Department of Homeland Security began removal proceedings against Garcia Hernandez. A.R. 762–63. In June 2018, Garcia Hernandez conceded removability but applied for asylum, withholding and protection under the Convention Against Torture (“CAT”). A.R. 608–19. Garcia Hernandez claimed past persecution on account of being a member of the Garcia Hernandez family. He alleged the Lopez family had attacked and killed many members of his family. A.R. 42, 612. In August 2018, the IJ denied Garcia Hernandez’s application for asylum as untimely based on the requirement of 8 U.S.C. § 1158(a)(2)(B) that asylum claims be made within one year of arrival in the United States. But the IJ granted his application for withholding of removal. A.R. 606. In October 2018, Garcia Hernandez moved to reopen the removal proceedings. He again requested asylum, relying on evidence of recent attacks on his family. A.R. 46. Specifically, Garcia Hernandez relied on the September 1, 2018, violent murder of his brother Adonay Garcia Hernandez by the Lopez family. A.R. 47, 61. Garcia Hernandez 2 argued that this murder constituted a changed circumstance which satisfied an exception to the one-year filing deadline for asylum under our decision in Zambrano v. Sessions, 878 F.3d 84 (4th Cir. 2017). A.R. 47, 64. In November 2018, the IJ denied the motion to reopen. The IJ acknowledged that the September 2018 murder was a “new instance of persecution against the Respondent’s family.” A.R. 43. But the IJ held the incident did not constitute “changed country conditions,” and instead reflected a long-standing pattern of persecution against Garcia Hernandez’s family. A.R. 43 (emphasis in original). The IJ also concluded that while Zambrano provided an exception to the one-year deadline for asylum claims based on changed circumstances, it applied only when the changed circumstances occurred after the one-year filing deadline expired but before the asylum application was filed. …
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