Desideria Culanag v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 15, 2019
• Docket: 18-70043
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 15 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

DESIDERIA SAN LORENZO CULANAG, No. 18-70043

Petitioner, Agency No. A099-800-446

v. MEMORANDUM* WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted July 11, 2019** Portland, Oregon

Before: TASHIMA, GRABER, and OWENS, Circuit Judges.

Desideria San Lorenzo Culanag, a native and citizen of the Philippines,

petitions for review of the Board of Immigration Appeals’ (“BIA”) final removal

order, dismissing her appeal from the immigration judge’s (“IJ”) decision denying

her asylum and withholding from removal. We have jurisdiction under 8 U.S.C.

* 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). § 1252, and we grant the petition.

1. The BIA erred in concluding that Culanag did not qualify for the

“changed circumstances” exception to the one-year filing deadline for asylum

applications. An asylum applicant must “demonstrate[] by clear and convincing

evidence that the application has been filed within 1 year after the date of the

[applicant]’s arrival in the United States.” 8 U.S.C. § 1158(a)(2)(B). There is a

statutory exception to the one-year bar, however, if the applicant “demonstrates . . .

the existence of changed circumstances which materially affect the applicant’s

eligibility for asylum.” Id. § 1158(a)(2)(D). The applicant must also demonstrate

that she “file[d] an asylum application within a reasonable period given those

‘changed circumstances.’” 8 C.F.R. § 208.4(a)(4)(ii).

The BIA incorrectly determined that the operative changed circumstances

could be only when the recent string of violence against Culanag’s family “began”

in 2007, and thus it was unreasonable for Culanag to wait until 2014 to file her

asylum application. We have interpreted the changed circumstances exception

broadly, and new events offering further evidence of an applicant’s eligibility for

asylum may suffice. See Singh v. Holder, 656 F.3d 1047, 1053 (9th Cir. 2011)

(“[A] petitioner might still qualify for the changed circumstances exception even if

the relevant circumstances do not create a new basis of persecution but simply

provide further evidence of the type of persecution already suffered.”); Vahora v.

2 Holder, 641 F.3d 1038, 1044-45 (9th Cir. 2011) (explaining that this exception

“w[as] intended to be broad” and does not “preclude an individual who has always

feared persecution from seeking asylum because the risk of that persecution

increases”). The BIA failed even to mention attacks on Culanag’s family that

occurred in 2013 in retaliation for her brother-in-law’s work as the head of the

local drug and narcotics police unit. Specifically, Culanag credibly testified about

at least three incidents in 2013—the murder of her second cousin, a death threat to

her nephew, and multiple death threats to her brother-in-law and sister.

2. The BIA also failed to discuss the 2013 attacks in concluding that

Culanag was ineligible for withholding of removal because she could reasonably

relocate within the Philippines to avoid future harm. See 8 C.F.R. § 208.16(b)(2);

Lopez-Vasquez v. Holder, 706 F.3d 1072, 1078 (9th Cir. 2013) (stating the

standard of review). By overlooking these recent events, the BIA did not

sufficiently address whether it would be reasonable to expect her to relocate to

Manila. See Knezevic v. Ashcroft, 367 F.3d 1206, 1215 (9th Cir. 2004) (explaining

that the agency must “take into account the numerous factors for determining

reasonableness outlined in 8 C.F.R. § 1208.13(b)(3),” including “whether the

applicant would face other serious harm in the place of suggested relocation; any

ongoing civil strife; administrative, economic, or judicial infrastructure”).

Accordingly, we grant the petition for review. We remand to the BIA to

3 address whether those 2013 events constitute “changed circumstances” for

purposes of the exception to the one-year bar for asylum applications. If so, the

BIA may make an “individualized determination[]” of whether Culanag filed her

asylum application within a reasonable period of time after these incidents, in light

of “all the factual circumstances of the case.” Al Ramahi v. Holder, 725 F.3d

1133, 1135 (9th Cir. 2013) (citation omitted). The BIA must also determine the

impact, if any, of those 2013 events on the reasonableness of internal relocation as

it relates to Culanag’s application for withholding from removal.

PETITION FOR REVIEW GRANTED; REMANDED.