Heber Chavez-Lara v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 27, 2022
• Docket: 16-71237
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 27 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT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 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)

3 (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 the BIA did not consider his membership in the family as a potential

ground for relief. The BIA neither mentioned the evidence of harm to the family

nor considered whether Petitioner had shown prima facie eligibility for relief on

that ground. 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").

Because the BIA did not consider the issue, we express no view on whether

Petitioner has established prima facie eligibility due to membership in the

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.