Ramzan Chaudhry v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 7, 2022
• Docket: 20-70482
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 7 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

RAMZAN ALI CHAUDHRY, No. 20-70482 Petitioner, Agency No. A072-175-541 v. MERRICK B. GARLAND, Attorney MEMORANDUM* General, Respondent.

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

Submitted May 12, 2021** San Francisco, California

Before: NGUYEN and COLLINS, Circuit Judges, and RAKOFF,*** District Judge. Dissent by Judge COLLINS.

Ramzan Ali Chaudhry, a citizen of Pakistan, petitions for review of an order

of the Board of Immigration Appeals (“BIA”) denying his motion to reopen his

removal proceedings. We have jurisdiction under § 242 of the Immigration and

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes that this case is suitable for decision without oral argument. See FED. R. APP. P. 34(a)(2)(C). *** The Honorable Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation. Nationality Act (“INA”), 8 U.S.C. § 1252. In light of intervening decisions by this

court and the Attorney General, we grant the petition and remand for further

proceedings.

The BIA relied on He v. Gonzales, 501 F.3d 1128 (9th Cir. 2007), to

conclude that Chaudhry failed to show changed circumstances in Pakistan, his

country of origin, that would allow the BIA to consider his otherwise untimely

motion to reopen. He held that a self-induced change in the petitioner’s personal

circumstances—there the birth of two of the petitioners’ children in the United

States, which caused the petitioners to be in violation of longstanding population

control policies in place in China, their country of origin—cannot satisfy the

changed country circumstances exception. Id. at 1132. The BIA determined that

Chaudhry’s circumstances are indistinguishable from He because Chaudhry alleges

only a change in his personal circumstances, namely that his wife’s former in-laws

in Pakistan became aware of her marriage to him and threatened to kill him if he

returns.

After the BIA’s decision, however, we clarified in Kaur v. Garland, 2 F.4th

823 (9th Cir. 2021), that He is inapplicable when the changed circumstances, even

if personal to the petitioner, occur in the country of origin and are beyond the

petitioner’s control. Id. at 830-31. We thus held that the death of the petitioner’s

husband in India and her in-laws’ ensuing threats to kill her if she returned were

2 changed circumstances in India that she did not “volitionally change or affect.” Id.

at 831.

Similar to the petitioner in Kaur, and unlike the petitioners in He, Chaudhry

faces changed circumstances in his country of origin—the death threat from his

wife’s former in-laws in Pakistan—and those circumstances appear beyond

Chaudhry’s control, thus alleviating any concern of gamesmanship. See He, 501

F.3d at 1131-32 (noting policy concern that a petitioner will “gam[e] the system”

by altering circumstances within his control (quoting Wang v. BIA, 437 F.3d 270,

274 (2d Cir. 2006))). Chaudhry’s marriage to his wife, while volitional, is an act

seemingly removed from the independent decision of a third party to threaten him

with death. We therefore remand to the BIA to reconsider, in light of Kaur,

whether Chaudhry satisfies the changed country circumstances exception. See,

e.g., Naranjo-Barrajas v. Holder, 356 F. App’x 923, 923-24 (9th Cir. 2009)

(remanding to the BIA for reconsideration of a denial of a motion to reopen in light

of an intervening decision by this court).1

1 The dissent would deny the petition on a ground that the BIA did not consider— Chaudhry’s self-inducement of his changed circumstances. See Andia v. Ashcroft, 359 F.3d 1181, 1184 (9th Cir. 2004) (per curiam) (“In reviewing the decision of the BIA, we consider only the grounds relied upon by that agency.”). It concludes that by marrying his wife, Chaudhry “expose[d] [himself] to a pre-existing risk” of harm but provides no record support for reaching that conclusion in the present case. Our remand instead allows the agency to consider self-inducement in the first instance with the guidance of both He and Kaur.

3 The BIA also denied the motion to reopen on the alternative ground that

Chaudhry failed to show prima facie eligibility for relief because he claimed fear

of persecution based on membership in an inadequate particular social group. In

concluding that Chaudhry failed to present a cognizable group, the BIA relied on

Matter of L-E-A-, 27 I. & N. Dec. 581 (A.G. 2019). The Attorney General has

since vacated that decision, reasoning that its analysis was “inconsistent with the

decisions of several courts of appeals that have recognized families as particular

social groups,” including Rios v. Lynch, 807 F.3d 1123, 1128 (9th Cir. 2015).

Matter of L-E-A-, 28 I. & N. Dec. 304, 305–06 (A.G. 2021). We therefore remand

to the BIA so that it may reconsider Chaudhry’s prima facie eligibility for relief.

PETITION GRANTED AND REMANDED.

4 Chaudhry v. Garland, 20-70482 FILED JAN 7 2022 COLLINS, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

In my view, the BIA did not abuse its discretion in concluding that, under

He v. Gonzales, 501 F.3d 1128 (9th Cir. 2007), Chaudhry had failed to establish

changed country conditions that would allow a reopening of his removal

proceedings. See Chandra v. Holder, 751 F.3d 1034, 1036 (9th Cir. 2014) (stating

that denial of a motion to reopen is reviewed for abuse of discretion). Because the

majority instead remands the case for reconsideration, I respectfully dissent.

I

Section 240 of the INA specifies that a motion to reopen must “be filed

within 90 days of the date of entry of [the alien’s] final administrative order of

removal,” but it provides an exception for aliens who seek reopening in order to

apply for asylum or withholding of removal “based on changed country conditions

arising in the country of nationality or the country to which removal has been

ordered.” See 8 U.S.C. § 1229a(c)(7)(C)(i)–(ii). Because Chaudhry’s motion to

reopen was filed almost five years after his final administrative order of removal,

his motion could not be considered unless, inter alia, he established such changed

country circumstances.

In seeking reopening, Chaudhry relied on the threat of an “honor killing” by

his wife’s ex-husband’s family in Pakistan. Chaudhry met his wife in the U.S. and in 2004 they were “religiously married at a local mosque.” His wife had been

granted asylum in the U.S. in 2003 based on her “fear of being subjected to honor

killing in Pakistan” by her ex-husband’s family, who opposed her having fled her

in-laws’ home after her husband disappeared in 2002. Years later, in 2013,

Chaudhry’s wife served divorce papers on her ex-husband in Pakistan, and at that

point the ex-husband’s family learned that she had religiously married another man

in the U.S. After the Pakistani divorce was finalized, Chaudhry and his wife were

civilly married in the U.S. in 2014. His wife’s brother told her in the summer of

2018 that the ex-husband’s brother has threatened to kill Chaudhry if he returns to

Pakistan. Chaudhry contended that “murdering someone in the name of family

honor is extremely prevalent” in Pakistan and that, because his marriage “violated

deeply held customs and belie[f]s held by [his wife’s] former husband’s family,”

he was at risk of an honor killing if he is removed to Pakistan.

The BIA concluded that Chaudhry’s showing failed to demonstrate the

requisite changed circumstances, and it alternatively concluded that he also failed

to establish a prima facie case for asylum or withholding of removal.1 See

Toufighi v. Mukasey, 538 F.3d 988, 996 (9th Cir. 2008) (in addition to changed

1 The BIA also concluded that Chaudhry failed to establish prima facie eligibility for protection under the Convention Against Torture, but Chaudhry has not challenged that determination in his opening brief in this court. He therefore forfeited any such claim. See Hui Ran Mu v. Barr, 936 F.3d 929, 936 (9th Cir. 2019).

2 country circumstances, alien seeking reopening must make a prima facie showing

of eligibility for relief).

II

I would hold that the BIA did not abuse its discretion in concluding that

Chaudhry’s case is not meaningfully distinguishable from He and that, as a result,

Chaudhry was not eligible for reopening. I therefore do not address whether

Chaudhry also failed to establish a prima facie case for relief.

A

In He, we held that a “self-induced change” in the alien’s circumstances in

the U.S. (there, the births of a second child and a third child in the U.S.) did not

qualify as “changed circumstances arising . . . in the country to which deportation

has been ordered” within the meaning of 8 C.F.R. § 1003.2(c)(3)(ii), which is the

regulation that restates and implements the similarly worded “changed country

conditions” requirement set forth in INA § 240(c)(7)(B)(ii). See He, 501 F.3d at

1132; cf. Kaur v. Garland, 2 F.4th 823, 830–31 (9th Cir. 2021) (holding that “the

rule in He” does not apply when the relevant changed circumstances occur in “the

country to which removal is ordered[] and are entirely outside the petitioner’s

control”). That remained true, He held, even though that self-induced change of

circumstances in the U.S. now brought the alien within a pre-existing category of

persons that would be subject to potential persecution in the country in question.

3 Thus, although the birth of a second child in the U.S. now meant that the Hes were,

for the first time, “subject to forced sterilization pursuant to the [Chinese

Government’s] population control policy if they are returned to China,” we held

that the changed-country-circumstances factor required a showing of “changed

conditions in China for reasons other than the change in their personal

circumstances following the births of their children in the United States.” Id. at

1131–32 (emphasis added). So too here, it is not sufficient that the self-induced

change in Chaudhry’s circumstances in the U.S. (his marriage to his wife) placed

him at risk of being subjected to what Chaudhry himself concedes is the

longstanding and “extremely prevalent” practice of honor killings in Pakistan.

The majority nonetheless remands the case on the ground that He might be

considered to be distinguishable here. I think it is already clear that He is

controlling and that a remand is therefore unnecessary. The majority notes that,

“unlike the petitioners in He, Chaudhry faces changed circumstances in his country

of origin—the death threat from his wife’s former in-laws in Pakistan.” See Mem.

Dispo. at 3. But, as I see it, an analogous change in circumstances was present in

He. After the births of their second and third children in the U.S., the Hes faced

changed circumstances in their country of origin inasmuch as Chinese officials in

that country now wanted to harm them because those additional births in the U.S.

“render[ed] them subject to forced sterilization pursuant to the [Chinese

4 Government’s] population control policy if they are returned to China.” 501 F.3d

at 1131. Even though there was, in that sense, literally a change in circumstances

in China, we held that it did not satisfy the statutory requirement because the Hes

had not shown “changed conditions in China for reasons other than the change in

their personal circumstances following the births of their children in the United

States.” Id. at 1131–32 (emphasis added). Under He, the statutory standard is not

met if the alien takes actions within the U.S. that bring him or her within a pre-

existing category of threatened harm in the country of origin. That is exactly the

case here.

For similar reasons, I do not think that He may be distinguished on the

asserted ground that, because the “death threat” from Chaudhry’s wife’s ex-in-laws

appears to be “beyond Chaudhry’s control,” there is no concern about

“gamesmanship” of the immigration system. See Mem. Dispo. at 3. Under He and

Kaur, the focus must be on whether the alien had control over the circumstances

that triggered the new threat, and not merely over whether the alien could control

the threat itself. In He, the threat of forced sterilization by Chinese officials was

triggered by the births of the Hes’ additional children in the U.S., which we

described as “‘circumstances entirely of [the Hes’] own making.’” 501 F.3d at

1131 (citation omitted). Even though, once that threat was triggered in He, the Hes

had no control over it, we held that these changes did not satisfy the applicable

5 changed-country-conditions standard. By contrast, in Kaur, the new threats arose

from the death of Kaur’s husband in India, and we distinguished He on the grounds

Kaur’s “husband’s death in India and the ensuing threats from her in-laws were

new circumstances in India, entirely outside her control; she herself did not

volitionally change or affect them.” 2 F.4th at 831 (emphasis added). Here, the

triggering event—Chaudhry’s marriage to his wife—was not “entirely outside

[Chaudhry’s] control.” Id. The majority suggests that, although “Chaudhry’s

marriage to his wife” was concededly “volitional,” it is “seemingly removed from

the independent decision of a third party to threaten him with death.” See Mem.

Dispo. at 3. But this contention is hard to square with He. Under He, voluntary

actions in the U.S. that expose oneself to a pre-existing risk do not satisfy the

changed-country-conditions standard.

Because He seems to me to be controlling, I would not remand the case for

reconsideration in light of Kaur.

B

He recognized an exception to its general rule, but the BIA did not abuse its

discretion in finding that exception inapplicable here.

In cases where an alien’s changed circumstances in the U.S. place him or her

for the first time into a “category of individuals” at risk of mistreatment in the

country of deportation, the alien can still satisfy the requirement to show changed

6 country conditions by establishing that the treatment of that category of persons

has changed in that country. He, 501 F.3d at 1132; see also Chandra, 751 F.3d at

1038 (holding that “a petitioner’s untimely motion to reopen may qualify under the

changed conditions exception in 8 C.F.R. § 1003.2(c)(3)(ii), even if the changed

country conditions are made relevant by a change in the petitioner’s personal

circumstances”); accord Kaur, 2 F.4th at 831–32. The BIA properly concluded

that Chaudhry had not shown that “country conditions” had materially changed

“with respect to honor killings in Pakistan” since the hearing on his applications

for relief in immigration court.

The BIA noted that Chaudhry’s motion had not presented any evidence of an

increase in such killings in Pakistan and that, in fact, the evidence showed that

Pakistan had “taken steps to prevent honor killings, including [by] passing an anti-

honor[-]killing law in 2016 which closes the loophole that allowed perpetrators of

honor killings to go free if the victim’s family pardoned the perpetrator.”

Although Chaudhry presented some evidence that this new law had not been as

effective as had been hoped, I cannot say that, in reviewing this record, the BIA

abused its discretion in ultimately determining that there had not been a material

change in country conditions concerning honor killings in Pakistan. In my view,

therefore, the motion to reopen was properly denied.

I respectfully dissent.