Juan Gonzalez Hermosillo v. Eric Holder, Jr. ( 2014 )

FILED
NOT FOR PUBLICATION JUL 30 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JUAN RAMON GONZALEZ No. 12-71218
HERMOSILLO; GREYSSI ROSAURA
GONZALEZ FLORES, Agency Nos. A095-200-456
A095-200-454
Petitioners,
v. MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 22, 2014**
Before: GOODWIN, CANBY, and CALLAHAN, Circuit Judges.
Juan Ramon Gonzalez Hermosillo and Greyssi Rosaura Gonzalez Flores,
natives and citizens of Mexico, petition for review of an order of the Board of
Immigration Appeals (“BIA”) denying their motion to reopen removal
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
proceedings. We review for abuse of discretion the denial of a motion to reopen
and review de novo questions of law. Najmabadi v. Holder, 597 F.3d 983, 986
(9th Cir. 2010). We deny in part and grant in part the petition for review and
remand.
The BIA did not abuse its discretion by denying petitioners’ untimely and
successive motion to reopen based on changed country conditions, where
petitioners failed to present any evidence to show that conditions in Mexico had in
fact changed from the time of their initial removal hearing. See 8 C.F.R.
§ 1003.2(c); see also Najmabadi, 597 F.3d at 987 (requiring that evidence of
changed country conditions “be ‘qualitatively different’ from the evidence
presented at the previous hearing” (citation omitted)).
In view of the limited country-conditions evidence submitted with
petitioners’ motion, the BIA conducted an adequately individualized analysis of
the claim. See Shooshtary v. INS, 39 F.3d 1049, 1051 (9th Cir. 1994) (“[T]he
preciseness we require of the Board depends upon the preciseness of the proof
offered by the petitioner.”).
Because petitioners did not establish that any exception to the filing deadline
applies, the BIA did not need to reach the merits of petitioners’ application for
asylum and withholding of removal. See 8 C.F.R. § 1003.2(c)(3).
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However, while the BIA’s decision states that petitioners failed to
demonstrate error by former counsel, the record before us is inadequate to
determine whether the BIA addressed several of petitioners’ allegations of
ineffective assistance, including the allegation that former counsel had untimely
filed their first motion to reopen. See Doissaint v. Mukasey, 538 F.3d 1167, 1170
(9th Cir. 2008) (“IJs and the BIA are not free to ignore arguments raised by a
petitioner.” (citation omitted)). Accordingly, we remand the case to the BIA for
further consideration of petitioners’ motion to reopen based on a claim of
ineffective assistance of counsel. See Andia v. Ashcroft, 359 F.3d 1181, 1184
(9th Cir. 2004) (per curiam) (“If we conclude that the BIA’s decision cannot be
sustained upon its reasoning, we must remand to allow the agency to decide any
issues remaining in the case.”). We express no opinion as to the merits of this
claim.
Each party shall bear its own costs for this petition for review.
PETITION FOR REVIEW DENIED in part; GRANTED in part;
REMANDED.
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