Jazmin Rios-Garcia v. William Barr ( 2020 )

FILED
NOT FOR PUBLICATION
JUL 21 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAZMIN CAROLINA RIOS-GARCIA, No. 17-73234
Petitioner, Agency No. A098-039-868
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 17, 2020**
Before: HAWKINS, GRABER, and CLIFTON, Circuit Judges.
Petitioner Jazmin Rios-Garcia seeks review of the Board of Immigration
Appeals’ ("BIA") denial of her untimely motion to reopen removal proceedings.
We review for abuse of discretion the denial of a motion to reopen, and we review
*
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).
de novo questions of law. Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir. 2003).
We deny in part and grant in part the petition for review, and we remand.
1. The immigration court had jurisdiction over Petitioner’s case.
Petitioner’s argument to the contrary is foreclosed by Karingithi v. Whitaker, 913
F.3d 1158 (9th Cir. 2019), cert. denied, 140 S. Ct. 1106 (2020).
2. The BIA abused its discretion by dismissing the contentions in
Petitioner’s declaration without analysis because they were not based on "personal
knowledge." See Bhasin v. Gonzales, 423 F.3d 977, 987 (9th Cir. 2005) ("[F]acts
presented in affidavits supporting a motion to reopen must be accepted as true
unless inherently unbelievable."). Petitioner asserted in her declaration that a gang
was targeting her family with threats of violence and that she feared she would be
targeted because of her family ties. Petitioner’s assertions were not inherently
unbelievable given the general country conditions. Moreover, Petitioner submitted
as corroboration a news article about the murder of her cousin’s daughter and
offered a reasonable explanation for why she could not submit a declaration from
her cousin.
Increased violence targeted at a petitioner’s family may constitute a material
change in country conditions. Id. Thus, the BIA should have considered the
argument. See Virk v. INS, 295 F.3d 1055, 1060 (9th Cir. 2002) (stating that the
2
BIA’s failure to consider all relevant factors in determining whether to grant a
motion to reopen is an abuse of discretion).
Because the change in the level of violence directed at Petitioner’s family
members could have established prima facie eligibility for relief, the BIA abused
its discretion by dismissing the content of Petitioner’s declaration and failing to
consider Petitioner’s argument. We therefore grant the petition and remand to the
BIA with instructions to consider whether Petitioner’s evidence establishes
changed country conditions such that she now has a well-founded fear of future
persecution. Malty v. Ashcroft, 381 F.3d 942, 945 (9th Cir. 2004).
3. The BIA did not abuse its discretion in denying Petitioner’s motion to
reopen due to ineffective assistance of counsel where Petitioner filed her motion
eight years after the final order of removal and where she failed to demonstrate the
due diligence necessary to warrant equitable tolling of the filing deadline. See
Avagyan v. Holder, 646 F.3d 672, 679 (9th Cir. 2011) (requiring a petitioner
exercise due diligence to justify equitable tolling). Petitioner knew at the time of
her initial hearing that her lawyer had not applied for asylum. Nevertheless, she
waited eight years to seek reopening premised on that alleged deficiency. Even if
Petitioner had acted diligently, the BIA permissibly concluded, in the alternative,
that Petitioner suffered no prejudice from her lawyer’s failure to seek asylum
3
because fear of general violence is not a protected ground. See Azanor v.
Ashcroft, 364 F.3d 1013, 1023 (9th Cir. 2004) (noting that a petitioner must
demonstrate prejudice to succeed on an ineffective assistance of counsel claim);
Singh v. INS, 134 F.3d 962, 967 (9th Cir. 1998) (holding that generalized violence
is not sufficient to establish a well-founded fear of persecution for asylum).
4. Our jurisdiction to review BIA decisions denying sua sponte reopening is
limited to reviewing the reasoning behind the decisions for legal or constitutional
error. Bonilla v. Lynch, 840 F.3d 575, 581–82 (9th Cir. 2016). Petitioner has not
established that the BIA’s denial of sua sponte reopening involved any "incorrect
legal premise." See id. at 588.
Petition DENIED in part; GRANTED in part; REMANDED.
4