Yalda Youssef v. Eric Holder, Jr.

FILED
NOT FOR PUBLICATION MAR 19 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
YALDA MILAD YOUSSEF, No. 11-70990
Petitioner, Agency No. A079-812-036
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 12, 2013 **
Before: PREGERSON, REINHARDT, and W. FLETCHER, Circuit Judges.
Yalda Milad Youssef, a native and citizen of Lebanon, petitions for review
of the Board of Immigration Appeals’ (“BIA”) order denying his third motion to
reopen removal proceedings. Our jurisdiction is governed by 8 U.S.C. § 1252. We
review for abuse of discretion the denial of a motion to reopen, and for substantial
*
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).
evidence the BIA’s factual findings. Mohammed v. Gonzales, 400 F.3d 785, 791
(9th Cir. 2005). We grant in part and dismiss in part the petition for review, and
remand for further proceedings.
The BIA abused its discretion in denying Youssef’s motion to reopen where
Youssef submitted evidence of changed circumstances in Lebanon. See 8 C.F.R.
§ 1003.2(c)(3)(ii). The proffered evidence, when viewed collectively, indicated
that Youssef’s parents were shot and wounded by Muslim extremists in Lebanon
on September 26, 2010, because of their religious activities and that Youssef’s life
now would be in similar jeopardy if he were to return to Lebanon. The BIA did
not find the proffered evidence to be inherently unbelievable. Therefore,
substantial evidence does not support the BIA’s determinations that the proffered
evidence did not reflect changed country conditions in Lebanon, that it was not
material, and that it did not establish Youssef’s prima facie eligibility for asylum,
withholding of removal, and relief under the Convention Against Torture. See
Celis-Castellano v. Ashcroft, 298 F.3d 888, 892 (9th Cir. 2002) (“[T]he Board
must accept as true the facts stated in an alien’s affidavit in ruling upon his motion
to reopen unless it finds those facts to be inherently unbelievable.”) (internal
quotation marks and citations omitted); see also Toufighi v. Mukasey, 538 F.3d
2 11-70990
988, 966 (9th Cir. 2008) (summarizing the requirements for a petitioner to prevail
on a motion to reopen based on changed country conditions).
We note, given the passage of time, that Youssef is not precluded from
updating the contents of his motion to reopen. See Malty v. Ashcroft, 381 F.3d
942, 946 (9th Cir. 2004) (“changed country conditions are specifically excepted
from the numerical limitations on motions”).
We lack jurisdiction to review Youssef’s due process contention related to
the withdrawal of his original asylum application because he did not raise that
contention before the agency and therefore failed to exhaust his administrative
remedies. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004) (this court
lacks jurisdiction to review contentions not raised before the agency).
PETITION FOR REVIEW GRANTED in part; DISMISSED in part;
REMANDED.
3 11-70990