                                                                           FILED
                              NOT FOR PUBLICATION                          DEC 10 2014

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                              FOR THE NINTH CIRCUIT


CRUZ LOPEZ-VASQUEZ, AKA Cruz                     No. 11-70901
Lopez Vazquez and DAVID PEREZ-
LOPEZ,                                           Agency Nos.         A077-838-364
                                                                     A077-838-365
              Petitioners,

  v.                                             MEMORANDUM*

ERIC H. HOLDER, Jr., Attorney General,

              Respondent.


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

                             Submitted November 20, 2014**
                                San Francisco, California

Before: THOMAS, Chief Judge, and REINHARDT and CHRISTEN, Circuit
Judges.

       Cruz Lopez-Vasquez and her son David Perez-Lopez, both natives and

citizens of Guatemala, petition for review of the Board of Immigration Appeals’s


        *
             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).
(“BIA”) decision denying their motion to reopen removal proceedings. We have

jurisdiction under 8 U.S.C. § 1252 and review the BIA’s denial of petitioners’

motion for abuse of discretion. Tadevosyan v. Holder, 743 F.3d 1250, 1252 (9th

Cir. 2014).

      We grant the petition for review for the reasons set forth below. Because the

parties are familiar with the factual and procedural history of this case, we need not

recount it here.

                                           I

      “‘A motion to reopen is a traditional procedural mechanism in immigration

law with a basic purpose that has remained constant – to give aliens a means to

provide new information relevant to their cases to the immigration authorities.’”

Meza-Vallejos v. Holder, 669 F.3d 920, 924 (9th Cir. 2012) (quoting Azarte v.

Ashcroft, 394 F.3d 1278, 1283 (9th Cir. 2005)). Under the Illegal Immigration

Reform and Immigrant Responsibility Act (“IIRIRA”), every alien subject to

removal has the statutory right to file one motion to reopen with the BIA. 8 U.S.C.

§ 1229a(c)(7)(A). Although that motion ordinarily must be filed within ninety

days of the entry of the removal order, IIRIRA creates an exception to this general

rule for any alien who seeks to reopen asylum proceedings in order to present new

evidence of “changed country condition arising in [his or her] country of


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nationality or the country to which removal has been ordered.” Id.

§§ 1229a(c)(7)(C)(i)-(ii). Because petitioners’ motion here is based on changed

country conditions in Guatemala, their motion is not time-barred.

      Nor is it barred by the “departure rule.” That rule provides that a “motion to

reopen or a motion to reconsider shall not be made by or on behalf of a person who

is the subject of exclusion, deportation, or removal proceedings subsequent to his

or her departure from the United States.” 8 C.F.R. § 1003.2(d). The BIA held that

petitioners were precluded from moving to reopen under this rule because they had

been removed from the United States in 2004, more than five years before they

filed the instant motion. However, the BIA issued its decision before we decided

Reyes-Torres v. Holder, 645 F.3d 1073, 1076 (9th Cir. 2011), which held that the

departure rule does not preclude an alien from moving to reopen after he or she has

been removed. As we explained in that case, construing the departure rule to

preclude a previously removed alien from filing a motion to reopen would

undermine IIRIRA’s guarantee that every alien subject to removal has the right to

file such a motion. See id. at 1077 (“After reviewing the statutes, we determined

that ‘the intent of Congress is clear,’ and that ‘in passing IIRIRA, Congress

anticipated that petitioners would be able to pursue relief after departing from the

United States.’” (quoting Coyt v. Holder, 593 F.3d 902, 906 (9th Cir. 2010)).


                                          3
Thus, as in Reyes-Torres, petitioners’ prior removal from the United States does

not preclude them from exercising their statutory right to file a motion to reopen.

                                          II

      Generally, a “motion to reopen proceedings shall not be granted unless it

appears to the BIA that evidence sought to be offered is material and was not

available and could not have been discovered or presented at the former hearing.”

8 C.F.R. § 1003.2(c)(1). An alien who seeks to reopen removal proceedings to

pursue relief based on changed country conditions must clear “four hurdles”:

“(1) he ha[s] to produce evidence that conditions ha[ve] changed in [his country of

nationality]; (2) the evidence ha[s] to be ‘material;’ (3) the evidence must not have

been available and would not have been discovered or presented at the previous

proceeding; and (4) he ha[s] to demonstrate that the new evidence, when

considered together with the evidence presented at the original hearing, would

establish prima facie eligibility for the relief sought.” Toufighi v. Mukasey, 538

F.3d 988, 996 (9th Cir.2008) (internal quotation marks and citation omitted).

      Petitioners in this case submitted a sworn statement from Lopez-Vasquez

describing how, in 2006, her aunt-in-law was kidnaped and murdered by anti-

government guerillas for refusing to disclose the whereabouts of petitioners and

other relatives. Lopez-Vasquez asserted that the people who murdered her aunt-in-


                                          4
law were the same people who had harassed her and her son before they fled

Guatemala the first time. She also provided a municipal death certificate as further

evidence of her aunt-in-law’s death.

      The BIA held that petitioners’ evidence was not sufficient to establish prima

facie eligibility for asylum. It concluded that, “[a]side from [Lopez-Vasquez]’s

statement, there is no objective evidence that the respondents would be targeted on

account of a protected ground.” However, the BIA was required to accept the new

facts alleged in Lopez-Vasquez’s declaration as true unless it determined that they

were “inherently unbelievable.” Najmabadi v. Holder, 597 F.3d 983, 990 (9th Cir.

2010). The BIA did not make such a finding nor provide any other reasons for

disregarding the facts alleged in the declaration.

      Accepting those facts as true, Lopez-Vasquez’s declaration offers sufficient

evidence that conditions in Guatemala have materially changed. The murder of

petitioners’ relative – which occurred after their initial asylum application was

denied – shows that the anti-government guerillas who had previously threatened

members of petitioners’ family are now willing to use deadly force to threaten and

target petitioners themselves. We have held that similar evidence of an increase in

the severity of persecution feared may provide a legitimate basis for reopening

removal proceedings based on changed country conditions. See De Silva v.


                                           5
Holder, 2014 WL 4087901, at *1 (9th Cir. Aug. 20, 2014) (granting petition for

review of the BIA’s denial of a motion to reopen based on petitioner’s sworn

statement that, after the denial of his first asylum application, police-aided gangs

murdered his brother based on the brother’s imputed political opinion). Because

petitioners’ evidence in this case is material, was not previously available, and is

sufficient to establish their prima facie eligibility for asylum, petitioners have

cleared the necessary hurdles to prevail on their motion to reopen.

      PETITION GRANTED.




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