                                                                            FILED
                            NOT FOR PUBLICATION
                                                                             APR 27 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


IRMA MIRTALA RODAS LOPEZ,                        Nos. 11-70271
                                                      12-70951
              Petitioner,
                                                 Agency No. A072-116-075
 v.

JEFFERSON B. SESSIONS III, Attorney              MEMORANDUM*
General,

              Respondent.


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

                       Argued and Submitted April 20, 2017
                            San Francisco, California

Before: THOMAS, Chief Judge, MURGUIA, Circuit Judge, and BAYLSON,**
District Judge.

      In 1992, Irma Mirtala Rodas Lopez and her husband fled guerrilla forces in

Guatemala and arrived in the United States seeking asylum. Lopez separated from

her husband in 1993 because he had been abusive throughout the entire marriage.

      *
        This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
        The Honorable Michael M. Baylson, United States District Judge for the
Eastern District of Pennsylvania, sitting by designation.
Lopez then filed a separate asylum claim, alleging fear of the guerrilla forces, after

she left her husband. In 2002, an Immigration Judge denied Lopez’s asylum claim,

and both the Board of Immigration Appeals (“BIA”) and this court affirmed. See

Rodas Lopez v. Ashcroft, 120 F. App’x 156 (9th Cir. 2005).

      In 2009, Lopez experienced a sudden change in her personal circumstances

when she learned that her ex-husband had returned to their native country of

Guatemala. She also received reports from family members in Guatemala that her

ex-husband was actively looking for and threatening her. Lopez then filed a motion

to reopen her removal proceedings based on changed country conditions, namely

the return of her abusive ex-husband to Guatemala.

      In 2010, the BIA denied Lopez’s motion because, among other things,

Lopez had submitted a seemingly speculative declaration and an unsworn affidavit

from her daughter. Lopez corrected these deficiencies and filed a new motion

supplemented with a more thorough declaration, four sworn affidavits from family

members in Guatemala, and reports documenting the inadequate protection from

domestic abuse in Guatemala. In 2012, the BIA denied Lopez’s second motion to

reopen and held that: (1) Lopez failed to present previously unavailable evidence,

and (2) Lopez failed to establish a prima facie case of eligibility for asylum

because she did not show an objective fear of future harm if returned to Guatemala.


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      We review the BIA’s denial of a motion to reopen for abuse of discretion,

Valeriano v. Gonzales, 474 F.3d 669, 672 (9th Cir. 2007), and we grant the petition

for review and remand.

      An alien generally may file only one motion to reopen removal proceedings,

and such motion must be filed no later than ninety days after the date on which the

final administrative decision was rendered. 8 U.S.C. § 1229a(c)(7)(A), (C)(i). The

time and number limits may be excused for asylum applications if the petitioner

can show: (1) previously unavailable evidence of changed country conditions, and

(2) a prima facie case of eligibility for asylum. Toufighi v. Mukasey, 538 F.3d 988,

996 (9th Cir. 2008).

      1.     A petitioner filing a motion to reopen must establish changed country

conditions showing that “circumstances have changed sufficiently that a petitioner

who previously did not have a legitimate claim for asylum now has a well-founded

fear of future persecution.” Malty v. Ashcroft, 381 F.3d 942, 945 (9th Cir. 2004).

This court has held that “if there is sufficient evidence of changed conditions in the

receiving country, there is nothing in the plain language of the regulation that

prevents a petitioner from referring to his personal circumstances to establish the

materiality of that evidence.” Chandra v. Holder, 751 F.3d 1034, 1037 (9th Cir.

2014) (emphasis added).


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      Lopez pointed to a change in her personal circumstances—the return of her

abusive ex-husband to Guatemala in 2009—to establish a change in country

conditions. The BIA erred in concluding that this evidence was previously

available at Lopez’s 2002 hearing because her ex-husband had not yet returned to

Guatemala at that point. Therefore, Lopez has presented material, previously

unavailable evidence of changed country conditions. See Salim v. Lynch, 831 F.3d

1133, 1137 (9th Cir. 2016) (“[T]he changed country conditions exception is

concerned with two points in time: the circumstances of the country at the time of

the petitioner’s previous hearing, and those at the time of the motion to reopen.”).

      2.     A petitioner filing a motion to reopen must also establish a prima facie

case of eligibility for asylum. Ramirez-Munoz v. Lynch, 816 F.3d 1226, 1228 (9th

Cir. 2016). To demonstrate prima facie asylum eligibility, Lopez must present

evidence showing a well-founded fear of persecution in Guatemala. 8 U.S.C. §

1101(a)(42). At this stage, Lopez’s “showing need not be conclusive but need

suggest only that it would be ‘worthwhile’ to reopen proceedings.” Albillo-De

Leon v. Gonzales, 410 F.3d 1090, 1094 (9th Cir. 2005).

      Lopez presented evidence, in the form of her declaration and sworn

affidavits from family members, indicating that her ex-husband stopped abusing

her in the United States because he feared law enforcement. She also introduced


                                          4
evidence that her ex-husband is actively threatening her in Guatemala and that

Guatemala does not have adequate protection from domestic abuse. Despite this

evidence, the BIA held that Lopez does not have an objective fear of future harm

because her ex-husband has not abused her since 1993 when she separated from

him. In so holding, the BIA failed to consider evidence indicating that the primary

reason Lopez’s husband stopped abusing her was because he feared law

enforcement in the United States, not because Lopez separated from him. This

failure to consider all the evidence presented constitutes an abuse of discretion.

Mohammed v. Gonzales, 400 F.3d 785, 792 (9th Cir. 2005).

      PETITION GRANTED and REMANDED.




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