                                                                NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ___________

                                       No. 11-1110
                                       ___________

                                   JAIR IZQUIERDO,
                                                        Petitioner
                                            v.

                  ATTORNEY GENERAL OF THE UNITED STATES,
                                               Respondent
                     ____________________________________

                        On Petition for Review of an Order of the
                             Board of Immigration Appeals
                              (Agency No. A099-683-662)
                      Immigration Judge: Honorable Henry S. Dogin
                       ____________________________________

                     Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    August 17, 2011
               Before: SLOVITER, CHAGARES and WEIS, Circuit Judges

                             (Opinion filed: August 24, 2011)

                                       ___________

                                        OPINION
                                       ___________

PER CURIAM.

               Jair Izquierdo petitions for review of the Board of Immigration Appeals‟

(“BIA”) decision denying his motion to reopen his removal proceedings. For the reasons

that follow, we will grant the petition, vacate the BIA‟s decision, and remand for further

proceedings.
                                              I.

              Because we write for the parties, who are familiar with the background of

this case, we discuss that background only to the extent necessary to rule on the instant

petition. Izquierdo, a native and citizen of Peru, entered the United States as a

nonimmigrant visitor in October 2001. He ultimately stayed beyond the time allowed

under his visa, and was placed in removal proceedings in 2006. He conceded his

removability and applied for asylum, withholding of removal, and relief under the

Convention Against Torture (“CAT”). In support of his application, he claimed that he

feared returning to Peru on account of his being gay.

              In October 2006, after a hearing on the merits, the Immigration Judge (“IJ”)

denied Izquierdo‟s application. In his decision, the IJ noted that “[t]here are many

instances where gays [in Peru] are not only discriminated against, but there‟s actual

physical beatings at the hands of the authorities. There‟s also evidence that the

authorities stand around and allow gays to be harmed.” (J.A. at 138.) Despite these

findings, the IJ concluded that he could not find a pattern or practice of persecution

against gays in Peru “until I have a finding by an appellate court or a legislative fiend

[sic].” (See id. at 146-47.)

              In June 2008, the BIA upheld the IJ‟s denial of relief. Although the BIA

determined that the IJ had erred in stating that he could not grant relief on Izquierdo‟s

pattern or practice claim due to the absence of any controlling authority, the BIA

concluded that this error was harmless because the record did not establish such a pattern
                                              2
or practice. In support of this conclusion, the BIA emphasized that

              while the [IJ] referred generally to beatings of gays and police
              inaction, such incidents are reported primarily in the older
              articles in the record, some of which date back more than 12
              years. We note that most of the articles submitted by
              [Izquierdo] are more than 5 years old and thus are not
              reflective of current conditions for homosexuals in Peru, and
              the more recent articles, from 2006, relate primarily to
              incidents against transvestite activists.

(Id. at 124 (citations omitted).) The BIA also highlighted several excerpts from country

reports reflecting positive strides made in Peru regarding the treatment of gays.

              Izquierdo subsequently petitioned this Court to review the BIA‟s decision;

we denied that petition in November 2009. See Izquierdo v. Att‟y Gen. of the U.S., 352

F. App‟x 682 (3d Cir. 2009) (per curiam). In November 2010, he moved the BIA to

reopen his removal proceedings, claiming that conditions for gays in Peru had worsened

since his October 2006 merits hearing before the IJ. In support of this motion, Izquierdo

submitted the U.S. State Department‟s 2009 Country Report on Human Rights Practices

for Peru, as well as various articles and other sources.

              On December 17, 2010, the BIA denied Izquierdo‟s motion to reopen in a

one-page decision. The BIA concluded that

              [t]he evidence proffered with [Izquierdo‟s] present motion
              does not reflect materially changed country conditions for
              homosexuals in his native Peru since this case was before the
              [IJ] in October of 2006. Rather, such evidence describes a
              continuance of the on-going and volatile circumstances that
              gave rise to [his] first claim, a claim that was previously
              denied by both the [IJ] and the [BIA].             Moreover,
              [Izquierdo‟s] generalized claim of increased harassment,
                                              3
                discrimination, and violence towards homosexuals in Peru is
                insufficient to establish his prima facie eligibility for asylum,
                withholding of removal, and [CAT] relief. The country
                information submitted along with [his] motion does not
                sufficiently demonstrate that there exists a reasonable
                possibility that [he] would be targeted for harm rising to the
                level of persecution on account of a protected ground. Nor
                does such evidence sufficiently demonstrate that [he] would
                more likely than not face torture in Peru. The evidence
                presented does not make a prima facie showing that the
                government of Peru would torture or acquiesce in the torture
                of [him].

(J.A. at 2 (citations omitted).) Izquierdo now seeks review of this most recent BIA

decision.1

                                               II.

                An alien generally must file a motion to reopen within 90 days of the entry

of the final order of removal. See 8 U.S.C. § 1229a(c)(7)(C)(i). There is no such time

limit, however, if the alien‟s motion “is based on changed country conditions arising in

the country of nationality or the country to which removal has been ordered, if such

evidence is material and was not available and would not have been discovered or

presented at the previous proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii). We review the

BIA‟s denial of a motion to reopen for abuse of discretion, Borges v. Gonzales, 402 F.3d

398, 404 (3d Cir. 2005), and “will uphold that determination if it is „supported by

reasonable, substantial, and probative evidence on the record considered as a whole.‟”




       1
           We have jurisdiction over Izquierdo‟s petition pursuant to 8 U.S.C. § 1252(a)(1).
                                               4
Zheng v. Att‟y Gen. of the U.S., 549 F.3d 260, 266 (3d Cir. 2008) (quoting INS v. Elias-

Zacarias, 502 U.S. 478, 481 (1992)).

              In this case, the BIA articulated two independent grounds for denying

Izquierdo‟s motion to reopen. First, the BIA concluded that he had failed to establish

materially changed country conditions in Peru. Second, the BIA concluded that he had

failed to establish prima facie eligibility for asylum, withholding of removal, or CAT

relief. As explained below, the reasoning underlying both of these conclusions is flawed.

              The BIA concluded that Izquierdo had failed to establish materially

changed country conditions because his new evidence merely “describes a continuance of

the on-going and volatile circumstances that gave rise to [his] first claim.” (J.A. at 2.)

This reasoning, without more, simply does not square with the BIA‟s earlier findings. In

its earlier decision, the BIA gave no indication that “volatile circumstances” were “on-

going” in Peru. To the contrary, the BIA found that most of the evidence that had been

presented to the IJ was outdated and thus “not reflective of current conditions for

homosexuals in Peru.” (See id. at 124.) Additionally, the BIA highlighted several

excerpts from country reports reflecting positive developments in Peru regarding the

treatment of gays.

              As for the BIA‟s conclusion that Izquierdo had failed to establish prima

facie eligibility for relief, it appears that the BIA reached that conclusion by assessing the

wrong claim. Izquierdo‟s motion to reopen claimed that he was entitled to relief based on

a pattern or practice of persecution against gays in Peru. It appears, however, that the
                                              5
BIA evaluated his claim as though it was based on individualized persecution, for the

BIA concluded that the evidence “does not sufficiently demonstrate that there exists a

reasonable possibility that [Izquierdo] would be targeted for harm rising to the level of

persecution on account of a protected ground.” (See id. at 2 (emphasis added).) The

Government, in a footnote in its brief, essentially concedes this error.2

               Given the above-noted flaws in the BIA‟s analysis, we cannot uphold its

December 17, 2010 decision on either of the two grounds articulated by the agency.

Although Izquierdo urges us to hold that he has both established materially changed

country conditions and prima facie eligibility for asylum and withholding of removal, we

will instead remand the matter so that the BIA can properly evaluate his motion to




2
    The Government states that

[s]hould the Court disagree with [the Government‟s] argument and find a
change in country conditions warranting reopening, the Court should
remand the case for the agency to consider Izquierdo‟s claim that he made
out a prima facie case of a “pattern and practice” of persecution. See INS v.
Ventura, 537 U.S. 12, 16-17 (2002) (holding that this Court must remand to
the Board to allow it to address in the first instance an issue that it has not
yet considered); Gonzales v. Thomas, 547 U.S. 183, 186-87 (2006) (same).

(Resp‟t‟s Br. 16 n.1.)
                                              6
reopen.3 We express no opinion on his ability to prevail on that motion.

              In light of the above, we will grant Izquierdo‟s petition for review, vacate

the BIA‟s December 17, 2010 decision, and remand the matter to the BIA for further

proceedings consistent with this opinion.




3
  Because we conclude that the BIA examined the wrong claim in determining that
Izquierdo had failed to establish prima facie eligibility for relief, we need not address his
argument that the BIA‟s prima facie eligibility analysis employed an “excessively
rigorous standard.” We trust that, on remand, the BIA will apply the proper standard.
See Shardar v. Att‟y Gen. of the U.S., 503 F.3d 308, 313 (3d Cir. 2007) (explaining that,
to establish prima facie eligibility for relief, an alien moving to reopen “must produce
objective evidence showing a reasonable likelihood that he can establish that he is
entitled to relief”) (internal quotation marks and citation omitted).
                                              7
