                                                                           FILED
                            NOT FOR PUBLICATION
                                                                           DEC 23 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


MARK JORGENSEN FARRALES,                         Nos. 11-71312
                                                      11-73288
              Petitioner,

 v.                                              Agency No. A070-035-243

LORETTA E. LYNCH, Attorney General,
                                                 MEMORANDUM*
              Respondent.


                      On Petition for Review of Orders of the
                          Board of Immigration Appeals

                     Argued and Submitted December 7, 2016
                              Pasadena, California

Before: REINHARDT, TASHIMA, and PAEZ, Circuit Judges.

      In this consolidated appeal, Mark Farrales, a native and citizen of the

Philippines, petitions for review of (1) a 2010 Board of Immigration Appeals

(BIA) decision denying his motion to reopen; and (2) a 2011 BIA decision denying

his motion to reconsider and his second motion to reopen.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      In 1990, when Farrales was 12 years old, he and his family entered the

United States as non-immigrant visitors after his father, who was campaigning for

public office, was shot and wounded outside their home in the Philippines. 1 All

four family members overstayed their visas and were issued orders to show cause

in 1996. After a hearing in 1998 in a proceeding in which Farrales was a

derivative asylee, the entire family was ordered removed and granted voluntary

departure.

      Farrales did not depart the United States. He graduated from Belmont High

School in Los Angeles as the valedictorian of his class and then attended Harvard

University, where he graduated magna cum laude in 2001. He subsequently earned

a masters degree in political science from the University of California, San Diego, ,

and was expected to earn his doctorate from that institution in 2011. His

scholarship and publications focus on exposing and combating corruption in the

Philippines.

      In 2010, Farrales was detained by Immigration and Customs Enforcement.




      1
       Throughout this memorandum disposition, refers to the administrative
record from case number 11-71312 (first motion to reopen) and refers to the
administrative record from case number 11-73288 (motion to reconsider and
second motion to reopen).
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He filed his first motion to reopen in 2010, a number of years after the initial

proceeding became final and the ninety-day deadline had expired, arguing, inter

alia, that changed country conditions in the Philippines exempted his motion from

the deadline. The BIA rejected his motion to reopen as untimely.

      In 2011, Farrales filed a motion for reconsideration along with

supplementary documentation, which the BIA construed as a second motion to

reopen. The Board rejected all of Farrales’ arguments for reconsideration and for

reopening.

      Ordinarily, a petitioner must file a motion to reopen within ninety days of a

final administrative decision. 8 C.F.R. § 1003.2(c)(2). This time limit does not

apply, however, if the motion is filed for the purpose of seeking asylum “based on

changed circumstances arising in the country of nationality or in the country to

which deportation has been ordered. ” 8 C.F.R. § 1003.2(c)(3)(ii). In order to meet

the changed country conditions exception to the deadline, a petitioner must present

material evidence that could not have been discovered or submitted at the time of

the previous hearing. Salim v. Lynch, 831 F.3d 1133, 1137 (9th Cir. 2016).

Although “a change in personal circumstances [alone] [] is not sufficient to

establish changed circumstances in the country of origin,” He v. Gonzales, 501

F.3d 1128, 1132 (9th Cir. 2007), a “petitioner’s untimely motion to reopen may


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qualify under the changed conditions exception . . . if the changed country

conditions are made relevant by a change in the petitioner’s personal

circumstances.” Chandra v. Holder, 751 F.3d 1034, 1038 (9th Cir. 2014)

(emphasis added). We conclude that Farrales has provided sufficient evidence to

meet the changed country conditions exception to the timeliness bar.

      The BIA made two errors of law in its decision denying Farrales’ first

motion to reopen. First, the BIA abused its discretion when it concluded that there

was not evidence of “a material change in conditions” in the Philippines. Along

with his first motion to reopen and application for relief, Farrales submitted a

personal declaration and Freedom House reports that demonstrate a substantial

increase in political violence and decrease in political freedom in the Philippines

between 1998 and 2010. See Malty v. Ashcroft, 381 F.3d 942, 946–47 (9th Cir.

2004) (holding petitioner’s declaration, along with Freedom House Report

detailing mass arrest and torture of Coptic Christians in Egypt, sufficient to warrant

reopening). Moreover, Farrales also provided extensive documentary evidence,

including news articles and a transcript from a hearing of the Senate Subcommittee

on East Asian and Pacific Affairs, of an increase in political violence and

extrajudicial killings in the Philippines, especially against those who criticize

governmental corruption.


                                           4
      This evidence of declining political freedom and significantly increasing

political violence against those who criticize the government is “material,”

especially in light of the publicity surrounding Farrales’ pending deportation in the

Philippines, and “was not available and could not have been discovered or

presented at the previous hearing.” See Salim, 831 F.3d at 1137. Therefore, BIA

abused its discretion in concluding that Farrales failed to present material evidence

of changed country conditions that was unavailable at his previous hearing in 1998.



      Second, the BIA erred as a matter of law by refusing to consider Farrales’

evidence of changed country conditions in light of his anti-corruption publications

because his scholarship was a “change[] in his personal circumstances that arose in

the United States rather than changed country conditions in the Philippines.” See

Chandra v. Holder, 751 F.3d 1034, 1038 (9th Cir. 2014) (“[A] petitioner’s

untimely motion to reopen may qualify under the changed conditions exception

in 8 C.F.R. § 1003.2(c)(3)(ii), even if the changed country conditions are made

relevant by a change in the petitioner’s personal circumstances.”); Salim, 831 F.3d

at 1137–38. By the time he filed his first motion to reopen, Farrales was a Ph.D.

candidate in political science whose scholarship often criticized governmental

corruption in the Philippines. Because these changes in Farrales’ personal


                                          5
circumstances made the increased political violence against critics of the

government in the Philippines relevant to him, the BIA abused its discretion in

refusing to consider Farrales’ change in personal circumstances since 1998.



      In light of the worsening country conditions and the publicity in the

Philippines surrounding Farrales’ deportation, he has also provided sufficient

evidence of changed circumstances such that he now has a “reasonable likelihood”

of demonstrating a prima facie case for asylum. See Malty v. Ashcroft, 381 F.3d

942, 947 (9th Cir. 2004). Accordingly, we grant Farrales’ first petition for review

and remand to the BIA with instructions to reopen. Farrales’ second petition for

review is therefore denied as moot.

In No. 11-71312, PETITION GRANTED.

In No. 11-73288, PETITION DENIED AS MOOT.




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