                             NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                             FOR THE NINTH CIRCUIT                            MAY 28 2015

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

NYAMDELGER TOMSUREN and                          No. 11-71777
BATBOLD BURENTUGS,
                                                 Agency Nos.        A099-345-076
              Petitioners,                                          A099-345-077

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

              Respondent.


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


                              Submitted May 1, 2015**
                              San Francisco, California

Before: NOONAN and SILVERMAN, Circuit Judges and HUCK,*** Senior
District Judge.




        *
             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).
        ***
             The Honorable Paul C. Huck, Senior District Judge for the U.S.
District Court for Southern Florida, sitting by designation.
                                        -2-
      Nyamdelger Tomsuren and her husband Batbold Burentugs, Mongolian

citizens, petition for review of the Board of Immigration Appeals’ dismissal of

their appeal from the immigration judge’s decision denying their asylum

applications as time-barred and denying Burentugs’s application for withholding of

removal and protection under the Convention Against Torture. Except as noted

below, we have jurisdiction under 8 U.S.C. § 1252. We GRANT THE

PETITION IN PART, DISMISS IN PART, and REMAND for further

proceedings.

      With respect to petitioners’ asylum applications,1 we have jurisdiction to

consider the BIA’s application of the exceptions to the one-year bar to undisputed

facts. Singh v. Holder, 656 F.3d 1047, 1051 (9th Cir. 2011); Ramadan v.

Gonzales, 479 F.3d 646, 650 (9th Cir. 2007). However, we lack jurisdiction to

consider the BIA’s application of the exceptions to disputed facts. Gasparyan v.

Holder, 707 F.3d 1130, 1134 (9th Cir. 2013). Because the BIA’s determination

      1
        Tomsuren filed her asylum application first, listing Burentugs as a
derivative. Burentugs filed a separate application four months later, after the
government argued Tomsuren’s application was time barred and that Burentugs
could not be a derivative on her withholding of removal and CAT applications.
The IJ denied both applications as untimely, the BIA affirmed that decision, and
petitioners appeal that decision here. Accordingly, although Burentugs remains a
derivative on Tomsuren’s asylum application and adjudication of his separate
claim will be unnecessary if the agency grants Tomsuren asylum on remand, the
denial of both applications is before this court.
                                         -3-
that petitioners failed to establish “changed circumstances” is based on the

undisputed fact that petitioners’ persecutor, Miyegombyn Enkhbold, was elected

Prime Minister of Mongolia in January 2006, we have jurisdiction to review this

aspect of the petition.2 On the other hand, we lack jurisdiction to consider the

BIA’s conclusion that petitioners failed to establish “extraordinary circumstances”

because that conclusion is based on disputed facts; the duration and severity of

Tomsuren’s mental condition. This aspect of the petition for review is accordingly

dismissed.

      We review the agency’s legal determinations regarding the changed

circumstances exception de novo. Singh, 656 F.3d at 1051; Fakhry v. Mukasey,

524 F.3d 1057, 1062 (9th Cir. 2008). Where, as here, the BIA incorporates the IJ’s

reasoning as its own, the court reviews the IJ’s decision. Molina-Estrada v. INS,

293 F.3d 1089, 1093 (9th Cir. 2002).




      2
        The government contends the court lacks jurisdiction over this aspect of the
petition because petitioners did not raise the issue of “changed circumstances”
during their first appeal to the BIA. The court “do[es] not employ the exhaustion
doctrine in a formalistic manner,” however. Figueroa v. Mukasey, 543 F.3d 487,
492 (9th Cir. 2008). It has jurisdiction notwithstanding petitioners’ failure to
exhaust the issue during their first appeal to the BIA because they raised it in their
second appeal and the BIA subsequently addressed it. Kin v. Holder, 595 F.3d
1050, 1055 (9th Cir. 2010).
                                          -4-
      In finding that petitioners failed to establish changed circumstances, the

agency applied the wrong legal standard. Whether Enkhbold’s elevation from

Mayor of Ulaan Bataar to Prime Minister of Mongolia was the real reason

petitioners decided to file their asylum applications or just an “after thought,” as

the IJ concluded, has “no role in the changed circumstances analysis.” Fakhry, 524

F.3d at 1063. The correct legal standard is whether changed country conditions

“materially affect the applicant’s eligibility for asylum.” 8 U.S.C. § 1158(a)(2)(D);

see also Fakhry, 524 F.3d at 1063. This standard

      does [not] preclude an individual who has always feared persecution
      from seeking asylum because the risk of that persecution increases. . .
      . An applicant is not required to file for asylum when his claim
      appears to him to be weak; rather he may wait until circumstances
      change and the new facts make it substantially more likely that his
      claim will entitle him to relief. In such cases, we may recognize
      changed circumstances.

Vahora v. Holder, 641 F.3d 1038, 1045 (9th Cir. 2011) (quotation marks and

citations omitted). Because the IJ applied a “subjective intent standard . . . [that] is

contrary to the statute and regulations,” Fakhry, 524 F.3d at 1063, petitioners’

applications for asylum must be remanded “for reconsideration under the correct

standard,” Ornelas-Chavez v. Gonzales, 458 F.3d 1052, 1058 (9th Cir. 2006).

      In the event the agency denies petitioners’ asylum applications on remand,

Burentugs’s applications for withholding of removal and CAT would still require
                                          -5-
adjudication. Accordingly, we also consider the BIA’s denial of those

applications. We conclude that substantial evidence does not support the BIA’s

decision.

      In concluding that Burentugs did not show he suffered harm rising to the

level of persecution or that he faces a clear probability of future persecution, the

BIA failed to consider his argument that the attack on his wife and her subsequent

miscarriage of their unborn child was persecution of him as well. Qu v. Gonzales,

399 F.3d 1195, 1198 n. 3 (9th Cir. 2005); Mashiri v. Ashcroft, 383 F.3d 1112, 1120

(9th Cir. 2004); Arriaga-Barrientos v. INS, 937 F.2d 411, 414 (9th Cir. 1991). The

BIA also failed to consider whether the cumulative effects of the harm to which

Burentugs testified rose to the level of persecution. Krotova v. Gonzales, 416 F.3d

1080, 1084 (9th Cir. 2005). The BIA is “not free to ignore arguments raised by a

petitioner.” Sagaydak v. Gonzales, 405 F.3d 1035, 1040 (9th Cir. 2005).

Accordingly, this aspect of the petition is also remanded.

      PETITION FOR REVIEW GRANTED IN PART; DISMISSED IN

PART; REMANDED.

      Each party shall bear its own costs.
