                                                                           FILED
                            NOT FOR PUBLICATION                             DEC 26 2013

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



                            FOR THE NINTH CIRCUIT


KHUSHAL SHARIFI,                                 No. 10-72873

              Petitioner,                        Agency No. A029-778-528

  v.
                                                 MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,

              Respondent.


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

                      Argued and Submitted December 4, 2013
                               Pasadena, California

Before: PREGERSON and CHRISTEN, Circuit Judges, and SILVER, Senior
District Judge.**

       Khushal Sharifi, a native and citizen of Afghanistan, petitions for review of

the Board of Immigration Appeals’s (“BIA”) denial of his motion to reopen

removal proceedings based on changed country conditions.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Roslyn O. Silver, Senior District Judge for the U.S.
District Court for the District of Arizona, sitting by designation.
      We have jurisdiction pursuant to 8 U.S.C. § 1252, and we grant the petition

for review. In 1991, the Immigration Judge (“IJ”) denied Sharifi’s initial

applications for asylum and withholding of removal. In 1994, the BIA affirmed

the IJ’s decision on adverse credibility grounds and ordered Sharifi excluded and

deported. Fifteen years later, Sharifi sought to reopen his exclusion proceedings

based on evidence of changed country conditions. He also submitted an updated

application for asylum, withholding of removal, and relief under the Convention

Against Torture. In August 2010, the BIA denied Sharifi’s motion to reopen as

untimely. The BIA also concluded that Sharifi failed to establish materially

changed country conditions which would excuse the ninety-day time limit to

reopen.

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

Hamazaspyan v. Holder, 590 F.3d 744, 747 (9th Cir. 2009). A petitioner may file

a motion to reopen an asylum application at any time if it “is based on changed

country conditions arising in the country of nationality . . . 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). To prevail, the petitioner

“need only establish a prima facie case for relief, and need not conclusively

establish that he warrants relief.” Ordonez v. INS, 345 F.3d 777, 785 (9th Cir.


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2003). This court may reverse the BIA’s decision if it is “arbitrary, irrational, or

contrary to law.” Perez v. Mukasey, 516 F.3d 770, 773 (9th Cir. 2008) (internal

quotation marks omitted).

      Here, evidence does not support the BIA’s determination that Sharifi failed

to establish materially changed country conditions. The increased power of the

Taliban in Afghanistan and Sharifi’s brother’s capture by the organization in 2009

demonstrated “qualitatively different” evidence of changed country conditions to

warrant reopening. Najmabadi v. Holder, 597 F.3d 983, 987 (9th Cir. 2010) (citing

Malty v. Ashcroft, 381 F.3d 942, 945 (9th Cir. 2004)).

      Sharifi did not face the same dangers in 1994 that he now faces should he

return. When the BIA first reviewed Sharifi’s application for relief, Hizb-e-Islami

was at the height of its power and the Taliban was barely (if at all) in existence.

Today, the Taliban commits horrendous atrocities, including large scale massacres,

against its political enemies, including Hizb-e-Islami.

      Afghanistan is now a more dangerous place for opponents of the Taliban.

The 2009 Country Report states that “[p]ersistent Taliban and antigovernment

activity, interfactional fighting between regional warlords, and criminal activity

resulted in hundreds of unlawful killings and civilian casualties.” The Taliban has

also claimed responsibility for acts of mass violence against political targets.


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Indeed, “Taliban and insurgent attacks [have] escalated in both number and

complexity.” The record also supports Sharifi’s position that the Taliban targets

those with associations to Hizb-e-Islami. Moreover, the Afghan government is

unable to protect civilians from the Taliban’s persistent violence, as the “security

situation in the country deteriorated significantly during the year [2009], and

civilian casualties rose accordingly.”

      Contrary to the BIA’s ruling, the Taliban’s detention, abuse, and kidnapping

of Sharifi’s brother was also sufficiently material to Sharifi’s claim to warrant a

remand, as persecution of family members can be evidence of a material change in

country conditions. Malty, 381 F.3d at 946. A letter from the Afghanistan

Ministry of Interior plainly states that the Taliban detained Sharifi’s brother and

that Sharifi is similarly in danger:

             Khushal Sharifi who resides in the United States of
             America, if he returns to the country of Afghanistan, due
             to his past [he] will be under a severe threat of harm, like
             his brother . . . . Therefore, he should under no
             circumstances return to Afghanistan.

Sharifi’s evidence of changed country conditions establishes that circumstances

have significantly worsened in Afghanistan for those with ties to Hizb-e-Islami

generally, and for Sharifi’s family specifically. Malty, 381 F.3d at 946. Sharifi’s

evidence is also “qualitatively different” from the evidence presented on appeal to


                                           4
the BIA in 1994. Najmabadi, 597 F.3d at 987. Whereas Sharifi testified that in

1989 his father and uncle were killed while fighting with the mujahideen against

the Soviet-backed Afghan government, Sharifi’s brother, on the other hand, was

kidnapped by the Taliban after returning to Afghanistan in 2009. The reasons

behind each incident are entirely different.

      Because the government does not argue that the facts alleged in the Ministry

of Interior document and Sharifi’s declaration are not “inherently unbelievable,”

Malty, 381 F.3d at 947, and must be taken as true, Bhasin v. Gonzales, 423 F.3d

977, 987 (9th Cir. 2005), Sharifi has sufficiently established the danger and

persecution he would face because of his ties to Hizb-e-Islami.

      Accordingly, the BIA abused its discretion in dismissing Sharifi’s new and

previously unavailable evidence of persecution. We therefore grant the petition for

review and remand to the BIA with instructions to reopen proceedings. See Malty,

381 F.3d at 948.

      PETITION GRANTED; REMANDED.




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