Daniel Pereyra v. Loretta E. Lynch, 669 F. App'x 349

Daniel Pereyra appealed the BIA’s denial of his motion to reopen removal proceedings as untimely.
He filed the motion more than 90 days after the final administrative decision and relied on the regulatory exception for changed country conditions in the country of nationality (Argentina).
Pereyra argued changed conditions for Protestants in Argentina following the election of Pope Francis supported reopening and would support asylum/withholding relief.
The BIA applied the Toufighi four-part framework for changed-country-condition motions: (1) changed conditions, (2) materiality, (3) unavailability of evidence earlier, and (4) prima facie eligibility when new and old evidence are considered together.
The BIA concluded Pereyra’s submitted evidence did not show worsened conditions or abuses rising to persecution, and Argentina affords legal protection of religious freedom; societal discrimination alone was insufficient.
The Ninth Circuit denied the petition for review, holding the BIA did not abuse its discretion in finding the motion untimely and that Pereyra failed to show prima facie eligibility for asylum or withholding.

Issue	Pereyra’s Argument	Government’s Argument	Held
Whether Pereyra’s motion to reopen was timely or excused by changed country conditions	Argentina’s conditions for Protestants worsened after Pope Francis’ election, qualifying as changed circumstances	Pereyra’s evidence did not show changed or worsened country conditions that were material	BIA did not abuse discretion — no showing of changed circumstances that would excuse untimeliness
Whether Pereyra established prima facie eligibility for asylum or withholding of removal	Evidence of discrimination and special treatment of Catholics shows risk of persecution of Protestants	Evidence shows Argentina protects religious freedom; reported societal discrimination is not persecution	Substantial evidence supports BIA: discrimination did not rise to persecution; no prima facie eligibility

Toufighi v. Mukasey, 538 F.3d 988 (9th Cir. 2008) (four-part test for reopening based on changed country conditions)
Madrigal v. Holder, 716 F.3d 499 (9th Cir. 2013) (asylum eligibility standard on persecution/well-founded fear)
Halaim v. INS, 358 F.3d 1128 (9th Cir. 2004) (withholding of removal requires clear probability of persecution)
Pedro-Mateo v. INS, 224 F.3d 1147 (9th Cir. 2000) (standard for withholding of removal)
Malty v. Ashcroft, 381 F.3d 942 (9th Cir. 2004) (example of successful changed-circumstances showing where violence escalated)
Fisher v. INS, 79 F.3d 955 (9th Cir. 1996) (discrimination does not necessarily constitute persecution)