76 F.4th 1256
9th Cir.2023Background
- Reyes-Corado, a Guatemalan national, applied for asylum, withholding, and CAT protection after his father Noe (a former military informant) was murdered in Guatemala and family members from the opposing side threatened him.
- An IJ originally granted asylum based on past persecution; the BIA reversed, concluding threats were motivated by personal retribution rather than membership in a protected familial group and vacated asylum (other claims remanded/denied).
- Reyes-Corado filed a motion to reopen in 2017, arguing changed country circumstances: Simon’s sons had carried out a long-running, escalating campaign of threats, shootings, poisoning, and harassment targeting multiple immediate family members (including elderly mother and children) and seeking his whereabouts in the U.S.
- The BIA denied reopening as time-barred (finding evidence described continuing intra-family animosity rather than changed circumstances) and faulted Reyes-Corado for not submitting a new asylum application with the motion.
- The Ninth Circuit held the BIA erred: (1) a motion that adds changed circumstances to a previously considered application need not be accompanied by a new application; and (2) the newly submitted evidence was qualitatively different and material, so the BIA abused its discretion in denying the motion to reopen and remanded for further consideration of prima facie eligibility.
Issues
| Issue | Reyes-Corado's Argument | Garland's Argument | Held |
|---|---|---|---|
| Whether a motion to reopen that adds changed circumstances must attach a new asylum application | Not required when motion seeks review of an earlier application based on changed circumstances (cites Aliyev) | BIA relied on 8 C.F.R. §1003.2(c)(1) to fault failure to attach an application | Court: motions raising changed circumstances need not attach a new application; BIA erred to the extent it denied for that reason |
| Whether new evidence shows changed country conditions to excuse the 90-day time bar | New, post-hearing escalation of threats/violence against multiple family members constitutes material changed circumstances outside petitioner’s control | Evidence is ongoing intra-family animosity present at prior hearing, not a material change | Court: evidence is qualitatively different and material; BIA abused its discretion under §1003.2(c)(3)(ii) and must reconsider |
| Whether new evidence establishes prima facie eligibility/nexus to a protected ground | Long-term, persistent terror against the family (including elderly and children) rebuts retribution-only rationale and supports family-membership nexus | Central motivation remains personal retribution, not protected-family membership | Court: BIA’s prior nexus finding is likely undermined; remand to reassess prima facie eligibility; BIA applied too stringent nexus standard for withholding (used "one central reason" instead of "a reason") |
| Whether the intra-family character of violence precludes changed-country exception | Conduct occurred in Guatemala and was outside petitioner’s control, so it can constitute changed country conditions | Intra-family harms are personal and not the type of country conditions intended by the exception | Court: intra-family nature does not bar the changed-circumstances exception if events are outside petitioner’s control and materially affect the claim |
Key Cases Cited
- Aliyev v. Barr, 971 F.3d 1085 (9th Cir. 2020) (holding attaching a new asylum application is not required for a changed-conditions motion)
- Najmabadi v. Holder, 597 F.3d 983 (9th Cir. 2010) (standard for reviewing BIA motions to reopen and qualitative-difference test)
- Kaur v. Garland, 2 F.4th 823 (9th Cir. 2021) (distinguishing self-induced personal changes from country conditions outside the petitioner’s control)
- Malty v. Ashcroft, 381 F.3d 942 (9th Cir. 2004) (critical question: whether changed circumstances make a previously nonviable claim viable)
- Barajas-Romero v. Lynch, 846 F.3d 351 (9th Cir. 2017) (distinguishing asylum’s "one central reason" from withholding’s lesser "a reason" nexus standard)
- Bhasin v. Gonzales, 423 F.3d 977 (9th Cir. 2005) (new evidence undermining agency rationale can require reopening)
- Kucana v. Holder, 558 U.S. 233 (2010) (judicial review of BIA motions to reopen functions as a safety valve)