Ricardo RIVERA-GOMEZ, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
No. 12-70147.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Aug. 4, 2014. Filed Sept. 3, 2014.
582 Fed. Appx. 729
Sara Bayram, OIL, Ilissa M. Gould, Trial, DOJ-U.S. Department of Justice, Washington, DC, Chief Counsel ICE, Office of the Chief Counsel Department of Homeland Security, San Francisco, CA, for Respondent.
Before: REINHARDT, WARDLAW, and CALLAHAN, Circuit Judges.
MEMORANDUM*
Ricardo Rivera-Gomez (Rivera), a native and citizen of Honduras, petitions for review of an order of the Board of Immigration Appeals (BIA) dismissing his appeal of an immigration judges (IJ) denial of his motion to reopen, and denying a second motion to reopen filed before the
The BIA abused its discretion by concluding that Riveras newly-produced evidence describing recent attacks against his family by the Mara 18 and the 2009 military coup in Honduras was not qualitatively different from the evidence that Rivera could have presented at his previous hearing in 2003. See Najmabadi v. Holder, 597 F.3d 983, 987 (9th Cir.2010). Although the gang killed Riveras brother in 2001, the recent rape of and attack on his sister and death threats to his sister-in-law and niece clarify the reason why the gang has pursued Rivera. Contrary to the IJs and governments position, Riveras persecution is not because he won a soccer game. Mara 18 has hunted him and his family for the past ten years because Riveras refusal to join the gang and his familys escape from Honduras hurt the Mara 18 by taking [Rivera] away. Additionally, it was not until 2010 that Rivera learned that he and his family were on the gangs countrywide hit list. This evidence was not available in 2003, and it constitutes changed circumstances materially affecting Riveras eligibility for asylum. See Malty v. Ashcroft, 381 F.3d 942, 946 (9th Cir. 2004).
Furthermore, the 2009 military coup has substantially increased the levels of gang violence in Honduras. According to one of Riveras experts, The military coup detat . . . represent[s] the most serious setback[ ] for human rights and the rule of law in Honduras since the height of political violence in the 1980s. Indeed, another one of his experts concluded that, There are no functional state institutions that can provide Mr. Rivera Gomez the protection necessary to survive the gang retaliation for his opposition to gang culture. The BIAs opinion does not discuss any of the evidence describing changed country conditions. It does not even make mention of the highly significant 2009 military coup. This failure to consider the evidence presented was an abuse of discretion. See Ali v. Holder, 637 F.3d 1025, 1031 (9th Cir.2011).
Even if we assume that the BIA alternatively concluded that Rivera failed to establish his prima facie eligibility for relief, recent decisions by the BIA and our circuit concerning the test for social group membership warrant remanding this petition for reconsideration. See, e.g., Pirir-Boc v. Holder, 750 F.3d 1077 (9th Cir.2014); Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir.2013) (en banc); Matter of M-E-V-G-, 26 I. & N. Dec. 227 (BIA 2014); Matter of W-G-R-, 26 I. & N. Dec. 208 (BIA 2014).1
We GRANT the petition and REMAND with instructions to reopen Riveras proceedings and evaluate his claims on the merits.