Immigration – BIA erred by not considering murder of asylum applicant’s brother

Where the Honduran native’s first application for asylum was denied as untimely, but he then filed a second application after his brother’s murder, the Board of Immigration Appeals or BIA, erred by refusing to reopen the application. The murder constituted a material change in circumstances.

Background

Napoleon Garcia Hernandez, a native and citizen of Honduras, petitions for review of a BIA order dismissing his appeal of the immigration judge or IJs, denial of his motion to reopen removal proceedings.

Standard

Garcia Hernandez first argues that the BIA erred by analyzing the motion to reopen his asylum application under the wrong standard. Of note, 8 C.F.R. § 1003.23(b)(1) required a petitioner to move to reopen within 90 days of the entry of a final administrative order of removal. Along with the 90-day time limitation, § 1003.23(b)(3) required that the IJ be satisfied that the petitioner presented material evidence that “was not available and could not have been discovered or presented at the former hearing” before granting the motion.

Under § 1003.23(b)(4)(i), however, the 90-day filing deadline does not apply if the basis for the motion is to apply for asylum, withholding of removal or withholding under the convention against torture or CAT, and is based on “changed country conditions arising in the country of nationality or the country to which removal has been ordered, if such evidence is material and was not available and could not have been discovered or presented at the previous proceeding.”

Garcia Hernandez was ordered removed and denied asylum on Aug. 23, 2018. He moved to reopen on Oct. 9, 2018. Thus, Garcia Hernandez filed his motion within 90 days of the final hearing, in which case § 1003.23(b)(3) applies instead of § 1003.23(b)(4).

The BIA “[affirmed] the Immigration Judge’s decision to deny reopening because the respondent has not sufficiently demonstrated that his brother’s murder represents a material change in country conditions that would affect his eligibility for asylum.” While (b)(4) requires “changed country conditions,” (b)(3)does not. Thus, the BIA’s reference to a “material change in country conditions” and the analysis that followed shows that the BIA applied § 1003.23(b)(4). In applying the standard of § 1003.23(b)(4) to a timely filed motion, the BIA acted contrary to law.

Asylum

An application for asylum must be filed within one year of the alien’s arrival in the United States. Additionally, an alien cannot file a successive asylum application after having a previous application denied. That said, “[a]n application for asylum of an alien may be considered, notwithstanding subparagraphs (B) and (C), if the alien demonstrates to the satisfaction of the Attorney General either the existence of changed circumstances which materially affect the applicant’s eligibility for asylum or extraordinary circumstances relating to the delay in filing an application within the period specified in subparagraph (B).”

Garcia Hernandez argues that, under § 1158(a)(2)(D), the murder of his brother constitutes changed circumstances which materially affect his eligibility for asylum. He insists that the BIA and IJ ignored the murder even though it was a new instance of persecution.

In Zambrano v. Sessions, 878 F.3d 84 (4th Cir. 2017), this court held that the asylum application deadline is “flexible if the alien can show ‘the existence of changed circumstances which materially affect the applicant’s eligibility for asylum.’” It explained that “new facts that provide additional support for a preexisting asylum claim can constitute a changed circumstance. These facts may include circumstances that show an intensification of a preexisting threat of persecution or new instances of persecution of the same kind suffered in the past.”

The BIA held that Zambrano did not apply because the changed circumstances there took place before the petitioner filed a time-barred petition even though here, the purported changed circumstances took place after the time-barred petition was filed and adjudicated. But nothing in Zambrano suggests its holding or reasoning was limited in the way the BIA suggests. Thus, Zambrano’s framework in examining changed circumstances should have been applied to Garcia Hernandez’s asylum application.

Petition for review granted. Vacated and remanded.

Garcia-Hernandez v. Garland (Lawyers Weekly No. 001-047-22, 10 pp.) (A. Marvin Quattlebaum Jr., J.) Case No. 20-1678. March 2, 2022. From the Board of Immigration Appeals. Benjamin J. Osorio for Petitioner. Brian Boynton, Cindy S. Ferrier and Brendan P. Hogan for Respondent. 4th Cir.