Chaudhry v. Garland
| Decision Date | 07 January 2022 |
| Docket Number | 20-70482 |
| Parties | RAMZAN ALI CHAUDHRY, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
NOT FOR PUBLICATION
Submitted May 12, 2021 [**] San Francisco, California
On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A072-175-541
Before: NGUYEN and COLLINS, Circuit Judges, and RAKOFF [***] District Judge.
Ramzan Ali Chaudhry, a citizen of Pakistan, petitions for review of an order of the Board of Immigration Appeals ("BIA") denying his motion to reopen his removal proceedings. We have jurisdiction under § 242 of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1252. In light of intervening decisions by this court and the Attorney General, we grant the petition and remand for further proceedings.
The BIA relied on He v. Gonzales, 501 F.3d 1128 (9th Cir. 2007), to conclude that Chaudhry failed to show changed circumstances in Pakistan, his country of origin, that would allow the BIA to consider his otherwise untimely motion to reopen. He held that a self-induced change in the petitioner's personal circumstances-there the birth of two of the petitioners' children in the United States, which caused the petitioners to be in violation of longstanding population control policies in place in China, their country of origin-cannot satisfy the changed country circumstances exception. Id. at 1132. The BIA determined that Chaudhry's circumstances are indistinguishable from He because Chaudhry alleges only a change in his personal circumstances, namely that his wife's former in-laws in Pakistan became aware of her marriage to him and threatened to kill him if he returns.
After the BIA's decision, however, we clarified in Kaur v. Garland, 2 F.4th 823 (9th Cir. 2021), that He is inapplicable when the changed circumstances, even if personal to the petitioner, occur in the country of origin and are beyond the petitioner's control. Id. at 830-31. We thus held that the death of the petitioner's husband in India and her in-laws' ensuing threats to kill her if she returned were changed circumstances in India that she did not "volitionally change or affect." Id. at 831.
Similar to the petitioner in Kaur, and unlike the petitioners in He, Chaudhry faces changed circumstances in his country of origin-the death threat from his wife's former in-laws in Pakistan-and those circumstances appear beyond Chaudhry's control, thus alleviating any concern of gamesmanship. See He, 501 F.3d at 1131-32 (). Chaudhry's marriage to his wife, while volitional, is an act seemingly removed from the independent decision of a third party to threaten him with death. We therefore remand to the BIA to reconsider, in light of Kaur, whether Chaudhry satisfies the changed country circumstances exception. See, e.g., Naranjo-Barrajas v. Holder, 356 Fed.Appx. 923, 923-24 (9th Cir. 2009) ().[1] The BIA also denied the motion to reopen on the alternative ground that Chaudhry failed to show prima facie eligibility for relief because he claimed fear of persecution based on membership in an inadequate particular social group. In concluding that Chaudhry failed to present a cognizable group, the BIA relied on Matter of L-E-A-, 27 I. & N. Dec. 581 (A.G. 2019). The Attorney General has since vacated that decision, reasoning that its analysis was "inconsistent with the decisions of several courts of appeals that have recognized families as particular social groups," including Rios v. Lynch, 807 F.3d 1123, 1128 (9th Cir. 2015). Matter of L-E-A-, 28 I. & N. Dec. 304, 305-06 (A.G. 2021). We therefore remand to the BIA so that it may reconsider Chaudhry's prima facie eligibility for relief.
PETITION GRANTED AND REMANDED.
In my view, the BIA did not abuse its discretion in concluding that, under He v. Gonzales, 501 F.3d 1128 (9th Cir. 2007), Chaudhry had failed to establish changed country conditions that would allow a reopening of his removal proceedings. See Chandra v. Holder, 751 F.3d 1034, 1036 (9th Cir. 2014) (). Because the majority instead remands the case for reconsideration, I respectfully dissent.
Section 240 of the INA specifies that a motion to reopen must "be filed within 90 days of the date of entry of [the alien's] final administrative order of removal," but it provides an exception for aliens who seek reopening in order to apply for asylum or withholding of removal "based on changed country conditions arising in the country of nationality or the country to which removal has been ordered." See8U.S.C. § 1229a(c)(7)(C)(i)-(ii). Because Chaudhry's motion to reopen was filed almost five years after his final administrative order of removal, his motion could not be considered unless, inter alia, he established such changed country circumstances.
In seeking reopening, Chaudhry relied on the threat of an "honor killing" by his wife's ex-husband's family in Pakistan. Chaudhry met his wife in the U.S. and in 2004 they were "religiously married at a local mosque." His wife had been granted asylum in the U.S. in 2003 based on her "fear of being subjected to honor killing in Pakistan" by her ex-husband's family, who opposed her having fled her in-laws' home after her husband disappeared in 2002. Years later, in 2013, Chaudhry's wife served divorce papers on her ex-husband in Pakistan, and at that point the ex-husband's family learned that she had religiously married another man in the U.S. After the Pakistani divorce was finalized, Chaudhry and his wife were civilly married in the U.S. in 2014. His wife's brother told her in the summer of 2018 that the ex-husband's brother has threatened to kill Chaudhry if he returns to Pakistan. Chaudhry contended that "murdering someone in the name of family honor is extremely prevalent" in Pakistan and that, because his marriage "violated deeply held customs and belie[f]s held by [his wife's] former husband's family," he was at risk of an honor killing if he is removed to Pakistan.
The BIA concluded that Chaudhry's showing failed to demonstrate the requisite changed circumstances, and it alternatively concluded that he also failed to establish a prima facie case for asylum or withholding of removal.[1] See Toufighi v. Mukasey, 538 F.3d 988, 996 (9th Cir. 2008) ().
I would hold that the BIA did not abuse its discretion in concluding that Chaudhry's case is not meaningfully distinguishable from He and that, as a result, Chaudhry was not eligible for reopening. I therefore do not address whether Chaudhry also failed to establish a prima facie case for relief.
In He, we held that a "self-induced change" in the alien's circumstances in the U.S. (there, the births of a second child and a third child in the U.S.) did not qualify as "changed circumstances arising . . . in the country to which deportation has been ordered" within the meaning of 8 C.F.R. § 1003.2(c)(3)(ii), which is the regulation that restates and implements the similarly worded "changed country conditions" requirement set forth in INA § 240(c)(7)(B)(ii). See He, 501 F.3d at 1132; cf. Kaur v. Garland, 2 F.4th 823, 830-31 (9th Cir. 2021) (). That remained true, He held, even though that self-induced change of circumstances in the U.S now brought the alien within a pre-existing category of persons that would be subject to potential persecution in the country in question.
Thus although the birth of a second child in the U.S. now meant that the Hes were, for the first time, "subject to forced sterilization pursuant to the [Chinese Government's] population control policy if they are returned to China," we held that the changed-country-circumstances factor required a showing of "changed conditions in China for reasons other than the change in their personal circumstances following the births of their children in the United States." Id. at 1131-32 (emphasis added). So too here, it is not sufficient that the self-induced change in Chaudhry's circumstances in the U.S. (his marriage to his wife) placed him at risk of being subjected to what Chaudhry himself concedes is the longstanding and "extremely prevalent" practice of honor killings in Pakistan.
The majority nonetheless remands the case on the ground that He might be considered to be distinguishable here. I think it is already clear that He is controlling and that a remand is therefore unnecessary. The majority notes that, "unlike the petitioners in He, Chaudhry faces changed circumstances in his country of origin-the death threat from his wife's former in-laws in Pakistan." See Mem. Dispo. at 3. But, as I see it, an analogous change in circumstances was present in He. After the births of their second and third children in the U.S., the Hes faced changed circumstances in their country of origin inasmuch as Chinese officials in that country now wanted to harm them because those additional births in the U.S. "render[ed] them subject to forced sterilization pursuant to the [Chinese Government's] population control policy if they are returned to China." 501 F.3d at...
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