Mark Jorgensen Farrales v. LORETTA E. LYNCH, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARK JORGENSEN FARRALES,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
Nos. 11-71312
11-73288
Agency No. A070-035-243
MEMORANDUM*
On Petition for Review of Orders of the
Board of Immigration Appeals
Argued and Submitted December 7, 2016
Pasadena, California
Before: REINHARDT, TASHIMA, and PAEZ, Circuit Judges.
In this consolidated appeal, Mark Farrales, a native and citizen of the
Philippines, petitions for review of (1) a 2010 Board of Immigration Appeals
(BIA) decision denying his motion to reopen; and (2) a 2011 BIA decision denying
his motion to reconsider and his second motion to reopen.
FILED
DEC 23 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

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In 1990, when Farrales was 12 years old, he and his family entered the
United States as non-immigrant visitors after his father, who was campaigning for
public office, was shot and wounded outside their home in the Philippines. 1 All
four family members overstayed their visas and were issued orders to show cause
in 1996. After a hearing in 1998 in a proceeding in which Farrales was a
derivative asylee, the entire family was ordered removed and granted voluntary
departure.
Farrales did not depart the United States. He graduated from Belmont High
School in Los Angeles as the valedictorian of his class and then attended Harvard
University, where he graduated magna cum laude in 2001. He subsequently earned
a masters degree in political science from the University of California, San Diego, ,
and was expected to earn his doctorate from that institution in 2011. His
scholarship and publications focus on exposing and combating corruption in the
Philippines.
In 2010, Farrales was detained by Immigration and Customs Enforcement.
1Throughout this memorandum disposition, refers to the administrative
record from case number 11-71312 (first motion to reopen) and refers to the
administrative record from case number 11-73288 (motion to reconsider and
second motion to reopen).
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He filed his first motion to reopen in 2010, a number of years after the initial
proceeding became final and the ninety-day deadline had expired, arguing, inter
alia, that changed country conditions in the Philippines exempted his motion from
the deadline. The BIA rejected his motion to reopen as untimely.
In 2011, Farrales filed a motion for reconsideration along with
supplementary documentation, which the BIA construed as a second motion to
reopen. The Board rejected all of Farrales’ arguments for reconsideration and for
reopening.
Ordinarily, a petitioner must file a motion to reopen within ninety days of a
final administrative decision. 8 C.F.R. § 1003.2(c)(2). This time limit does not
apply, however, if the motion is filed for the purpose of seeking asylum “based on
changed circumstances arising in the country of nationality or in the country to
which deportation has been ordered. ” 8 C.F.R. § 1003.2(c)(3)(ii). In order to meet
the changed country conditions exception to the deadline, a petitioner must present
material evidence that could not have been discovered or submitted at the time of
the previous hearing. Salim v. Lynch, 831 F.3d 1133, 1137 (9th Cir. 2016).
Although “a change in personal circumstances [alone] [] is not sufficient to
establish changed circumstances in the country of origin,” He v. Gonzales, 501
F.3d 1128, 1132 (9th Cir. 2007), a “petitioner’s untimely motion to reopen may
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qualify under the changed conditions exception . . . if the changed country
conditions are made relevant by a change in the petitioner’s personal
circumstances.” Chandra v. Holder, 751 F.3d 1034, 1038 (9th Cir. 2014)
(emphasis added). We conclude that Farrales has provided sufficient evidence to
meet the changed country conditions exception to the timeliness bar.
The BIA made two errors of law in its decision denying Farrales’ first
motion to reopen. First, the BIA abused its discretion when it concluded that there
was not evidence of “a material change in conditions” in the Philippines. Along
with his first motion to reopen and application for relief, Farrales submitted a
personal declaration and Freedom House reports that demonstrate a substantial
increase in political violence and decrease in political freedom in the Philippines
between 1998 and 2010. See Malty v. Ashcroft, 381 F.3d 942, 946–47 (9th Cir.
2004) (holding petitioner’s declaration, along with Freedom House Report
detailing mass arrest and torture of Coptic Christians in Egypt, sufficient to warrant
reopening). Moreover, Farrales also provided extensive documentary evidence,
including news articles and a transcript from a hearing of the Senate Subcommittee
on East Asian and Pacific Affairs, of an increase in political violence and
extrajudicial killings in the Philippines, especially against those who criticize
governmental corruption.
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This evidence of declining political freedom and significantly increasing
political violence against those who criticize the government is “material,”
especially in light of the publicity surrounding Farrales’ pending deportation in the
Philippines, and “was not available and could not have been discovered or
presented at the previous hearing.” See Salim, 831 F.3d at 1137. Therefore, BIA
abused its discretion in concluding that Farrales failed to present material evidence
of changed country conditions that was unavailable at his previous hearing in 1998.
Second, the BIA erred as a matter of law by refusing to consider Farrales’
evidence of changed country conditions in light of his anti-corruption publications
because his scholarship was a “change[] in his personal circumstances that arose in
the United States rather than changed country conditions in the Philippines.” See
Chandra v. Holder, 751 F.3d 1034, 1038 (9th Cir. 2014) (“[A] petitioner’s
untimely motion to reopen may qualify under the changed conditions exception
in 8 C.F.R. § 1003.2(c)(3)(ii), even if the changed country conditions are made
relevant by a change in the petitioner’s personal circumstances.”); Salim, 831 F.3d
at 1137–38. By the time he filed his first motion to reopen, Farrales was a Ph.D.
candidate in political science whose scholarship often criticized governmental
corruption in the Philippines. Because these changes in Farrales’ personal
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circumstances made the increased political violence against critics of the
government in the Philippines relevant to him, the BIA abused its discretion in
refusing to consider Farrales’ change in personal circumstances since 1998.
In light of the worsening country conditions and the publicity in the
Philippines surrounding Farrales’ deportation, he has also provided sufficient
evidence of changed circumstances such that he now has a “reasonable likelihood”
of demonstrating a prima facie case for asylum. See Malty v. Ashcroft, 381 F.3d
942, 947 (9th Cir. 2004). Accordingly, we grant Farrales’ first petition for review
and remand to the BIA with instructions to reopen. Farrales’ second petition for
review is therefore denied as moot.
In No. 11-71312, PETITION GRANTED.
In No. 11-73288, PETITION DENIED AS MOOT.
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