2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-24-2011

Jair Izquierdo v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 11-1110

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2011

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2011 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Jair Izquierdo v. Atty Gen USA" (2011). 2011 Decisions. Paper 640.

http://digitalcommons.law.villanova.edu/thirdcircuit_2011/640
NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 11-1110

___________

JAIR IZQUIERDO,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A099-683-662)

Immigration Judge: Honorable Henry S. Dogin

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

August 17, 2011

Before: SLOVITER, CHAGARES and WEIS, Circuit Judges

(Opinion filed: August 24, 2011)

___________

OPINION

___________

PER CURIAM.

Jair Izquierdo petitions for review of the Board of Immigration Appeals‟ 

(“BIA”) decision denying his motion to reopen his removal proceedings. For the reasons 

that follow, we will grant the petition, vacate the BIA‟s decision, and remand for further 

proceedings. 
2

I.

Because we write for the parties, who are familiar with the background of 

this case, we discuss that background only to the extent necessary to rule on the instant 

petition. Izquierdo, a native and citizen of Peru, entered the United States as a 

nonimmigrant visitor in October 2001. He ultimately stayed beyond the time allowed 

under his visa, and was placed in removal proceedings in 2006. He conceded his 

removability and applied for asylum, withholding of removal, and relief under the 

Convention Against Torture (“CAT”). In support of his application, he claimed that he 

feared returning to Peru on account of his being gay.

In October 2006, after a hearing on the merits, the Immigration Judge (“IJ”) 

denied Izquierdo‟s application. In his decision, the IJ noted that “[t]here are many 

instances where gays [in Peru] are not only discriminated against, but there‟s actual 

physical beatings at the hands of the authorities. There‟s also evidence that the 

authorities stand around and allow gays to be harmed.” (J.A. at 138.) Despite these 

findings, the IJ concluded that he could not find a pattern or practice of persecution 

against gays in Peru “until I have a finding by an appellate court or a legislative fiend 

[sic].” (See id. at 146-47.)

In June 2008, the BIA upheld the IJ‟s denial of relief. Although the BIA 

determined that the IJ had erred in stating that he could not grant relief on Izquierdo‟s 

pattern or practice claim due to the absence of any controlling authority, the BIA 

concluded that this error was harmless because the record did not establish such a pattern 
3

or practice. In support of this conclusion, the BIA emphasized that 

while the [IJ] referred generally to beatings of gays and police 

inaction, such incidents are reported primarily in the older 

articles in the record, some of which date back more than 12 

years. We note that most of the articles submitted by 

[Izquierdo] are more than 5 years old and thus are not 

reflective of current conditions for homosexuals in Peru, and 

the more recent articles, from 2006, relate primarily to 

incidents against transvestite activists.

(Id. at 124 (citations omitted).) The BIA also highlighted several excerpts from country 

reports reflecting positive strides made in Peru regarding the treatment of gays.

Izquierdo subsequently petitioned this Court to review the BIA‟s decision; 

we denied that petition in November 2009. See Izquierdo v. Att‟y Gen. of the U.S., 352 

F. App‟x 682 (3d Cir. 2009) (per curiam). In November 2010, he moved the BIA to 

reopen his removal proceedings, claiming that conditions for gays in Peru had worsened 

since his October 2006 merits hearing before the IJ. In support of this motion, Izquierdo 

submitted the U.S. State Department‟s 2009 Country Report on Human Rights Practices 

for Peru, as well as various articles and other sources. 

On December 17, 2010, the BIA denied Izquierdo‟s motion to reopen in a 

one-page decision. The BIA concluded that 

[t]he evidence proffered with [Izquierdo‟s] present motion 

does not reflect materially changed country conditions for 

homosexuals in his native Peru since this case was before the 

[IJ] in October of 2006. Rather, such evidence describes a 

continuance of the on-going and volatile circumstances that 

gave rise to [his] first claim, a claim that was previously 

denied by both the [IJ] and the [BIA]. Moreover, 

[Izquierdo‟s] generalized claim of increased harassment, 
4

discrimination, and violence towards homosexuals in Peru is 

insufficient to establish his prima facie eligibility for asylum, 

withholding of removal, and [CAT] relief. The country 

information submitted along with [his] motion does not 

sufficiently demonstrate that there exists a reasonable 

possibility that [he] would be targeted for harm rising to the 

level of persecution on account of a protected ground. Nor 

does such evidence sufficiently demonstrate that [he] would 

more likely than not face torture in Peru. The evidence 

presented does not make a prima facie showing that the 

government of Peru would torture or acquiesce in the torture 

of [him].

(J.A. at 2 (citations omitted).) Izquierdo now seeks review of this most recent BIA 

decision.1

II.

An alien generally must file a motion to reopen within 90 days of the entry 

of the final order of removal. See 8 U.S.C. § 1229a(c)(7)(C)(i). There is no such time 

limit, however, if the alien‟s motion “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 would not have been discovered or 

presented at the previous proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii). We review the 

BIA‟s denial of a motion to reopen for abuse of discretion, Borges v. Gonzales, 402 F.3d 

398, 404 (3d Cir. 2005), and “will uphold that determination if it is „supported by 

reasonable, substantial, and probative evidence on the record considered as a whole.‟” 

 

1 We have jurisdiction over Izquierdo‟s petition pursuant to 8 U.S.C. § 1252(a)(1). 
5

Zheng v. Att‟y Gen. of the U.S., 549 F.3d 260, 266 (3d Cir. 2008) (quoting INS v. EliasZacarias, 502 U.S. 478, 481 (1992)). 

In this case, the BIA articulated two independent grounds for denying 

Izquierdo‟s motion to reopen. First, the BIA concluded that he had failed to establish 

materially changed country conditions in Peru. Second, the BIA concluded that he had 

failed to establish prima facie eligibility for asylum, withholding of removal, or CAT 

relief. As explained below, the reasoning underlying both of these conclusions is flawed. 

The BIA concluded that Izquierdo had failed to establish materially 

changed country conditions because his new evidence merely “describes a continuance of 

the on-going and volatile circumstances that gave rise to [his] first claim.” (J.A. at 2.) 

This reasoning, without more, simply does not square with the BIA‟s earlier findings. In 

its earlier decision, the BIA gave no indication that “volatile circumstances” were “ongoing” in Peru. To the contrary, the BIA found that most of the evidence that had been 

presented to the IJ was outdated and thus “not reflective of current conditions for 

homosexuals in Peru.” (See id. at 124.) Additionally, the BIA highlighted several 

excerpts from country reports reflecting positive developments in Peru regarding the 

treatment of gays. 

As for the BIA‟s conclusion that Izquierdo had failed to establish prima 

facie eligibility for relief, it appears that the BIA reached that conclusion by assessing the 

wrong claim. Izquierdo‟s motion to reopen claimed that he was entitled to relief based on 

a pattern or practice of persecution against gays in Peru. It appears, however, that the 
6

BIA evaluated his claim as though it was based on individualized persecution, for the 

BIA concluded that the evidence “does not sufficiently demonstrate that there exists a 

reasonable possibility that [Izquierdo] would be targeted for harm rising to the level of 

persecution on account of a protected ground.” (See id. at 2 (emphasis added).) The 

Government, in a footnote in its brief, essentially concedes this error.2

Given the above-noted flaws in the BIA‟s analysis, we cannot uphold its 

December 17, 2010 decision on either of the two grounds articulated by the agency. 

Although Izquierdo urges us to hold that he has both established materially changed 

country conditions and prima facie eligibility for asylum and withholding of removal, we 

will instead remand the matter so that the BIA can properly evaluate his motion to 

 

2

 The Government states that

[s]hould the Court disagree with [the Government‟s] argument and find a 

change in country conditions warranting reopening, the Court should 

remand the case for the agency to consider Izquierdo‟s claim that he made 

out a prima facie case of a “pattern and practice” of persecution. See INS v. 

Ventura, 537 U.S. 12, 16-17 (2002) (holding that this Court must remand to 

the Board to allow it to address in the first instance an issue that it has not 

yet considered); Gonzales v. Thomas, 547 U.S. 183, 186-87 (2006) (same).

(Resp‟t‟s Br. 16 n.1.)
7

reopen.

3

 We express no opinion on his ability to prevail on that motion.

In light of the above, we will grant Izquierdo‟s petition for review, vacate 

the BIA‟s December 17, 2010 decision, and remand the matter to the BIA for further 

proceedings consistent with this opinion.

 

3

 Because we conclude that the BIA examined the wrong claim in determining that 

Izquierdo had failed to establish prima facie eligibility for relief, we need not address his 

argument that the BIA‟s prima facie eligibility analysis employed an “excessively 

rigorous standard.” We trust that, on remand, the BIA will apply the proper standard. 

See Shardar v. Att‟y Gen. of the U.S., 503 F.3d 308, 313 (3d Cir. 2007) (explaining that, 

to establish prima facie eligibility for relief, an alien moving to reopen “must produce 

objective evidence showing a reasonable likelihood that he can establish that he is 

entitled to relief”) (internal quotation marks and citation omitted).