Yalda Youssef v. Eric Holder, Jr. , 519 F. App'x 973 ( 2013 )


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  •                                                                            FILED
    NOT FOR PUBLICATION                            MAR 19 2013
    MOLLY C. DWYER, CLERK
    UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS
    FOR THE NINTH CIRCUIT
    YALDA MILAD YOUSSEF,                             No. 11-70990
    Petitioner,                       Agency No. A079-812-036
    v.
    MEMORANDUM *
    ERIC H. HOLDER, Jr., Attorney General,
    Respondent.
    On Petition for Review of an Order of the
    Board of Immigration Appeals
    Submitted March 12, 2013 **
    Before:        PREGERSON, REINHARDT, and W. FLETCHER, Circuit Judges.
    Yalda Milad Youssef, a native and citizen of Lebanon, petitions for review
    of the Board of Immigration Appeals’ (“BIA”) order denying his third motion to
    reopen removal proceedings. Our jurisdiction is governed by 
    8 U.S.C. § 1252
    . We
    review for abuse of discretion the denial of a motion to reopen, and for substantial
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by 9th Cir. R. 36-3.
    **
    The panel unanimously concludes this case is suitable for decision
    without oral argument. See Fed. R. App. P. 34(a)(2).
    evidence the BIA’s factual findings. Mohammed v. Gonzales, 
    400 F.3d 785
    , 791
    (9th Cir. 2005). We grant in part and dismiss in part the petition for review, and
    remand for further proceedings.
    The BIA abused its discretion in denying Youssef’s motion to reopen where
    Youssef submitted evidence of changed circumstances in Lebanon. See 
    8 C.F.R. § 1003.2
    (c)(3)(ii). The proffered evidence, when viewed collectively, indicated
    that Youssef’s parents were shot and wounded by Muslim extremists in Lebanon
    on September 26, 2010, because of their religious activities and that Youssef’s life
    now would be in similar jeopardy if he were to return to Lebanon. The BIA did
    not find the proffered evidence to be inherently unbelievable. Therefore,
    substantial evidence does not support the BIA’s determinations that the proffered
    evidence did not reflect changed country conditions in Lebanon, that it was not
    material, and that it did not establish Youssef’s prima facie eligibility for asylum,
    withholding of removal, and relief under the Convention Against Torture. See
    Celis-Castellano v. Ashcroft, 
    298 F.3d 888
    , 892 (9th Cir. 2002) (“[T]he Board
    must accept as true the facts stated in an alien’s affidavit in ruling upon his motion
    to reopen unless it finds those facts to be inherently unbelievable.”) (internal
    quotation marks and citations omitted); see also Toufighi v. Mukasey, 
    538 F.3d 2
                                           11-70990
    988, 966 (9th Cir. 2008) (summarizing the requirements for a petitioner to prevail
    on a motion to reopen based on changed country conditions).
    We note, given the passage of time, that Youssef is not precluded from
    updating the contents of his motion to reopen. See Malty v. Ashcroft, 
    381 F.3d 942
    , 946 (9th Cir. 2004) (“changed country conditions are specifically excepted
    from the numerical limitations on motions”).
    We lack jurisdiction to review Youssef’s due process contention related to
    the withdrawal of his original asylum application because he did not raise that
    contention before the agency and therefore failed to exhaust his administrative
    remedies. See Barron v. Ashcroft, 
    358 F.3d 674
    , 678 (9th Cir. 2004) (this court
    lacks jurisdiction to review contentions not raised before the agency).
    PETITION FOR REVIEW GRANTED in part; DISMISSED in part;
    REMANDED.
    3                                    11-70990