Juan Bernabe v. Eric Holder, Jr.

MEMORANDUM

Juan Francisco Bernabé (“Bernabé”), a native and citizen of Guatemala, petitions for review of an order of the Board of Immigration Appeals (“BIA”) denying his untimely motion to reopen based on changed country circumstances. We have jurisdiction pursuant to 8 U.S.C. § 1252 . Because the BIA conducted a de novo review rather than expressly adopting the IJ’s decision as its own, we review only the BIA’s decision. Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir.2004). Reviewing for abuse of discretion, Malty v. Ashcroft, 381 F.3d 942, 945 (9th Cir.2004), we deny in part and grant in part the petition for review, and remand for further proceedings.

First, we reject Bernabe’s contention that the BIA applied the incorrect legal standard when determining whether he presented a material change in country conditions in Guatemala sufficient to warrant an exception to the ninety-day time limit applicable to motions to reopen. 8 U.S.C. § 1229a(c)(7)(C)(i)-(ii) (requiring that a petitioner show a material change in country conditions, and that such evidence was not available or could not have been discovered or presented at the previous hearing to file a motion to reopen after…