Giraldo-Pabon v. Lynch , 840 F.3d 21 ( 2016 )

United States Court of Appeals
For the First Circuit
No. 16-1260
CLAUDIA MILENA GIRALDO-PABON,
Petitioner,
v.
LORETTA E. LYNCH,
United States Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Howard, Chief Judge,
Selya and Lipez, Circuit Judges.
Elyssa N. Williams on brief for petitioner.
Benjamin C. Mizer, Principal Deputy Assistant Attorney
General, Civil Division, Holly M. Smith, Senior Litigation
Counsel, Office of Immigration Litigation, and John F. Stanton,
Trial Attorney, Office of Immigration Litigation, Civil Division,
U.S. Dep't of Justice, on brief for respondent.
October 21, 2016
HOWARD, Chief Judge. Petitioner Claudia Milena Giraldo-
Pabon ("Giraldo"), a native and citizen of Colombia, asks us to
review a Board of Immigration Appeals ("BIA") order denying her
motion to reopen. After careful consideration of the briefs and
the record, we deny her petition.
I.
Having previously entered this country without
inspection and later returned to Colombia, Giraldo entered the
United States unlawfully in 2004 and was subsequently served with
a Notice to Appear charging her as removable pursuant to
Immigration and Nationality Act §§ 212(a)(6)(C)(i) and
212(a)(7)(A)(i)(I).1 In response, Giraldo sought asylum,
withholding of removal, and protection under the United Nations
Convention Against Torture ("CAT"). Her claims were denied, yet
she did not appeal the immigration judge's ("IJ") decision to the
BIA. Instead, Giraldo voluntarily returned to Colombia.2
Giraldo re-entered the United States in 2013 and filed
a motion to reopen removal proceedings in August 2014. She
1
Giraldo attempted to enter the United States using an
altered Colombian passport bearing her photograph and the name
"Sugen Cure Perez" and containing an altered United States B-1/B-
2 nonimmigrant visa.
2
In 2011, Giraldo traveled to Canada, where she requested
refugee status. Following denial of her application, she returned
to Colombia. She was in Colombia for less than a month before
returning to the United States.
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submitted evidence of drug gang-related acts of violence against
two of her cousins in Colombia in support of her motion.
The IJ denied Giraldo's motion to reopen on two grounds,
one of which was that Giraldo had failed to establish an exception
to the time limitations on motions to reopen. The BIA affirmed
the IJ's decision on this basis. Giraldo filed this timely
petition seeking review of the BIA's decision.
II.
Where, as here, the BIA issues a decision adopting and
illuminating some of an IJ's findings and conclusions, we treat
the relevant parts of the two decisions as one for purposes of
review. See Wan v. Holder, 776 F.3d 52, 55-56 (1st Cir. 2015).
We review the agency's denial of a motion to reopen removal
proceedings for abuse of discretion. Mejia-Ramaja v. Lynch, 806
F.3d 19, 20 (1st Cir. 2015). Under this standard, we must uphold
the BIA's decision unless Giraldo can show "that the BIA committed
an error of law or exercised its judgment in an arbitrary,
capricious, or irrational way." Tandayu v. Mukasey, 521 F.3d 97,
100 (1st Cir. 2008) (quoting Raza v. Gonzales, 484 F.3d 125, 127
(1st Cir. 2007)).
Normally, a motion to reopen immigration proceedings
must be filed within 90 days of the entry of the final order of
removal. 8 C.F.R. § 1003.2(c)(2). Giraldo's motion was filed
well past — in fact, years past — this 90-day limit. There is,
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however, an exception available when the motion to reopen is "based
on changed circumstances arising in . . . the country to which
deportation has been ordered." 8 C.F.R. § 1003.2(c)(3)(ii).
Giraldo seeks to overcome the lateness of her motion by invoking
this exception. We agree with the BIA that the exception is
inapplicable. See Mejia-Ramaja, 806 F.3d at 21.
Two related but distinct questions are on the table when
an untimely motion to reopen has been filed: first, whether the
petitioner has presented sufficient evidence of changed country
conditions to permit her to file a tardy motion to reopen; and
second, whether the new evidence that the petitioner has presented,
together with evidence already in the record, shows that she has
a reasonable likelihood of prevailing on her asylum, withholding
of removal, or CAT claims. Smith v. Holder, 627 F.3d 427, 433
(1st Cir. 2010). The agency may deny a petition if it determines
that the movant has failed to meet either of those requirements.
Id. In Giraldo's case, the BIA concluded that she had not made
out a prima facie case for any of the forms of relief sought.
To establish eligibility for asylum, an applicant must
prove either past persecution or a well-founded fear of future
persecution if repatriated, on account of one of five enumerated
grounds: race, religion, nationality, membership in a particular
social group, or political opinion. See 8 U.S.C. § 1101(a)(42)(A).
To make out a prima facie case for asylum in the context of a
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motion to reopen, the "applicant need only produce objective
evidence showing a 'reasonable likelihood' that [she] will face
future persecution based on a statutory ground." Smith, 627 F.3d
at 437 (internal quotation marks omitted). A "reasonable
likelihood" means a showing that there is a realistic chance that
the petitioner can establish that asylum should be granted at a
later time. Id.
Giraldo argues that she is eligible for asylum because
she has a well-founded fear of future persecution based on kinship
ties and imputed political opinion.3 Essentially, she asserts that
her safety and security in Colombia are jeopardized by her extended
family's ongoing involvement in a narco-trafficking cartel.
It is true that one's family can constitute a protected social
group. See Aldana-Ramos v. Holder, 757 F.3d 9, 15 (1st Cir. 2014)
("The law in this circuit and others is clear that a family may be
a particular social group simply by virtue of its kinship ties,
without requiring anything more."). However, the BIA did not find
that Giraldo failed to establish membership in a particular social
group; rather, it determined that she failed to show that she could
establish the necessary nexus between the feared persecution and
3Below, Giraldo sought asylum or withholding of removal on
the basis of her religion, political opinion, or membership in a
particular social group. She has not addressed religion on appeal,
and this claim is deemed abandoned. See Rivera-Muriente v. Agosto-
Alicea, 959 F.2d 349, 351 n.2 (1st Cir. 1992).
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her group membership. There was no abuse of discretion in that
determination.
To satisfy the nexus requirement, an asylum applicant
must "provide sufficient evidence to forge an actual connection
between the harm and some statutorily protected ground." Lopez de
Hincapie v. Gonzales, 494 F.3d 213, 218 (1st Cir. 2007). The BIA
did not abuse its discretion when it concluded that Giraldo failed
to satisfy this requirement. Giraldo cites little in the way of
nexus evidence other than her uncle's admonition "not to go out
too often" after a cousin's murder and her own belief that another
cousin was stabbed because of other family members' involvement in
narco-trafficking. Cf. Guerra-Marchorro v. Holder, 760 F.3d 126,
128-29 (1st Cir. 2014) (substantial evidence supported conclusion
that there was no nexus between alleged harm and a protected ground
when petitioner "presented no evidence other than his own
speculation to forge the statutorily required link" (internal
quotation marks omitted)); Lopez-Castro v. Holder, 577 F.3d 49, 53
(1st Cir. 2009) ("Without knowing who was responsible for the
killings [of alien's family members] or what had prompted them,
there is no more than a guess that a nexus existed between the
deaths and a statutorily protected ground.").
As for Giraldo's argument that she would face harm on
account of her political opinions, that too fails. The only
remotely political activities that she cites are starting a prayer
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group with still another cousin — who has apparently not been
harmed — and "helping people in social projects." Giraldo also
claims to be "vocal[ly] oppos[ed] to criminal enterprises." Yet,
mere opposition to crime, without more, does not constitute a
political opinion. Cf. Mayorga-Vidal v. Holder, 675 F.3d 9, 18
(1st Cir. 2012) (opposition to gangs, without more, is not a
political opinion). Thus, the BIA did not abuse its discretion in
denying this claim.
Because Giraldo has failed to carry the burden of
persuasion for the asylum claim, her counterpart claim for
withholding also necessarily fails. See Villa-Londono v. Holder,
600 F.3d 21, 24 n.1 (1st Cir. 2010).
Finally, in her brief to this court, Giraldo referred to
her CAT claim in only a perfunctory manner. For this reason, she
has abandoned that claim. See, e.g., Segran v. Mukasey, 511 F.3d
1, 7 & n.2 (1st Cir. 2007).
III.
For the foregoing reasons, we deny Giraldo's petition
for review.
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