Valdez Lopez v. Holder , 723 F.3d 43 ( 2013 )

United States Court of Appeals
For the First Circuit
No. 12-2261
JESUS VALDEZ LOPEZ,
Petitioner,
v.
ERIC HOLDER, JR., Attorney General,
Respondent.
PETITION FOR REVIEW FROM AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Howard and Thompson, Circuit Judges.
Martin D. Harris for petitioner.
Brendan P. Hogan, Attorney, Office of Immigration Litigation,
with whom Stuart F. Delery, Acting Assistant Attorney General, and
Song Park, Senior Litigation Counsel, Office of Immigration
Litigation, were on brief for respondent.
July 15, 2013
LYNCH, Chief Judge. Petitioner Jesus Valdez-Lopez, a
native and citizen of Mexico, seeks review of an October 11, 2012
Board of Immigration Appeals (BIA) decision denying his untimely
motion to reopen his concluded removal proceedings, based on his
claim of changed country conditions. Because the BIA did not abuse
its discretion in its decision, we deny his petition.
I.
A. Original Removal Proceedings
In order to evaluate the denial of the motion to reopen,
we first discuss the earlier removal proceedings, which ended in
November of 2009. Valdez-Lopez had lawfully entered the United
States on June 23, 2001 as a visitor, with permission to remain for
30 days. He overstayed. Four years later, the Department of
Homeland Security (DHS) began removal proceedings by filing a
Notice to Appear with the Immigration Court, charging that
Valdez-Lopez was removable pursuant to 8 U.S.C. § 1182(a)(6)(A)(i),
as an alien who was present in the United States without being
admitted or paroled. Upon the DHS amending the factual allegations
contained in the Notice to Appear to charge Valdez-Lopez with
removability pursuant to 8 U.S.C. § 1227(a)(1)(B) as an alien who
remained in the United States beyond July 22, 2001 without
authorization, Valdez-Lopez admitted the amended allegations and
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conceded removability. He sought relief in the form of asylum and
withholding of removal (WOR).1
Valdez-Lopez's merits hearing was held before an
immigration judge (IJ) on April 3, 2008. The IJ noted that
Valdez-Lopez was ineligible for asylum, reasoning that Valdez-Lopez
had neither established that his application for asylum was timely,
see 8 U.S.C. § 1158(a)(2)(B) (requiring that application for asylum
be filed within one year of entry into United States), nor
established any basis as to the applicability of one of the
exceptions to the timeliness requirement, see id. § 1158 (a)(2)(D).
As to WOR, Valdez-Lopez had testified that between 1984
and 1985 he and his brother engaged in various community
improvement projects, including a project to pave their home
community's roads. A neighboring community invited Valdez-Lopez
and his brother to discuss their project. The members of that
community discovered to their anger during that meeting that one
Hector Martinez-Trejo2 was overcharging them for a similar service;
Martinez-Trejo had to flee the meeting. Martinez-Trejo later
accosted Valdez-Lopez and his brother on a public street, opening
fire and killing the brother. Valdez-Lopez complained to the local
1
Valdez-Lopez did not seek protection under the Convention
Against Torture.
2
The parties dispute whether Valdez-Lopez's assailant is
named "Martinez-Trejo" or "Martinez-Trujillo." For purposes of
this decision, that dispute is immaterial.
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police, and provided testimony that resulted in the conviction and
lengthy incarceration of Martinez-Trejo.
Fifteen years later, a newly released Martinez-Trejo
again opened fire on Valdez-Lopez, this time at his family home.
No one was injured. Valdez-Lopez again reported Martinez-Trejo to
the police. This time, however, officials informed Valdez-Lopez
that Martinez-Trejo was working for the police, and that other
officers could testify as to his whereabouts at the time of the
shooting. After Valdez-Lopez left the police station,
Martinez-Trejo again confronted him, threatening to murder both him
and his children as payback for the time Martinez-Trejo had spent
in prison.
Valdez-Lopez immediately relocated his family to another
region in Mexico, and left for the United States; his wife and
children followed a few months later.
The IJ found that Valdez-Lopez's testimony was credible,
but held that Valdez-Lopez was nonetheless ineligible for WOR.
First, Valdez-Lopez had failed to establish a clear probability of
future harm on account of a protected ground. While Valdez-Lopez
had a genuine and reasonable fear, his was a fear of personal
retaliation from Martinez-Trejo, and not one of persecution on
account of his race, religion, nationality, membership in a
particular social group, or political opinion. Second, Valdez-
Lopez had provided no evidence of persecution at the hands of a
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group that the government was unable or unwilling to control.
While Valdez-Lopez had introduced evidence of police corruption and
impunity in general, he had not shown that Martinez-Trejo was
acting for the police so much as having a personal dispute with
Valdez-Lopez.
Valdez-Lopez appealed the IJ's decision to the BIA, which
dismissed the appeal on November 13, 2009. The BIA, confirming the
IJ, also reasoned that Valdez-Lopez had "failed to show that he was
targeted in the past or that there is a clear probability that he
will be targeted in the future on account of a protected ground for
withholding of removal." The BIA reasoned that "[a]lthough
[Valdez-Lopez] may fear a general state of lawlessness in his home
country, the law does not authorize withholding for someone who may
be subject to such general violence." Valdez-Lopez did not seek
judicial review of the BIA's 2009 decision. Rather, he did not
leave, but more than two years later filed the motion at issue.
B. Motion to Reopen
On May 15, 2012, Valdez-Lopez filed a motion with the BIA
to reopen his removal proceedings to reapply for asylum, WOR, and
protection under the Convention Against Torture. Valdez-Lopez's
motion was untimely, as it was not filed within 90 days of the
BIA's final administrative decision. 8 U.S.C. § 1229a(c)(7)(C)(i);
8 C.F.R. § 1003.2(c)(2). Valdez-Lopez claimed, however, that the
motion fell within the changed country conditions exception to the
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applicable time limitation. 8 U.S.C. 1229a(c)(7)(C)(ii); 8 C.F.R.
§ 1003.2(c)(3)(ii). In addition, Valdez-Lopez urged the BIA to
reopen his proceedings sua sponte under 8 C.F.R. § 1003.2(a) on
hardship grounds.
Valdez-Lopez introduced evidence concerning an incident
involving his daughter who, despite the threats Valdez-Lopez had
said were made to his family, had returned to Mexico for college.
In an unsworn statement, Valdez-Lopez's daughter reported that she
was a victim of auto theft at the hands of armed robbers. She
claimed, without specificity, that the perpetrators "gave [her] the
message that they are waiting for [her] father." Valdez-Lopez
argued, for the first time, that this incident supported a fear of
harm based on his membership in a "particular social group"
consisting of himself and his immediate family.
In addition, Valdez-Lopez introduced evidence purporting
to show an increase in gang violence and police corruption in
Mexico. Valdez-Lopez's daughter's unsworn declaration also said
that, in addition to having continuing ties with the police,
Martinez-Trejo was now involved with organized crime. Thus,
Valdez-Lopez argued, insofar as general lawlessness within Mexico
had increased, so too had his personal risk of harm at the hands of
a group the government was unwilling or unable to control.
On October 11, 2012, the BIA denied Valdez-Lopez's motion
to reopen. The BIA rejected Valdez-Lopez's argument that changed
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conditions in Mexico materially affected his case. It noted that
the auto theft reports filed by Valdez-Lopez's daughter gave no
indication that the incident was attributable to Martinez-Trejo or
his previous threat against Valdez-Lopez. Even on the assumption
that Valdez-Lopez's family constituted a "particular social group,"
evidence of his daughter's incident did not demonstrate that
Martinez-Trejo now sought to harm Valdez-Lopez on account of his
membership in that group. The same was true with respect to
evidence of Martinez-Trejo's ties to organized crime. Rather, the
BIA explained, the harm that Valdez-Lopez now feared was
essentially the same as before, namely a fear of personal
retaliation on account of Valdez-Lopez's role in Martinez-Trejo's
incarceration. As to increased lawlessness in Mexico, the BIA
reasoned that even if the evidence presented illustrated crimes,
violence, and police corruption in that country, such conditions
were not materially different from those that existed at the time
of Valdez-Lopez's hearing in 2008. Indeed, Valdez-Lopez's
submission of similar evidence at the time of that hearing made
that clear.
Before this court, Valdez-Lopez argues generally that the
BIA "commit[ted] errors of law" and that it "exercise[d] its
judgment in an arbitrary, capricious, or irrational manner" in
denying relief. More specifically, he says that the BIA's decision
assigns insufficient weight to the evidence surrounding the
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incident with his daughter, and that this was an abuse of
discretion.3
II.
Because of the "strong public interest in bringing
litigation to a close . . . promptly," motions to reopen
deportation proceedings are disfavored. Fesseha v. Ashcroft, 333
F.3d 13, 20 (1st Cir. 2003) (alteration in original) (quoting INS
v. Abudu, 485 U.S. 94, 107 (1988)) (internal quotation marks
omitted). As a result, "the BIA enjoys a broad measure of latitude
in passing upon such motions." Lemus v. Gonzales, 489 F.3d 399,
401 (1st Cir. 2007). We review the BIA's denial of a motion to
reopen for abuse of discretion, reversing its decision "only if the
BIA 'misread the law' or acted 'in an arbitrary or capricious
fashion.'" Fesseha, 333 F.3d at 20 (quoting Carter v. INS, 90 F.3d
14, 17 (1st Cir. 1996)).
Motions to reopen must be filed within ninety days of the
final administrative decision. 8 C.F.R. § 1003.2(c)(2). This
requirement may be relaxed "if a petitioner 'makes a convincing
demonstration of changed conditions in his homeland.'" Tandayu v.
3
The BIA declined also to reopen Valdez-Lopez's proceedings
sua sponte, finding that the case did not present "exceptional
circumstances" that would warrant the exercise of that discretion.
In its brief, the Government argues that this court lacks
jurisdiction to review the BIA's discretionary decision declining
to reopen Valdez-Lopez's proceedings sua sponte. We agree, see,
e.g., Matos-Santana v. Holder, 660 F.3d 91, 94 (1st Cir. 2011), but
do not understand Valdez-Lopez to argue otherwise.
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Mukasey, 521 F.3d 97, 100 (1st Cir. 2008) (quoting Raza v.
Gonzalez, 484 F.3d 125, 127 (1st Cir. 2007)). "The change in
conditions 'must be material to the underlying substantive relief
that the alien is seeking . . . and the evidence tendered in
support thereof must have been unavailable during the prior
proceedings.'" Smith v. Holder, 627 F.3d 427, 434 (1st. Cir. 2010)
(alteration in original) (quoting Raza, 484 F.3d at 127).
"Crucially, this evidence must demonstrate the intensification or
deterioration of country conditions, not their mere continuation."
Tawadrous v. Holder, 565 F.3d 35, 38 (1st Cir. 2009).
The BIA was within its discretion in finding that none of
the evidence introduced calls into question its and the IJ's
earlier determination that Valdez-Lopez's fear is one of personal
retaliation, not one of persecution on account of a protected
ground. Even if Martinez-Trejo now has ties to organized crime,
the dispute with Valdez-Lopez reasonably could be thought a
personal one. Likewise, even assuming that Martinez-Trejo was
involved in the incident involving Valdez-Lopez's daughter (which,
as the BIA noted, is unclear), that incident would provide no new
indication that the risk to Valdez-Lopez is on account of his
membership in a "particular social group." Indeed, in the original
denial of relief, the IJ explicitly acknowledged the threats by
Martinez-Trejo were against Valdez-Lopez and his children.
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Valdez-Lopez's motion to reopen attempts to call into
question the earlier decision. His opportunity to do that,
however, is long past. See 8 U.S.C. § 1252(b)(1) (requiring
petition for review of agency final order of removal to be filed
within 30 days); Stone v. INS, 514 U.S. 386, 394, 405 (1995)
(observing that time limits are "mandatory and jurisdictional," and
that "deportation orders are to be reviewed in a timely fashion
after issuance, irrespective of the later filing of a motion to
reopen") (quoting Missouri v. Jenkins, 495 U.S. 33, 45 (1990)
(internal quotation marks omitted)).
The BIA was also within its discretion in determining
that the evidence introduced does not reveal increased lawlessness
in Mexico sufficient to amount to changed country conditions, much
less a change material to his claim. As the BIA correctly
observed, the evidence introduced by Valdez-Lopez in 2008 is
substantially similar to that at issue here. Cf. Tawadrous, 565
F.3d at 39 (determining that evidence of changed conditions
"describe only the persistence of . . . tensions that . . . [the
Court] had occasion to document before").
The petition is denied.
So ordered.
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