Marisela Inestroza-Antonelli v. William Barr, U. S ( 2020 )

Case: 18-60236 Document: 00515377150 Page: 1 Date Filed: 04/09/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 18-60236 April 9, 2020
Lyle W. Cayce
MARISELA INESTROZA-ANTONELLI, Clerk
Petitioner
v.
WILLIAM P. BARR, U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
Before KING, JONES, and DENNIS, Circuit Judges.
JAMES L. DENNIS, Circuit Judge:
Marisela Inestroza-Antonelli, a native Honduran citizen, filed a motion
to reopen her removal proceedings on the basis of changed country conditions
in Honduras. She relied in part on the alleged dismantling of institutional
protections for women against gender-based violence following a 2009 military
coup. Without addressing the coup, the BIA found that any change in gender-
based violence was incremental or incidental and not material. Because this
conclusion is not supported by the record, we grant the petition and remand.
I.
In 2005, Inestroza-Antonelli failed to appear for an immigration hearing,
and the Immigration Judge (IJ) ordered her removed in absentia as an alien
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present in the United States without having been admitted or paroled.
Inestroza-Antonelli was detained by Immigration and Customs Enforcement
in March 2007 and released under an order of supervision. She was granted
stays of removal until June 23, 2017, when her application for a stay was
denied.
On July 26, 2017, Inestroza-Antonelli filed a motion to reopen her
removal proceedings. She argued that the normal time limit for filing a motion
to reopen should be excused because she could show changed country
conditions in Honduras since the time of her original hearing—specifically, a
263.4 percent increase in violence against women since 2005. She submitted
a number of documents in support of her motion, including expert declarations,
news articles, and reports demonstrating the elimination of systemic
protections for women against gender-based violence following a 2009 military
coup in Honduras. Specifically, Inestroza-Antonelli introduced evidence of the
following changes in Honduras since the coup: (1) the Gender Unit of the
Honduran National Police, established between 2004 and 2005, has been
restricted in its operations, and access to the Unit is now limited or
nonexistent; (2) the power of the Municipal Offices for Women to address
domestic violence has been severely diluted, and officials have been removed
from their positions for responding to women’s needs, especially those related
to domestic violence; (3) institutional actors have targeted women for violence,
including sexual violence, and threatened the legal status of over 5,000
nongovernmental women’s, feminist, and human rights organizations that
have opposed the post-coup government’s policies; (4) the rate of homicides of
women more than doubled in the year after the coup and has continued to
steadily increase, ultimately becoming the second highest cause of death for
women of reproductive age; and (5) in 2014, the status of the National Institute
for Women was downgraded and other resources for female victims of violence
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were eliminated as part of a government restructuring. The IJ nonetheless
issued a written decision denying Inestroza-Antonelli’s motion to reopen,
finding that violence against women had been an ongoing problem in Honduras
since before 2005 and the increase did not represent a change in country
conditions.
On appeal to the Board of Immigration Appeals (BIA), Inestroza-
Antonelli argued that the IJ abused its discretion because she had shown a
significant increase in her risk of harm due to the changes brought about
following the 2009 coup. Without making any mention of the coup, the BIA
concluded that the IJ had not clearly erred because the evidence reflected only
an “incremental or incidental,” rather than material, change in country
conditions. Inestroza-Antonelli filed a timely petition for review.
II.
This court reviews the final decision of the BIA and considers the IJ’s
opinion where, as here, it affected the BIA’s decision. Nunez v. Sessions, 882
F.3d 499, 505 (5th Cir. 2018). This court reviews the denial of a motion to
reopen under an abuse of discretion standard. Id. However, we review the
legal conclusions underlying that decision de novo and the factual findings for
substantial evidence, reversing when the record compels a different finding.
Fuentes-Pena v. Barr, 917 F.3d 827, 829 (5th Cir. 2019).
III.
Inestroza-Antonelli filed her motion to reopen well after the ninety-day
time limit typically applicable under 8 U.S.C. § 1229a(c)(7)(C)(i). However, a
petitioner may file a motion to reopen at any time for the purpose of applying
for asylum, withholding of removal, or protection under the Convention
Against Torture so long as the motion is based on evidence of a substantial
change in country conditions that was not previously available and could not
have been presented at the prior hearing. Nunez, 882 F.3d at 508 (citing 8
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U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.23(b)(4)(i)). To take advantage of
the exception, the petitioner must show a material rather than incremental
change in country conditions between the time of the removal hearing and the
filing of the motion to reopen. Id. at 508-09. Showing the continuation of a
trend or a change in personal circumstances is insufficient. Id.The BIA dismissed Inestroza-Antonelli’s appeal because it found that her
“evidence describes conditions in Honduras substantially similar to those that
existed at the time of [her] 2005 hearing, and at best, reflects only an
‘incremental or incidental’ change.” This misstates the record. Inestroza-
Antonelli introduced voluminous and uncontroverted evidence that the regime
established after the 2009 coup made changes that substantially reduced legal
protections for women and dramatically impaired institutions within the
government and civil society that protect women from gender-based violence.
And the coup was accompanied by the rate of homicides of women doubling
within a single year, which can hardly be described as incremental.
The Government introduced no conflicting evidence, nor any evidence of
country conditions in Honduras at all. Instead, the Government on appeal
cherry-picks excerpts from the evidence that Inestroza-Antonelli introduced,
including the 2014 Department of State report describing the availability of
domestic violence shelters and municipal women’s offices. However, the report
itself concludes that “[t]he government provided insufficient financial and
other resources to enable these facilities to operate effectively.” Similarly, a
2014 article by the United Nations News Centre that the Government refers
to makes reference to “attempts” by the Honduran government to address
violence against women, but it also indicates that “the lack of effective
implementation of legislation, gender discrimination in the justice system,
inconsistencies in the interpretation and implementation of legislation, [] the
lack of access to services that promote safety and help prevent future acts of
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violence[, and t]he lack of accountability for acts of violence against women and
girls” remain significant problems in post-coup Honduras.
Likewise, the dissent selectively cites various passages from Inestroza-
Antonelli’s evidence that it argues provide a foundation for the BIA’s decision.
But in context, the record does not bear out this reading of the evidence. For
example, the dissent postulates that, because overall violence in Honduras
increased during the period at issue and one of Inestroza-Antonelli’s expert
declarations attributes some of the increase in violence against women to a
“generalized breakdown of law,” a significant portion of the increase in violence
might not be gender-based, but instead attributable to a proliferation of small
arms and the prevalence of organized crime. Dissent at 3-4. But this mere
speculation is all the more doubtful in light of Inestroza-Antonelli’s evidence
that, following the spike in violence against women, the United Nations
reportedly classified Honduras as having more women murdered because of
their gender than anywhere else in the world. The dissent also makes much of
the fact that the rate of violent deaths of women marginally dropped in 2015
as compared to 2013 (though it was still much greater than in 2005). But,
contrary to the dissent’s contention, the evidence indicates that the rate
increased as compared to 2014, suggesting the beginning of another upward
trend. And the dissent states that “it would have been plausible to suppose
that a substantial decrease in violent deaths of women had occurred between
2015 and late 2017, as order continued to be restored.” Dissent at 4. But our
standard of review of a BIA decision is not whether there theoretically could
have been some unevidenced occurrence that would make its findings correct.
It is whether its factual findings are based on substantial evidence. Singh v.
Gonzales, 436 F.3d 484, 487 (5th Cir. 2006). Here, where there is no evidence
to rebut the inference that the rates of violence against women in 2016 and
2017 were similar to those in the immediately preceding years for which data
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was available, there is no substantial evidence to support a hypothetical
sudden—and drastic—decrease to near 2005 levels. The record thus compels
the conclusion that conditions have significantly changed in Honduras since
2005.
Despite the dissent’s implication, our decision does not conflict with this
court’s precedent. In Nunez v. Sessions, 882 F.3d 499 (5th Cir. 2018), the
petitioner sought to reopen her removal proceedings based on changed country
conditions in Honduras between 2005, when she was ordered removed, and
2014. Id. at 504. This court indicated that it might consider “a significant
increase in violence against women” as a “change in country conditions
justifying waiver of the deadline for reopening.” Id. at 510. However, the
petitioner had failed to introduce any evidence before the IJ of “country
conditions as they existed in 2005, when she was ordered removed.” Id. at 509.
The IJ took administrative notice of a 2005 State Department report to
conclude that violence against women was a problem in Honduras in 2005, and
we therefore held that because there was “some evidentiary foundation for
concluding that the increase in violence [was] incremental but not a material
change,” the BIA had not abused its discretion. Id. at 509-10. We emphasized
that our decision was based “[o]n the record before us.” Id. at 510. We have
also rejected similar arguments in unpublished cases, based on the evidence
presented therein. See Escobar-Umanzor v. Sessions, 720 F. App’x 722, 723
(5th Cir. 2018); Escalante-Alvarez v. Lynch, 654 F. App’x 167, 168 (5th Cir.
2016).
Here, however, Inestroza-Antonelli introduced a great deal of evidence
concerning conditions as they existed at the time of her removal hearing and
how they significantly differed from current conditions. Specifically, her
evidence indicates that in 2005 the Honduran government had implemented
policies to address gender-based violence, but after the coup, these policies
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were dismantled, resulting in a dramatic increase in the number of violent
deaths of women as compared to the rates that existed in 2005. Thus, unlike
in this court’s previous cases, there is no basis in the record for concluding that
the increase represented only an incremental change that did not amount to a
significant shift in country conditions from those that existed at the time of
Inestroza-Antonelli’s removal hearing. And to hold that Inestroza-Antonelli is
precluded from proving that conditions changed as a factual matter during this
period simply because a previous petitioner failed to do so would violate the
“basic premise of preclusion”—i.e., “that parties to a prior action are bound and
nonparties are not bound.” 18A Charles Alan Wright, Arthur R. Miller, &
Edward H. Cooper, Federal Practice and Procedure § 4449 (3d ed. 2019).
The BIA did not even mention the 2009 coup in its opinion finding that
Inestroza-Antonelli had failed to establish changed country conditions. And,
other than a conclusory statement that it had “considered [Inestroza-
Antonelli’s] arguments,” there is no indication that the BIA meaningfully
evaluated her evidence of institutional changes following the coup. “While the
BIA need not “write an exegesis on every contention,” as the dissent points out,
it must “consider the issues raised, and announce its decision in terms
sufficient to enable a reviewing court to perceive that it has heard and thought
and not merely reacted.” Efe v. Ashcroft, 293 F.3d 899, 908 (5th Cir. 2002)
(quoting Becerra-Jimenez v. INS, 829 F.2d 996, 1000 (10th Cir. 1987)). The
BIA’s complete failure to address uncontroverted evidence of a clearly
significant turning point in the country’s history and the central role that it
played in Inestroza-Antonelli’s arguments regarding changes in country
conditions does not meet this standard, and it was thus an abuse of its
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discretion. 1 Cf. Rivera-Gomez v. Holder, 584 F. App’x 729, 730 (9th Cir. 2014)
(unpublished) (holding in a similar case that the BIA’s complete failure to
address “the highly significant 2009 military coup” was an abuse of discretion).
We therefore grant Inestroza-Antonelli’s petition.
***
Based on the foregoing, we GRANT the petition and REMAND for
proceedings consistent with this opinion.
1 The BIA also rejected Inestroza-Antonelli’s argument that the presence of her
abusive husband in Honduras following his 2009 deportation represented a change in country
conditions, finding that it was instead a shift in personal circumstances. Inestroza-Antonelli
argues that this was error because the change was not self-induced. Although several of our
sister circuits have concluded otherwise, see, e.g., Joseph v. Holder, 579 F.3d 827, 834 (7th
Cir. 2009); Larngar v. Holder, 562 F.3d 71, 76-78 (1st Cir. 2009); Malty v. Ashcroft, 381 F.3d
942, 944 (9th Cir. 2004), this court has indicated that a change may be personal even if it is
not self-induced. See, e.g., Singh v. Lynch, 840 F.3d 220, 222-23 (5th Cir. 2016) (holding that
threats and violence to the petitioner’s mother and the targeting of petitioner by the Indian
police constituted only changes in personal circumstances); Ramos-Lopez v. Lynch, 823 F.3d
1024, 1026 (5th Cir. 2016) (determining that the involvement of petitioner’s brother-in-law
in a drug cartel in Guatemala was a change in personal circumstances). We therefore cannot
say that the BIA abused its discretion in this respect.
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EDITH H. JONES, Circuit Judge, dissenting:
I respectfully dissent from the order of remand to the BIA. “[A] petitioner
bears a heavy burden to show changed country conditions for purposes of
reopening removal proceedings.” Nunez v. Sessions, 882 F.3d 499, 508 (5th Cir.
2018). Nunez held just the opposite of the panel here: that the BIA did not
abuse its discretion in concluding that Honduran country conditions had not
changed so substantially, during the exact time period covered in this case, to
require reopening an undocumented woman’s decade-old removal case. Two
other recent decisions of this court, also considering country conditions in
Honduras, are consistent with Nunez. See Escobar-Umanzor v. Sessions, 720
F. App’x 722, 723 (5th Cir. 2018) (citing Nunez); Escalante-Alvarez v. Lynch,
654 F. App’x 167, 168 (5th Cir. 2016). The panel majority here claims to rely
on additional evidence, not present in these cases, to support its contrary
conclusion.
The majority has failed to defer to the BIA, which, hearing no doubt
hundreds (or thousands) of cases from Honduras, must be far more familiar
with country conditions than judges working from our isolated perch. As will
be seen, the majority has carefully selected evidence favorable to the petitioner,
ignoring facts from the record that support the BIA’s conclusion. On remand,
I submit, the BIA will deny reopening as it has already done. We do violence
to the structure of immigration law when we incorrectly permit cases to be
reopened, particularly when the system is being overrun. As the government
points out, motions to reopen are particularly disfavored where “every delay
works to the advantage of the deportable alien who wishes merely to remain
in the United States.” INS v. Doherty, 502 U.S. 314, 323 (1992).
In her petition to the BIA, Inestroza-Antonelli argued that “gender-based
violence, including domestic violence, and the failure of state protection for
women who are victims of such violence, have significantly and dramatically
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worsened in Honduras since 2005, thereby materially . . . increasing her risk
of harm from her abuser.” In response, the BIA, after “consider[ing] all
[Inestroza-Antonelli’s] arguments” found that “the evidence describes
conditions in Honduras substantially similar to those that existed at the time
of [her] 2005 hearing, and at best, reflects only an ‘incremental or incidental’
change.” To support this point, the BIA cited two cases as analogous. As
against Inestroza-Antonelli’s first argument the court cited Singh v. Lynch,
840 F.3d 220, 222 (5th Cir. 2016), noting that no material change in country
conditions exists if there is presently “continuance of ongoing violence in the
home country.” As against the petitioner’s second argument, the BIA cited
Matter of S-Y-G, 24 I&N Dec. 247, 257 (BIA 2007), noting that an “incremental
or incidental change” in a country’s policies does not constitute a material
change.
“In reviewing the denial of a motion to reopen removal proceedings, we
apply a highly deferential abuse-of-discretion standard. “‘[S]o long as [the
Board’s decision] is not capricious, racially invidious, utterly without
foundation in the evidence, or otherwise so irrational that it is arbitrary rather
than the result of any perceptible rational approach,’ we must affirm the
Board’s decision. We review the BIA’s factual findings under the substantial-
evidence standard, which means that we cannot reverse the BIA’s factual
determinations unless the evidence ‘compels a contrary conclusion.’” Nunez,
882 F.3d at 505 (alteration in original) (emphases added) (citations omitted).
The BIA’s decision is far from lacking any foundation. Instead, the
evidence is substantial, at least, that conditions in Honduras—specifically, the
level of gender-based violence and the failure of state protection against such
violence—were no more than incrementally or incidentally worse in late 2017
(when the IJ refused to reopen this case) than in early 2005 (when the
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deportation order was issued). Further, all the evidence recited here is based
on the petitioner’s own submissions.
Consider, first, the level of gender-based violence. According to one
expert cited by Inestroza-Antonelli, “violence against women has been ongoing
far longer than the violent incidents characterized by gang or drug-related
battles or wars.” According to another, Honduras has had a “culture of violence
against women” at least since 1992. Thus, well before 2005, and certainly
before 2009, “women faced substantial risks to their physical safety and
security throughout Honduras.” In 2004 and 2005 in particular, Inestroza-
Antonelli’s evidence indicates that gender-based violence such as to warrant
establishment of a special Gender Unit, which nevertheless faced opposition
from “shortly after it came into existence.” This evidence constitutes at least
some foundation for the conclusion that gender-based violence was significant
in 2005.
Similarly, the BIA had at least some foundation to determine that
gender-based violence was no more than incrementally worse in 2017. True,
the evidence indicates that “violent deaths of women in Honduras . . . increased
263.4 percent between 2005 and 2013” (although one source provided by
Inestroza-Antonelli laments a lack of “accurate, reliable and uncontested
data”). That tragic fact, however, speaks hardly at all to an increase in gender-
based violence. 1 The record supports that the number of violent deaths of all
1 The majority claims that, “following the spike in violence against women, the United
Nations reportedly classified Honduras as having more women murdered because of their
gender than anywhere else in the world.” Ante, at 5. The report in question, though, does
not clearly attribute its definition of “femicide”— “the murder of a woman because of her
gender”—to the United Nations. Moreover, elsewhere in the record, an article reports that
“the Small Arms Survey [is] often cited by United Nations officials and women’s rights
advocates.” This Survey explicitly defines “femicide” as “any killing of a woman,” and
distinguishes that concept from “gender-based killing.” The Small Arms Survey, Femicide:
A Global Problem, 14 Research Notes 1, 1 (2012),
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persons in Honduras more than doubled, at least between 2004 and 2009, and
that in 2014 Honduras maintained the highest general murder rate in the
world. In that same year, the violent-death rate of women was one-fifth the
general violent-death rate and thus lower still than the violent-death rate for
men. Meanwhile, small arms proliferated and organized crime increased.
Accordingly, as the IJ and BIA suggested, the additional killings were likely
not based on gender, but rather either a collateral effect of increased violence
or based on a general desire to gain and exercise power. Consistently with this
theory, Inestroza-Antonelli’s own expert attributes the increase in violence in
this period in part to a “generalized breakdown in the rule of law.” Although
the record could support finding some increase in gender-based violence
between 2005 and 2013, it does not compel that conclusion.
That is more than it compels regarding 2017, the year of actual relevance
to the BIA. The most recent evidence in the record indicates that, in 2014 and
2015, 2 the number of violent deaths of women dropped, compared with 2013.
For the years following, there are no data at all. Given the record evidence of
a 218 percent change when order was disrupted in 2009, however, it would
have been plausible to suppose that a substantial decrease in violent deaths of
women had occurred between 2015 and late 2017, as order continued to be
restored. In any event, because the data establishing gender-based violence in
2013, not to mention in 2017, are insufficient—or at very least plausibly so—
http://www.smallarmssurvey.org/fileadmin/docs/H-Research_Notes/SAS-Research-Note-
14.pdf. The Small Arms Survey cited in the record gave the BIA reason to doubt that the
United Nations had provided numbers of gender-based killings, rather than numbers of
(violent) killings of women. Conflation of these two concepts is rife throughout the record,
including in the very article cited by the majority.
2 According to Inestroza-Antonelli’s evidence, there were somewhere between 513 and
531 violent deaths of women in 2014, and in 2015 roughly 300 such deaths had occurred as
of November 17.
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the BIA could plausibly find that the increase in gender-based violence
between 2005 and late 2017 was incremental.
As a second argument that a material change in country conditions
occurred between 2005 and 2017, Inestroza-Antonelli contended, for the first
time on appeal to the BIA, that “the failure of state protection for women who
are victims of [gender-based] violence” has “significantly and dramatically”
increased. Substantial evidence, however, supports the BIA’s rejecting this
contention. For example, Inestroza-Antonelli’s evidence indicates that “the
need to institutionalize the Municipal Offices for Women (OMM)” was present
at least as early as 2004, and that by 2014, “many town or city governments
ha[d] created OMMs in response to women’s demands and the political will of
the Mayors.” Similarly, Inestroza-Antonelli’s expert declaration states that
the Honduran Law against Domestic Violence was toothless and ineffective in
2005, but that post-2005 amendments to this law brought about some positive
changes (as of 2012). Furthermore, according to Inestroza-Antonelli’s
evidence, the National Congress added the crime of femicide to the penal code
for the first time in 2013. The following year, the record evidence suggests, the
rate of violence against women dropped. In this light, the factual finding that
legal protections for women were no more than incrementally worse is not
“utterly without foundation in the evidence.”
Not only that, the contrary evidence cited by the majority opinion is
flawed. To start, the opinion’s statements about the Gender Unit, outrun the
evidence. Granted, the record indicates that the National Police Force’s
Gender Unit was ineffective in 2013. The record says nothing, however, about
the status of the Gender Unit in 2017, four years after the first law banning
femicide went into effect. Nor indeed does the record clearly establish that the
Gender Unit was effective in 2005. To the contrary, it suggests that curtailing
the effectiveness of the Gender Unit began right away. Why the 2005 Gender
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Unit is not just another “attempt” to address violence against women, as
meaningless to the majority as the later “attempts” cited in the government’s
brief, the majority does not say.
The majority opinion also cites a report which indicates that, in 2010, as
part of a general reform of municipal government, the Honduran government
required Municipal Offices for Women “to attend to a wide variety of problems,”
including or focusing on problems relating to “the reproductive role of women
and the mother-child relationship.” The expansion or refocus of a particular
set of political offices’ responsibilities hardly compels the conclusion that the
formal subject of their previous responsibilities has suffered a material
decrease in legal protection.
Next, the majority opinion relies on evidence that “institutional actors
have targeted women for violence, including sexual violence.” It fails to note
that the evidence situates these occurrences in 2009, before what Inestroza-
Antonelli’s evidence characterizes as “a period of stabilization.” There is no
evidence to support that, in 2017, governmental actors were still targeting
women for violence.
The majority opinion asserts that country conditions have materially
changed because the Honduran government allegedly threatened the legal
status of 5,000 non-governmental organizations. The document cited is
unclear about when these alleged threats occurred, although they could not
have occurred any later than July 2014. The document clearly explains,
however, that these threats resulted from the organizations’ “openly stat[ing]
their repudiation of the coup d’etat and all resulting government policies.” A
change in the government’s approach to NGO’s that was caused by their
repudiations of governmental legitimacy—even if the repudiation was justified
and the response unjustified—is incidental, or at least plausibly so, to the
condition of women as women in Honduras.
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All told, the BIA’s factual finding of no material change in the failure of
state protection against gender-based violence is not utterly without
foundation in the evidence, and indeed, the evidence on which the majority
opinion relies is flawed. Accordingly, this finding, like the finding regarding
the actual rate of gender-based violence, was not an abuse of discretion for lack
of substantial evidence. The majority opinion, however, raises one further
ground on which to find that the BIA abused its discretion.
According to the majority, the BIA failed “consider the issues raised, and
announce its decision in terms sufficient to enable a reviewing court to perceive
that it has heard and thought and not merely reacted.” Ante, at 8 (quoting Efe
v. Ashcroft, 293 F.3d 899, 908 (5th Cir. 2002)). This is a remarkable claim,
given that the BIA accurately stated both parts of Inestroza-Antonelli’s
Honduran conditions issue and then cited both the Immigration Judge’s
findings and one authority for each argument in rejecting both arguments on
this issue. These statements substantiate, and render more than conclusory,
the BIA’s declaration that it has “considered the respondent’s arguments on
appeal.”
Nevertheless, the majority faults the BIA for not giving sufficient
indication that it had considered evidence that the majority finds
“uncontroverted,” about an event that the majority finds “clearly significant”
(the 2009 coup) and that the majority deems “central” to Inestroza-Antonelli’s
arguments “regarding changes in country conditions.” For this novel principle,
the majority cites an unpublished, out-of-circuit decision, relating to gang
violence, and decided six years closer than this decision to the “clearly
significant” event in question. This argument from authority falls far short of
compelling.
The substantive argument fares no better. The “clearly significant
event” was the 2009 coup. The BIA’s not mentioning that event was
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reasonable, however, as was the extent to which the BIA addressed the
institutional changes following it.
Starting with the coup, Inestroza-Antonelli did not argue before the BIA
that the 2009 crisis constituted, in itself, a material change to country
conditions. Instead, she argued that an alleged increase in gender-based
violence and an alleged decrease in legal protections against such violence
constituted material changes in country conditions. Moreover, Inestroza-
Antonelli’s evidence indicates that, as of 2014, Honduras had, “[i]n recent
years,” “been undergoing a period of stabilization.” Already in 2010, it had set
up a “Truth Commission to examine events surrounding the 2009 coup.” Then,
“[i]n November 2013 Juan Orlando Hernandez of the National Party won the
presidential election for a four-year term that began in January [2014].
International observers generally recognized the election as transparent,
credible, and reflecting the will of the electorate.” By the time the IJ and BIA
reviewed Inestroza-Antonelli’s case, her evidence indicated that the country
had for several years been “a constitutional, multi-party republic,” albeit one
facing many problems. In light of this evidence, there is a “perceptible rational
approach” by which the BIA deemed the 2009 crisis itself not directly relevant
and not worthy of mention.
As for the evidence of institutional changes following the coup, the BIA
indicated that it had considered such evidence when it cited Matter of S-Y-G,
citing a different page than was cited by the IJ to establish a new proposition,
namely that that “incremental or incidental” changes in a country’s policies do
not constitute changed country conditions. Apparently, the majority would
require another sentence, specifying that the weakness of the police force’s
Gender Unit in 2013 and other structural changes in two other institutions
constitute only incremental or incidental changes. We lack good reason to put
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the BIA through this wasteful exercise, but compliance on remand should be
simple enough.
More troubling is this decision’s disregard of the proper standard of
review. There is substantial evidence on the record to support the BIA’s order.
The panel majority’s contrary reasoning is highly selective and seriously
flawed. The standard is “whether the BIA’s conclusion, in adopting the
immigration judge’s determinations, is ‘utterly without foundation in the
evidence.’” Nunez, 882 F.3d at 510 (quoting Singh v. Gonzales, 436 F.3d 484,
487 (5th Cir. 2006)). Nunez added, “Reasonable minds may disagree over
whether an increase in violence of a certain degree over a certain number of
years counts as a material change in the condition of a country. Reasonable
disagreement, however, is not our standard.” Id. I respectfully dissent.
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