Claudia Moran-Perez v. Matthew G. Whitaker ( 2018 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 18a0609n.06
No. 18-3108
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT FILED
Dec 04, 2018
DEBORAH S. HUNT, Clerk
CLAUDIA MORAN-PEREZ, )
)
Petitioner, ) ON PETITION FOR REVIEW
) OF A FINAL ORDER OF THE
v. ) BOARD OF IMMIGRATION
) APPEALS
MATTHEW G. WHITAKER, Acting )
Attorney General, )
) OPINION
Respondent. )
)
Before: MOORE, CLAY, DONALD, Circuit Judges.
BERNICE BOUIE DONALD, Circuit Judge. Petitioner Claudia Arely Moran-
Perez (“Moran-Perez”) and her daughter Claudia Nicole Linares-Moran,1 native citizens of El
Salvador, seek review of the Board of Immigration Appeals’ (“BIA”) order denying their motion
to reopen removal proceedings and its finding that Moran-Perez failed to demonstrate a likelihood
of success on the merits of their asylum claim. Because the BIA did not abuse its discretion, we
DENY Moran-Perez’s petition for review.
I. BACKGROUND
Moran-Perez and her daughter entered the United States without inspection on or around
September 12, 2012. On September 21, 2012, the Department of Homeland Security issued
Notices to Appear (“NTA”) for Moran-Perez, charging her with removability pursuant to 8 U.S.C.
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Moran-Perez’s application was consolidated with her daughter’s petition. We will refer to them jointly as “Moran-
Perez.”
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§ 1182(a)(6)(A)(i) and initiating removal proceedings. Moran-Perez admitted the factual
allegations in her NTA, and conceded removability as charged, but sought relief from removal in
the form of asylum, withholding of removal, and protection under the Convention Against Torture
(“CAT”).
On September 12, 2013, Moran-Perez filed an asylum application before the Immigration
Judge (“IJ”), claiming harm or fear of harm on account of Moran-Perez’s political opinion and
membership in a particular social group that opposed gangs and cartels and their ties to local
government. At the hearing on May 19, 2014, Moran-Perez testified that: she is a supporter of the
ARENA party in El Salvador and that she fears retaliation from the FMLN party, of which the
then-recently-elected Communist President was a member; that gang members extorted money
from her because she was opening a hair salon business from her home; and that she and her
daughter received death threats after she refused to pay them and reported the extortion to the
police. Moran-Perez further testified that after receiving those threats, she left home to stay at her
mother’s house, where she and her daughter continued to receive threats and where threats were
also made against her parents’ lives. Moran-Perez and her daughter fled to the United States.
On May 19, 2015, the IJ denied Moran-Perez’s application for asylum, withholding of
removal, and CAT protection. The IJ determined that Moran-Perez was not credible, reasoning,
among other things, that Moran-Perez’s failure to inform the Border Patrol agent that she was
fleeing persecution “[e]ffectively impeaches [her] testimony that she came to the United States to
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flee from gangs in El Salvador.”2 Alternatively, the IJ found that Moran-Perez failed to
demonstrate a well-founded fear of persecution on account of a protected ground.
On June 16, 2014, Moran-Perez filed a timely appeal of the IJ’s denial of relief. On
September 16, 2015, the BIA affirmed the IJ’s determination that Moran-Perez failed to
demonstrate past persecution, or a well-founded fear of persecution based on her political opinion
or membership in a particular social group. Specifically, the BIA found that, even if Moran-Perez
was credible, Moran-Perez’s alleged social group did not meet the legal requirements of a
particular social group because the group “is not marked by a common immutable characteristic,
sufficiently particular, or socially distinct in Salvadoran society.” Further, the BIA determined
that Moran-Perez failed to establish the requisite nexus between her membership in her social
group and the harm and fears she asserted. The BIA dismissed Moran-Perez’s appeal, resulting in
a final order of removal on September 16, 2015.
On July 19, 2017, more than 90 days after the final order of removal, Moran-Perez filed an
untimely motion to reopen with the BIA based on changed country conditions. In support of her
motion, Moran-Perez presented articles and reports as evidence of increased violence against
women and enhanced sophistication of the Maras gang’s control in El Salvador.
On January 3, 2018, the BIA denied Moran-Perez’s motion to reopen, concluding that she
failed to demonstrate changed country conditions and, furthermore, that she did not show a
reasonable likelihood of success on the merits of her asylum claim. Specifically, the BIA
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The IJ also noted that Moran-Perez provided inconsistent testimony about whether her husband resided in the United
States and that, on cross-examination, she stated that her husband “did not know about her problems with the gangs.”
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determined that Moran-Perez failed to establish with specificity how the conditions in El Salvador
had changed since her last hearing, and further found that Moran-Perez had not provided any
evidence or arguments that the Salvadoran government or gang members have any interest in her.
Moran-Perez timely appeals.
II. Discussion
A. Standard of Review
Moran-Perez appeals the BIA’s denial of her motion to reopen her removal proceedings.
We review the BIA’s denial of a motion to reopen for an abuse of discretion. Haddad v. Gonzales,
437 F.3d 515, 517 (6th Cir. 2006). The BIA abuses its discretion when its denial of a motion to
reopen “[is] made without a rational explanation, inexplicably departed from established policies,
or rested on an impermissible basis such as invidious discrimination against a particular race or
group.” Allabani v. Gonzales, 402 F.3d 668, 675 (6th Cir.2005) (quoting Balani v. INS, 669 F.2d
1157, 1161 (6th Cir. 1982)). This type of review is “exceedingly narrow.” Hazime v. INS, 17 F.3d
136, 140 (6th Cir. 1994).
B. Analysis
An alien previously ordered removed from the United States may seek to reopen her
removal proceedings. 8 U.S.C. § 1229a(c)(7)(A). Generally, the motion to reopen must be filed
within 90 days of the date of entry of a final administrative order of removal. § 1229a(c)(7)(C)(i).
However, as relevant here, the 90-day deadline does not apply if the motion to reopen is “based
on changed country conditions arising in the country of nationality or the country to which removal
has been ordered.” 8 U.S.C. § 1229a(c)(7)(C)(ii). Evidence of changed conditions must be
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“material and [must not have been] available and could not have been discovered or presented at
the previous hearing.” 8 C.F.R. § 1103.2(c)(3)(ii).
On appeal, Moran-Perez makes two principal arguments. First, she argues that the BIA
erred by failing to find changed country conditions. Next, she argues that the BIA erred by finding
that she did not have a reasonable likelihood of success on her asylum claim.
Upon review, we find that the BIA did not abuse its discretion in finding that Moran-Perez
failed to demonstrate changed country conditions in El Salvador to warrant granting her untimely
motion to reopen. We need not address Moran-Perez’s argument that the BIA erred in finding that
she was not likely to succeed on the merits of her asylum claim because the BIA properly denied
Moran-Perez’s motion based on her failure to show materially changed country conditions. See
Chen v. Holder, 397 F. App’x 111, 119 (6th Cir. 2010).
In support of her motion to reopen, Moran-Perez submitted numerous exhibits detailing
conditions in El Salvador, including a 2012 U.S. Department of State Country Report describing
country conditions at the time of her final order of removal. Moran-Perez also provided a 2016
U.S. Department of State Country Report, indicating that people who enter and leave the areas
controlled by the Maras gang face interrogation and scrutiny. But in her motion, Moran-Perez did
not cite to the 2012 report, nor did she point to the conditions as she alleged they were in 2015,
compared to current conditions in El Salvador. Instead, Moran-Perez argued that the “power of
the gangs, or Maras, and violence against women in El Salvador has increased and worsened since
the time of [her] last hearing,” and that her daughter was now in particular danger because she “is
at the age where Maras seek to recruit or compel to collaborate.” Further, Moran-Perez argued
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that having been “a victim of extortion and crime in El Salvador, and [having] reported that crime
to the police . . . [she would be] a marked woman with an adolescent girl and an infant” returning
to a gang-controlled country.
In its order, the BIA found that Moran-Perez’s untimely motion did not warrant reopening
for changed country conditions because the evidence Moran-Perez submitted failed to
“demonstrate[e], with any specificity, how conditions have materially changed in El Salvador
since [Moran-Perez’s] 2014 hearing.” Moreover, the BIA found that Moran-Perez
provided no evidence or argument that the Salvadoran government, or any gang
members, have any interest in [Moran-Perez] at this time for any reason, and we
note that [Moran-Perez] ha[s] not visited El Salvador since [her] last entry to the
United States in 2012.
Moran-Perez argues that the BIA failed to provide more than a conclusory
statement to explain why changed conditions did not exist in El Salvador and that the BIA
abused its discretion by failing to consider evidence and arguments that were relevant to
the determination. Specifically, Moran-Perez contends that the BIA’s decision does not
“analyze . . . the previous threats [Moran-Perez] experienced at the hands of the Maras
combined with the newly available information including the growing influence of the
Maras and increased vulnerability of her teenage daughter.” We are not persuaded.
The BIA explicitly acknowledged the evidence Moran-Perez submitted, including her
“affidavit . . . [and a report indicating] general country condition[s].” Some of these documents,
the BIA noted, were previously submitted, such as a “2012 police complaint,” but the BIA
ultimately found such evidence lacking to establish changed conditions. Although the BIA must
provide a rational basis for its denial of a motion to reopen, we do not require that the BIA “list
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every possible positive and negative factor in its decision.” Scorteanu v. INS, 339 F.3d 407, 412
(6th Cir. 2003). The BIA’s decision, though brief, discusses the evidence presented by Moran-
Perez, explains why the evidence is unpersuasive and concludes that Moran-Perez has not shown
changed country conditions that would excuse her untimely filing. Thus, we hold that the BIA
provided sufficient justification for denying Moran-Perez’s motion to reopen based on changed
country conditions.
III. CONCLUSION
Because the BIA did not abuse its discretion by denying Moran-Perez’s motion to reopen
based on changed country conditions, we DENY her petition for review of the BIA’s decision.
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