Roman Alvarez-Mejia v. Loretta Lynch , 628 F. App'x 388 ( 2015 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0686n.06
Case Nos. 14-3644/15-3037
FILED
UNITED STATES COURT OF APPEALS Oct 08, 2015
FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk
ROMAN ALVAREZ-MEJIA, )
)
Petitioner,
)
v. ) ON PETITION FOR REVIEW
) FROM THE UNITED STATES
) BOARD OF IMMIGRATION
0 APPEALS
LORETTA E. LYNCH, Attorney General, )
) OPINION
Respondent.
)
Before: COLE, Chief Judge; DAUGHTREY and DONALD, Circuit Judges.
BERNICE BOUIE DONALD, Circuit Judge. Petitioner Roman Alvarez-Mejia is a
Mexican citizen who entered the United States illegally in 1990. On March 18, 2007, the
Department of Homeland Security (“DHS”) charged him with removability under U.S.C.
§ 1182(a)(6)(A)(i) as an alien present in the United States without admission or parole. Alvarez-
Mejia conceded removability in immigration court on February 8, 2008. He then sought
cancellation of removal or alternatively, voluntary departure. On November 14, 2012, the
immigration judge (“IJ”) denied his request for cancellation of removal, but granted his request
for voluntary departure. The Board of Immigration Appeals (“BIA”) denied his appeal on June
11, 2014. Alvarez-Mejia then filed a motion to reopen the proceedings and a request that the
BIA administratively close his case. The BIA denied both requests on December 16, 2014.
Now, Alvarez-Mejia appeals the refusal to reopen the proceedings and administratively close his
Case Nos. 14-3644/15-3037, Alvarez-Mejia v. Lynch
case to this Court. We hold that the BIA did not abuse its discretion in denying the request to
reopen the proceedings or administratively close the case.
I.
A.
Alvarez-Mejia has resided in the United States since 1990, and has only returned to
Mexico once in 1998 so he could marry. Appellant Br. 5. His wife resides with him in the
United States and is an undocumented immigrant. Id. at 5-6. He has three children who are
United States citizens. Id. at 6. For the past six years, Alvarez-Mejia has worked for the same
employer. Id. If he is deported, he says that he will have to take his children to Mexico with him
because no one in the United States is willing or able to care for them. Id. Alvarez-Mejia
maintains that taking his children to Mexico will diminish their educational prospects since his
hometown only has an elementary school. Id. In addition, Alvarez-Mejia worries that his
youngest child, who suffers from asthma, will receive inadequate medical attention because the
closest medical facility to his hometown is five miles away.
B.
On November 14, 2012, the IJ rejected Alvarez-Mejia’s request for cancellation of
removal for two reasons. First, Alvarez-Mejia failed to establish ten years of continuous
presence in the country. Administrative R. 718. Second, he failed to show that his removal
would cause his children exceptional and extreme hardship. Id. at 719-720. The BIA affirmed
the IJ’s ruling on June 11, 2014. Id. at 635.
Alvarez-Mejia subsequently filed a motion to reopen, asserting that he qualified for
asylum, protection under the United Nations Convention Against Torture (“CAT”), and
withholding of removal. Id. at 176. In his motion, Alvarez-Mejia argued that conditions in
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Mexico had changed since 2012 and presented several exhibits to that effect. In addition,
Alvarez-Mejia argued that new decisions from the BIA defining what constitutes a “particular
social group,” Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014); Matter of W-G-R-, 26 I&N
Dec. 208 (BIA 2014), and a new Sixth Circuit decision regarding applications for asylum,
Mandebvu v. Holder, 755 F.3d 417, 427 (6th Cir. 2014), warranted reopening the case. The BIA
denied the motion on December 16, 2014.
II.
This Court reviews BIA refusals to reopen for abuse of discretion. Mezo v. Holder,
615 F.3d 616, 620 (6th Cir. 2010). The BIA can abuse its discretion if (1) it declines to reopen
without rational explanation, (2) in doing so it departs from established policies, or (3) its
decision rests on invidious discrimination against a particular group. Mezo, 615 F.3d 616 at 620.
Issues of law are reviewed de novo. Id. Likewise, this Court reviews refusals to
administratively close a case for abuse of discretion. Garza-Moreno v. Gonzales, 489 F.3d 239,
242 (6th Cir. 2007).
III.
We begin by assessing the claim that the BIA abused its discretion by refusing to reopen
the case.
A. Application for Asylum
The first theory Alvarez-Mejia presented in favor of reopening was that he now qualifies
for asylum. The BIA may grant a request to reopen if the basis is a motion for asylum and is
based on changed country conditions if the evidence of changed conditions is material and was
not available at the previous hearing. 8 U.S.C. §1229a(c)(7)(C)(ii); 8 C.F.R. 1003.2(c)(1).
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Crucial to Alvarez-Mejia’s claim for asylum is that legal developments after the IJ issued
the original decision in 2012 allegedly now make him eligible for asylum when he had no reason
to believe he would be eligible for asylum before. The way Alvarez-Mejia sees it, there was a
different definition of what constitutes a “particular social group” in 2012 than there is now. In
2012, he alleges that the touchstone of the BIA’s inquiry in determining whether a particular
social group existed was whether would-be persecutors could visually distinguish members of
the group from the general population. Now, according to Alvarez-Mejia, the BIA’s inquiry is
whether Mexican society as a whole—and not just potential persecutors—views a group as
socially distinct. On a related note, Alvarez-Mejia argues that the BIA now does not require the
group in question to be visually distinct anymore. Because the law has changed so dramatically
since the IJ’s decision in 2012, Alvarez-Mejia maintains that refusal to reopen his case so that he
can apply for asylum under the new legal standard denies him due process.
We disagree with Alvarez-Mejia’s characterization of the BIA decisions he cites as
meaningfully changing the requirements for proving a particular social group. Tellingly, in
Matter of M-E-V-G-, the BIA wrote “[l]iteral or ocular visibility is not, and never has been, a
prerequisite for a viable particular social group.” Matter of M-E-V-G-, 26 I&N Dec. 227 at 238,
emphasis added. The BIA noted too that it had recognized particular social groups that were not
visible to the naked eye. Id. For example, it held that young tribal women who opposed female
genital mutilation and Cuban homosexuals both qualified as particular social groups eligible for
asylum. Id. The BIA’s case law prior to Matter of M-E-V-G-, was therefore sufficiently clear to
put asylum applicants on notice that literal visibility was not necessary to prove a particular
social group.
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Alvarez-Mejia is on somewhat stronger ground when he argues that Matter of M-E-V-G-
abandoned the requirement that potential persecutors perceive that a particular social group
existed. At one point, the BIA appears to accept the critique that it has been insufficiently clear
about whether the perspective of persecutors or society as a whole drove the assessment of what
makes a particular social group. Id. at 242. It wrote that it would “clarify” that the assessment
turned on the perception of society as a whole, rather than the persecutors, after citing a Ninth
Circuit case observing that neither the Ninth Circuit nor the BIA “has clearly specified whose
perspectives are most indicative of society’s perception of a particular social group.” Id., at 242,
quoting Henriquez-Rivas v. Holder, 707 F.3d 1081, 1089 (9th Cir. 2013) (en banc). However,
taken as a whole, the BIA’s opinion suggests that the BIA views itself as having never endorsed
the notion that the persecutor’s perception was the crux of the analysis of a proposed particular
social group. In fact, it writes that such a notion would conflict with its holding in a prior case
decided in 2007. Id., citing Matter of A-M-E- & J-G-U-, 24 I&N Dec. 69 (BIA 2007). Since we
reject Alvarez-Mejia’s argument that the BIA fundamentally altered its case law on what
constitutes a particular social group, we must also reject his argument that refusal to reopen his
case in light of subsequent BIA decisions denied him due process.1
That being the case, we must now decide whether Alvarez-Mejia’s motion to reopen to
apply for asylum was based on new evidence not available in the 2012 hearing, as 8 U.S.C.
§1229a(c)(7)(C)(ii) requires. Alvarez-Mejia argues that Mexicans deported from the United
States constitute a particular social group specially targeted for violence. The question is
whether there was evidence available in 2012 allowing him to argue that such a group existed.
1
Importantly, the BIA rejected Alvarez-Mejia’s argument that Mexicans deported from the United States constituted
a particular social group and cited prior authority for that proposition. Administrative R. 8. So even assuming that
the BIA fundamentally altered its case law after 2012, the BIA found that that case law still would not qualify
Alvarez-Mejia for asylum.
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Alvarez-Mejia himself concedes the existence of the evidence. One of the articles he submitted
in his brief was a Los Angeles Times article from September 8, 2012 describing how some
criminals specifically targeted Mexicans deported by the United States. Richard Marosi,
Deportees to Mexico’s Tamaulipas Preyed upon by Gangs, L.A. TIMES (September 8, 2012)
http://articles.latimes.com/2012/sep/08/local/la-me-deporteedanger-20120909. Alvarez-Mejia
admits that this article was available in time for the 2012 hearing. Alvarez-Mejia did attach
exhibits from 2013 and 2014 to his motion to reopen. Moreover, the BIA found that they
“reflect ongoing and substantially similar conditions to those that existed at the time of the
respondent’s November 2012 hearing.” Administrative R. 7. Since the BIA did not view the
evidence as demonstrating changed country conditions, it was statutorily obligated to deny the
petition to reopen to apply for asylum.
B. CAT Claim
Alvarez-Mejia also asserted in his motion that he qualified for relief under the CAT
because he will be singled out for torture by corrupt Mexican officials unwilling or unable to
control gang violence. He accurately pointed out that one need not be part of a particular social
group to be eligible for the CAT’s protections.
In order to grant the petition to reopen so Alvarez-Mejia can apply for CAT relief, the
BIA had to find that Alvarez-Mejia offered material evidence that was not available at his
2012 hearing. 8 C.F.R. 1003.2(c)(1). We must first note that evidence from prior to 2012 of
gang violence and the Mexican government’s inability to stop it was abundant and could have
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been presented at the hearing.2 The BIA’s decision not to consider evidence from 1990 to 2012
was therefore correct under the regulation. See id.; Administrative R. 7.
Alvarez-Mejia rightly points out that the BIA did not address his CAT claim explicitly.
Although it did do so implicitly in the two paragraphs prior to its discussion of why Mexicans
deported from the United States do not constitute a particular social group, we concede that its
explanation could have been clearer. The BIA did nonetheless indicate that it viewed the
evidence of violence from after 2012 as not meaningfully altering the way it would have
perceived gang violence in Mexico prior to the 2012 hearing, which we think was a rational
conclusion to draw. Id. at 7. We can infer from its decision, too, that the BIA viewed evidence
of gang violence in 2012 as not meriting CAT relief, at least in Alvarez-Mejia’s case. See id.
Accordingly, we find that the BIA did not abuse its discretion in denying the motion to reopen to
apply for CAT relief.
III.
We now address Alvarez-Mejia’s claim that the BIA abused its discretion in refusing to
administratively close his case.
Alvarez-Mejia faulted the BIA for failing to consider the factors outlined in Matter of
Avetisyan, 25 I&N Dec. 688, 690 (BIA 2012), about whether to close a case administratively.
However, Matter of Avetisyan contemplates that a case in question will be open before it can be
administratively closed. In that case, the IJ never entered a final removal order. Id. at 689. The
BIA provided the factors Alvarez-Mejia references here to help an IJ determine whether to
administratively close an ongoing case when the government opposes closure. See id. at 690.
Here however, the case was closed and Alvarez-Mejia was already subject to a final removal
2
The respondent correctly brought 2006 and 2011 Department of State reports to this Court’s attention that
discussed in detail gang violence in Mexico.
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order. This crucial distinction means that Matter of Avetisyan furnishes no support for Alvarez-
Mejia’s argument.
Alvarez-Mejia’s next argument that the BIA abused its discretion because its refusal to
close the case administratively was inconsistent with two past decisions has some force, but is
ultimately unpersuasive. He cited two unpublished decisions where the BIA administratively
closed cases that were open and cited case law requiring agencies to treat similar cases similarly.
E.g., Rashid v. Mukasey, 531 F.3d. 438, 442-48 (6th Cir. 2008). However there are significant
factual distinctions between this case and the one Alvarez-Mejia attached to his brief. In In re
Nancy Morales-Hernandez, A# 200-676-148 (BIA Mar. 12, 2015), the United States Citizenship
and Immigration Services (USCIS) placed the woman subject to a final removal order in deferred
action pending availability of new visas for U-1 non-immigration status. Similarly in In re
Roland Cossy, 2005 Immig. Rptr. LEXIS 2009 (BIA 2015), the BIA administratively closed a
case in which there was already a final order to afford the respondent the opportunity to apply for
deferred enforced departure of certain Haitian nationals. Id. at *2. In those cases, there was
intervening government action regarding the alien to be removed that is simply not present here.
Therefore, the BIA did not abuse its discretion in declining to administratively close
Alvarez-Mejia’s case.
IV.
For the foregoing reasons, we find that the BIA did not abuse its discretion in denying
Alvarez-Mejia’s motion to reopen and his request to close the case administratively.
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