Rafael Lopez Almaraz v. Eric H. Holder Jr. , 608 F.3d 638 ( 2010 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAFAEL LAZARO LOPEZ ALMARAZ, 
Petitioner, No. 08-74497
v.
 Agency No.
A095-399-779
ERIC H. HOLDER JR., Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 11, 2010 *
Portland, Oregon
Filed June 22, 2010
Before: David R. Thompson and M. Margaret McKeown,
Circuit Judges, and Robert J. Timlin,
Senior District Judge.**
Opinion by Judge McKeown
*The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
**The Honorable Robert J. Timlin, United States District Judge for the
Central District of California, sitting by designation.
9129
LOPEZ ALMARAZ v. HOLDER 9131
COUNSEL
Rosaura Rodriguez, Seattle, Washington, for the petitioner.
Ilissa M. Gould, Washington, DC, United States Department
of Justice, Office of Immigration Litigation/Civil Division for
the respondent.
9132 LOPEZ ALMARAZ v. HOLDER
OPINION
McKEOWN, Circuit Judge:
Rafael Lazaro Lopez Almaraz (“Lopez”) petitions for
review of the Board of Immigration Appeals’s (“BIA”) denial
of his motion to reopen and remand. He also raises an issue
of first impression—whether adoption of an international
trade agreement amounts to changed country conditions that
resurrect his late-filed motion. We are not persuaded by this
novel argument. We deny the petition.
BACKGROUND
Lopez, a native and citizen of Guatemala, entered the
United States in 1999. In 2004, he was charged with remov-
ability by the Department of Homeland Security as an alien
present in the United States without being admitted or
paroled. 8 U.S.C. § 1182(a)(6)(A)(i). At his hearing, Lopez
admitted the allegations against him and conceded removabil-
ity. However, he argued that he was eligible for asylum, with-
holding of removal, and relief under the Convention Against
Torture (“CAT”), on the basis of an event that occurred in
1984.
Lopez testified that ten armed men attacked him and his
family in his home in Guatemala when he was fourteen years
old. They beat Lopez and one of his sisters and searched his
house for weapons. The men also questioned his family about
their involvement with guerrillas. When the men left, they
took Lopez’s parents with them and he never saw them again.
He later learned that his uncle had also been attacked and kid-
naped the same night. After the incident he moved from his
village to Guatemala City.
The Immigration Judge (“IJ”) found that Lopez was not eli-
gible for asylum because his application was not filed within
one year of his arrival in the United States and he had not
LOPEZ ALMARAZ v. HOLDER 9133
established that there were exceptional circumstances suffi-
cient to overcome this time bar. 8 C.F.R. § 1208.4(a)(5).
Because Lopez had lived safely in Guatemala City for thirteen
years after the incident, and the civil conflict in Guatemala
had been resolved, the IJ denied his withholding of removal
and CAT claims as well. Lopez was granted voluntary depar-
ture.
Lopez’s appeal to the BIA was dismissed in 2005. He did
not seek review in this court. Almost three years later, how-
ever, he filed a motion to reopen based on new evidence. His
motion explained that he was diagnosed with HIV and was
“afraid to return to Guatemala because of widespread violence
against [people] living with HIV and the fact that if he [were]
forced to return he would not have [proper] access to medi-
cine.” The BIA denied the motion in October 2008.
ANALYSIS
I. HIV Diagnosis
[1] Lopez’s motion to reopen is time-barred because it was
not filed within 90-days of the BIA’s 2005 decision. 8 U.S.C.
§ 1229a(c)(7)(C)(i). This time bar does not apply if the relief
is “based on changed circumstances arising in the country of
nationality or in the country to which deportation has been
ordered, if such evidence is material and was not available
and could not have been discovered or presented at the previ-
ous hearing.” 8 C.F.R. 1003.2(c)(3)(ii).
[2] The fact that Lopez was diagnosed with HIV, on its
own, does not satisfy the requirements of § 1003.2(c)(3)(ii).
Lopez was diagnosed with HIV in 2001, several years before
his immigration hearing. Lopez argues that he was afraid to
mention at the hearing that he had HIV because he thought it
would frustrate his efforts to remain in the United States. This
belief was grounded, in part, on his view that in Guatemala
people with HIV are stigmatized and live in constant fear of
9134 LOPEZ ALMARAZ v. HOLDER
retaliation. Although Lopez’s hesitation to reveal his diagno-
sis is understandable, it does not render old information sud-
denly new. Evidence of the diagnosis was available to be
presented at the hearing, Lopez’s failure to do so notwith-
standing.
[3] Even if the diagnosis qualified as new information
because the stigma occasioned a delay in reporting, a change
in Lopez’s health is a change in his personal circumstances,
not a change in circumstances “arising in the country of
nationality . . . .” Lopez’s argument that a change in personal
circumstances might satisfy the requirements to file an
untimely asylum application under 8 U.S.C. § 1158(a)(2)(D)
is foreclosed by the BIA’s decision in Matter of C-W-L. The
BIA interpreted § 1158(a)(2)(D) to require that a petition for
successive asylum applications be filed as “part of a timely
and properly filed motion to reopen or one that claims that the
late motion is excused because of changed country condi-
tions.” 24 I. & N. Dec. 346, 354 (BIA 2007); see also Chen
v. Mukasey, 524 F.3d 1028, 1032 (9th Cir. 2008) (according
Chevron deference to BIA’s interpretation of
§§ 1158(a)(2)(D) and 1229(a)(c)(7) in Matter of C-W-L).
Thus, even if a change in personal circumstances is sufficient
to file a successive asylum petition under § 1158(a)(2)(D), a
change in country conditions must still be demonstrated if the
accompanying motion to reopen is untimely.
II. Dominican Republic-Central America-United States
Free Trade Agreement
Recognizing the difficulty with the personal circumstances
argument, Lopez urges us to consider his HIV positive status
in light of the Dominican Republic-Central America-United
States Free Trade Agreement (“CAFTA”),1 which he argues
1
See Office of the United States Trade Representative, Free Trade
Agreements, http://www.ustr.gov/trade-agreements/free-trade-agreements/
cafta-dr-dominican-republic-central-america-fta/final-text (last visited
June 15, 2010).
LOPEZ ALMARAZ v. HOLDER 9135
qualifies as a material change in circumstances arising from
his country of nationality. In August 2004, the United States
signed CAFTA with Costa Rica, El Salvador, Guatemala,
Honduras, Nicaragua, and the Dominican Republic. Congress
approved and implemented the agreement a year later. 19
U.S.C. §§ 4001 et seq. CAFTA was designed to facilitate
trade and investment among the parties by, among other
things, expanding and securing markets, promoting transpar-
ency, and establishing mutually advantageous rules of com-
merce. See CAFTA, Preamble.
[4] Although Lopez does not provide any specific citations
to CAFTA, we infer from his argument and the documents
submitted that he is primarily concerned with Article 15.10,
which is entitled “Measures Related to Certain Regulated
Products.” Section 1(a) provides that:
If a Party requires, as a condition of approving the
marketing of a new pharmaceutical or agricultural
chemical product, the submission of undisclosed
data concerning safety or efficacy, the Party shall not
permit third persons, without the consent of the per-
son who provided the information, to market a prod-
uct on the basis of (1) the information, or (2) the
approval granted to the person who submitted the
information for at least five years for pharmaceutical
products . . . from the date of approval in the Party.
In other words, a party to CAFTA may restrict third party
access to confidential data “concerning safety or efficacy.”
The result of this “data exclusivity,” Lopez argues, is that the
development and availability of generic medicines for
HIV/AIDS will be significantly delayed. Lopez contends that
the price of brand name versions of such medicines, if they
are even available in Guatemala, will be exorbitantly high and
he will be unable to afford treatment if he is removed to Gua-
temala. He points specifically to the availability of the drug
9136 LOPEZ ALMARAZ v. HOLDER
Atazanavir, “a key part of second line therapy for people with
HIV/AIDS.”
[5] Without doubt CAFTA and other international trade
agreements affect the lives of the citizens of signatory coun-
tries in numerous ways. We do not discount the possibility
that such an undertaking, even if primarily economic in
nature, could potentially qualify as a material change in coun-
try conditions sufficient to grant a motion to reopen. But we
need not address that issue here as the BIA determined that
Lopez failed to establish that the passage of CAFTA was
material to his claim. The documents Lopez submitted—even
if accepted as true—were inconclusive. While they support, to
some extent, his claim about “data exclusivity” and the high
price of Atazanavir, they also reveal that Atazanavir would
enter the generic market in Guatemala by 2009, and that
“[a]ntiretroviral treatment for AIDS patients is free in Guate-
mala.”
We also note that CAFTA expressly contemplates the ten-
sion between the protection of intellectual property rights and
the availability of life saving medicines. An Understanding to
the agreement provides that:
The Governments of the [Parties to CAFTA] have
reached the following understandings regarding
Chapter Fifteen (Intellectual Property Rights) of
[CAFTA]:
The obligations of Chapter Fifteen do not affect a
Party’s ability to take necessary measures to protect
public health by promoting access to medicines for
all, in particular concerning cases such as
HIV/AIDS, tuberculosis, malaria, and other epidem-
ics as well as circumstances of extreme urgency or
national emergency.
In recognition of the commitment to access to medi-
cines that are supplied in accordance with the Deci-
LOPEZ ALMARAZ v. HOLDER 9137
sion of the General Council of 30 August 2003 on
the Implementation of Paragraph Six of the Doha
Declaration on the TRIPS Agreement and public
health (WT/L/540) and the WTO General Council
Chairman’s statement accompanying the Decision
(JOB(03)/177, WT/GC/M/82) (collectively the
“TRIPS/health solution”), Chapter Fifteen does not
prevent the effective utilization of the TRIPS/health
solution.
CAFTA, IP Understanding on Public Health.
[6] Finally, there is no support in the record for the claim
that the enactment of CAFTA is a form of governmental per-
secution against people with HIV/AIDS. CAFTA is a compli-
cated, international agreement designed to promote
investment and trade. The specific intellectual property provi-
sions at issue, at least according to several of the documents
Lopez submitted, were included because of pressure from the
pharmaceutical industry in the United States, not because the
Guatemalan government wanted to persecute people with
HIV/AIDS. We make no judgment on the merits of the com-
peting arguments about the genesis or effect of the intellectual
property provisions other than to note that Lopez’s evidence
does not compel the conclusion he advanced. In short, Lopez
has not established changed circumstances based on material
evidence that was previously unavailable.
[7] The BIA’s determination that Lopez’s arguments were
speculative and unsupported by evidence in the record was
neither arbitrary, irrational, nor contrary to law. The BIA did
not abuse its discretion by denying Lopez’s untimely motion
to reopen. Azanor v. Ashcroft, 364 F.3d 1013, 1018 (9th Cir.
2004) (“An abuse of discretion will be found when the denial
was arbitrary, irrational or contrary to law.”) (internal quota-
tion marks and citations omitted).
PETITION DENIED.