Anos v. Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 24 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
Emmanuel Quiaoit Anos, No. 21-729
Petitioner, Agency No. A200-247-335
v.
MEMORANDUM*
Merrick B. Garland, U.S. Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 15, 2023**
Pasadena, California
Before: LEE, BRESS, MENDOZA, Circuit Judges.
Emmanuel Quiaoit Anos, a native and citizen of the Philippines, petitions
for review of an order from the Board of Immigration Appeals (BIA) dismissing
his appeal from an Immigration Judge’s (IJ) denial of a motion to reopen. We
have jurisdiction under 8 U.S.C. § 1252(a). We deny the petition.
*
This disposition is not appropriate for publication and is not
precedent except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
We review the denial of a motion to reopen for abuse of discretion and will
reverse the agency’s decision only if it is “arbitrar[y], irrationa[l], or contrary to
law.” Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir. 2002) (citation and
quotation marks omitted). When the BIA adopts the reasoning of the IJ and adds
some of its own reasoning, we review both decisions. Nehad v. Mukasey, 535
F.3d 962, 966 (9th Cir. 2008).
But for a few limited exceptions, a motion to reopen “must be filed no later
than 90 days after the date on which the final administrative decision was
rendered in the proceeding sought to be reopened.” 8 C.F.R. § 1003.2(c)(2).
Here, Anos was granted pre-conclusion voluntary departure on November 6,
2018. Anos did not, however, depart the United States within the required 120
days. 8 U.S.C.A. § 1229c. Instead, Anos remained in the United States until he
was apprehended by the Department of Homeland Security in December 2020.
On January 12, 2021, Anos filed a motion to reopen with the IJ.
Despite filing his motion to reopen approximately two years too late, Anos
argues that the agency erred in denying the motion because: (1) he established
equitable tolling was warranted; (2) country conditions in the Philippines had
materially changed such that he was eligible for asylum, withholding or removal,
and/or protection under the Convention Against Torture (CAT); and (3) he would
potentially be eligible for adjustment of status based on his recent engagement to
a U.S. legal permanent resident.
1. The BIA did not abuse its discretion in concluding Anos failed to
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establish equitable tolling was warranted. Equitable tolling of the time in which
to file a motion to reopen may be available “when a petitioner is prevented from
filing because of deception, fraud, or error, as long as the petitioner acts with due
diligence in discovering the deception, fraud, or error” or when “despite all due
diligence,” the petitioner “is unable to obtain vital information bearing on the
existence of the claim.” Lona v. Barr, 958 F.3d 1225, 1230 (9th Cir. 2020)
(citation and quotation marks omitted). Anos argues the IJ failed to provide a
“reasoned explanation” for denying his request for equitable tolling. See
Movsisian v. Ashcroft, 395 F.3d 1095, 1098 (9th Cir. 2005). But the record
supports the BIA’s conclusion that Anos never presented an equitable tolling
argument to the IJ. Moreover, the record also supports the BIA’s conclusion that
Anos failed to allege any facts that could support a claim for equitable tolling.
We thus deny this claim.
2. The BIA did not abuse its discretion in concluding Anos failed to
establish changed country conditions warranted reopening. A petitioner may file
a motion to reopen at any time for the purpose of submitting an application for
relief based on changed country conditions. 8 C.F.R. § 1003.2(c)(3)(ii); Agonafer
v. Sessions, 859 F.3d 1198, 1203–04 (9th Cir. 2017) (noting the 90-day deadline
does not apply to motions to reopen based on changed country conditions). This
changed country conditions exception focuses on two points in time: “the
circumstances of the country at the time of the petitioner’s previous hearing, and
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those at the time of the motion to reopen.” Salim v. Lynch, 831 F.3d 1133, 1137
(9th Cir. 2016).
The BIA did not act arbitrarily, irrationally, or contrary to law in
concluding Anos failed to establish country conditions in the Philippines changed
between November 6, 2018—the date of his last hearing—and January 12,
2021—the date he filed his motion to reopen—in ways that are material to Anos’s
claims for asylum, withholding of removal, or relief under CAT. Anos states that
he fears he will be persecuted and/or tortured if removed to the Philippines
because “as a longtime resident of the United States [he] will be perceived to have
wealth” and “[k]idnapping for ransom is very prevalent in the Philippines.” He
states that people who are “known to return from the United States become targets
of this type of crime.”
Anos submitted several publications that confirm kidnappings “for
criminal purposes” occur in the Philippines, but “[g]eneral references to
‘continuing’ or ‘remaining’ problems is not evidence of a change in a country’s
conditions.” Rodriguez v. Garland, 990 F.3d 1205, 1210 (9th Cir. 2021). The
record contains no evidence from which one could conclude longtime residents
of the United States were at greater risk of kidnapping in 2021 than in 2018. Nor
do any of the publications Anos presented report a general increase in
kidnappings between 2018 and 2021. One publication states that the Philippine
National Police reported “crime decreased from 2018 to 2019.” Thus, the BIA
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did not abuse its discretion in concluding Anos failed to establish changed
country conditions warranted reopening.
3. The BIA did not abuse its discretion in declining to reopen despite
Anos’s engagement to a U.S. legal permanent resident. Anos argues the BIA
should have reopened his proceedings because he would be able to establish
eligibility for adjustment of status on account of his planned marriage to a U.S.
legal permanent resident who intended to file a visa petition on his behalf. But
changes in personal circumstances do not provide a basis for an exception to the
90-day deadline to file a motion to reopen. See 8 C.F.R. § 1003.2(c)(3);
Rodriguez v. Garland, 990 F.3d 1205, 1209–10 (9th Cir. 2021) (“Changes in a
petitioner’s personal circumstances are only relevant where those changes are
related to the changed country conditions that form the basis for the motion to
reopen.”). Additionally, to the extent the BIA concluded this change in personal
circumstances did not warrant sua sponte reopening under 8 C.F.R. § 1003.2(a),
we lack jurisdiction to review its decision. See Bonilla v. Lynch, 840 F.3d 575,
588 (9th Cir. 2016) (noting we may review an agency’s decision to decline sua
sponte reopening only for “legal or constitutional error”).
Petition DENIED in part and DISMISSED in part.
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