Perez v. Holder, Jr.

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 11-1853
RUBEN PEREZ and AURA ORTEGA PEREZ,
Petitioners,
v.
ERIC H. HOLDER, Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Howard, Stahl, and Lipez, Circuit Judges.
Randy Olen, on brief for petitioner.
Monica G. Antoun, Trial Attorney, Office of Immigration
Litigation, Tony West, Assistant Attorney General, Office of
Immigration Litigation, and Jennifer Parker Levings, Senior
Litigation Counsel, Office of Immigration Litigation, on brief for
respondent.
June 20, 2012
STAHL, Circuit Judge. Ruben Perez and his wife, Aura
Ortega Perez, petition for our review of the denial by the Board of
Immigration Appeals (BIA) of their motion to reopen their removal
proceedings. Though the facts of this case are troubling, we see
no abuse of discretion in the BIA's actions, and we therefore deny
the petition.
I. Background
Ruben Perez, a Guatemalan citizen, entered the United
States without inspection on July 1, 1990.1 He and his family
remained in the United States illegally for some time, eventually
applying for asylum and withholding of removal on June 26, 1998.
The Perezes' application was referred to an immigration judge (IJ)
for adjudication and the family was placed in removal proceedings;
they received their notice to appear on October 5, 1998.2
The Perez family appeared before the IJ for their merits
hearing on March 20, 2000. At the hearing, both Ruben and Aura
testified that Ruben's cousin was murdered by guerrillas in
Guatemala. Ruben testified that he never personally had any
contact with guerrillas. Aura testified that, though she had never
1
Aura and the couple's son, Esvin, entered without inspection
on August 1, 1993.
2
The referral was based on the fact that the application fell
well outside of the one year statute of limitations for asylum
applications, but the IJ found that the Perezes' failure to file
was based on their retained representative's ineffective assistance
and excused the late filing.
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observed it herself, she had heard that Ruben was followed by
unknown people. She also testified that she had never had any
contact with the guerrillas. Both Ruben and Aura testified that
they had never belonged to any political group in Guatemala. They
both also testified that they feared for Ruben's life if they
returned to Guatemala because his cousin had been killed, allegedly
by guerrillas.
The IJ issued an oral decision on the same day, denying
the application for asylum and withholding of removal and holding
that the Perezes had not established a well-founded fear of future
persecution because the war between the Guatemalan government and
the guerrillas had ended years earlier. The IJ did, however, grant
voluntary departure. The Perezes appealed the IJ's decision to the
BIA, which summarily affirmed the IJ on April 19, 2002. The
Perezes did not appeal that decision, nor did they depart from the
United States.
However, Ruben's brother, Cesar Perez Hernandez, did
return to Guatemala. On November 19, 2008, two months after
leaving the United States, Hernandez was driving in his car with
his family when another car pulled up beside them and began
shooting. Hernandez was shot numerous times and killed, and his
wife, son, and daughter were all injured from gun shot wounds.
Hernandez's son was shot in the face and lost his right eye as a
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result. The police did not solve the crime or establish a motive
therefor.
On March 29, 2011, nearly nine years after the BIA's
decision and some twenty-eight months after the murder of
Hernandez, the Perezes filed a motion with the BIA to reopen their
removal proceedings, recounting the facts of the grisly attack, and
renewing their argument that they possessed a well-founded fear of
future persecution should they return to Guatemala. They based
their argument on their speculation that Hernandez was killed
because he had recently returned to Guatemala from the United
States and the Perezes feared the same outcome should they go back
to Guatemala. The Perezes supported their motion to reopen with an
affidavit from Ruben and a newspaper article reporting on the
murder.
On July 7, 2011, the BIA denied the motion to reopen as
untimely, finding that the exception to the ninety-day time limit
based on changed circumstances did not apply. See 8 C.F.R.
§ 1003.2(c)(3)(ii). The BIA found instead that the Perezes had
merely demonstrated that a "terrible crime" had taken place, and
that their fear was of "generalized violence and crime in their
home country," which did not amount to a valid basis for asylum.
The Perezes timely appealed to this court.
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II. Discussion
We review the denial of a motion to reopen only for abuse
of discretion, meaning that we will uphold the BIA "unless the
complaining party can show that the BIA committed an error of law
or exercised its judgment in an arbitrary, capricious, or
irrational way." Tandayu v. Mukasey, 521 F.3d 97, 100 (1st Cir.
2008) (quoting Raza v. Gonzales, 484 F.3d 125, 127 (1st Cir.
2007)). This is because "motions to reopen removal proceedings are
disfavored as contrary to the compelling public interests in
finality and the expeditious processing of proceedings." Id.
(quoting Raza, 484 F.3d at 127) (internal quotation marks omitted).
In order to be eligible for asylum, among other
requirements, an applicant must show that he possesses a well-
founded fear of future persecution on account of one of five
statutory bases: race, religion, nationality, membership in a
particular social group, or political opinion. See, e.g., Smith v.
Holder, 627 F.3d 427, 436-37 (1st Cir. 2010) (citing 8 C.F.R.
§ 208.13(b)(2)(i)(A)). When the BIA has found that an applicant
has not met the requirements for relief, that applicant is
permitted to file one motion to reopen the removal proceedings
within ninety days of the BIA's final decision. 8 C.F.R.
§ 1003.2(c)(2). These time and number limitations do not apply if
the applicant can show changed circumstances in his home country
and if the evidence of those changed circumstances is "material to
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the underlying substantive relief" sought and was unavailable at
the time of the prior proceedings. See Raza, 484 F.3d at 127
(citing 8 C.F.R. § 1003.2(c)(3)(ii)). In addition to providing
previously unavailable material evidence of changed country
conditions, an applicant needs to "establish a prima facie case
sufficient to ground a claim of eligibility for the underlying
substantive relief requested." Id. at 128. In other words, "the
new facts alleged, when coupled with the facts already of record,
[must] satisfy us that it would be worthwhile to develop the issues
further at a plenary hearing on reopening." Smith, 627 F.3d at 438
(quoting In re L-O-G-, 21 I. & N. Dec. 413, 419 (BIA 1996)). This
means that the Perezes' proffered evidence must present "a
reasonable likelihood that [they] will face future persecution
based on a statutory ground." Id. at 437 (internal quotation marks
omitted). The standard for granting reopening is the same for both
asylum and withholding of removal. Id. at 437 n.10.
The Perezes argue that, though their motion to reopen was
filed years after the BIA's final decision, the brutal attack
against the Hernandez family, combined with the previous murder of
Ruben's cousin, qualifies as changed country conditions and that
therefore the ninety-day limit should not be applied to their
motion. The Perezes have one thing working in their favor: we have
previously held that "recent violence against a petitioner's family
members can constitute a material change in country conditions for
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a petitioner seeking to reopen his or her removal proceedings."
Id. at 436; see also Malty v. Ashcroft, 381 F.3d 942, 945-46 (9th
Cir. 2004).
However, we need not decide if the two murders of Ruben's
family members are sufficient to show a material change in country
conditions, because the Perezes cannot establish a prima facie case
for asylum.3 To make out a prima facie case, the persecution
feared must be on account of a statutorily protected ground.4 See,
e.g., Smith, 627 F.3d at 436-37. In their initial asylum
application, the Perezes seemed to allege membership in the
particular social group of those people who refused to join the
guerrillas. They have abandoned that stance in these proceedings,
and for good reason: since the civil war in Guatemala ended, we
have repeatedly held that fear of persecution by guerrillas will no
longer give rise to a successful asylum claim. See, e.g., Palma-
Mazariegos v. Gonzales, 428 F.3d 30, 35-37 (1st Cir. 2005);
3
A failure to make a prima facie case for asylum necessarily
means the Perezes have also failed to do so with regard to their
withholding of removal claim. See Parvez v. Keisler, 506 F.3d 93,
98 (1st Cir. 2007). We therefore do not further address the
withholding of removal claim.
4
We note that, in instances where courts, including ours,
have held that violence against family members was sufficient to
show a material change in country conditions, there has been a
close nexus to a statutory basis. See Smith, 627 F.3d at 431
(violence connected to political activism); Malty, 381 F.3d at 946
(violence connected to status as a Coptic Christian).
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Rodriguez-Ramirez v. Ashcroft, 398 F.3d 120, 125 (1st Cir. 2005);
Quevedo v. Ashcroft, 336 F.3d 39, 44-45 (1st Cir. 2003).
In their motion to reopen and on appeal here, the Perezes
do not clearly identify any nexus to a statutory ground. The
closest they come is to speculate that Hernandez was killed due to
his status as a Guatemalan who had recently returned from the
United States, and presumably, because the Perezes would also be
Guatemalans returning from the United States, that they would be
persecuted on that account. We have previously declined the
opportunity to recognize Guatemalans returning from the United
States as a "particular social group" for purposes of asylum
relief. See, e.g., Socop v. Holder, 407 F. App'x 495, 498 & n.1
(1st Cir. 2011) (finding "unassailable" the BIA's rejection of the
petitioner's claim that he would be targeted on account of his
status as a Guatemalan returning from the United States and
approving of BIA's determination that criminals in Guatemala would
target anyone who might provide money or valuables); Reyes Beteta
v. Holder, 406 F. App'x 496, 499 (1st Cir. 2011) (rejecting
petitioner's claimed fear of future persecution based on belonging
to the group "expatriates returning from working in the United
States and are perceived to have wealth" because criminal activity
was widespread and non-targeted); see also Perez-Hernandez v. Att'y
Gen., 444 F. App'x 390, 393 (11th Cir. 2011) (rejecting claim of
well-founded fear of future persecution based on membership in the
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group of "Guatemalans returning from the United States" as
unsupported by the record, which instead showed widespread
violence); Gonzalez v. Holder, 420 F. App'x 703, 704 (9th Cir.
2011) (rejecting similar claim). This case does not compel us to
recognize such a group for the first time, as the Perezes have not
provided a shred of evidence connecting Hernandez's repatriation to
the attack. A complete lack of documentation is certainly not
sufficient to show a "reasonable likelihood" that the Perezes will
face persecution on account of their status as Guatemalans
returning from the United States. See López-Castro v. Holder, 577
F.3d 49, 53 (1st Cir. 2009) ("Without knowing who was responsible
for the killings [of the petitioner's family members] or what had
prompted them, it is no more than a guess that a nexus existed
between the deaths and a statutorily protected ground.").
It is more likely that this is just another tragic
occurrence of the widespread violence in Guatemala that we have
frequently observed, but fear of this pervasive violence cannot be
a basis for asylum. See Palma-Mazariegos, 428 F.3d at 37 (noting
that the State Department Country Conditions Report "attests that
the threat of violence afflicts all Guatemalans to a roughly equal
extent, regardless of their membership in a particular group or
class," and that threat will therefore not support a well-founded
fear of future persecution); Quevedo, 336 F.3d at 44 ("This Circuit
has rejected the contention that pervasive non-political
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criminality in Guatemala constitutes a basis for asylum."). This
is the same conclusion that the BIA reached when it determined that
the Perezes had not shown the attack on the Hernandez family "to be
something other than a terrible crime" and that the Perezes'
resulting fear was "of generalized violence and crime" in Guatemala
and thus insufficient as a basis for asylum. While we are troubled
and saddened by the attack on the Hernandez family, we are not
persuaded that "it would be worthwhile to develop the issues
further at a plenary hearing on reopening." Smith, 627 F.3d at
438.
III. Conclusion
Discerning no abuse of discretion, we deny the petition
for review.
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