Garcia-Aguilar v. Sessions

United States Court of Appeals
For the First Circuit
No. 18-1086
MARIA LETICIA GARCIA-AGUILAR,
Petitioner,
v.
MATTHEW G. WHITAKER,
ACTING ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Thompson, Selya, and Barron,
Circuit Judges.
Randy Olen on brief for petitioner.
Joseph H. Hunt, Assistant Attorney General, Civil Division,
Ernesto H. Molina, Jr., Deputy Director, Office of Immigration
Litigation, and Nancy N. Safavi, Trial Attorney, Office of
Immigration Litigation, on brief for respondent.
January 16, 2019

Pursuant to Fed. R. App. P. 43(c)(2), Acting Attorney
General Matthew G. Whitaker has been substituted for former
Attorney General Jefferson B. Sessions, III as the respondent.
SELYA, Circuit Judge. The petitioner, Maria Leticia
Garcia-Aguilar, is a Mexican national. She seeks judicial review
of a decision of the Board of Immigration Appeals (BIA) denying
her untimely motion to reopen removal proceedings — a motion
grounded upon her claim that country conditions in her native land
had materially changed, thus making her newly eligible for asylum.
After careful consideration, we deny the petition.
We set the stage. The petitioner entered the United
States illegally in 2005 near El Paso, Texas. Following a 2007
raid at the factory where she worked, the Department of Homeland
Security initiated removal proceedings against her. The
petitioner denied the factual allegations underpinning the
government's case for removal. Relatedly, she moved to suppress
some of the evidence upon which the government sought to rely,
claiming that the evidence had been procured in violation of her
constitutional rights.
On August 11, 2009, the petitioner's first merits
hearing was held before an immigration judge (IJ). The IJ denied
the motion to suppress, ordered the petitioner removed to Mexico,
and granted her the privilege of voluntary departure. The
petitioner appealed to the BIA, which vacated the IJ's decision
and remanded the case for reconsideration of the motion to
suppress, including the underlying constitutional issues.
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The petitioner had another merits hearing on February
17, 2012. The IJ reconsidered facts pertinent to the petitioner's
motion to suppress and determined that the evidence used against
her was admissible. In the end, the results of this second merits
hearing reprised the results of the petitioner's first merits
hearing: on February 1, 2013, the IJ denied the petitioner's motion
to suppress, ordered her removed, and granted voluntary departure.
Once again, the petitioner appealed the IJ's decision to
the BIA. Nearly a year later, the BIA upheld the IJ's decision.
Undaunted, the petitioner sought judicial review. See 8 U.S.C.
§ 1252(b)(4). On November 25, 2015, we denied her petition. See
Garcia-Aguilar v. Lynch, 806 F.3d 671, 677 (1st Cir. 2015).
The matter did not end there. Almost two years later
(on August 28, 2017), the petitioner filed a motion to reopen,
arguing that a dramatic shift in conditions in Mexico —
specifically, an increase in kidnappings and murders due to
violence associated with drug cartels and gangs — made her newly
eligible for asylum. In support of her nascent asylum claim, she
alleged a fear of persecution based on her imputed "American
nationality." To flesh out this claim, she further alleged that
she had lived in the United States since 2005; that she was the
mother of an American-born child; and that she had an older child
who, though born in Mexico, had resided in the United States since
infancy.
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The BIA denied the motion to reopen. It noted that the
motion was untimely and went on to hold that the evidence that the
petitioner submitted failed to achieve the level of proof needed
for the granting of an untimely motion to reopen. In the BIA's
view, the submitted evidence did "not establish materially changed
circumstances or changed country conditions arising in Mexico
since [the petitioner's] merits hearing below." Taking a belt-
and-suspenders approach, the BIA also concluded that the
petitioner had failed to explain how her imputed American
nationality would make her risk of persecution different from that
of the general population in Mexico. So, too, the BIA concluded
that the petitioner had failed to show a nexus between the
persecution that she allegedly feared and a statutorily protected
ground for asylum. See 8 U.S.C. § 1158(b)(1)(B)(i).
This timely petition for judicial review ensued. In it,
the petitioner seeks review only of the BIA's denial of her motion
to reopen.
Motions to reopen are disfavored in immigration
practice. See Sihotang v. Sessions, 900 F.3d 46, 48 (1st Cir.
2018); Xiao He Chen v. Lynch, 825 F.3d 83, 86 (1st Cir. 2016).
After all, reopening a proceeding is "contrary to 'the compelling
public interests in finality and the expeditious processing of
[removal] proceedings.'" Raza v. Gonzales, 484 F.3d 125, 127 (1st
Cir. 2007) (quoting Roberts v. Gonzales, 422 F.3d 33, 35 (1st Cir.
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2005)). Despite these drawbacks, motions to reopen are allowed
under some circumstances. See 8 U.S.C. § 1229a(c)(7).
Withal, those circumstances are narrowly circumscribed.
Of particular pertinence for present purposes, motions to reopen
are time-limited in immigration cases. See id. § 1229a(c)(7)(C)(i)
(providing that such a motion ordinarily must be filed within 90
days of the final order in the proceeding sought to be reopened);
see also 8 C.F.R. § 1003.2(c)(2).
The uphill climb that a petitioner faces when seeking to
reopen removal proceedings — steep in any event — is steeper still
where, as here, she seeks to reopen after the time for moving to
reopen has expired. See Sihotang, 900 F.3d at 48. In such
circumstances, the petitioner must jump through two hoops. First,
she must adduce material evidence, previously unavailable, showing
changed country conditions in her homeland. See 8 C.F.R.
§ 1003.2(c)(3)(ii); Sugiarto v. Holder, 761 F.3d 102, 103 (1st
Cir. 2014). Second, she must make out a prima facie case of
eligibility for the substantive relief sought. See Sihotang, 900
F.3d at 50.
"We afford the BIA 'wide latitude in deciding whether to
grant or deny such a motion'" and review its decision only for
abuse of discretion. Id. at 49 (quoting Bbale v. Lynch, 840 F.3d
63, 66 (1st Cir. 2016)). To prevail under this deferential
standard, "the petitioner must show that the BIA either 'committed
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an error of law or exercised its judgment in an arbitrary,
capricious, or irrational manner.'" Id. at 50 (quoting Bbale, 840
F.3d at 66).
Here, the final agency order was dated January 15, 2014,
and the motion to reopen was filed more than three years later.
Thus, the motion to reopen was well out of time. See 8 U.S.C.
§ 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2).
To satisfy the first requirement, the petitioner — who
bears the burden of proof — must submit evidence of changed country
conditions material to the underlying substantive relief that she
seeks; show that such evidence was unavailable or undiscoverable
during the prior proceedings; and show that the change was more
than a continuation of previously existing conditions. See Xiao
He Chen, 825 F.3d at 86-87; see also Raza, 484 F.3d at 127. To
determine whether the petitioner has carried this multifaceted
burden, the BIA is obligated to compare "evidence of country
conditions submitted with the motion to those that existed at the
time of the merits hearing." Sihotang, 900 F.3d at 50 (quoting
Sánchez-Romero v. Sessions, 865 F.3d 43, 46 (1st Cir. 2017)).
Here, however, there is a stumbling block: before
embarking upon our analysis, we must identify the particular merits
hearing that forms the baseline for assessing the existence vel
non of changed country conditions. This uncertainty arises out of
the fact that the petitioner had two separate merits hearings
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before the IJ, resulting in two separate decisions. Her first
merits hearing took place in 2009 and her second merits hearing
took place in 2012. Each of these hearings culminated in an order
of removal. When it denied the petitioner's motion to reopen, the
BIA did not distinguish between these two merits hearings but,
rather, referred generically to the "merits hearing below." By
the same token, the petitioner does not identify which hearing she
views as the operative one.
Logic suggests that the more recent (2012) merits
hearing should establish the baseline for the petitioner's motion
to reopen. The government agrees: its brief leaves no doubt that
it considers the 2012 hearing as the baseline hearing. Indeed,
its brief does not so much as mention the 2009 merits hearing.
The petitioner had an opportunity to file a reply brief contesting
this view, see Fed. R. App. P. 31(a)(1), but she chose not to do
so. What is more, she acknowledges that the overwhelming bulk of
the country conditions information submitted to the BIA depicts
changes in Mexico that have taken place during the five years next
preceding — a time span roughly equivalent to the period beginning
with the 2012 merits hearing and ending with the filing of the
2017 motion to reopen. Against this backdrop, we conclude that
the 2012 merits hearing sets the baseline for the "changed country
conditions" inquiry.
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With this baseline in place, we turn to the petitioner's
motion to reopen. In that motion, the petitioner indicated that
the substantive relief sought was asylum. The fact that she had
not sought asylum during the earlier removal proceedings does not,
in and of itself, pretermit her claim. After all, an alien may
"apply or reapply for asylum" in a motion to reopen. 8 C.F.R.
§ 1003.2(c)(3)(ii). It follows that the petitioner had a right to
advance her claim for asylum for the first time in her motion to
reopen. See Smith v. Holder, 627 F.3d 427, 439 n.13 (1st Cir.
2010).
Because the petitioner did not seek asylum at all during
the 2012 merits hearing, the record of that hearing contains no
direct evidence of country conditions then existing in Mexico.
This does not mean, though, that such evidence was either
unavailable or undiscoverable. Indeed, the petitioner has not
suggested that accurate information concerning country conditions
in Mexico was either unavailable to her or undiscoverable by her
at the time of the 2012 merits hearing. And in any event, the
petitioner's 2017 submissions to the BIA indicate with sufficient
clarity that gang and drug-cartel violence (including murders and
kidnappings) in Mexico was both prevalent and well-publicized at
and before the time of the 2012 merits hearing.1
1
It is true that many of the reports and articles proffered
by the petitioner were published in 2014 or thereafter. But
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Nor does the petitioner deny that conditions in Mexico
were going downhill as early as 2011. Rather, she argues that
country conditions grew increasingly grim between the date of the
2012 merits hearing and the date on which she moved to reopen. To
buttress her contention that conditions in Mexico deteriorated
during the relevant period, the petitioner submitted an array of
reports from government agencies and advocacy groups, along with
media articles. These materials, collectively, describe the
parlous conditions resulting from drug and gang violence in Mexico.
This proffer falls short. Although some of the submitted
documents depict an increase in the rate of murders and kidnappings
beginning around 2015, others describe the violence as
intensifying around 2011 and persisting since that time. For
example, one such article not only noted an uptick in murders in
2016 but also noted that the rate of killings was lower than it
was "in the first halves of 2011 and 2012, when the drug war's
violence" peaked. Other articles support this statement, relating
that there were 27,213 murders in 2011, 20,670 murders in 2014,
and around 23,000 murders in 2016. So, too, with respect to
kidnappings, another report, published in March of 2017, commented
that "Mexico has consistently featured in the top kidnapping
nothing indicates that the facts summarized in those reports and
articles, insofar as they reflect conditions existing in and around
2012, were either unavailable or undiscoverable at the time of the
petitioner's 2012 merits hearing.
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hotspots globally for several years." Here, as in Sánchez-Romero
— a case that also considered evidence of gang-related violence in
Mexico — the proffered documents do not clearly "take us out of
the realm of bad conditions that persist and into the realm of
changed conditions." 865 F.3d at 47.
We add a coda. Even though there may have been an uptick
in violence between 2012 and 2017, the petitioner's burden was to
show more than just an incremental change in country conditions:
she had to show a material change in country conditions. See
Mejía-Ramaja v. Lynch, 806 F.3d 19, 21 (1st Cir. 2015); Haizem Liu
v. Holder, 727 F.3d 53, 57 (1st Cir. 2013); Smith, 627 F.3d at
435-36. In this regard, materiality has two dimensions. First,
the evidence must show a degree of change that is sufficiently
substantial to be material. See Tawadrous v. Holder, 565 F.3d 35,
38 (1st Cir. 2009). Second, the evidence must be such as to
demonstrate a change that is material to the underlying substantive
relief that the petitioner seeks (here, asylum). See Raza, 484
F.3d at 127.
On this record, it was within the BIA's discretion to
conclude that the petitioner had not carried either aspect of her
burden. To satisfy the first aspect, she would have had to show
a material increase in the incidence of violence, see Sánchez-
Romero, 865 F.3d at 46-47, and the BIA found (at least implicitly)
that she failed to do so. To satisfy the second aspect, the
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petitioner would need to show that any change in country conditions
would impact her uniquely because of her imputed American
nationality. See Smith, 627 F.3d at 435-36; Raza, 484 F.3d at
127-28. Here, however, her submissions wholly fail to make such
a showing. As late as 2017, the State Department Country
Conditions Report, introduced by the petitioner, noted the absence
of any "evidence that criminal organizations have targeted U.S.
citizens based on their nationality."
In sum, we discern neither an error of law nor an abuse
of the BIA's wide discretion. The documents that the petitioner
proffered plausibly may be read to suggest "a persistent problem
rather than a recent change." Sugiarto, 761 F.3d at 104.
Moreover, those documents do not forge anything resembling a solid
link between an alleged change in country conditions and the
petitioner's underlying claim for asylum. For these reasons, we
cannot say that the BIA acted erroneously, arbitrarily,
capriciously, or irrationally in determining that the petitioner
failed to demonstrate a material change in country conditions.
In an effort to blunt the force of this reasoning, the
petitioner asserts that the BIA ignored her evidentiary
submissions. In her counsel's words, the BIA "offer[ed] no
indication that the evidence was considered carefully, or even at
all."
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We do not agree. An agency is not required to parse an
alien's submissions one by one and cite book and verse when
rejecting the alien's conclusions. See Raza, 484 F.3d at 128. As
relevant here, the BIA was under no obligation to dismantle the
petitioner's proffer and separately analyze the component parts of
that proffer. See Sugiarto, 761 F.3d at 104. "It is enough if
the agency fairly considers the points raised by the complainant
and articulates its decision in terms adequate to allow a reviewing
court to conclude that the agency has thought about the evidence
and the issues and reached a reasoned conclusion." Raza, 484 F.3d
at 128; cf. Fen Tjong Lie v. Holder, 729 F.3d 28, 30 (1st Cir.
2013) (observing that even though "[t]he BIA's decision was concise
. . . that does not make it cursory").
The BIA's decision passes muster under this standard.
Its decision refers explicitly to various items of evidence
submitted by the petitioner and offers a reasoned basis for denying
the motion. On this record, it is rank speculation to assert that
the BIA failed to consider the materials submitted by the
petitioner. And it is equally speculative to assert that the BIA
rejected the petitioner's argument for any reason other than its
conclusion that the argument was unpersuasive. No more was
exigible.
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We need go no further.2 For the reasons elucidated
above, the petition for judicial review is
Denied.
2 Because the BIA supportably found that the petitioner failed
to carry her threshold burden of showing materially changed country
conditions, we need not reach other issues such as those pertaining
to the petitioner's "nexus" showing and her prima facie case for
asylum.
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