Vivares-Mazo v. Barr

17-3858
Vivares-Mazo v. Barr
BIA
A088 077 226
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York,
on the 11th day of December, two thousand nineteen.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
PETER W. HALL,
RICHARD J. SULLIVAN,
Circuit Judges.
_____________________________________
JUAN ESTEBAN VIVARES-MAZO,
Petitioner,
v. 17-3858
NAC
WILLIAM P. BARR, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: David J. Woll, Simpson Thacher &
Bartlett LLP, New York, NY.
FOR RESPONDENT: Joseph H. Hunt, Assistant
Attorney General; John S. Hogan,
Assistant Director; Robbin K.
Blaya, Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, DC.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Petitioner Juan Esteban Vivares-Mazo, a native and
citizen of Colombia, seeks review of a November 16, 2017,
decision of the BIA denying his motion to reopen. In re Juan
Esteban Vivares-Mazo, No. A 088 077 226 (BIA Nov. 16, 2017).
We assume the parties’ familiarity with the underlying facts
and procedural history in this case.
We review the BIA’s denial of a motion to reopen “for
abuse of discretion.” Ali v. Gonzales, 448 F.3d 515, 517 (2d
Cir. 2006). When the BIA considers evidence of country
conditions in evaluating a motion to reopen, we review the
BIA’s factual findings under the substantial evidence
standard. Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d
Cir. 2008).
An alien seeking to reopen may file a motion to reopen
no later than 90 days after the final administrative decision.
8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2).
However, the time limitation for filing a motion to reopen
does not apply if the motion is filed in order to apply for
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asylum “based on changed country conditions arising in the
country of nationality or the country to which removal has
been ordered, if such evidence is material and was not
available and would not have been discovered or presented at
the previous proceedings.” 8 U.S.C. § 1229a(c)(7)(C)(ii);
see also 8 C.F.R. § 1003.2(c)(3)(ii). “In determining
whether evidence accompanying a motion to reopen demonstrates
a material change in country conditions that would justify
reopening, [the agency] compare[s] the evidence of country
conditions submitted with the motion to those that existed at
the time of the merits hearing below.” In re S-Y-G-, 24 I.
& N. Dec. 247, 253 (BIA 2007). We find no abuse of
discretion.
First, contrary to Vivares-Mazo’s argument, remand is
not required for the BIA to more fully explain its decision
that there was not a material change in country conditions.
The agency is not required to “expressly parse or refute on
the record each individual argument or piece of evidence
offered.” Jian Hui Shao, 546 F.3d at 169 (internal quotation
marks omitted). The BIA recognized the basis of Vivares-
Mazo’s claim of changed country conditions, and, under the
circumstances, it was not required to explain in detail why
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specific items of evidence did not establish changed
conditions. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471
F.3d 315, 337 n.17 (2d Cir. 2015) (“[W]e presume that an IJ
has taken into account all of the evidence before him, unless
the record compellingly suggests otherwise.”).
The BIA did not abuse its discretion in finding that
Vivares-Mazo’s evidence was insufficient to establish
materially changed country conditions since his 2013 hearing.
See 8 U.S.C. § 1229a(c)(7)(C)(ii); In re S-Y-G-, 24 I. & N.
Dec. at 253. Although there was some evidence of an increase
in killings by paramilitary groups following the signing of
the peace agreement, as compared to the period immediately
preceding the peace agreement, there was evidence of
substantial violence at the time of the hearing before the
IJ. See Certified Administrative Record at 264-66.
Moreover, the evidence Vivares-Mazo submitted with his motion
to reopen failed to remedy the underlying deficiency in his
original claim, i.e., he did not corroborate his allegation
that he was a campaign leader who suffered past persecution.
See Poradisova v. Gonzales, 420 F.3d 70, 78 (2d Cir. 2005).
Because Vivares-Mazo did not establish that he was involved
in political activities, he cannot show that increased
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targeting of political or community leaders or activists is
material to him. Cf. Qin Wen Zheng v. Gonzales, 500 F.3d
143, 146–49 (2d Cir. 2007) (holding that BIA may rely on
underlying adverse credibility determination in denying
motion to reopen). Because Vivares-Mazo did not show a
material change in conditions or resolve the underlying
deficiencies in his claims, the BIA did not abuse its
discretion in finding that he had not demonstrated a material
change in country conditions and denying his motion to reopen.
See Ali, 448 F.3d at 517; Qin Wen Zheng, 500 F.3d at 146–49.
For the foregoing reasons, the petition for review is
DENIED. All pending motions and applications are DENIED and
stays VACATED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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