Maria Mercedes Lopez Garcia v. William P. Barr

In the
United States Court of Appeals
For the Seventh Circuit
No. 19-2081
MARIA MERCEDES LOPEZ-GARCIA,
et al.,
Petitioners,
v.
WILLIAM P. BARR, Attorney General
of the United States,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals.
Nos. A206-450-595, A206-450-596, A206-450-597 and A206-450-598.
ARGUED DECEMBER 2, 2019 — DECIDED AUGUST 11, 2020
Before SYKES, Chief Judge, and BAUER and EASTERBROOK,
Circuit Judges.
BAUER, Circuit Judge. Maria Lopez-Garcia and her three
minor children, Luisa, Wendy, and Rolando Lopez-Lopez are
natives and citizens of Guatemala. We consider whether the
2 No. 19-2081
Board of Immigration Appeals (BIA) abused its discretion in
denying their motions to reconsider and reopen. Upon review,
we find no abuse of discretion by the BIA and deny the
petition.
I. BACKGROUND
In 2008, Lopez-Garcia’s husband, Arnoldo Rene Lopez-
Lopez, left for the United States to pursue economic opportu-
nity. In May of 2014, Lopez-Garcia and her children entered
the United States without valid entry documents. Immigration
enforcement officers apprehended them. An asylum officer
found that she demonstrated a credible fear of persecution or
torture in Guatemala. Lopez-Garcia and her children were
placed in removal proceedings under 8 U.S.C. § 1229a. Lopez-
Garcia, with counsel, filed an I-589 application for asylum
listing her three children as derivative beneficiaries.
In her affidavit and at the hearing, Lopez-Garcia shared her
experience of being a single mother in Guatemala. After her
husband left for the United States, he sent her a money order
each month, which she cashed at the bank. The journey to the
bank involved an hour walk through mountains, along cliffs,
through a forest on unpaved paths, and a bus ride that would
take her into town. In 2013, Lopez-Garcia and her mother
noticed two men in front of the bank looking at them and
believed the men were following them.
Over the next year, Lopez-Garcia received three telephone
calls from an unidentified male caller demanding money. On
the first call, the man threatened to find out where she lived
and harm her. On the second call, he asked her for 25,000
Guetzales and threatened to find out where her children went
No. 19-2081 3
to school. She reported the call to the police and took her
children to live with her parents. The third time the man called,
he asked for 50,000 Guetzales. The man said he knew her
husband was in the United States and threatened to kidnap her
children or kill her and her children. In April of 2014, Lopez-
Garcia and her three children left for the United States.
In July of 2017, the Immigration Judge found that the
threats made against Lopez-Garcia and her children in
Guatemala did not qualify as past persecution. The Immigra-
tion Judge did not find her membership in the proposed
particular social group of “Guatemalan females living with her
children alone in their country, as their husbands had migrated
to the United States and are not able to support or protect
themselves and their children” to be the persecutory motive of
the men in front of the bank or the caller. Furthermore, Lopez-
Garcia did not show that the Guatemalan government was
unwilling or unable to protect her and she did not show a well-
founded fear of future harm. The Immigration Judge denied
the application for protection under the Convention Against
Torture.
Lopez-Garcia appealed in September 2018 and the BIA
affirmed the Immigration Judge’s decision. In October, Lopez-
Garcia moved for reconsideration. While the motion to
reconsider was still pending, Lopez-Garcia filed a timely
motion to reopen her case. In 2019, the BIA denied both
motions and held that she rehashed the same arguments
already considered and that it considered all the evidence and
the additional new evidence was not material to the BIA’s
assessment. This petition for review followed.
4 No. 19-2081
II. DISCUSSION
Petitioners raise additional arguments than they raised
before the BIA. Aliens must raise their arguments before the
BIA in order to be reviewed upon appeal. 8 U.S.C. § 1252(d)(1).
Given there was no review of a petition for the underlying
removal order, arguments that Petitioners make now are not
adequately preserved. FH-T v. Holder, 723 F.3d 833, 841 (7th
Cir. 2013) (“[A]n alien must exhaust all administrative reme-
dies available to the alien as of right, … and this includes the
obligation first to present to the Board any arguments that lie
within its power to address.” (internal quotation marks
omitted)). The purpose of exhausting all administrative
remedies available before the BIA is to allow the BIA to apply
their “specialized knowledge and experience” in this legal
area, which then lends us “reasoning to review.” Minghai Tian
v. Holder, 745 F.3d 822, 826 (7th Cir. 2014).
Pursuant to 8 C.F.R. § 1003.2, a motion to reconsider or a
motion to reopen is within the discretion of the BIA. We have
jurisdiction to review the motions to reconsider and reopen.
We review the BIA’s denial of a motion to reconsider and a
motion to reopen for abuse of discretion. See Mungongo v.
Gonzales, 479 F.3d 531, 534 (7th Cir. 2007) (motion to recon-
sider); Salim v. Holder, 728 F.3d 718, 720 (7th Cir. 2013) (motion
to reopen). We will not overturn the BIA unless their decision
is “made without a rational explanation, inexplicably departed
from established polices, or rested on an impermissible basis.”
Salim, 728 F.3d at 720 (citing Awad v. Ashcroft, 328 F.3d 336, 341
for a motion to reopen; see also Mungongo, 479 F.3d at 534
(citing Singh v. Gonzales, 404 F.3d 1024, 1027 (7th Cir. 2005) for
a motion to reconsider)).
No. 19-2081 5
In regard to Petitioners’ motion to reconsider, they essen-
tially rehashed the same arguments already considered by the
BIA, which include being targeted because of membership in
the particular social group proposed. While three threatening
calls from an unidentified male were made over several
months, Petitioners were not physically harmed. Furthermore,
Petitioners failed to show that relocation within Guatemala to
avoid harm was unreasonable or that a person acting in official
capacity in Guatemala will acquiesce to torture inflicted by
criminals who threatened but never harmed Petitioners.
Although the Petitioners disagreed with the BIA’s decision,
“motions to reconsider … are not replays of the main event.”
Rehman v. Gonzales, 441 F.3d 506, 508 (7th Cir. 2006). Upon our
review, we find no legal or factual defect, oral argument or
aspect of the case, that was overlooked or downright unreason-
able. The BIA has shown that they have considered all of the
merits before denying the Petitioners’ motion to reconsider.
In regard to a motion to reopen, the BIA has broad discre-
tion. INS v. Doherty, 502 U.S. 314, 323 (1992). “A motion to
reopen proceedings shall state the new facts that will be
proven at a hearing.” 8 C.F.R. § 1003.2(c)(1). “A motion to
reopen proceedings shall not be granted unless it appears to
the Board that the evidence sought to be offered is material and
was not available and could not have been discovered or
presented at the former hearing.” Id. Here, the Petitioners
argue that reopening is warranted based on what they per-
ceived as new material evidence of the conditions in Guate-
mala. However, the additional information submitted offered
no new material evidence. It only contributed to the evidence
that Guatemala continues to have widespread violence and
6 No. 19-2081
crime, but it did not address the deficiencies of their claims.
The additional information did not change the assessment that
the fears suffered by the Petitioners supported asylum.
III. CONCLUSION
The Petitioners are unable to show that the BIA’s decision
in denying their motions to reconsider and reopen is an abuse
of discretion. Therefore, the petition for review is DENIED.