Lidia Ramirez v. Jefferson B. Sessions, III

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 17-1414
___________________________
Lidia Ramirez
lllllllllllllllllllllPetitioner
v.
Jefferson B. Sessions, III, Attorney General of the United States
lllllllllllllllllllllRespondent
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No. 17-2662
___________________________
Lidia Ramirez
lllllllllllllllllllllPetitioner
v.
Jefferson B. Sessions, III, Attorney General of the United States
lllllllllllllllllllllRespondent
____________
Petitions for Review of Orders of the
Board of Immigration Appeals
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Submitted: April 11, 2018
Filed: August 29, 2018
____________
Before BENTON, MELLOY, and GRASZ, Circuit Judges.
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GRASZ, Circuit Judge.
Lidia Ramirez, a native and citizen of Guatemala, seeks review of a final order
of removal issued by the Board of Immigration Appeals (“Board”). The Board
affirmed an immigration judge’s (“IJ’s”) denial of her application for asylum,
withholding of removal, and protection under the Convention Against Torture
(“CAT”). Ramirez also seeks review of a separate order of the Board denying her
motion to reconsider or reopen. For the reasons set forth below, we deny both of
Ramirez’s petitions for review.
I. BACKGROUND
The Department of Homeland Security (“DHS”) detained Ramirez in July 2014
after she illegally entered the United States. When Ramirez expressed an intent to
apply for asylum, DHS referred her to an asylum officer for a credible fear interview.
Ramirez told the asylum officer she feared a neighbor would kill her if she
returned to Guatemala. Specifically, she said a man who lived near her in Guatemala
frequently asked her to have sex, and she refused because she was married. In
addition, she said she reported this neighbor to the police after he attempted to rape
a local young woman, but the police did not arrest him. Ramirez believes he bribed
the police. Ramirez said this same neighbor later sent two other men to confront her
at knifepoint, demanding money and threatening to kill her. Ramirez told the asylum
officer if she returned to Guatemala, her neighbor would kill her because she both
refused his advances and reported him to the police. She said she could not move
elsewhere in Guatemala because she had nowhere else to go, and she believed the
police would not help her.
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The asylum officer concluded Ramirez had a credible fear of “torture” and
referred her case to an IJ for a removal proceeding under 8 U.S.C. § 1229a. DHS then
served her with a Notice to Appear, charging her with removability under 8 U.S.C. §
1182(a)(7)(A)(i)(I), which provides that immigrants are inadmissible if they do not
possess a valid entry document when seeking admission.
After a series of continuances, her final hearing took place in March 2016 in
Kansas City, Missouri. Ramirez submitted her asylum application (completed with
the help of an attorney) and represented herself pro se. A new IJ first asked an
interpreter to read Ramirez’s entire asylum application back to her in Spanish. The
IJ then asked if she understood what was read and if it was true and correct. Ramirez
answered in the affirmative. The IJ also asked if everything in her credible fear
interview, and in her application for asylum, was true and correct. Ramirez again
answered affirmatively. The IJ proceeded to ask Ramirez a series of “Yes-or-No”
questions about the specific reasons she feared returning to Guatemala based on her
application. Ramirez answered “Yes” each time, reiterating she was afraid because
her neighbor made sexual advances toward her and sent two men to extort money
from her at knifepoint. When the IJ asked if “there is anything else that caused you
to be afraid to return to Guatemala,” Ramirez responded: “It’s just that.” The IJ then
twice asked if Ramirez had anything else to say, to which she responded each time:
“That’s all.”
The IJ issued a verbal ruling denying the application, stating Ramirez failed to
meet her burden of proof for securing relief because the conduct she feared was
“personal and a potential criminal act,” but not “persecution” or “torture” necessary
for securing asylum, withholding of removal, or CAT relief. The IJ then left the
hearing to write a formal order and soon returned, giving Ramirez a multi-page
written decision.
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The IJ’s written decision concluded that Ramirez failed to demonstrate either
past persecution or a well-founded fear of future persecution on account of race,
religion, nationality, membership in a particular social group, or political opinion, as
required to secure asylum. The IJ found that (a) “married women in Guatemala who
are approached by men to have sex and declined such invitation” is too broad to be a
“particular social group”; (b) Ramirez did not demonstrate significant harm caused by
her neighbor’s harassment and threat; and (c) she did not show her neighbor remained
interested in her or would cause actual harm if she returned.
At this point, however, the IJ’s written decision became muddled. In discussing
Ramirez’s claim for CAT relief, the IJ three times referenced Ramirez as a man who
would be removed to “Mexico” instead of Guatemala. The decision also erroneously
stated Ramirez “testified” that her other family members have not been harmed since
“he left Mexico.” The decision concluded that Ramirez failed to satisfy her burden
that it is more likely than not she will be tortured “if returned to Mexico.” In addition,
the caption of the written decision charged Ramirez with violating the wrong section
of the Immigration and Nationality Act (INA) (8 U.S.C. § 1182(a)(6)(A)(i), which
renders inadmissible an alien present in the United States without having been
admitted or paroled). The decision later noted the correct charge for seeking
admission without a valid entry document.
Ramirez, at the time represented by counsel, appealed the IJ’s decision to the
Board, challenging mostly the errors in the IJ’s written decision. In a written order,
the Board (represented by a single member) stated it would “defer to the Immigration
Judge’s decision” and then denied relief in a three-page opinion. The Board
acknowledged the IJ’s errors but ultimately found them “to be no more than harmless
error.” It determined the “record as a whole” indicated the IJ was aware Ramirez is
a woman from Guatemala. The Board then explained that the sexual advances and
threat directed at Ramirez did not rise to the level of past persecution. It also
concluded she lacked a well-founded fear of future persecution for similar reasons
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discussed in the IJ’s decision. The Board stated that by failing to establish eligibility
for asylum, she could not satisfy her higher burden for establishing eligibility for
withholding of removal. Finally, the Board found Ramirez ineligible for relief under
the CAT, in part because she offered no evidence of torture beyond the harassment
allegations underlying her other claims.
Ramirez timely petitioned this Court for review of the Board’s order dismissing
her appeal. Noting that her prior appellate counsel failed to extensively brief the
issues in her original appeal to the Board, Ramirez also filed a motion to reopen or
reconsider with the Board. She argued the IJ’s hearing conduct violated procedural
due process, and she further explained that the IJ’s fact errors demonstrated a failure
to provide individualized consideration. Ramirez based her motion on a 2009
statement by former Board Chairman Juan Osuna, who indicated that where an alien’s
prior counsel barely briefed a case, the alien can file a supplemental brief without
alleging ineffective assistance of counsel. See Practice Before the BIA, 86 Interpreter
Releases No. 30 (August 10, 2009) (“Osuna Statement”).
The Board summarily denied the motion to reopen or reconsider, explaining
that the motion either reiterated previous contentions or asserted arguments that were
apparent at the time of the original appeal and could have been presented in the appeal
brief. The Board also found the motion presented no new evidence that would justify
reopening the case.
Ramirez timely appealed the Board’s denial of her motion to reopen or
reconsider. Ramirez asks that we remand her case for further consideration by the
Board. We consolidated the two petitions on appeal.
II. DISCUSSION
To establish eligibility for asylum, an applicant must show that he or she is
“unable or unwilling to return to his or her country because of ‘persecution or a well-
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founded fear of persecution on account of race, religion, nationality, membership in
a particular social group, or political opinion.’” Esenwah v. Ashcroft, 378 F.3d 763,
766 (8th Cir. 2004) (quoting 8 U.S.C. § 1101(a)(42)(A)). Eligibility for withholding
of removal requires an applicant to show “his or her life or freedom would be
threatened in the proposed country of removal on account of” the same statutory
grounds. 8 C.F.R. § 1208.16(b). The applicant must demonstrate “it is more likely
than not” he or she would be subject to persecution on one of the qualifying grounds,
see Zine v. Mukasey, 517 F.3d 535, 540 (8th Cir. 2008), a burden of proof “more
demanding than that for asylum.” Id. (quoting Alemu v. Gonzales, 403 F.3d 572, 576
(8th Cir. 2005)); see also 8 U.S.C. § 1231(b)(3)(A). To establish eligibility for CAT
relief, an applicant must show “it is more likely than not” that “he or she would be
tortured if removed to the proposed country of removal.” 8 C.F.R. § 208.16(c)(2).
This Court has jurisdiction to review “constitutional claims or questions of law
raised upon a petition for review” of a removal order. 8 U.S.C. § 1252(a)(2)(D). “The
[Supreme] Court [has] held that the appeal of the [Board] order affirming the IJ’s
order and the appeal of the denial of the motion for reconsideration must be treated
as ‘two separate petitions filed to review two separate final orders.’” Esenwah, 378
F.3d at 765 (quoting Stone v. I.N.S., 514 U.S. 386, 405 (1995)). Therefore, we
consider each order in turn below.
A. The Order Affirming the IJ’s Decision
Ramirez raises three challenges in her appeal from the Board’s initial order: (1)
the IJ’s hearing conduct violated procedural due process; (2) the IJ’s written decision
turned on factual and legal errors; and (3) the Board’s order improperly “defer[red]”
to the IJ’s allegedly erroneous decision.
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1. The Hearing
Turning first to the due process challenge, Ramirez argues the IJ conducted an
unduly swift hearing and thereby failed to explore all the relevant facts. We review
procedural due process challenges de novo, “as the question of whether an
immigration hearing violates due process is a purely legal issue.” Bracic v. Holder,
603 F.3d 1027, 1032 (8th Cir. 2010); see also 8 U.S.C. § 1252(a)(2)(D).
As a preliminary matter, the United States Attorney General (“the
Government”) argues Ramirez failed to exhaust this claim before the Board. This
Court “may review a final order of removal only if . . . the alien has exhausted all
administrative remedies available to the alien as of right.” 8 U.S.C. § 1252(d)(1).
Therefore, “[i]f a petitioner fails to raise a particular issue when he appeals to the
Board,” the petitioner has not exhausted his administrative remedies with respect to
that issue. Ateka v. Ashcroft, 384 F.3d 954, 957 (8th Cir. 2004). This Court has ruled
it lacks jurisdiction over unexhausted claims for a violation of procedural due process.
Gonzales v. Cherthoff, 454 F.3d 813, 816 (8th Cir. 2006). Ramirez counters that
while her brief before the Board focused mostly on alleged errors in the IJ’s written
order, it also “plainly raised” the due process issue by expressly stating she did not
receive a fair hearing.
We conclude the issue is exhausted, particularly given that the Board’s order
specifically determined Ramirez “received a fundamentally fair hea[r]ing” and “has
not shown any resulting prejudice.” Because Ramirez argued she received an unfair
hearing and the Board “specifically affirm[ed]” the validity of that hearing, “[w]e
accept the agency’s determination that the [] issue was adequately exhausted . . . and
therefore reach the merits” of Ramirez’s due process claim. See Zine, 517 F.3d at 540.
Arriving at the merits, “[i]t is well established that the Fifth Amendment entitles
aliens to due process of law in deportation proceedings.” Reno v. Flores, 507 U.S.
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292, 306 (1993). An immigration judge must “receive evidence, and interrogate,
examine, and cross-examine the alien and any witnesses” during a removal
proceeding. 8 U.S.C. § 1229a(b)(1). The alien must be examined under oath on the
basis of his or her application and must be allowed to present additional evidence and
witnesses on their own behalf. Id. § 1229a(b)(4); 8 C.F.R. § 1240.11(c)(3)(iii).
Furthermore, this Court has recognized that when an alien appears pro se, the IJ must
“fully develop the record.” Al Khouri v. Ashcroft, 362 F.3d 461, 464 (8th Cir. 2004)
(quoting Agyeman v. I.N.S., 296 F.3d 871, 877 (9th Cir. 2002)). Considering the pro
se alien’s likely lack of legal knowledge, the difficulty of navigating immigration law,
and the possibility of expulsion upon failure to do so successfully, we have recognized
“it is critical that the IJ ‘scrupulously and conscientiously probe into, inquire of, and
explore for all the relevant facts.’” Id. at 465 (quoting same).
Ramirez argues the IJ should have asked “a basic set of questions above and
beyond whether the statements in the application are true,” because the Application
for Asylum and Withholding of Removal (Form I-589) does not specifically ask the
applicant to state, among other things, the particular social group to which he or she
belongs. She argues the IJ did not ask why her neighbor allegedly sent two men to
threaten her with a knife, a key element of the asylum claim. For support, she points
to prior Board decisions stating that an IJ must ordinarily conduct “a full oral
examination of the applicant” beyond merely asking whether information in the
application is true and correct. See Matter of Fefe, 20 I&N Dec. 116, 118 (BIA 1989);
Matter of E-F-H-L-, 26 I&N Dec. 319, 322 (BIA 2014). Finally, she invokes this
Court’s decision in Al Khouri, which found a due process violation where an IJ
limited the asylum applicant’s ability to elaborate on his application and then found
his lack of elaboration to undermine his credibility. Al Khouri, 362 F.3d at 465.
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We are not persuaded by these arguments. Unlike the respondents in Matter
of Fefe and Matter of E-F-H-L-,1 here Ramirez actually answered questions about her
case at the hearing. The IJ placed her under oath. An interpreter read the contents of
her asylum application back to her in Spanish. The IJ asked if the contents of her
application were true and correct. The IJ then asked a series of relevant fact questions,
including whether she “refused [her neighbor’s sexual advances], and he sent two men
to threaten [her] with a knife and demanded the money.” Ramirez answered “Yes,”
to this and each fact question. Given the IJ’s “broad discretion to control the manner
of interrogation to get at the truth,” see Shoaira v. Ashcroft, 377 F.3d 837, 843 (8th
Cir. 2004), we do not find invalid the IJ’s “Yes-or-No” fact questions getting to the
crux of Ramirez’s claims. See also 8 C.F.R. § 1240.1(c) (directing IJs to “regulate the
course of the hearing”).
Furthermore, the IJ did not curtail Ramirez’s testimony or prevent her from
telling her whole story. See Al Khouri, 362 F.3d at 465, 467. Unlike in Al Khouri,
Ramirez testified to facts which aligned essentially to those alleged in her credible fear
interview and asylum application. Then the IJ asked Ramirez three open-ended
questions allowing her an opportunity to elaborate. Ramirez declined each time. We
do not find this to be the type of hearing conduct that violates due process.
Even if the hearing contained fundamental errors, it is axiomatic in this Circuit
that an alien’s due process claim must demonstrate both a fundamental procedural
1
The current relevance of these decisions is questionable. The regulations
applied in Matter of Fefe were later rescinded and replaced. Further, Matter of E-F-H-
L-, which reaffirmed Matter of Fefe, was vacated after the petitioner withdrew his
application. See Matter of E-F-H-L-, 27 I&N Dec. 226 (U.S.Atty.Gen. 2018), Interim
Final Decision 3917, 2018 WL 1202974. However, we do not assess their viability
as neither decision applies in this case.
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error and prejudice. E.g., Rubio v. Sessions, 891 F.3d 344, 351 (8th Cir. 2018).2 To
establish prejudice, Ramirez must show “the outcome of the proceeding may well
have been different had there not been any procedural irregularities.” Tun v.
Gonzales, 485 F.3d 1014, 1026 (8th Cir. 2007).
Ramirez argues the brevity of the hearing “led the IJ” to conclude Ramirez
failed to prove “why the attackers had targeted her” and “prevented [her] from fully
developing the claim on her own.” But the IJ gave her repeated opportunities to
expound on her claim, and Ramirez declined. Even on appeal, Ramirez has failed to
explain the evidence she might have offered had the IJ asked further questions. See
Bracic, 603 F.3d at 1033 (noting asylum applicant “has not shown how the procedural
error would have changed the outcome of his case because he has offered no new
evidence [and has] advanced [no] new issues that would have established his
entitlement to asylum or withholding of removal”); Ramirez v. Holder, 489 F. App’x.
140, 142 (8th Cir. 2012) (per curiam) (unpublished). Ramirez has shown no prejudice
here. Her due process claim necessarily fails.
2. The IJ’s Written Decision
Ramirez next argues the IJ issued a “cookie cutter” written decision that also
violated her due process rights. She alleges the errors in the IJ’s opinion—referring
to her as a man from Mexico, falsely claiming she “testified” that her family has been
unharmed “since he left Mexico” (and giving that “fact” analytical weight), and
2
Ramirez argues she need not show prejudice from any violations of her
constitutional right to a fair deportation hearing. We acknowledge that several other
Circuits have indicated as much. See, e.g., Leslie v. Attorney Gen. of U.S., 611 F.3d
171, 175–80 (3d. Cir. 2010), cited in Puc-Ruiz v. Holder, 629 F.3d 771, 780 (8th Cir.
2010). However, we find Ramirez failed to exhaust this issue before the Board. Thus
we do not consider it here. See Muiruri v. Lynch, 803 F.3d 984, 987 n.1 (8th Cir.
2015).
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referencing an erroneous deportation charge in the decision’s caption—show the IJ
failed to give individualized consideration to her case.
“Because the [Board’s] decision is the final decision of the agency, it is the
subject of our review. . . . To the extent, however, that the [Board] adopted the findings
or reasoning of the IJ, we also review the IJ’s decision as part of the final agency
action.” Falaja v. Gonzales, 418 F.3d 889, 894 (8th Cir. 2005).
We are troubled by the IJ’s errors here. Given the IJ’s brief recess from the
hearing to write her four-page decision, these errors indicate a reliance on boilerplate
language from another person’s case—something this IJ has done before. See
Paramasamy v. Ashcroft, 295 F.3d 1047, 1050-51 (9th Cir. 2002) (IJ’s decision twice
referred to female asylum applicant as a man and made findings about her demeanor
that were almost identically worded to demeanor findings in two separate cases).
Federal immigration law is clear that the IJ’s decision “shall be based only on the
evidence produced at the hearing,” including the respondent’s asylum application. 8
U.S.C. § 1229a(c)(1)(A). While IJ decisions may include “standard verbiage setting
forth a well-accepted legal principle, such as a standard of review,” see Paramasamy,
295 F.3d at 1052, the misappropriation of facts can indicate an IJ “failed to provide the
requisite individualized evaluation.” Id. at 1051.
However, despite our concerns about boilerplate language, we do not find that
the errors in this case reveal a failure to provide individualized evaluation. Notably,
the errors occurred in the IJ’s analysis for CAT relief—after having concluded Ramirez
failed to qualify for asylum and withholding of removal. The IJ based these earlier
conclusions on the fact Ramirez “testified and wrote in her application that a neighbor
wanted to have sex with her, she refused and he sent two men to threaten and extort
from her.” The IJ also relied on the fact Ramirez “testified that she fears returning to
Guatemala, because she fears the neighbor . . . may [send] the same two men . . . to kill
her.”
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Further, as discussed below, the Board’s decision correctly found the IJ’s CAT
analysis unnecessary. See La v. Holder, 701 F.3d 566, 573 (8th Cir. 2012); see also
Reyes-Morales v. Gonzales, 435 F.3d 937, 943 (8th Cir. 2006) (concluding the IJ’s
failure to consider claim for humanitarian asylum was corrected by the Board and
therefore harmless). We thus turn to that decision now.
3. The Board’s Decision
Ramirez argues the Board’s order adopted the IJ’s errors and failed to exercise
independent judgment, as indicated by its statement that “[w]e have considered all of
the respondent’s arguments on appeal and defer to the Immigration Judge’s decision.”
(emphasis added).
“This court reviews decisions on asylum, withholding of removal, and CAT
protection under the substantial evidence standard.” R.K.N. v. Holder, 701 F.3d 535,
537 (8th Cir. 2012). Thus, “the administrative findings of fact are conclusive unless
any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C.
§ 1252(b)(4)(B). Additionally, we review an agency’s legal determinations de novo,
“but with great deference to the [Board’s] interpretations of immigration statutes and
regulations.” R.K.N., 701 F.3d at 537. But cf. Pereira v. Sessions, 138 S. Ct. 2105,
2112-13 (2018) (noting, while reversing an opinion applying the Chevron framework,
“the Court need not resort to Chevron deference, as some lower courts have done,
[where] Congress has supplied a clear and unambiguous answer to the interpretive
question at hand”). The Board must exercise “independent judgment” in “determining
the cases coming before [it],” 8 C.F.R. § 1003.1(d)(1)(ii), including a review of fact
findings for clear error and a de novo review of questions of law, judgment, or
discretion. Id. §§ 1003.1(d)(3)(i), (ii).
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The Government argues the Board’s decisions are “entitled to a presumption of
regularity.” Averianova v. Holder, 592 F.3d 931, 936 (8th Cir. 2010) (quoting
Makonnen v. I.N.S., 44 F.3d 1378, 1384 (8th Cir. 1995)). It also argues the Board
expressly considered the IJ’s errors and found them harmless here.
Ultimately, we agree with the Government. While the Board’s use of the word
“defer” is regrettable given the IJ’s errors, it is not reversible. The rest of the Board’s
order shows it actively analyzed Ramirez’s arguments on appeal and reached its own
conclusion—without adopting the IJ’s errors. First, the Board stated it would apply
clear-error review of the IJ’s factual findings and de novo review over issues of law,
judgment, or fact. This level of review is not blind deference. Next, the Board
expressly noted that while the IJ included the wrong removal charge in the caption of
her decision, the IJ cited the proper charge in the body of her analysis. The Board
properly found the IJ’s mistake harmless. See Reyes-Morales, 435 F.3d at 943(concluding the Board’s reference to incorrect asylum regulation was “clerical” and
ultimately “harmless”).
Additionally, the Board determined that a review of the record “as a whole”
showed the IJ was aware Ramirez is a woman from Guatemala, not a man from
Mexico. It found the IJ’s mistakes in this regard to be “harmless error or a mistake in
transcription of the record.” The Board stated it “regrets the defects in the proceedings
below.” Therefore, we disagree with Ramirez’s contention that the Board simply
“rubber-stamped” the IJ’s errors.
In affirming the IJ’s denial of asylum, the Board applied its own reading of a
number of Eighth Circuit decisions, including the principle that “persecution” for
purposes of asylum “is an extreme concept” which does not include “incidents of
harassment” and “unfulfilled threats of injury.” See Tegegn v. Holder, 702 F.3d 1142,
1144 (8th Cir. 2013). The Board cited the uninfected portions of the IJ’s decision in
finding no clear error that Ramirez’s claim hinged on the sexual advances by her
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neighbor in Guatemala and his threat for her refusals. Thus, we conclude the Board’s
decision that such conduct does not rise to the level of “persecution” was based on
independent judgment and substantial evidence.
The same is true of the Board’s decision that Ramirez failed to establish a well-
founded fear of future persecution. The Board again applied several Eighth Circuit
decisions, including the rule that an asylum applicant lacks a well-founded fear if they
can avoid persecution by relocating within their native country or if their fear is too
speculative. See Castillo-Gutierrez v. Lynch, 809 F.3d 449, 452 (8th Cir. 2016).
Citing to the portion of the IJ’s analysis that found Ramirez’s “fears [of] returning to
Guatemala” rooted only in her neighbor’s previous advances and threats, the Board
concluded Ramirez failed to show that her neighbor remains interested in pursuing her,
that she lacks the ability to move elsewhere in Guatemala, and that her fears are not too
speculative or based on general criminal activity. We find these conclusions, too, were
based on independent judgment and substantial evidence.3
Because “[a]n alien who fails to prove eligibility for asylum cannot meet the
standard for establishing withholding of removal,” Turay v. Ashcroft, 405 F.3d 663,
667 (8th Cir. 2005), we also conclude the Board correctly found Ramirez per se
ineligible for withholding of removal. Finally, the Board found Ramirez ineligible for
relief under the CAT without relying on the IJ’s error-ridden CAT analysis. Rather,
the Board ultimately found CAT analysis unnecessary in the absence of any evidence
3
Ramirez also argues the IJ erroneously ruled that fear of a “personal and a
potential criminal act” lacks the nexus to a protected ground for relief. However,
even if the Board adopted this conclusion as its own (e.g., by stating that “fear of
general criminal activity” is “not sufficient” for relief here), this Court has recognized
a distinction in this context between “simple criminal intent” and bias on the basis of
a protected statutory ground. See Ming Ming Wijono v. Gonzales, 439 F.3d 868, 873
(8th Cir. 2006).
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Ramirez would be tortured for reasons unrelated to her asylum claim. We agree. See
La, 701 F.3d at 573.
In the end, the Board’s order disavowed the IJ’s errors and exercised the
requisite independent judgment supported by substantial evidence. We therefore deny
the petition for review of the Board’s order affirming the IJ’s decision.
B. The Order Denying the Motion to Reopen or Reconsider
After appealing her original petition to this Court, Ramirez filed a “Motion to
Reopen or Reconsider” with the Board seeking remand for a new hearing. It was
eventually denied. A motion to reconsider must contest “errors of law or fact in the
previous order,” and a motion to reopen for an additional hearing must state “new
facts” and “be supported by affidavits or other evidentiary material.” 8 U.S.C. §§
1229a(c)(6)(C) & (7)(B); see also 8 C.F.R. §§ 1003.2(b)(1) & (c)(1). “We review
decisions of the Board denying motions to reopen or reconsider for abuse of
discretion.” Habchy v. Gonzales, 471 F.3d 858, 861 (8th Cir. 2006). “This court may
find an abuse of discretion where ‘a decision is without rational explanation, departs
from established policies, invidiously discriminates against a particular race or group,
or where the agency fails to consider all factors presented by the alien or distorts
important aspects of the claim.’” Id. at 861-62 (quoting Hernandez-Moran v.
Gonzales, 408 F.3d 496, 499 (8th Cir. 2005)). “This standard is considerably more
deferential” to the Board than our review of the underlying order. Esenwah, 378 F.3d
at 765.
We hold the Board acted well within its discretion here. Indeed, Ramirez’s
motion largely elaborated on the same issues raised in her original appeal. We
acknowledge she raised new arguments regarding her due process claim, including that
she need not show prejudice resulting from any hearing defects. We also note she
grounded her motion in the aforementioned Osuna Statement, which she argued should
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allow her “to apprise the [Board] of these additional issues . . . .” However, several
other Circuits have held “that the office of a motion to reconsider in an immigration
case, under current law, is ordinarily limited to the consideration of factual or legal
errors in the disposition of issues previously raised.” Martinez-Lopez v. Holder, 704
F.3d 169, 172-73 (1st Cir. 2013) (emphasis added) (collecting cases). We agree.
Further, Ramirez did not support her motion with new evidentiary material. Therefore,
the Board was well within its discretion in denying her motion to reopen or reconsider.
III. CONCLUSION
For these reasons, we deny both of Ramirez’s petitions for review.
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