Jutus v. Holder, Jr.

United States Court of Appeals
For the First Circuit

No. 12-1709

JORGE AUGUSTO JUTUS,
a/k/a JORGE AUGUSTO SUTUJ, JORGE AUGUSTO SUTUJ-BAJXAC,

Petitioner,

v.

ERIC H. HOLDER, JR., ATTORNEY GENERAL,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF THE

BOARD OF IMMIGRATION APPEALS

Before

Howard, Lipez and Thompson,
Circuit Judges.

Randy Olen on brief for petitioner.
Ada E. Bosque, Senior Litigation Counsel, Office of
Immigration Litigation, Civil Division, Department of Justice,
Stuart F. Delery, Principal Deputy Assistant Attorney General,
Civil Division, and William C. Peachey, Assistant Director, Office
of Immigration Litigation, on brief for respondent.

July 17, 2013
 HOWARD, Circuit Judge. The petitioner, Jorge Augusto

Sutuj, seeks review of a decision of the Board of Immigration

Appeals (BIA) denying his motion to reopen removal proceedings on

the grounds of materially changed country conditions. Sutuj claims

that the BIA erred in finding no material change in country

conditions and in purportedly requiring affidavits from first-hand

sources to support his motion. Because the BIA did not abuse its

discretion in finding that Sutuj established neither material

changed conditions nor a prima facie case for substantive relief,

we deny the petition for review.

I. Facts and Background

Jorge Augusto Sutuj is a native and citizen of Guatemala.

He arrived in the United States nineteen years ago on March 3,

1994, entering without inspection. In March of 1998, the United

States initiated removal proceedings against Sutuj under the

Immigration and Nationality Act (the Act) for being present in the

country without having been admitted or paroled. See 8 U.S.C.

§ 1182(a)(6)(A)(i). Sutuj applied for relief in the form of

asylum, withholding of removal, and protection under the Convention

Against Torture (C.A.T.). Although his application came over a

year following his initial entry into the country, the Immigration

Judge (IJ) pardoned the delay as due to circumstances outside the

applicant's control.

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 In his application for asylum, Sutuj alleged that he

feared torture by guerilla forces in Guatemala due to his father's

service in the military and subsequent work in the civil patrol.

Sutuj recounted a history of encounters with the guerillas during

his childhood. As a young boy, he believed that guerilla forces

would kill him if they discovered that his father had been a member

of the military. When he was ten years old, a squad of guerillas

questioned him about his father. When Sutuj identified his

grandfather instead, the guerillas pushed him into a cooking fire

and caused him to burn his forearm. During the same period,

Sutuj's uncle died after a severe beating, which Sutuj assumed was

the work of guerilla forces. Shortly thereafter, Sutuj's father

went into hiding and Sutuj and his brother came to be cared for by

a neighboring farmer. When Sutuj was eleven years old, he

witnessed the farmer shot dead by guerilla forces for identifying

himself by a false name. Sutuj's last incident with the guerillas

occurred in 1984, although, with the exception of six months spent

in Guatemala City, he continued to live in the Peten region of his

childhood until his entry into the United States in 1994.

At Sutuj's asylum hearing in 1999, the IJ found that he

had been a credible witness, but that he had failed to establish a

threshold case for relief. While acknowledging continuing

"incidents of violence both retaliatory and politically motivated

and also criminally motivated" in Guatemala, the IJ noted that the

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government had signed peace accords with the guerillas in 1996,

that the country's "human rights situation has continued to

improve," and that Sutuj had alleged no threats against or harm to

his family since 1984. "Although his family may continue to live

in fear," the IJ concluded, "it does not appear that there is any

objective reason to think that the fear will be realized in any

way." Furthermore, the IJ found that Sutuj had failed to

demonstrate that the guerilla violence he experienced as a child

amounted to the level of "persecution or was inflicted on account

of race, religion, nationality, membership in a particular social

group or political opinion," as required by statute. See 8 C.F.R.

§ 1208.13(b)(2)(i)(A). Finally, the IJ concluded that Sutuj had

failed to qualify for C.A.T. protection because he provided no

evidence that he would be subject to egregious pain or mental

suffering upon his return, much less by or through the acquiescence

of government officials. The BIA affirmed the IJ's decision

without opinion and granted Sutuj voluntary departure within thirty

days.

Sutuj did not depart the country, but nine years later,

in November of 2011, he filed a motion to reopen his application

for asylum and withholding of removal. Because his motion to

reopen came more than 90 days after the final administrative

decision in his case, Sutuj was required by statute to establish

that country circumstances in Guatemala material to his asylum

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claim had changed since his previous hearing. See id.

§ 1003.2(c)(3)(ii). In support of his motion, Sutuj submitted a

personal affidavit alleging that in the years since the BIA's last

decision Guatemala "has been taken over by criminal gangs" and drug

traffickers whom government forces have failed to control. As a

longtime inhabitant of the United States, Sutuj contended that he

would become an immediate target for extortion. Sutuj also

submitted a working paper by a human rights organization entitled

"A criminal bargain: the state and security in Guatemala," which

examined the influence of financial elites over government

officials and the "encroaching power of clandestine and criminal

cartels."

The BIA denied Sutuj's motion to reopen on the grounds

that he had failed to demonstrate materially changed country

conditions and that he had failed to establish a prima facie case

for asylum. First, the BIA found that the "limited country

information" submitted by Sutuj in support of his motion did not

show a meaningful change in country conditions since 1999. Both

Sutuj's motion to reopen and the record of his initial asylum

application reported "widespread societal violence and inadequate

police and judicial protection" in Guatemala. Furthermore, the BIA

found that Sutuj had failed to provide new and material evidence

that he faced persecution motivated by one of the five statutory

grounds: race, religion, nationality, membership, or political

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affiliation. To the extent that Sutuj feared extortion intended

"to force the payment of money," he did not articulate a threat

"equivalent to persecution on a ground protected under the Act."

The BIA noted that Sutuj failed to identify his putative

extortionists and that his assertions "were not supported by

affidavits from first-hand sources." Finally, the BIA rejected

Sutuj's claim for asylum on the grounds of "other possible harm" in

the absence of a well-grounded fear of persecution. The BIA noted

that a grant of asylum on this basis required a finding of past

persecution, see id. § 1208.13(b)(1)(iii)(B), which was not the

case here.

Sutuj filed this timely petition seeking review of the

Board's denial of his motion to reopen.

II. Discussion

The BIA has jurisdiction over motions to reopen removal

proceedings under 8 C.F.R. § 1003.2(a). We have jurisdiction over

the BIA's decisions under 8 U.S.C. § 1252. Due to the "strong

public interest in bringing litigation to a close . . . promptly"

in deportation proceedings, motions to reopen are generally

disfavored. Fesseha v. Ashcroft, 333 F.3d 13, 20 (1st Cir. 2003)

(quoting INS v. Abudu, 485 U.S. 94, 107 (1988)). As a consequence,

the BIA "enjoys considerable latitude in deciding whether to grant

or deny such a motion," Raza v. Gonzales, 484 F.3d 125, 127 (1st

Cir. 2007), and we review the BIA's denial of a motion to reopen

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only for abuse of discretion, Larngar v. Holder, 562 F.3d 71, 74

(1st Cir. 2009). In practice, we must therefore affirm the BIA's

decision unless the petitioner shows that the BIA committed an

error of law or "exercised its judgment in an arbitrary,

capricious, or irrational way." Raza, 484 F.3d at 127; see also

Larngar, 562 F.3d at 74.

An applicant who moves to reopen removal proceedings on

any ground must surmount several substantive and procedural

hurdles. As a substantive matter, the applicant must both

introduce new, material evidence that was not available or

discoverable at the prior hearing and must also present a prima

facie case of eligibility for the relief sought. Fesseha, 333 F.3d

at 20 (quoting Abudu, 485 U.S. at 104); see also 8 C.F.R.

§ 1003.2(c)(1). The BIA is entitled to exercise its discretion to

deny a motion to reopen even where both threshold concerns are met.

Smith v. Holder, 627 F.3d 427, 433-34 (1st Cir. 2010); see also 8

C.F.R. § 1003.2(a) ("The Board has discretion to deny a motion to

reopen even if the party moving has made out a prima facie case for

relief.").

As a procedural matter, an applicant is typically limited

to one motion to reopen, to be filed within ninety days of a final

administrative decision in his or her case. Larngar, 562 F.3d at

74; 8 C.F.R. § 1003.2(c)(2). However, these requirements are

relaxed where the petition establishes that "changed circumstances

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have arisen in the country of nationality or in the country to

which deportation has been ordered." Larngar, 562 F.3d at 74; see

also 8 C.F.R. § 1003.2(c)(3) ("The time and numerical limitations

. . . shall not apply to a motion to reopen proceedings . . . based

on changed circumstances arising in the country of nationality or

in the country to which deportation has been ordered . . . .").

The petitioner bears the burden of "mak[ing] a convincing

demonstration of changed conditions in his homeland." Raza, 484

F.3d at 127; see also Tandayu v. Mukasey, 521 F.3d 97, 100 (1st

Cir. 2008). Evidence of changed country circumstances must, first,

have been unavailable during the prior proceeding and, second, be

material to the underlying substantive claim for relief. Raza, 484

F.3d at 127; see also 8 C.F.R. § 1003.2(c)(3)(ii).

In light of the record in this case, the BIA did not

abuse its discretion in finding that petitioner Sutuj has neither

established a prima facie case for asylum,1 nor provided evidence

of materially changed conditions in his country of nationality.

1
Although Sutuj's motion to reopen included his initial
claims for both asylum and withholding of removal, the BIA's
decision addresses only asylum and Sutuj does not challenge the
omission on appeal. His brief also seeks reopening his application
for protection under C.A.T., an issue not raised in his original
motion. This unexhausted claim is forfeit.

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 A. Prima Facie Eligibility for Relief

To establish eligibility for asylum, an applicant must

demonstrate a "well-founded fear of persecution on one of five

protected grounds": race, religion, nationality, membership in a

particular social group, or political opinion. Maryam v. Gonzales,

421 F.3d 60, 62 n.3 (1st Cir. 2005); see also 8 C.F.R. §

1208.13(b)(2)(i)(A). An applicant may satisfy this burden through

proof of past persecution, which creates a rebuttable presumption

of a well-grounded fear of future persecution. Escobar v. Holder,

698 F.3d 36, 38 (1st Cir. 2012). Alternatively, the applicant must

show both that he or she "genuinely fears such persecution" and

that "an objectively reasonable person in [his or her]

circumstances would fear such persecution." Mendez-Barrera v.

Holder, 602 F.3d 21, 25 (1st Cir. 2010).

A prima facie case for asylum requires the applicant to

demonstrate only a "reasonable likelihood" of future persecution,

defined as "a realistic chance that the petitioner can at a later

time establish that asylum should be granted." Smith, 627 F.3d at

437 (quoting Guo v. Ashcroft, 386 F.3d 556, 564 (3d Cir. 2004)).

Even a prima facie case, however, requires several threshold

showings. First, the applicant must demonstrate a realistic chance

of persecution "based on a statutory ground," limited to race,

religion, nationality, membership, or political opinion. Id.

Second, "a showing of persecution requires 'more than mere

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discomfiture, unpleasantness, harassment, or unfair treatment,'"

Mendez-Barrera, 602 F.3d at 25 (quoting Nikijuluw v. Gonzales, 427

F.3d 115, 120 (1st Cir. 2005)), but rather "must show serious

harm," id. Finally, the alleged persecution must involve "some

connection to government action or inaction." Raza, 484 F.3d at

129 (quoting Orelien v. Gonzales, 467 F.3d 67, 72 (1st Cir. 2006))

(internal quotation marks omitted).

The BIA did not abuse its discretion in finding that

Sutuj's motion to reopen does not make out a prima facie case for

persecution on a statutorily protected ground. In Sutuj's initial

removal proceedings, the IJ found and the BIA affirmed that Sutuj's

childhood encounters with Guatemalan guerillas before 1984 did not

give rise to a continuing well-founded fear of persecution due to

political opinion. Sutuj did not appeal the BIA's decision at the

time and does not challenge this finding now. Rather, his motion

to reopen relies on the rise of criminal syndicates in Guatemala to

argue that, as an American repatriate, he will be newly subject to

criminal extortion upon his return.

Even acknowledging, for purposes of argument, Sutuj's

suggestion that Guatemalan criminal gangs might be aided by the

government, an assertion for which he presents no substantiating

evidence,2 Sutuj's fear of financial extortion does not qualify as

2
In his motion to reopen, Sutuj suggests a "conspiracy by the
government and narco-trafficking." The record does not support
this statement or connect it to the applicant's personal fears of

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persecution on the basis of a statutorily protected ground. We

have consistently rejected the theory that criminal exploitation

motivated by greed or wealth, including that based on one's status

as a former inhabitant of the United States, triggers statutory

protection. E.g., Escobar, 698 F.3d at 39 (rejecting applicant's

theory that "Guatemalan gangs will assume that he amassed

significant wealth during his two-decade-long stay in the United

States" in denying asylum); Ruiz v. Mukasey, 526 F.3d 31, 36-37

(1st Cir. 2008) (finding it "significant" in denying asylum "that

the threats about which the witnesses testified were not connected

with any statutorily protected ground but, rather, were clearly

motivated . . . by greed"); Lopez de Hincapie v. Gonzales, 494 F.3d

213, 220 (1st Cir. 2007) (finding that extortion does not call for

statutory protection). As we have remarked, "being a target for

thieves on account of perceived wealth, whether the perception is

temporary or permanent," does not satisfy the bar for persecution

but "is merely a condition of living where crime is rampant and

poorly controlled." Escobar, 698 F.3d at 39.

The BIA's decision followed this precise line of

reasoning. The BIA specifically noted the requirement that asylum-

seekers allege persecution on race, religion, nationality,

membership, or political opinion, concluding that "[g]ang action

motivated by extortion is not equivalent to persecution on a

extortion.

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[protected] ground." The BIA did not abuse its discretion in

determinating that Sutuj failed to present a prima facie case for

eligibility for asylum.3

Alternatively, Sutuj's motion to reopen suggests that, as

a victim of past persecution, he is eligible for asylum even absent

a well-founded fear of future persecution if he can establish a

"reasonable probability" of "other serious harm upon removal." See

8 C.F.R. § 1208.13(b)(1)(iii)(B). As the BIA properly noted,

however, the IJ in Sutuj's initial removal hearings rejected the

claim that Sutuj's childhood experiences in Guatemala amounted to

3
Sutuj additionally claims that the BIA abused its discretion
in requiring him to submit affidavits from first-hand sources in
order to support his prima facie case. We read the BIA's reference
to affidavits somewhat differently: not as requiring affidavits
from first-hand sources per se, but rather as listing the lack of
personal affidavits as among the evidentiary gaps that make Sutuj's
prima facie showing deficient in this case. We note that, although
the petitioner's argument fails because it is not supported by the
record, it is not legally unsound. We have considered -- and in
some cases upheld -- numerous asylum applications and motions to
reopen that relied exclusively on an applicant's affidavit and
documentary evidence. See, e.g., Escobar, 698 F.3d at 39
(reviewing a motion to reopen supported by "personal knowledge" of
violence and reports by the State Department and human rights
organizations); Smith, 627 F.3d at 434 (holding that BIA erred in
denying a motion to reopen due to changed country circumstances
supported by "reports from human rights organizations, the United
States government, and the press"); Mendez-Barrera, 602 F.3d at 24
(reviewing an application for asylum based on "generalized accounts
of country conditions"); López-Castro v. Holder, 577 F.3d 49, 53
(1st Cir. 2009) (reviewing an application for asylum supported by
Amnesty International and State Department reports); Raza, 484 F.3d
at 129 (reviewing a motion to reopen based on "a series of internet
articles" describing contemporaneous country conditions); Fesseha,
333 F.3d at 18 (reviewing a motion to reopen supported by reports
from the U.S. government and human rights organizations).

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persecution motivated by political opinion. Following the BIA's

adoption of the IJ's decision, Sutuj did not seek further review of

appeal. Accordingly, in considering Sutuj's motion to reopen, the

BIA did not abuse its discretion in deferring to this earlier

finding and in denying Sutuj's eligibility for relief under 8

C.F.R. § 1208.13(b)(1)(iii)(B).

B. Changed Country Conditions

Similarly, the BIA correctly found that Sutuj failed to

make a convincing demonstration of materially changed conditions in

his country of nationality. Before us, Sutuj emphasizes that the

IJ's initial denial of asylum relied substantially on evidence of

recent peace accords and "improv[ing]" human rights conditions in

Guatemala in 1999, while his submitted evidence suggests spiking

social disorder and crime. Comparing the original record against

Sutuj's evidence in support of his motion to reopen, the BIA

concluded that both records "reported widespread societal violence

and inadequate police and judicial protection" and consequently

suggested no meaningful change in country conditions in the

interim. Considering the evidence of national discord at Sutuj's

initial hearing and the IJ's own acknowledgment of continuing

"instances of violence" on both political and criminal grounds, the

BIA's conclusion cannot be considered arbitrary, capricious, or

irrational.

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 In any case, the petitioner's argument neglects the

requirement that any changes in country conditions must not simply

be newly available, but also "material to the underlying

substantive relief" sought. Raza, 484 F.3d at 127; see also 8

C.F.R. § 1003.2(c)(3)(ii). Even assuming that the present-day

levels of gang activity in Guatemala mark a qualitative change from

the social turmoil in the country ten years ago, rising rates of

general criminal activity are not material to Sutuj's claims for

asylum or withholding of removal on an enumerated statutory basis.

"Evidence of 'widespread violence . . . affecting all citizens' is

not enough to establish persecution on a protected ground."

Escobar, 698 F.3d at 38 (quoting Maryam, 421 F.3d at 63); see also

López-Castro, 577 F.3d at 54 ("A country-wide risk of victimization

through economic terrorism is not the functional equivalent of a

statutorily protected ground . . . ."). Sutuj thus fails to show

changed country circumstances for the same reason he fails to make

a prima facie case for relief: because the alleged changes in

country conditions have no nexus to Sutuj's fear of persecution due

to race, religion, nationality, membership, or political opinion.

The BIA noted as much when it observed that Sutuj's reports of

growing crime rates in Guatemala provided "no new and material

evidence that the respondent will face persecution on account of [a

protected ground]." The BIA properly concluded that Sutuj failed

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to establish a material change in country conditions necessary to

reopen removal proceedings.

The petition for review is denied.

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