Mazariegos v. Holder, Jr.

United States Court of Appeals
For the First Circuit

No. 14-1431

MICHAEL MAZARIEGOS,

Petitioner,

v.

LORETTA E. LYNCH, UNITED STATES ATTORNEY GENERAL,*

Respondent.

PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS

Before

Lynch, Selya, and Thompson,
Circuit Judges.

William E. Graves on brief for petitioner.
Terri J. Scadron, Assistant Director, Office of Immigration
Litigation, United States Department of Justice, Civil Division,
Joyce R. Branda, Acting Assistant Attorney General, and Anthony W.
Norwood, Senior Litigation Counsel, on brief for respondent.

June 24, 2015

*Pursuant to Fed. R. App. P. 43(c)(2), Attorney General Loretta E.
Lynch has been substituted for former Attorney General Eric H.
Holder, Jr. as the respondent.
 THOMPSON, Circuit Judge. Placed in removal proceedings

after his arrest on state charges, Michael Jonathan Mazariegos

sought to forestall his removal based on his marriage to a United

States citizen and the hardship his removal would cause his family.

He prevailed before an immigration judge (IJ), but lost when the

government appealed to the Board of Immigration Appeals (BIA).

Mazariegos did not seek review of that decision, but later

petitioned the BIA to reopen the proceedings based on new evidence.

The BIA denied the motion and Mazariegos petitions this court for

review of that decision. After careful consideration, we deny the

petition.

BACKGROUND

A. Arrival and Arrest

Mazariegos is a native and citizen of Guatemala who has

lived in the United States since he was two years old, when he and

his family entered on visitor visas.1 In March 2008, at the age

of nineteen, Mazariegos married a United States citizen, Lludelina

Garcia, becoming a stepfather to her daughter. In light of the

marriage, Mazariegos was approved a few months later for an I-130

immigrant visa petition. He applied for adjustment of status on

the basis of the approved I-130.

1 His parents are now lawful permanent residents, and his brother
is a United States citizen.

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 The Department of Homeland Security ("DHS") denied his

application due to a pending criminal case. That case stemmed

from an October 2008 arrest that resulted in charges of receiving

stolen property and failure to stop for police in violation of

Massachusetts law. According to the police report, Mazariegos was

driving a Cadillac when a police officer attempted to pull him

over. Instead of stopping, Mazariegos accelerated through a red

light and continued driving. As the car approached a wooded area,

it stopped suddenly, and Mazariegos and his passenger jumped out

of the car and began to run. The officer apprehended both, at

which time he observed that a window of the car was smashed out

and that a car dealership invoice was visible. Mazariegos admitted

sufficient facts to support a finding of guilt and the case was

continued without a finding to October 2010.

B. Removal Proceedings

Meanwhile, in July 2009, DHS issued a Notice to Appear

and placed Mazariegos in removal proceedings, charging him with

removability under 8 U.S.C. § 1227(a)(1)(B) since he had remained

in the United States longer than permitted and overstayed his

visitor visa. Mazariegos, represented by counsel, appeared before

the IJ where he admitted the factual allegations in the notice and

conceded removability. Seeking relief from removal, he renewed

his application for adjustment of status based on the approved I-

130. Because his convictions rendered him inadmissible to the

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United States, and therefore ineligible for adjustment of status

under 8 U.S.C. § 1255(a), Mazariegos also applied for a waiver

under section 212(h) of the Immigration and Nationality Act, id.

§ 1182(h)(1)(B), claiming hardship to his lawfully admitted

parents and citizen wife and step-daughter.

The IJ held a merits hearing. Mazariegos and his mother

both testified, but his wife, who was estranged from Mazariegos at

the time, did not. Mazariegos testified that he lived with his

parents, had dropped out of high school at age sixteen and began

working at his parents' auto body shop, and he now served as

general manager of the shop and handled matters that required

fluency in English. He has no memory of Guatemala and has not

returned since his arrival to the United States at age two.

Mazariegos also described his criminal history. In

2000, when he was eleven, he unknowingly got into a stolen car.

He was charged as a juvenile with receiving stolen property and,

on his lawyer's advice, admitted responsibility for the offense.

In 2004, at age fifteen, he was charged as a juvenile with rape,

kidnapping, and indecent assault and battery on a child under

fourteen. The charges were dismissed, and Mazariegos testified

that he did not commit the crimes with which he was charged. In

2006, when he was seventeen, he was charged with driving without

a license and without insurance, to which he pleaded guilty.

Finally, in October 2008, at the age of nineteen, Mazariegos was

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charged with receiving stolen property and failure to stop for

police, as noted earlier.

Mazariegos's mother also testified at the hearing. She

indicated that she had moved to the United States in 1993, after

her father was killed in Guatemala. She explained that

Mazariegos's removal would cause hardship to her and her husband

because Mazariegos functioned as the car repair shop's general

manager and took "care of almost everything," and the removal would

be "really difficult" for her personally.

At the end of the hearing, the IJ issued an oral

decision, holding that a favorable exercise of discretion was

warranted and granting Mazariegos's waiver and adjustment of

status applications. The IJ emphasized the extreme hardship

Mazariegos's removal would cause his parents2 and Mazariegos's

positive equities: he was a longtime resident, an "intelligent and

articulate young man," active in his family business, not a user

of drugs and alcohol, and a responsible husband and stepfather.

While the IJ did take into account his lengthy criminal history,

the judge attributed much of this to "youthful indiscretions and

lack of judgment" and found that Mazariegos had learned from his

mistakes.

2 The IJ did not consider the impact on Mazariegos's wife as she
did not testify.

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 C. Appeal to the BIA

Not happy with the decision, DHS appealed to the BIA,

arguing that the IJ erred in exercising discretion to grant both

the adjustment of status and waiver applications. The BIA agreed.

It concluded that though it did not find any of the IJ's factual

findings clearly erroneous, Mazariegos was not entitled to a

discretionary section 212(h) waiver. Although the BIA thought

this was a "close case," it identified Mazariegos's "ongoing

pattern of criminal behavior" as the "principal reason" for the

denial. Mazariegos did not petition this court for review of the

BIA's decision.3

D. Motion to Reopen

A few months later, Mazariegos (with new counsel) filed

a motion with the BIA seeking to reopen his removal proceedings in

light of two new pieces of evidence.4

3 Mazariegos may have fared better had he sought review at this
point rather than following a motion to reopen denial, and we are
not unsympathetic to the difficult place he finds himself in. In
its brief, the government indicates that it is in the process of
determining whether this case is affected by any of the President's
November 20, 2014 immigration-related executive actions and we
would encourage it to expeditiously make that determination, if it
has not done so already.

4 Mazariegos asked the BIA to reopen the matter sua sponte.
Typically, we would lack jurisdiction over the BIA's disposition
of such a motion. Charuc v. Holder, 737 F.3d 113, 115 (1st Cir.
2013) ("[I]t is settled beyond hope of contradiction that the
decision whether to exercise this sua sponte authority [to reopen]
is committed to the unbridled discretion of the BIA, and the courts
lack jurisdiction to review that judgment." (internal quotation

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 First, Mazariegos presented an affidavit from his wife,

Lludelina Garcia, who had declined to testify during the removal

proceedings. In it, Garcia indicated that she and Mazariegos had

reconciled, that he provided financial and emotional support for

her and her daughter, that she regretted not attending the merits

hearing, and that she was now willing to testify in support of his

section 212(h) waiver.

Second, Mazariegos included an affidavit from his former

attorney. In it, the attorney stated that he failed to advise

Mazariegos that withholding of removal was an option and, in

retrospect, that was a mistake. Mazariegos then included a Form

I-589 application for withholding of removal, asylum, and

protection under the Convention Against Torture (CAT), citing as

grounds for relief the fact that a group of policemen in Guatemala

killed his grandfather and other family members, and threatened

his mother, forcing her to flee to the United States. Mazariegos

indicated that since the policemen were never caught, he would

fear for his life in Guatemala.

marks omitted)). However, though Mazariegos asked for sua sponte
relief, apparently thinking his motion untimely, the court deemed
the motion timely filed because the BIA's mailing address had
recently changed and "mail operations were modified to accommodate
that change." As a result, the BIA decided the motion as if it
were promptly filed, obviating the need for it to exercise sua
sponte powers. See 8 C.F.R. § 1003.2(c)(2) (providing that one
motion to reopen removal proceedings may be filed no later than
ninety days after the final administrative decision).

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 Based on the above evidence, Mazariegos asked the BIA to

reopen proceedings and remand the case to the IJ. DHS opposed the

motion.

The BIA sided with the government, issuing a written

decision a few months later denying the motion to reopen. While

the BIA acknowledged that Mazariegos's wife and stepchild were

qualifying relatives for purposes of the section 212(h) waiver

application, it was "not persuaded by the evidence before [it]

that [Mazariegos] merits the 212(h) waiver as a matter of

discretion in light of his criminal history." With respect to the

withholding of removal basis for reopening, the BIA held that the

"record and motion . . . lack evidence of conditions in Guatemala

to support reopening for asylum, withholding of removal, or

protection under the Convention Against Torture." And though

Mazariegos had submitted an affidavit from his former attorney,

the BIA concluded that he had not complied with the procedural

requirements for raising an ineffective assistance of counsel

claim under the controlling case, Matter of Lozada, 19 I. & N.

Dec. 637, 639 (BIA 1988), and in any event, did not show prejudice

as a result of his attorney's alleged error, since he did not

establish a prima facie case for withholding of removal. The BIA

concluded by noting that Mazariegos's motion also did not warrant

the court sua sponte reopening this matter as he did not

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"demonstrate that an exceptional situation is present . . .

especially in light of the negative discretionary factors."

Mazariegos petitioned this court for review of the BIA's

decision.

JURISDICTION

We start with a bone of contention. The government

claims we lack jurisdiction to review (what it calls) a purely

discretionary denial of a motion to reopen. The government misses

the mark.

The law it cites indeed provides that courts cannot

review the discretionary component of the Attorney General's

section 212(h) waiver decision. See 8 U.S.C. § 1182(h) (providing

that "[n]o court shall have jurisdiction to review a decision of

the Attorney General to grant or deny a waiver under this

subsection"); id. § 1252(a)(2)(B)(i) (barring review of "any

judgment regarding the granting of relief" under section 1182(h),

among others). However, we are not being asked to decide the

propriety of a decision to grant or deny the waiver. Recall,

Mazariegos never sought review of that decision. Rather, we are

considering whether the BIA erred in not reopening the proceedings,

a determination we do have jurisdiction over. See Mata v. Lynch,

___ S. Ct. ___, 2015 WL 2473335, at *4 (June 15, 2015) ("[C]ircuit

courts have jurisdiction when an alien appeals from the Board's

denial of a motion to reopen a removal proceeding."); Neves v.

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Holder, 613 F.3d 30, 33 (1st Cir. 2010) (per curiam) ("[D]ecisions

on motions to reopen proceedings, like other proceedings made

discretionary by regulation and not by statute, are generally

subject to judicial review." (citing Kucana v. Holder, 558 U.S.

233, 237, 253 (2010))). And that grant of jurisdiction does not

change simply because the BIA found that Mazariegos would not be

entitled, as a matter of discretion, to the relief he sought. See

Mata, ___ S. Ct. ___, 2015 WL 2473335, at *4 ("Under the INA, as

under our century-old practice, the reason for the BIA's denial

makes no difference to the jurisdictional issue.").

With that resolved, we proceed to the merits.

DISCUSSION

Because a motion to reopen removal proceedings is a

disfavored tool, given the threat it poses to finality, the BIA

has a fair amount of latitude to grant or deny the motion and our

review is for abuse of discretion only. Perez v. Holder, 740 F.3d

57, 61 (1st Cir. 2014). Essentially, the decision stands unless

the petitioner "can show that the BIA committed an error of law or

exercised its judgment in an arbitrary, capricious, or irrational

way." Raza v. Gonzales, 484 F.3d 125, 127 (1st Cir. 2007).

In order to establish eligibility for reopening, the

petitioner "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."

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Jutus v. Holder, 723 F.3d 105, 110 (1st Cir. 2013); see 8 U.S.C.

§ 1229a(c)(7)(B); 8 C.F.R. § 1003.2(c)(1).

Mazariegos claims two new pieces of evidence warranted

the BIA reopening his removal proceedings. First, he points us to

the affidavit from his wife submitted in support of a section

212(h) waiver and, second, to his application for asylum and

withholding of removal, along with the attendant attorney

affidavit explaining his failure to seek this relief earlier.5

A. Section 212(h) Waiver

Since a noncitizen seeking adjustment of status must,

among other things, be admissible to the United States, Mazariegos

has a problem. 8 U.S.C. § 1255(a). His convictions for crimes of

moral turpitude render him inadmissible. See id. §

1182(a)(2)(A)(i)(I). Therefore, he must turn to section 212(h),

which provides for a discretionary waiver of inadmissibility when

a noncitizen can show extreme hardship to a qualifying relative,

e.g., a United States citizen or lawfully resident spouse, parent,

or child. Id. § 1182(h)(1)(B).

5Mazariegos does not pursue his ineffective assistance of counsel
claim before this court and, so, this is the last time we mention
it. One more thing we need not delve into is Mazariegos's quick
invocation of the Due Process Clause at the close of his brief.
His claim that denial of the motion to reopen violated his right
to due process is unaccompanied by any developed argument or legal
support. See González-Morales v. Hernández-Arencibia, 221 F.3d
45, 48 n.3 (1st Cir. 2000) (failure to develop an argument waives
it).

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 As we said, Mazariegos sought to secure this waiver by

introducing an affidavit from his formerly estranged wife, which

set forth the impact his removal would have on her and her

daughter. The BIA, for its part, "acknowledge[d] that in addition

to his parents, who are lawful permanent residents, the

respondent's wife and his step child are qualifying relatives for

the purposes of the waiver." Nonetheless, it was "not persuaded

by the evidence before us that respondent merits the section 212(h)

waiver as a matter of discretion in light of his criminal history."

Mazariegos faults this approach. His primary argument to this

court is that the BIA gave him short shrift by not delving into

the hardship his wife and stepdaughter would face, likening it to

an error of law and an abuse of discretion. But the BIA's course

is an acceptable one.

The BIA acknowledged both the existence of the affidavit

and its relevance to the waiver application but it nevertheless

concluded that reopening was not warranted because, in light of

Mazariegos's criminal history, the new evidence would not change

his entitlement to the relief requested. This is a permissible

basis for denial. The BIA may deny a motion to reopen where it

determines that "the movant would not be entitled to the

discretionary grant of relief which he sought," even assuming he

had established a prima facie case for the relief and introduced

previously unavailable, material evidence. INS v. Doherty, 502

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U.S. 314, 323 (1992); see also Mariko v. Holder, 632 F.3d 1, 7

(1st Cir. 2011) (applying Doherty); 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."). Although

the BIA's analysis was brief, all that is required is that it

"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. Its treatment here satisfies this standard.

The remainder of Mazariegos's arguments get him no

further. Though he explicitly recognizes that the only decision

before this court is the denial of the motion to reopen, Mazariegos

devotes a good amount of attention to the BIA's initial adjustment

of status and waiver denial. For one, he criticizes the BIA for

not addressing whether removal would result in extreme hardship to

his parents, since it denied the request in the exercise of

discretion. However, that decision is not before us. Mazariegos

never petitioned for its review, and arguing that the BIA's initial

treatment of hardship laid a "faulty foundation" for its later

denial of his motion to reopen is not enough to bring the initial

decision within our purview.

Similarly misguided is his theory that the BIA

impermissibly treated him more harshly than a waiver applicant

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convicted of a violent or dangerous crime because he was

"pretermitted by the Board from showing any hardship at all,"

whereas applicants convicted of violent or dangerous crimes can

prevail in their waiver applications so long as they make a

heightened showing of hardship. See 8 C.F.R. §§ 212.7(d);

1212.7(d). Again, Mazariegos's focus is off, to say nothing of

the merits of the position. The regulations cited by Mazariegos

pertain to the Attorney General's decision to grant a 212(h)

waiver, in other words, not the target of this petition for review

of the denial of the motion to reopen.

The same goes for Mazariegos's argument that the BIA

misinterpreted his criminal history by failing to conduct an

analysis of whether his juvenile offenses constituted crimes. It

goes beyond the scope of this petition. The BIA's delineation of

Mazariegos's criminal history was made in the initial adjustment

of status and waiver denial, not in denying the motion to reopen.

There is no need to go further. That ends this aspect

of the case.

B. Asylum and Withholding of Removal

Mazariegos's other claimed basis for reopening was his

newly submitted I-589 Application for Asylum and Withholding of

Removal, a form of recourse he claims bad lawyering precluded him

from seeking earlier. In it, he sought asylum and/or withholding

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of removal based on the CAT.6 As grounds for relief, he indicated

that police officers in Guatemala had killed his grandfather, his

grandfather's sister, and his grandfather's nephew, the latter two

"because they were family members" of his grandfather. He also

stated that his mother started getting threatening phone calls

around this time, which prompted her to emigrate to the United

States. Mazariegos stated: "These police men were never captured.

Since I am a family member too, I fear they would threat [sic] me

or use me as a way to threaten my family. I would fear for my

life if I ever return to my home country."

By his own admission, Mazariegos's application was

"skeletal," nonetheless he claims that when one considers the

totality of the evidence, including the conditions in Guatemala,

he established a prima facie case for removal. To be clear,

Mazariegos provided no evidence of the current conditions in

Guatemala, which is why the BIA denied the motion to reopen. But

Mazariegos calls this error, contending the BIA should have taken

administrative notice of the country conditions.7 We disagree on

all counts.

6 The form also included options for asylum or withholding of
removal on the basis of race, religion, nationality, political
opinion, or membership in a particular social group, but Mazariegos
did not select any of these.
7 Specifically, Mazariegos cites the State Department's 2013
Country Conditions Report on Guatemala, which, among other things,
references police corruption and police involvement in crimes.

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 CAT relief requires the applicant to prove that it is

more likely than not that he will be tortured if returned to his

home country. Romilus v. Ashcroft, 385 F.3d 1, 8 (1st Cir. 2004);

8 C.F.R. § 208.16(c)(2). To establish a prima facie claim, "an

applicant must offer specific objective evidence showing that he

will be subject to: (1) an act causing severe physical or mental

pain or suffering; (2) intentionally inflicted; (3) for a

proscribed purpose; (4) by or at the instigation of or with the

consent or acquiescence of a public official who has custody or

physical control of the victim; and (5) not arising from lawful

sanctions." Romilus, 385 F.3d at 8 (internal quotation marks

omitted).

Aside from the statements in his I-589, Mazariegos did

not -- despite the form's instructions to do so -- provide any

specific facts to support his claim (e.g., where and when his

grandfather was killed), attach any documentary evidence to

bolster his contentions (e.g., affidavits from family members), or

include any evidence of the conditions in Guatemala (e.g., a

country conditions report).8 Nor did he attempt to explain the

8 The instructions provide: "To the best of your ability, provide
specific dates, places, and descriptions about each event or action
described. You must attach documents evidencing the general
conditions in the country from which you are seeking asylum or
other protection and the specific facts on which you are relying
to support your claim. If this documentation is unavailable or
you are not providing this documentation with your application,
explain why in your responses to the following question."

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absence of the required documents, again in violation of the form's

dictate.

Furthermore, while the BIA could have taken

administrative notice of the conditions in Guatemala, it was not

required to do so. See Yang Zhao-Cheng v. Holder, 721 F.3d 25, 28

(1st Cir. 2013) ("[A]lthough the BIA is empowered to take

administrative notice of commonly known facts such as current

events or the contents of official documents, it is not compelled

to do so.") (internal quotation marks omitted). On the contrary,

the burden of providing evidence to support both a motion to reopen

and a CAT claim lies squarely on the applicant. See 8 C.F.R. §

1003.2(c)(1) ("A motion to reopen proceedings . . . shall be

supported by affidavits or other evidentiary material."); id. §

1208.16(c)(2) ("The burden of proof is on the applicant for

withholding of removal under this paragraph to establish that it

is more likely than not that he or she would be tortured if removed

to the proposed country of removal.").

Mazariegos did previously submit to the IJ copies of his

grandfather's death certificate and a newspaper article about his

grandfather's death, which he draws our attention to now. But

Mazariegos does not explain how these documents, relating to a now

twenty-five year old murder, prove that it is "more likely than

not" that he would be tortured upon return to Guatemala. Romilus,

385 F.3d at 8. In fact, it is unclear whether the documents

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Mazariegos touts even support his contention that his grandfather

died at the hands of corrupt police. In the article, Mazariegos's

grandmother reported that her husband had been killed by "phantom

assassins" that had been terrorizing the area. And the testimony

of his mother before the IJ, which Mazariegos also points us to,

indicates that "some men" killed her father and that she left

Guatemala, not because of threatening phone calls, but because she

was understandably depressed after her father's death and wanted

to start fresh.

To sum things up: Mazariegos failed to offer any

documentary evidence in support of his application for CAT relief,

including any evidence of the conditions in Guatemala, and the

probative value of the modest amount of evidence submitted to the

IJ is questionable. We do not think the BIA abused its discretion

in deciding that this barebones showing was not enough to establish

a prima facie case of entitlement to relief. Left without that

crucial prima facie case, the BIA correctly concluded that

reopening was not warranted. See Jutus, 723 F.3d at 110 (providing

that, to justify reopening, the petitioner "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").

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 CONCLUSION

For the reasons laid out above, the BIA's denial of the

motion to reopen was not an abuse of discretion. We deny the

petition for review.

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