United States Court of Appeals
For the First Circuit
No. 14-1970
JOSÉ MIGUEL MEJÍA-RAMAJA,
Petitioner,
v.
LORETTA E. LYNCH,*
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent.
PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Selya and Lynch,
Circuit Judges.
Randy Olen on brief for petitioner.
Benjamin C. Mizer, Principal Deputy Assistant Attorney
General, Civil Division, United States Department of Justice,
Jesse M. Bless, Senior Litigation Counsel, Office of Immigration
Litigation, and Alexander J. Lutz, Trial Attorney, Office of
Immigration Litigation, on brief for respondent.
November 20, 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.
SELYA, Circuit Judge. The sole issue in this immigration
case is whether the Board of Immigration Appeals (BIA) abused its
discretion in declining to reopen the petitioner's removal
proceedings. After careful consideration, we conclude that the
BIA acted well within the realm of its discretion. Accordingly,
we deny the petition for judicial review.
We briefly rehearse the travel of the case. The
petitioner, José Miguel Mejía-Ramaja, is a Guatemalan national.
He entered the United States without inspection in 2003. Roughly
two years later, federal authorities instituted removal
proceedings against him. See 8 U.S.C. § 1182(a)(6)(A)(i).
The petitioner conceded removability and cross-applied
for withholding of removal and protection under the United Nations
Convention Against Torture (CAT). Following an evidentiary
hearing held on December 22, 2010, the Immigration Judge (IJ)
denied the petitioner's cross-applications and ordered him removed
to Guatemala.
The petitioner appealed to the BIA. After full briefing,
the BIA denied his appeal on February 26, 2013. Judicial review
was not sought, and the order for removal became final.
More than a year elapsed. Then — on March 31, 2014 —
the petitioner filed a motion to reopen his removal proceedings.
In his motion papers, he alleged in substance that country
conditions in his homeland had changed for the worse and that he
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had new evidence to submit in support of his applications for
withholding of removal and CAT protection.
On August 19, 2014, the BIA denied the motion to reopen.
It held that the motion was untimely and that, in all events, the
petitioner had not made a sufficient showing to warrant reopening
the removal proceedings. This timely petition for judicial review
ensued.
We review the BIA's denial of a motion to reopen removal
proceedings for abuse of discretion. See Kucana v. Holder, 558
U.S. 233, 242 (2010); Xue Su Wang v. Holder, 750 F.3d 87, 89 (1st
Cir. 2014). We conclude, without serious question, that the BIA's
assessment of the timeliness of the motion to reopen in this case
was not an abuse of discretion.
Normally, a motion to reopen immigration proceedings
must be filed within 90 days of the entry of the final order of
removal. See Meng Hua Wan v. Holder, 776 F.3d 52, 56 (1st Cir.
2015); 8 C.F.R. § 1003.2(c)(2). The petitioner's motion was filed
well past this 90-day limit. But there is an exception open to an
alien (like the petitioner) who has applied, inter alia, for
withholding of removal. This exception is available when the
motion to reopen is "based on changed circumstances arising in
. . . the country to which deportation has been ordered." 8 C.F.R.
§ 1003.2(c)(3)(ii).
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To invoke this exception, the alien must adduce new and
material evidence that was not, in the exercise of reasonable
diligence, available at the time of his original removal hearing.
See Perez v. Holder, 740 F.3d 57, 62 (1st Cir. 2014); 8 C.F.R.
§ 1003.2(c)(3)(ii). The petitioner labors to mitigate the lateness
of his motion by invoking this exception. The BIA found this
effort unavailing and, thus, found the exception inapplicable. We
agree.
As we have said, an alien seeking to reopen removal
proceedings on the ground of changed country conditions must point
to new and material evidence — "evidence that was not available at
the original merits hearing." Perez, 740 F.3d at 62; see Sugiarto
v. Holder, 761 F.3d 102, 103 (1st Cir. 2014). "In determining if
evidence submitted in support of a motion to reopen demonstrates
a material change in country conditions justifying reopening of
proceedings, the . . . [BIA] compares the evidence of country
conditions submitted with the motion to those that existed at the
time of the merits hearing below." Haizem Liu v. Holder, 727 F.3d
53, 57 (1st Cir. 2013) (citing In re S-Y-G-, 24 I.&N. Dec. 247,
253 (BIA 2007)). If the evidence reveals no more than a
continuation of previously existing conditions, the evidence is
inadequate to show changed country conditions. See Sugiarto, 761
F.3d at 104; Fen Tjong Lie v. Holder, 729 F.3d 28, 31 (1st Cir.
2013).
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In this case, the relevant period spans the interval
from December 22, 2010 (the date of the petitioner's merits
hearing) to March 31, 2014 (the date when petitioner filed his
motion to reopen). At the merits hearing, the IJ referred to a
State Department report of country conditions in 2009 (the latest
such report that was then available). The petitioner does not
contend that the 2013 country conditions report reflects any
material change in those conditions. Nor could he: while the 2013
report paints an unattractive picture of life in Guatemala, that
picture shows nothing more than a continuation of the pattern of
negative conditions — including rampant crime, poorly controlled
violence, and police corruption — that has plagued Guatemala for
several years. The 2009 report and the other evidence adduced at
the petitioner's 2010 removal hearing painted much the same
picture.1 That conditions have failed to improve is not enough to
show that they have changed. See Sugiarto, 761 F.3d at 104.
In an endeavor to alter the trajectory of the debate,
the petitioner avers that, in 2013, a gas station in Guatemala
that he and his brothers owned was attacked; masked men armed with
1For example, at the 2010 removal hearing, the petitioner
submitted a working paper describing Guatemala as "a vicious state
of nature," which was "wracked by some of the worst crime rates in
the world" and where "security forces are unable to staunch a tide
of criminal violence." This is not materially different from the
Guatemala portrayed in submissions accompanying the petitioner's
motion to reopen.
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high-powered firearms entered the premises and shot three people
(killing one). The marauders proceeded to steal money and
property. The petitioner argues that his account of the attack is
new and material evidence that manifests changed country
conditions.
This argument lacks force. In contrast to the cases
that the petitioner cites (in which specific incidents were
indicative of a broader conclusion that country conditions had
deteriorated),2 the robbery at the gas station was merely one more
ugly episode in a continuing pattern of crime and violence that
has existed in Guatemala for several years. Consequently, the BIA
did not abuse its discretion by denying the petitioner's motion to
reopen as untimely. See 8 U.S.C. § 1229a(c)(7)(C); 8 C.F.R. §
1003.2(c)(3)(ii); see also Jutus v. Holder, 723 F.3d 105, 110 (1st
Cir. 2013).
As a fallback, the petitioner submits that the BIA
applied the wrong legal standard in refusing to reopen his case.
But that argument, as phrased, does not go to the timeliness of
the motion but, rather, to the merits. Inasmuch as we have
determined that the BIA's decision to deny the motion as untimely
was not an abuse of discretion, we need not reach the BIA's
2
See, e.g., Smith v. Holder, 627 F.3d 427, 431-32 (1st Cir.
2010); Malty v. Ashcroft, 381 F.3d 942, 946 (9th Cir. 2004);
Ananeh-Firempong v. INS, 766 F.2d 621, 626 (1st Cir. 1985).
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additional holding concerning the merits of the motion. See Perez,
740 F.3d at 62; Jutus, 723 F.3d at 110. It is, therefore,
irrelevant whether the BIA used the appropriate legal standard in
appraising the merits of the motion to reopen.
We need go no further. For the reasons elucidated above,
the petition for judicial review is denied.
So Ordered.
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