United States Court of Appeals
For the First Circuit
No. 12-1121
JESUS ARISTE MARTINEZ-LOPEZ,
Petitioner,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Boudin,* Selya and Stahl,
Circuit Judges.
Sarita Rivera-Sasa and Rivera Sasa Immigration Law Offices on
brief for petitioner.
Stuart F. Delery, Acting Assistant Attorney General, Civil
Division, Ada E. Bosque, Senior Litigation Counsel, Office of
Immigration Litigation and Jem C. Sponzo, Trial Attorney, Office of
Immigration Litigation, on brief for respondent.
January 4, 2013
*
Judge Boudin heard oral argument in this matter and
participated in the semble, but he did not participate in the
issuance of the panel's opinion. The remaining two panelists
issued the opinion pursuant to 28 U.S.C. § 46(d).
SELYA, Circuit Judge. This petition for judicial review
poses a question of first impression in this circuit: may an alien
whose application for withholding of removal has been denied by the
Board of Immigration Appeals (BIA) proffer, as the basis for a
motion to reconsider, a ground for relief which, though previously
available, was not previously asserted? The BIA answered this
question in the negative, and so do we.
The petitioner, Jesus Ariste Martinez-Lopez, is a
Salvadoran national who entered the United States without
inspection in 2004. Approximately three years later, the
Department of Homeland Security placed him in removal proceedings.
See 8 U.S.C. § 1182(a)(6)(A)(i). The petitioner conceded
removability and cross-applied for asylum, withholding of removal,
and protection under the United Nations Convention Against Torture
(CAT).
At a hearing before an immigration judge (IJ), the
petitioner testified that he left El Salvador to avoid the violence
endemic in gang recruitment and that he fears returning because
such violence persists. He added that his younger siblings and
nephews, who remain in El Salvador, have been targeted for
recruitment. The gangs persevere in their enlistment efforts even
though the petitioner's family (himself included) is composed
entirely of practicing Christians and the gangs purport to respect
Christian values.
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The IJ made no specific credibility determination, and we
will assume that the IJ deemed the petitioner's testimony generally
credible. See id. § 1229a(c)(4)(C). The IJ nonetheless found that
being targeted for gang recruitment, without more, did not afford
a sufficient basis for the relief requested. Consequently, the IJ
denied the petitioner's cross-application and entered an order of
removal.
The petitioner appealed to the BIA.1 He noted that,
pursuant to statute, the Attorney General must withhold removal
when "the alien's life or freedom would be threatened . . . because
of the alien's race, religion, nationality, membership in a
particular social group, or political opinion." Id.
§ 1231(b)(3)(A). "[W]orking Salvadoran male[s] who [were] not []
gang member[s] and who refuse[] to join [] gang[s]," he asserted,
constitute a "particular social group." Thus, threats to his life
or freedom because of his membership in that group precluded his
removal. The BIA rejected this assertion and affirmed the IJ's
decision, holding that persons who resist gang recruitment do not
constitute a "particular social group," membership in which would
bar removal.2
1
The petitioner did not contest either the denial of his
asylum application (which had been found to be time-barred) or the
denial of CAT protection. Consequently, we eschew any further
reference to those claims.
2
This holding appears to be consistent with relevant
precedent. See, e.g., Mendez-Barrera v. Holder, 602 F.3d 21, 26-27
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The petitioner did not file a petition for judicial
review of this decision within the time allotted. See id.
§ 1252(b)(1). He did, however, file a timely motion to reconsider
the order denying withholding of removal. See id. § 1229a(c)(6);
8 C.F.R. § 1003.2(b). In support, he argued, for the first time,
that his family constituted a particular social group and that he
feared persecution on account of his family membership. He also
argued, again for the first time, that he feared persecution based
on his (and his family's) strong religious beliefs.
The BIA denied the petitioner's motion for
reconsideration because the motion did not identify any error of
fact or law in the BIA's original decision. Rather, it
improvidently attempted to inject into the case new theories of
relief not previously asserted. Summarizing its position with
conspicuous clarity, the BIA declared that a "motion to reconsider
is not a vehicle for a second attempt at an appeal to raise new
arguments which could have been, but were not, previously raised."
This timely petition for judicial review followed. The
only ruling under review is the BIA's denial of the motion to
reconsider; the original order denying withholding of removal is
not before us.
The statute authorizing motions to reconsider in the
immigration context is 8 U.S.C. § 1229a(c)(6). An implementing
(1st Cir. 2010).
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regulation, 8 C.F.R. § 1003.2(b), elaborates upon this baseline
provision. Under the terms of the regulation, "[a] motion to
reconsider shall state the reasons for the motion by specifying the
errors of fact or law in the prior [BIA] decision and shall be
supported by pertinent authority." Id.
Our review of the denial of a motion to reconsider is for
abuse of discretion. See INS v. Doherty, 502 U.S. 314, 323-24
(1992); Liu v. Mukasey, 553 F.3d 37, 40 (1st Cir. 2009). This is
a deferential standard, and we will find an abuse of discretion
only when the "denial was made without a rational explanation,
inexplicably departed from established policies, or rested on an
impermissible basis." Zhang v. INS, 348 F.3d 289, 293 (1st Cir.
2003) (internal quotation marks omitted).
The petitioner envisions an abuse of discretion in the
BIA's supposed departure from the policy limned in In re Cerna, 20
I. & N. Dec. 399, 402 n.2 (BIA 1991) (describing a motion to
reconsider as "a request that the [BIA] reexamine its decision in
light of additional legal arguments, a change of law, or perhaps an
argument or aspect of the case which was overlooked" (internal
quotation marks omitted)). In the petitioner's view, his new
theories of relief comprise "additional legal arguments" within the
Cerna framework.
The passage of time has eclipsed the petitioner's plaint.
In Cerna, the BIA was applying an older, more fluid version of the
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regulation elaborating upon the elements of a motion to reconsider.
Id. at 401-02 (citing 8 C.F.R. § 3.8 (1991) (amended 1996)).
Unlike the current version, the regulation then in force did not
require that motions to reconsider "specify[] the errors of fact or
law in the prior [BIA] decision." 8 C.F.R. § 1003.2(b) (emphasis
supplied). Instead, the regulation merely required that a motion
to reconsider "state the reasons upon which the motion is based."
8 C.F.R. § 3.8 (1991) (amended 1996).
To be sure, even after changes in the regulation were
made, courts sometimes treated Cerna as authoritative. See, e.g.,
Asemota v. Gonzales, 420 F.3d 32, 33-34 (1st Cir. 2005). But the
BIA clarified the situation in In re O-S-G, 24 I. & N. Dec. 56 (BIA
2006). There, the BIA made clear that the "additional legal
arguments" referenced in Cerna cannot relate to grounds for relief
not previously asserted. Id. at 58. The BIA stated flatly that
motions to reconsider are intended only to cure errors (factual or
legal) in the prior BIA decision. Id. Under this approach, "[a]
motion to reconsider is not a mechanism by which a party may file
a new brief before the [BIA] raising additional legal arguments
that are unrelated to those issues raised before the [IJ] and on
appeal" or arguments that "could have been raised earlier in the
proceedings." Id. This gloss is wholly consistent with the text
of the implementing regulation as it now stands. See 8 C.F.R.
§ 1003.2(b)(1).
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The revisions in the regulatory format and the BIA's
decision in O-S-G combine to refute the argument made by the
petitioner. Both the motion for reconsideration at issue here and
the BIA's denial of it occurred in 2011. At that point in time,
the BIA's denial of a motion to reconsider that depends on
arguments not previously advanced was not a departure from its
established policy. To the contrary, such a ruling comported with
the current text of the regulation and the BIA's holding in O-S-G
that a motion to reconsider is not an appropriate vehicle for
introducing new grounds of relief into a case.
In upholding the BIA's exercise of its discretion to deny
reconsideration based on grounds previously available but not
previously asserted, we do not write on a pristine page. Seven
other courts of appeals have grappled with this question and have
held, as we do, 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. Three of these courts have reached this
result in published opinions. See Raghunathan v. Holder, 604 F.3d
371, 378 (7th Cir. 2010); Omari v. Holder, 562 F.3d 314, 319 (5th
Cir. 2009); Membreno v. Gonzales, 425 F.3d 1227, 1230 n.5 (9th Cir.
2005) (en banc). Four others have come to the same conclusion
albeit in unpublished opinions. See Rodriguez-Lopez v. U.S. Att'y
Gen., 454 F. App'x 734, 736-37 (11th Cir. 2011) (per curiam); Zhao
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Lu Xuan v. Mukasey, 278 F. App'x 45, 46-47 (2d Cir. 2008); Ortega
v. Att'y Gen. of U.S., 159 F. App'x 357, 360 (3d Cir. 2005) (per
curiam); Xie v. Ashcroft, 119 F. App'x 516, 517 (4th Cir. 2005)
(per curiam).
In the case at hand, the BIA's order was in line with the
framework erected in 8 C.F.R. § 1003.2(b)(1) and embraced in O-S-G.
The petitioner's belated claims that he fears persecution based on
his family membership or his religion are entirely new. These
claims could have been brought at the inception of the removal
proceedings, but the petitioner did not advance them at or near
that time. Instead, he waited until his original claims were heard
and rejected by both the IJ and the BIA. He then attempted to
switch horses in midstream. Because his new claims are separate
and distinct from the claims that he unsuccessfully asserted before
the IJ and the BIA, the BIA did not abuse its discretion in
dismissing his motion to reconsider.
We add a coda. The BIA's policy regarding motions to
reconsider is not only lawful but also wise. It would be imprudent
to invite an alien to put forth some claims for relief but allow
him to keep others in reserve in case his original claims proved
unavailing. Claim-splitting ought not to be encouraged; finality
is an important consideration in the administration of justice, and
removal proceedings — like other types of judicial and quasi-
judicial proceedings — must reach an end-point. Common sense
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suggests that there should be reasonable limits on how far down the
road a party can go and still be permitted to change horses in
hopes of finding a swifter steed. The BIA's present approach to
the handling of motions to reconsider creates such a reasonable
limit.
We need go no further. For the reasons elucidated above,
we deny the petition for judicial review.
So Ordered.
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