United States Court of Appeals
For the First Circuit
No. 06-1628
LAURA LEMUS ET AL.,
Petitioners,
v.
ALBERTO R. GONZALES, ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE BOARD
OF IMMIGRATION APPEALS
Before
Lipez, Circuit Judge,
Newman* and Selya, Senior Circuit Judges.
Stephen Pegman, Stephen A. Lagana, and Lagana & Associates on
brief for petitioner.
Peter D. Keisler, Assistant Attorney General, Civil Division,
Patricia A. Smith, Senior Litigation Counsel, and Terri León-
Benner, Trial Attorney, Office of Immigration Litigation, on brief
for respondent.
June 6, 2007
__________
*Hon. Pauline Newman, of the Federal Circuit, sitting by
designation.
SELYA, Senior Circuit Judge. The petitioner, Laura
Lemus, seeks judicial review of an order of the Board of
Immigration Appeals (BIA) denying her fifth motion to reopen a
removal proceeding.1 She asserts that the BIA abused its
discretion by failing to find changed circumstances in her
homeland. The petition for review is meritless.
The underlying facts are relatively uncomplicated. The
petitioner is a Guatemalan national. She entered the United States
as a visitor on May 8, 1993, and overstayed. On June 1, 1999,
federal authorities initiated a removal proceeding against her.
See 8 U.S.C. § 1227(a)(1)(B).
The petitioner conceded removability and cross-applied
for asylum and withholding of removal. She claimed a well-founded
fear of persecution should she be returned to Guatemala. She
premised that claim on her past political activity there.
On March 3, 2000, an immigration judge denied the
petitioner's cross-application and ordered her removal. The
judge's rulings were based largely on an adverse credibility
determination.
The petitioner appealed to the BIA but failed to submit
a timely brief. With that in mind, the BIA summarily affirmed the
1
The petitioner's husband and children were named as tagalongs
in her cross-application for asylum and withholding of removal.
Because their claims are wholly derivative, we refer only to the
petitioner.
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immigration judge's decision. The petitioner did not seek judicial
review of the BIA's decision, which became final in due course.
There followed a virtual barrage of motions to reopen.
Four times the petitioner endeavored to reopen the proceedings, and
four times the BIA rebuffed her endeavors. Twice, the petitioner
unsuccessfully sought judicial review of orders denying motions to
reopen.
We fast-forward to December 19, 2005. On that date, the
petitioner filed her fifth motion to reopen. Like most of her
earlier motions, this motion alleged changed country conditions in
her homeland.2 On March 16, 2006, the BIA denied this motion on
the grounds that it was untimely, not subject to any statutory or
regulatory exception to the filing deadline, and in all events not
material because it represented an attempt "to present updated
information regarding country conditions to reinforce her original
claim" rather than changed circumstances per se. This petition for
judicial review followed.
We need not tarry. Motions to reopen removal proceedings
are disfavored as contrary to "the compelling public interests in
finality and the expeditious processing of proceedings." Falae v.
Gonzales, 411 F.3d 11, 14-15 (1st Cir. 2005). Consequently, the
2
This time, the petitioner alleged that the change in
circumstances was based upon the Guatemalan government's admission,
in July of 2004, of responsibility for the earlier assassination of
Jorge Carpio-Nicolle, the founder of the political party to which
the petitioner belonged.
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BIA enjoys a broad measure of latitude in passing upon such
motions. See INS v. Doherty, 502 U.S. 314, 323 (1992). Judicial
review is exclusively for abuse of discretion. See Roberts v.
Gonzales, 422 F.3d 33, 35 (1st Cir. 2005). This means that such a
decision will be upheld "unless the complaining party can show that
the BIA committed an error of law or exercised its judgment in an
arbitrary, capricious, or irrational way." Raza v. Gonzales, ___
F.3d ___, ___ (1st Cir. 2007) [No. 06-1762, slip op. at 5].
An alien normally may file only one motion to reopen a
removal proceeding — and that motion must be filed within ninety
days of the rendition of the final administrative decision. See 8
C.F.R. § 1003.2(c)(2). In other words, "motions to reopen are
limited both numerically (one to a customer) and temporally (a
ninety-day window)." Raza, ___ F.3d at ___ [slip op. at 5].
Because the final administrative decision in this case was entered
by the BIA on October 30, 2001, the instant motion was well out of
time. And because no fewer than four motions to reopen preceded
it, the instant motion was numerically barred as well.
To be sure, these temporal and numerical limitations
admit of an exception for motions to reopen that rest solidly upon
changed circumstances. See 8 C.F.R. § 1003.2(c)(3); see also
Roberts, 422 F.3d at 36. "Under this rubric, the agency may waive
numerical and temporal bars to reopening if an alien makes a
convincing demonstration of changed conditions in his homeland."
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Raza, ___ F.3d at ___ [slip op. at 6]. It is this exception that
the petitioner seeks to exploit.
She does not succeed. As the BIA pointed out, the
petitioner does not really contend that country conditions in
Guatemala have worsened since the BIA ordered her removal. Rather,
she proffers materials designed to persuade the BIA that its
original assessment of country conditions was incorrect. Evidence
that merely contradicts the BIA's appraisal of country conditions
without showing that, over time, those conditions have worsened is
insufficient to vault a motion to reopen over the temporal and
numerical hurdles erected by the regulations. See, e.g., Zhao v.
Gonzales, 440 F.3d 405, 407 (7th Cir. 2005); Betouche v. Ashcroft,
357 F.3d 147, 152 (1st Cir. 2004). To cinch matters, the newly
proffered information does nothing to rehabilitate the petitioner's
failed credibility — and as said, the final administrative decision
in this case hinged mainly on an adverse credibility determination.
We need go no further. Once removal has been mandated,
an alien ought not to be allowed to frustrate the removal order by
filing an endless series of motions. This is the fifth time that
the petitioner has gone to the well; her incessant stream of
motions to reopen has thus far delayed the execution of the removal
order for some five and one-half years. Common sense suggests that
we bring these proceedings to as swift a conclusion as the
interests of justice will permit. The aphorist tells us that hope
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springs eternal, but entreaties for judicial relief founded on hope
alone, unaccompanied by any semblance of respectable factual or
legal support, should not be encouraged.
The petition for judicial review is denied.
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