Diaz v. Sessions

• Citation: 880 F.3d 244
• Decision Date: 17 January 2018
• Docket Number: No. 17-3669,17-3669
• Parties: Maribel TRUJILLO DIAZ, Petitioner, v. Jefferson B. SESSIONS, III, Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

880 F.3d 244

Maribel TRUJILLO DIAZ, Petitioner,

v.Jefferson B. SESSIONS, III, Attorney General, Respondent.

No. 17-3669

United States Court of Appeals, Sixth Circuit.

Decided and Filed: January 17, 2018

ON BRIEF: Kathleen C. Kersh, Emily M. Brown, ADVOCATES FOR BASIC LEGAL EQUALITY, INC., Dayton, Ohio, for Petitioner. Brooke M. Maurer, OFFICE OF IMMIGRATION LITIGATION, Washington, D.C., for Respondent.

Before: MERRITT, MOORE, and BUSH, Circuit Judges.

JOHN K. BUSH, Circuit Judge.

In this immigration case, Maribel Trujillo Diaz petitions for review of an order denying her motion to reopen removal proceedings. The United States Board of Immigration Appeals ("BIA") ruled that Trujillo Diaz failed to establish a prima facie case of eligibility for asylum or withholding of removal under the Immigration and Nationality Act ("INA" or "Act") because she failed to show that she would be singled out individually for persecution based on her family membership. The BIA reiterated this finding in ruling that Trujillo Diaz failed to establish a prima facie case of eligibility for protection under the Convention Against Torture. Because the BIA failed to credit the facts stated in Trujillo Diaz's declarations, and this error undermined its conclusion as to the sufficiency of Trujillo Diaz's prima facie evidence, we hold that the BIA abused its discretion. We further hold that the BIA abused its discretion in summarily rejecting Trujillo Diaz's argument that she could not safely relocate internally in Mexico for purposes of showing a prima facie case of eligibility for relief under the Convention Against Torture. Thus, we vacate the order of the BIA and remand for further proceedings consistent with this opinion.

I

Petitioner Trujillo Diaz is a Mexican citizen who entered the United States in February 2002. She was apprehended by Immigration and Customs Enforcement ("ICE") in 2007 and placed in removal proceedings. On July 11, 2012, Trujillo Diaz had a merits hearing in her immigration proceeding. She sought asylum, withholding of removal under the INA, withholding of removal under the Convention Against Torture, and voluntary departure. During her hearing, Trujillo Diaz testified that she feared for her safety in Mexico because she believed the drug cartel, La Familia, would seek revenge against her and her family for her brother's refusal to work for them and his subsequent fleeing to the United States.

The immigration judge found that Trujillo Diaz's asylum application was untimely filed, rendering her ineligible for asylum and requiring her claim to be assessed under the higher "clear probability of persecution" standard for withholding of removal. Although he found Trujillo Diaz to be a credible witness, the immigration judge ultimately denied her application for asylum and withholding-of-removal relief but granted her request for voluntary departure. In finding that she could not meet her burden of proof to establish a clear probability of future persecution, the immigration judge relied on the fact that the cartel had not harmed or threatened her or anyone else in her immediate family besides her brother who refused to join the cartel. Trujillo Diaz filed an appeal, but in May 2014, the BIA dismissed it, again reiterating that she had not established a clear probability of persecution in Mexico because "her parents and two siblings ha[d] not been harmed by the gang." Trujillo Diaz did not file a petition for review.

Nevertheless, Trujillo Diaz was allowed to remain in the United States under an ICE order of supervision. She received work authorization and remained here until April 2017. During this time, she regularly reported to her prescheduled ICE check-ins.

In February 2017, Trujillo Diaz learned that her father had been kidnapped by the Knights Templar, a Mexican cartel. According to Trujillo Diaz's father, during his kidnapping, his captors told him they were looking for "Omar Daniel," Trujillo Diaz's brother, who had previously refused to join the La Familia cartel. "The men" told him that they "wanted to find Omar Daniel because they were upset that he would not work for the gang" and that "[t]hey were very angry that they could not find Omar Daniel because he had fled to the United States." They mentioned Trujillo Diaz by name, telling her father that they "knew [he] was the father of Omar Daniel and Maribel," and that they "knew that Maribel had gone to the United States too." They threatened to "hurt the rest of [his] family if they could not get their hands on Omar Daniel and Maribel."

Based on this new information, Trujillo Diaz filed a motion to reopen her immigration proceedings and a motion to stay removal. Because her motion to reopen was filed years after her removal proceedings had closed, she sought reopening under an exception to the time limit based on changed country conditions in Mexico. Along with her evidence of changed country conditions, Trujillo Diaz also filed, among other things, a personal declaration, a declaration from her father in which he described his kidnapping, and a declaration from an expert witness concerning the threat of future harm to Trujillo Diaz at the hands of the Knights Templar because of her brother's failure to comply with the cartel's demands. In her motion, Trujillo Diaz alleged that she feared returning to Mexico because she believed that the Knights Templar cartel that kidnapped her father was targeting her and her family to get revenge for her brother's fleeing the country after refusing to join the La Familia cartel.

Two days after she filed her motions, ICE apprehended Trujillo Diaz outside her home, detained her, and scheduled her removal for April 11, 2017. On April 10, the BIA denied her stay of removal but took no action on her motion to reopen. Trujillo Diaz filed a petition for review of the denial of the stay and an emergency motion to stay removal. This court denied her motion to stay and dismissed the petition for review on April 11, 2017. Trujillo Diaz was deported eight days later.

On May 24, 2017, the BIA denied Trujillo Diaz's motion to reopen her removal proceedings, finding that she had not demonstrated prima facie eligibility for asylum, withholding of removal, or protection under the Convention Against Torture.¹ This petition for review followed.

II

A. Standard of Review

We review the BIA's denial of a motion to reopen immigration proceedings for abuse of discretion. Alizoti v. Gonzales , 477 F.3d 448, 451 (6th Cir. 2007). We will find an abuse of discretion if the BIA's denial "was made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis such as invidious discrimination against a particular race or group." Allabani v. Gonzales , 402 F.3d 668, 675 (6th Cir. 2005) (citation omitted). In determining whether the BIA abused its discretion, we look only at "the basis articulated in the decision and [we] may not assume that the [BIA] considered factors that it failed to mention in its opinion." Daneshvar v. Ashcroft , 355 F.3d 615, 626 (6th Cir. 2004).

B. Discussion

Motions to reopen immigration proceedings are generally "disfavored," in light of the strong public interest in the finality of removal orders. INS v. Doherty , 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992) ; INS v. Abudu , 485 U.S. 94, 107–08, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988) ("Granting such motions too freely will permit endless delay of deportation by aliens creative and fertile enough to continuously produce new and material facts sufficient to establish a prima facie case." (quoting INS v. Jong Ha Wang , 450 U.S. 139, 143 n.5, 101 S.Ct. 1027, 67 L.Ed.2d 123 (1981) )). Evincing the importance of finality, both temporal and numerical limits apply to motions to reopen. See 8 U.S.C. § 1229a(c)(7)(A), (C) ; 8 C.F.R. § 1003.2(c). Generally, a motion to reopen must be filed within ninety days of the final administrative decision. 8 U.S.C. § 1229a(c)(7)(C)(i) ; 8 C.F.R. § 1003.2(c)(2).

There is an exception to these temporal and numerical limits, however, for motions "based on changed country conditions arising in the country of nationality or the country to which removal has been ordered, if such evidence is material and was not available and would not have been discovered or presented at the previous proceeding." 8 U.S.C. § 1229a(c)(7)(C)(ii) ; 8 C.F.R. § 1003.2(c)(3) ; Alizoti , 477 F.3d at 451–52 ; Haddad v. Gonzales , 437 F.3d 515, 517–18 (6th Cir. 2006). Trujillo Diaz filed her motion to reopen under this "changed country conditions" exception.

The Supreme Court has identified "at least three independent grounds on which the BIA might deny a motion to reopen—failure to establish a prima facie case for the relief sought, failure to introduce previously unavailable, material evidence, and a determination that even if these requirements were satisfied, the movant would not be entitled to the discretionary grant of relief which he sought." Zhang v. Mukasey , 543 F.3d 851, 854 (6th Cir. 2008) (quoting Doherty , 502 U.S. at 323, 112 S.Ct. 719 ). When the board denies relief on a particular ground, we review only that ground. See Daneshvar , 355 F.3d at 626 ; Hernandez-Ortiz v. INS , 777 F.2d 509, 517 (9th Cir. 1985) ("When the Board restricts its decision [refusing to reopen] to whether the alien has established a prima facie case it is only this basis for its decision that we review."); see also Fed. Power Comm'n v. Texaco Inc. , 417 U.S. 380, 397, 94 S.Ct. 2315, 41 L.Ed.2d 141 (1974) ("[A]n agency's order must be upheld, if at all, on the same basis articulated in the order by the agency itself." (internal quotation marks omitted)).

The BIA denied Trujillo Diaz's motion to reopen on the ground that she failed to establish a prima facie case for any of the relief she sought: asylum, withholding of removal under the INA, or withholding of removal under the Convention Against Torture. As explained below, we find that the BIA...