Garcia-Aguilar v. Whitaker

• Decision Date: 16 January 2019
• Docket Number: No. 18-1086,18-1086
• Citation: 913 F.3d 215
• Parties: Maria Leticia GARCIA-AGUILAR, Petitioner, v. Matthew G. WHITAKER, Acting Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

913 F.3d 215

Maria Leticia GARCIA-AGUILAR, Petitioner,

v.Matthew G. WHITAKER, Acting Attorney General,^* Respondent.

No. 18-1086

United States Court of Appeals, First Circuit.

January 16, 2019

Randy Olen on brief for petitioner.

Joseph H. Hunt, Assistant Attorney General, Civil Division, Ernesto H. Molina, Jr., Deputy Director, Office of Immigration Litigation, and Nancy N. Safavi, Trial Attorney, Office of Immigration Litigation, on brief for respondent.

Before Thompson, Selya, and Barron, Circuit Judges.

SELYA, Circuit Judge.

The petitioner, Maria Leticia Garcia-Aguilar, is a Mexican national. She seeks judicial review of a decision of the Board of Immigration Appeals (BIA) denying her untimely motion to reopen removal proceedings — a motion grounded upon her claim that country conditions in her native land had materially changed, thus making her newly eligible for asylum. After careful consideration, we deny the petition.

We set the stage. The petitioner entered the United States illegally in 2005 near El Paso, Texas. Following a 2007 raid at the factory where she worked, the Department of Homeland Security initiated removal proceedings against her. The petitioner denied the factual allegations underpinning the government's case for removal. Relatedly, she moved to suppress some of the evidence upon which the government sought to rely, claiming that the evidence had been procured in violation of her constitutional rights.

On August 11, 2009, the petitioner's first merits hearing was held before an immigration judge (IJ). The IJ denied the motion to suppress, ordered the petitioner removed to Mexico, and granted her the privilege of voluntary departure. The petitioner appealed to the BIA, which vacated the IJ's decision and remanded the case for reconsideration of the motion to suppress, including the underlying constitutional issues.

The petitioner had another merits hearing on February 17, 2012. The IJ reconsidered facts pertinent to the petitioner's motion to suppress and determined that the evidence used against her was admissible. In the end, the results of this second merits hearing reprised the results of the petitioner's first merits hearing: on February 1, 2013, the IJ denied the petitioner's motion to suppress, ordered her removed, and granted voluntary departure.

Once again, the petitioner appealed the IJ's decision to the BIA. Nearly a year later, the BIA upheld the IJ's decision. Undaunted, the petitioner sought judicial review. See 8 U.S.C. § 1252(b)(4). On November 25, 2015, we denied her petition. See Garcia-Aguilar v. Lynch, 806 F.3d 671, 677 (1st Cir. 2015).

The matter did not end there. Almost two years later (on August 28, 2017), the petitioner filed a motion to reopen, arguing that a dramatic shift in conditions in Mexico — specifically, an increase in kidnappings and murders due to violence associated with drug cartels and gangs — made her newly eligible for asylum. In support of her nascent asylum claim, she alleged a fear of persecution based on her imputed "American nationality." To flesh out this claim, she further alleged that she had lived in the United States since 2005; that she was the mother of an American-born child; and that she had an older child who, though born in Mexico, had resided in the United States since infancy.

The BIA denied the motion to reopen. It noted that the motion was untimely and went on to hold that the evidence that the petitioner submitted failed to achieve the level of proof needed for the granting of an untimely motion to reopen. In the BIA's view, the submitted evidence did "not establish materially changed circumstances or changed country conditions arising in Mexico since [the petitioner's] merits hearing below." Taking a belt-and-suspenders approach, the BIA also concluded that the petitioner had failed to explain how her imputed American nationality would make her risk of persecution different from that of the general population in Mexico. So, too, the BIA concluded that the petitioner had failed to show a nexus between the persecution that she allegedly feared and a statutorily protected ground for asylum. See 8 U.S.C. § 1158(b)(1)(B)(i).

This timely petition for judicial review ensued. In it, the petitioner seeks review only of the BIA's denial of her motion to reopen.

Motions to reopen are disfavored in immigration practice. See Sihotang v. Sessions, 900 F.3d 46, 48 (1st Cir. 2018) ; Xiao He Chen v. Lynch, 825 F.3d 83, 86 (1st Cir. 2016). After all, reopening a proceeding is "contrary to ‘the compelling public interests in finality and the expeditious processing of [removal] proceedings.’ " Raza v. Gonzales, 484 F.3d 125, 127 (1st Cir. 2007) (quoting Roberts v. Gonzales, 422 F.3d 33, 35 (1st Cir. 2005) ). Despite these drawbacks, motions to reopen are allowed under some circumstances. See 8 U.S.C. § 1229a(c)(7).

Withal, those circumstances are narrowly circumscribed. Of particular pertinence for present purposes, motions to reopen are time-limited in immigration cases. See id. § 1229a(c)(7)(C)(i) (providing that such a motion ordinarily must be filed within 90 days of the final order in the proceeding sought to be reopened); see also 8 C.F.R. § 1003.2(c)(2).

The uphill climb that a petitioner faces when seeking to reopen removal proceedings — steep in any event — is steeper still where, as here, she seeks to reopen after the time for moving to reopen has expired. See Sihotang, 900 F.3d at 48. In such circumstances, the petitioner must jump through two hoops. First, she must adduce material evidence, previously unavailable, showing changed country conditions in her homeland. See 8 C.F.R. § 1003.2(c)(3)(ii) ; Sugiarto v. Holder, 761 F.3d 102, 103 (1st Cir. 2014). Second, she must make out a prima facie case of eligibility for the substantive relief sought. See Sihotang, 900 F.3d at 50.

"We afford the BIA ‘wide latitude in deciding whether to grant or deny such a motion’ " and review its decision only for abuse of discretion. Id. at 49 (quoting Bbale v. Lynch, 840 F.3d 63, 66 (1st Cir. 2016) ). To prevail under this deferential standard, "the petitioner must show that the BIA either ‘committed an error of law or exercised its judgment in an arbitrary, capricious, or irrational manner.’ " Id. at 50 (quoting Bbale, 840 F.3d at 66 ).

Here, the final agency order was dated January 15, 2014, and the motion to reopen was filed more than three years later. Thus, the motion to reopen was well out of time. See 8 U.S.C. § 1229a(c)(7)(C)(i) ; 8 C.F.R. § 1003.2(c)(2).

To satisfy the first requirement, the petitioner — who bears the burden of proof — must submit evidence of changed country conditions material to the underlying substantive relief that she seeks; show that such evidence was unavailable or undiscoverable during the prior proceedings; and show that the change was more than a continuation of previously existing conditions. See Xiao He Chen, 825 F.3d at 86-87 ; see also Raza, 484 F.3d at 127. To determine whether the petitioner has carried this multifaceted burden, the BIA is obligated to compare "evidence of country conditions submitted with the motion to those that existed at the time of the merits hearing." Sihotang, 900 F.3d at 50 (quoting Sánchez-Romero v. Sessions, 865 F.3d 43, 46 (1st Cir. 2017) ).

Here, however, there is a stumbling block: before embarking upon our analysis, we must identify the particular merits hearing that forms the baseline for assessing the existence vel non of changed country conditions. This uncertainty arises out of the fact that the petitioner had two separate merits hearings before the IJ, resulting in two separate decisions. Her first merits hearing took place in 2009 and her second merits hearing took place in 2012. Each of these hearings culminated in an order of removal. When it denied the petitioner's motion to reopen, the BIA did not distinguish between these two merits hearings but, rather, referred generically to the "merits hearing below." By the same token, the petitioner does not identify which hearing she views as the operative one.

Logic suggests that the more recent (2012) merits hearing should establish the baseline for the petitioner's motion to reopen. The government agrees: its brief leaves no doubt that it considers the 2012 hearing as the baseline hearing. Indeed, its brief does not so much as mention the 2009 merits hearing. The petitioner had an opportunity to file a reply brief contesting this view, see Fed. R. App. P. 31(a)(1), but she chose not to do so. What is more, she acknowledges that the overwhelming bulk of the country conditions information submitted to the BIA depicts changes in Mexico that have taken place during the five years next preceding — a time span roughly equivalent to the period beginning with the 2012 merits hearing and ending with the filing of the 2017 motion to reopen. Against this backdrop, we conclude that the 2012 merits hearing sets the baseline for the "changed country conditions" inquiry.

With this baseline in place, we turn to the petitioner's motion to reopen. In that motion, the petitioner indicated that the substantive relief sought was asylum. The fact that she had not sought asylum during the earlier removal proceedings does not, in and of itself, pretermit her claim. After all, an alien may "apply or reapply for asylum" in a motion to reopen. 8 C.F.R. § 1003.2(c)(3)(ii). It follows that the petitioner had a right to advance her claim for asylum for the first time in her motion to reopen. See Smith v. Holder, 627 F.3d 427, 439 n.13 (1st Cir. 2010).

Because the petitioner did not seek asylum at all during the 2012 merits hearing, the record of that hearing contains no direct evidence of country conditions then existing in Mexico. This does not mean, though, that such evidence was either unavailable or undiscoverable. Indeed, the petitioner has not suggested that accurate information concerning country conditions in Mexico was either unavailable to her or undiscoverable...