Perez-Tino v. Barr, 083019 FED1, 18-1860
|Opinion Judge:||Barron, Circuit Judge.|
|Party Name:||MARTA PEREZ-TINO, Petitioner, v. WILLIAM P. BARR, [*] Attorney General, Respondent.|
|Attorney:||Nancy J. Kelly, Esq., with whom John Willshire Carrera, Esq., Maggie Morgan, Esq., and Harvard Law School Immigration & Refugee Clinic at Greater Boston Legal Services, were on brief, for petitioner. Jacob A. Bashyrov, Trial Attorney, Office of Immigration Litigation, with whom Joseph H. Hunt, As...|
|Judge Panel:||Before Lynch, Kayatta, and Barron, Circuit Judges.|
|Case Date:||August 30, 2019|
|Court:||United States Courts of Appeals, Court of Appeals for the First Circuit|
PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS
Nancy J. Kelly, Esq., with whom John Willshire Carrera, Esq., Maggie Morgan, Esq., and Harvard Law School Immigration & Refugee Clinic at Greater Boston Legal Services, were on brief, for petitioner.
Jacob A. Bashyrov, Trial Attorney, Office of Immigration Litigation, with whom Joseph H. Hunt, Assistant Attorney General, Civil Division, and M. Jocelyn Lopez Wright, Senior Litigation Counsel, Office of Immigration Litigation, were on brief for respondent.
Before Lynch, Kayatta, and Barron, Circuit Judges.
Barron, Circuit Judge.
Marta Perez-Tino is a Guatemalan national of Mayan K'Iche' descent who entered the United States in 2001 without inspection. Facing the prospect of removal on the basis of a 2010 Board of Immigration Appeals ("BIA") decision denying her asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"), Perez-Tino filed a motion to reopen with the BIA years later, on February 28, 2018. She sought to excuse the untimeliness of that motion on the basis of changed country conditions in Guatemala. See 8 U.S.C. § 1229a(c)(7)(C)(ii). The BIA denied her motion to reopen as untimely. She petitioned for our review, and we now vacate and remand.
On March 6, 2007, Immigration and Customs Enforcement ("ICE") detained Perez-Tino after a raid on her workplace in New Bedford, Massachusetts. After the raid, she was briefly detained by ICE in Massachusetts before being transferred to the Port Isabel Detention Center in Texas. Perez-Tino was served with a notice to appear, which charged that she was inadmissible because she was present in the United States without being admitted or paroled. See 8 U.S.C. § 1182(a)(6)(A)(i). She was released on bond that same month and her case was transferred to the Boston Immigration Court that May.
Perez-Tino appeared before the Immigration Court and admitted the factual allegations against her, conceded removability, and indicated that she intended to apply for withholding of removal, protection under the CAT, and voluntary departure. She submitted those applications in September 2007.
In her application for asylum, withholding of removal, and protection under the CAT, she described her grandfather's status as a Mayan community leader and harassment by the "guerrilla and the Civil Patrol," the murders of her uncles "because they were Mayans," and the discrimination from authorities that her mother faced while seeking protection from Perez-Tino's abusive father. She further explained that because of this long history of discrimination and threats based on her family's Mayan ancestry, she feared further harm in Guatemala, especially as a woman who could be sexually targeted.
Perez-Tino appeared before the Boston Immigration Court on April 3, 2009 and testified in support of her application for relief. During that testimony, she stated that her uncles "were killed by the army, by the military" during the Guatemalan civil war. Perez-Tino then asserted that she expected negative treatment from the Guatemalan government if she were forced to return, as the then-president of Guatemala would "not help [indigenous people] at all." Perez-Tino also expressed concern that a return to Guatemala would leave her unable to "provide for [her] children" and "help [her] mom" because the country was "very poor."
At the close of the hearing, the Immigration Judge ("IJ") found that Perez-Tino's testimony was credible, but nevertheless denied her application for withholding of removal or relief under the CAT. The IJ did, however, grant her request for voluntary departure.
Perez-Tino filed an appeal of the IJ's decision to the BIA, which the BIA rejected on October 7, 2010. The BIA then reinstated the IJ's grant of voluntary departure for a period of sixty days. The United States Citizenship and Immigration Services granted a stay of removal to Perez-Tino, which was repeatedly extended until her last application was denied on November 21, 2017. She was ordered to, and did, report to ICE on February 5, 2018 with an airline ticket to depart the United States by March 5, 2018. At that time, ICE placed Perez-Tino on an ankle monitor.
On February 28, 2018, more than seven years after the BIA's decision, Perez-Tino filed a motion to reopen. In that motion, she seeks to apply for asylum, withholding of removal, and relief under the CAT, despite the lateness of her filing, on the ground that she could satisfy the "changed country conditions" exception to the requirement that a motion to reopen be filed within ninety days, see 8 U.S.C. § 1229a(c)(7)(C)(ii), because the country conditions in Guatemala had changed since the IJ's 2009 decision. On August 7, 2018, the BIA denied the motion as untimely on the ground that she had failed to make the requisite changed country conditions showing. Perez-Tino timely petitioned for our review of the BIA's denial of her motion to reopen.
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