Mejia-Ramaja v. Holder, Jr.

Filing

OPINION issued by Juan R. Torruella, Appellate Judge; Bruce M. Selya, Appellate Judge and Sandra L. Lynch, Appellate Judge. Published. [14-1970]

Case: 14-1970

Document: 00116920822

Page: 1

Date Filed: 11/20/2015

Entry ID: 5955398

United States Court of Appeals
For the First Circuit
No. 14-1970
JOSÉ MIGUEL MEJÍA-RAMAJA,
Petitioner,
v.
LORETTA E. LYNCH,*
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent.

PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS

Before
Torruella, Selya and Lynch,
Circuit Judges.

Randy Olen on brief for petitioner.
Benjamin C. Mizer, Principal Deputy Assistant Attorney
General, Civil Division, United States Department of Justice,
Jesse M. Bless, Senior Litigation Counsel, Office of Immigration
Litigation, and Alexander J. Lutz, Trial Attorney, Office of
Immigration Litigation, on brief for respondent.

November 20, 2015

__________

Case: 14-1970

Document: 00116920822

Page: 2

Date Filed: 11/20/2015

Entry ID: 5955398

*Pursuant to Fed. R. App. P. 43(c)(2), Attorney General Loretta
E. Lynch has been substituted for former Attorney General Eric H.
Holder, Jr. as the respondent.

Case: 14-1970

Document: 00116920822

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Date Filed: 11/20/2015

Entry ID: 5955398

SELYA, Circuit Judge. The sole issue in this immigration
case is whether the Board of Immigration Appeals (BIA) abused its
discretion

in

proceedings.

declining

to

reopen

the

petitioner's

removal

After careful consideration, we conclude that the

BIA acted well within the realm of its discretion.

Accordingly,

we deny the petition for judicial review.
We

briefly

rehearse

the

travel

of

the

case.

The

petitioner, José Miguel Mejía-Ramaja, is a Guatemalan national.
He entered the United States without inspection in 2003.

Roughly

two

removal

years

later,

federal

proceedings against him.

authorities

instituted

See 8 U.S.C. § 1182(a)(6)(A)(i).

The petitioner conceded removability and cross-applied
for withholding of removal and protection under the United Nations
Convention

Against

Torture

(CAT).

Following

an

evidentiary

hearing held on December 22, 2010, the Immigration Judge (IJ)
denied the petitioner's cross-applications and ordered him removed
to Guatemala.
The petitioner appealed to the BIA. After full briefing,
the BIA denied his appeal on February 26, 2013.

Judicial review

was not sought, and the order for removal became final.
More than a year elapsed.

Then — on March 31, 2014 —

the petitioner filed a motion to reopen his removal proceedings.
In

his

motion

papers,

he

alleged

in

substance

that

country

conditions in his homeland had changed for the worse and that he

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Document: 00116920822

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Entry ID: 5955398

had new evidence to submit in support of his applications for
withholding of removal and CAT protection.
On August 19, 2014, the BIA denied the motion to reopen.
It held that the motion was untimely and that, in all events, the
petitioner had not made a sufficient showing to warrant reopening
the removal proceedings.

This timely petition for judicial review

ensued.
We review the BIA's denial of a motion to reopen removal
proceedings for abuse of discretion.

See Kucana v. Holder, 558

U.S. 233, 242 (2010); Xue Su Wang v. Holder, 750 F.3d 87, 89 (1st
Cir. 2014).

We conclude, without serious question, that the BIA's

assessment of the timeliness of the motion to reopen in this case
was not an abuse of discretion.
Normally, a motion to reopen immigration proceedings
must be filed within 90 days of the entry of the final order of
removal.

See Meng Hua Wan v. Holder, 776 F.3d 52, 56 (1st Cir.

2015); 8 C.F.R. § 1003.2(c)(2).
well past this 90-day limit.

The petitioner's motion was filed

But there is an exception open to an

alien (like the petitioner) who has applied, inter alia, for
withholding of removal.

This exception is available when the

motion to reopen is "based on changed circumstances arising in
. . . the country to which deportation has been ordered."
§ 1003.2(c)(3)(ii).

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8 C.F.R.

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To invoke this exception, the alien must adduce new and
material evidence that was not, in the exercise of reasonable
diligence, available at the time of his original removal hearing.
See Perez v. Holder, 740 F.3d 57, 62 (1st Cir. 2014); 8 C.F.R.
§ 1003.2(c)(3)(ii). The petitioner labors to mitigate the lateness
of his motion by invoking this exception.

The BIA found this

effort unavailing and, thus, found the exception inapplicable.

We

agree.
As we have said, an alien seeking to reopen removal
proceedings on the ground of changed country conditions must point
to new and material evidence — "evidence that was not available at
the original merits hearing."

Perez, 740 F.3d at 62; see Sugiarto

v. Holder, 761 F.3d 102, 103 (1st Cir. 2014).

"In determining if

evidence submitted in support of a motion to reopen demonstrates
a material change in country conditions justifying reopening of
proceedings, the . . . [BIA] compares the evidence of country
conditions submitted with the motion to those that existed at the
time of the merits hearing below."

Haizem Liu v. Holder, 727 F.3d

53, 57 (1st Cir. 2013) (citing In re S-Y-G-, 24 I.&N. Dec. 247,
253

(BIA

2007)).

If

the

evidence

reveals

no

more

than

a

continuation of previously existing conditions, the evidence is
inadequate to show changed country conditions.

See Sugiarto, 761

F.3d at 104; Fen Tjong Lie v. Holder, 729 F.3d 28, 31 (1st Cir.
2013).

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In this case, the relevant period spans the interval
from December 22, 2010 (the date of the petitioner's merits
hearing) to March 31, 2014 (the date when petitioner filed his
motion to reopen).

At the merits hearing, the IJ referred to a

State Department report of country conditions in 2009 (the latest
such report that was then available).

The petitioner does not

contend that the 2013 country conditions report reflects any
material change in those conditions.

Nor could he: while the 2013

report paints an unattractive picture of life in Guatemala, that
picture shows nothing more than a continuation of the pattern of
negative conditions — including rampant crime, poorly controlled
violence, and police corruption — that has plagued Guatemala for
several years.
the

The 2009 report and the other evidence adduced at

petitioner's

picture.1

2010

removal

hearing

painted

much

the

same

That conditions have failed to improve is not enough to

show that they have changed.

See Sugiarto, 761 F.3d at 104.

In an endeavor to alter the trajectory of the debate,
the petitioner avers that, in 2013, a gas station in Guatemala
that he and his brothers owned was attacked; masked men armed with

1

For example, at the 2010 removal hearing, the petitioner
submitted a working paper describing Guatemala as "a vicious state
of nature," which was "wracked by some of the worst crime rates in
the world" and where "security forces are unable to staunch a tide
of criminal violence." This is not materially different from the
Guatemala portrayed in submissions accompanying the petitioner's
motion to reopen.
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Document: 00116920822

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Entry ID: 5955398

high-powered firearms entered the premises and shot three people
(killing

one).

The

marauders

proceeded

to

steal

money

and

property.

The petitioner argues that his account of the attack is

new

material

and

evidence

that

manifests

changed

country

conditions.
This argument lacks force.
that

the

petitioner

cites

(in

which

In contrast to the cases
specific

incidents

were

indicative of a broader conclusion that country conditions had
deteriorated),2 the robbery at the gas station was merely one more
ugly episode in a continuing pattern of crime and violence that
has existed in Guatemala for several years.

Consequently, the BIA

did not abuse its discretion by denying the petitioner's motion to
reopen as untimely.

See 8 U.S.C. § 1229a(c)(7)(C); 8 C.F.R. §

1003.2(c)(3)(ii); see also Jutus v. Holder, 723 F.3d 105, 110 (1st
Cir. 2013).
As a fallback, the petitioner submits that the BIA
applied the wrong legal standard in refusing to reopen his case.
But that argument, as phrased, does not go to the timeliness of
the motion but, rather, to the merits.

Inasmuch as we have

determined that the BIA's decision to deny the motion as untimely
was not an abuse of discretion, we need not reach the BIA's

2

See, e.g., Smith v. Holder, 627 F.3d 427, 431-32 (1st Cir.
2010); Malty v. Ashcroft, 381 F.3d 942, 946 (9th Cir. 2004);
Ananeh-Firempong v. INS, 766 F.2d 621, 626 (1st Cir. 1985).
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Case: 14-1970

Document: 00116920822

Page: 8

Date Filed: 11/20/2015

Entry ID: 5955398

additional holding concerning the merits of the motion. See Perez,
740 F.3d at 62; Jutus, 723 F.3d at 110.

It is, therefore,

irrelevant whether the BIA used the appropriate legal standard in
appraising the merits of the motion to reopen.
We need go no further. For the reasons elucidated above,
the petition for judicial review is denied.

So Ordered.

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