Sanchez-Romero v. Lynch

Filing

OPINION issued by Jeffrey R. Howard, Chief Appellate Judge; Bruce M. Selya, Appellate Judge and John J. McConnell, Jr.,* U.S. District Judge. Published. ** Of the District of Rhode Island, sitting by designation. [16-2416]

Case: 16-2416

Document: 00117182074

Page: 1

Date Filed: 07/26/2017

Entry ID: 6108715

United States Court of Appeals
For the First Circuit
No. 16-2416
JUAN MANUEL SÁNCHEZ-ROMERO,
Petitioner,
v.
JEFFERSON B. SESSIONS, III,
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent.

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

Before
Howard, Chief Judge,
Selya, Circuit Judge,
and McConnell, District Judge.

Theodore J. Murphy on brief for petitioner.
Chad A. Readler, Acting Assistant Attorney General, Civil
Division, Eric W. Marsteller, Senior Litigation Counsel, Office
of Immigration Litigation, and Rosanne M. Perry, Trial Attorney,
U.S.
Department
of
Justice,
Civil
Division,
Office
of
Immigration Litigation, on brief for respondent.

July 26, 2017



Pursuant to Fed. R. App. P. 43(c)(2), Attorney General
Jefferson B. Sessions, III, is substituted for former Attorney
General Loretta E. Lynch as respondent.

Of the District of Rhode Island, sitting by designation.

Case: 16-2416

Document: 00117182074

MCCONNELL,

Page: 2

District

Date Filed: 07/26/2017

Judge.

The

Entry ID: 6108715

petitioner,

Juan

Manuel Sánchez-Romero (Sánchez), seeks review of the Board of
Immigration

Appeals'

(BIA)

denial

of

his

untimely

motion

reopen removal proceedings based on changed conditions.

to

Because

we do not spot an abuse of discretion, Sánchez's petition is
denied.
I.
Sánchez, a Mexican national, entered the United States
via

Douglas,

parole.

Arizona,

in

April

2003,

without

admission

or

On October 17, 2009, United States Customs and Border

Protection officers encountered Sánchez at the Luiz Muñoz Marín
International

Airport

in

San

Juan,

Puerto

Rico.

That

day,

Sánchez was served with a Notice to Appear, charging him with
removability

under

8

U.S.C.

§

1182(a)(6)(A)(i),

for

being

present in the United States without being admitted or paroled.
In

addition,

Sánchez

was

charged

with

removability

under

8

U.S.C. § 1182(a)(6)(C)(ii), for falsely representing that he was
a

citizen

of

the

§ 1182(a)(7)(A)(i)(I),

for

United
not

States,

possessing

and
a

8

valid,

U.S.C.
unexpired

entry document at the time of application for admission.
On November 10, 2009, Sánchez had a hearing before an
immigration judge, where he conceded the charge of removability
under 8 U.S.C. § 1182(a)(6)(A)(i) but denied the charges under 8
U.S.C. § 1182(a)(6)(C)(ii) and 8 U.S.C. § 1182(a)(7)(A)(i)(I).
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Document: 00117182074

About
asylum,

half

Page: 3

of
of

withholding

a

year

Date Filed: 07/26/2017

later,

Sánchez

removal,

and

protection

Entry ID: 6108715

applied

for

under

the

Convention Against Torture (CAT), and on March 24, 2011, he
amended his application.

In his application, Sánchez stated his

fear of criminal gangs (a.k.a. Drug Trafficking Organizations or
"DTOs") and the Mexican army, from which Sánchez abandoned his
post due to corruption.
According to Sánchez's petition, the criminal gangs
killed his brother and sister, and the gangs would target him as
well.

Sánchez's sister was killed for testifying against a

member

of

a

criminal

imprisonment.

gang,

resulting

in

the

gang

member's

The petition does not state the reason for the

death of Sánchez's brother, but it does say that the killer had
disappeared.

Sánchez also feared that, upon return to Mexico,

the gangs would mistake him for a relative of Mariano Rivera, a
former baseball player for the New York Yankees, whose family
Sánchez befriended.

These gangs would, Sánchez thinks, kidnap,

extort, and torture him.
In

addition

to

fearing

the

criminal

gangs,

Sánchez

also believed that he would be harmed by the Mexican army.

A

sergeant in the army forced Sánchez into dealing drugs, and when
Sánchez later refused, he was beaten.

As a result of this

corruption

army.

and

abuse,

Sánchez

left

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the

His

petition

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stated his belief that there would be consequences for leaving
the army, including torture.
An immigration judge conducted a merits hearing and
denied Sánchez's petition on June 7, 2011.
on

July

denial.

5,

2011,

Sánchez

appealed

the

Shortly thereafter,
immigration

judge's

And on March 11, 2013, the BIA, after review, denied

Sánchez's appeal.

No immediate action was taken by Sánchez.

On August 25, 2016, more than three years after the
BIA

denied

Sánchez's

proceedings.

petition,

he

moved

to

reopen

removal

In his motion to reopen, Sánchez argued that even

though his motion is untimely, his petition to reopen should be
granted

because

deteriorated

the

and

conditions

in

intensified.

his

home

Those

country

purported

have

changed

conditions consist of an increase in crime and kidnappings, an
increase in power wielded by the DTOs who now operate as a de
facto government, and an increase in violence against those who
oppose the DTOs.

And evidence of the worsened conditions was

not

the

available

at

time

of

the

last

hearing

because

the

evidence relates to events that occurred after the hearing.
After

dealing

with

the

timeliness

issue,

Sánchez's

petition went on to discuss the merits of his claims.

His

application for asylum and withholding of removal was predicated
upon

persecution

for

his

political

stance of opposing the DTOs.

opinion

--

that

is,

his

As for his CAT claim, Sánchez
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believed that, upon returning to Mexico, he would be at a high
risk of torture because of his political opinion and because he
would be identifiable as a recent deportee.

The torture would

be perpetrated by the Mexican government and the DTOs, to whom
the government acquiesces.
Ultimately, the BIA denied Sánchez's motion to reopen.
The BIA began by noting that Sánchez failed to file his motion
within ninety days of the BIA's final decision.

As such, this

untimeliness acted as a bar to his motion to reopen unless an
exception

applied.

The

BIA

then

went

on

to

consider

the

exception to the timeliness requirement asserted by Sánchez: the
existence of changed conditions since the merits hearing.

After

considering the evidence submitted by Sánchez, which depicted
crime and violence perpetrated by the DTOs, the BIA concluded
that Sánchez had failed to demonstrate that the conditions were
more than a mere continuation of conditions that existed at the
time of his hearing in 2011.
analysis there.

The BIA did not, however, stop the

Instead, the Board went on to consider -- and

ultimately reject -- Sánchez's ability to set forth a prima
facie case for asylum, withholding of removal, or protection
under the CAT.
Now,
arbitrarily

in

on

appeal,

finding

Sánchez

that

he

claims
did

not

that

the

BIA

demonstrate

acted

changed

conditions, abused its discretion by determining that Sánchez
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was not eligible for asylum and withholding of removal based on
his political opinion, and acted arbitrarily by only focusing on
a portion of his CAT claim.
II.
The BIA is given broad discretion to grant or deny
petitions

to

reopen,

and

as

a

result,

decision for abuse of discretion.
519, 521 (1st Cir. 2017).

we

review

the

BIA's

Cardona v. Sessions, 848 F.3d

The court will, therefore, uphold the

BIA's decision "unless the petitioner can show that the BIA
committed

an

error

of

law

or

exercised

its

arbitrary, capricious, or irrational manner."

judgment

in

an

Bbale v. Lynch,

840 F.3d 63, 66 (1st Cir. 2016).
A petitioner normally must file a motion to reopen
proceedings

no

later

than

ninety

administrative order of removal.
8 C.F.R. § 1003.2(c)(2).
is

materially

country.
2016).

changed

days

after

the

final

8 U.S.C. § 1229a(c)(7)(C)(i);

One exception to this ninety-day rule
conditions

in

the

petitioner's

home

See Xiao He Chen v. Lynch, 825 F.3d 83, 86 (1st Cir.
To this end, a petitioner must (1) demonstrate changed

conditions

through

evidence

that

was

not

available

at

the

original merits hearing and (2) establish a prima facie case of
eligibility for relief.
Cir.

2009).

In

Larngar v. Holder, 562 F.3d 71, 74 (1st

evaluating

changed

conditions,

"[t]he

BIA

'compares the evidence of country conditions submitted with the
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Case: 16-2416

motion

Document: 00117182074

to

hearing.'"

those

that

Page: 7

existed

Date Filed: 07/26/2017

at

the

time

of

Entry ID: 6108715

the

merits

Xin Qiang Liu v. Lynch, 802 F.3d 69, 76 (1st Cir.

2015) (quoting Haizem Liu v. Holder, 727 F.3d 53, 57 (1st Cir.
2013)).
We begin our analysis -- and end -- with the existence
vel non of changed conditions.

To meet his burden, Sánchez

needs to make a "convincing demonstration" that the conditions
in his home country have intensified or deteriorated between his
merits hearing on March 24, 2011, and his motion to reopen on
August 25, 2016.

Tandayu v. Mukasey, 521 F.3d 97, 100 (1st Cir.

2008) (quoting Raza v. Gonzales, 484 F.3d 125, 127 (1st Cir.
2007)).

Sánchez,

claiming

error

with

the

BIA's

decision

to

deny his motion to reopen, posits that, because the size and
scope of the DTOs' power has increased, the BIA erred in finding
a

mere

continuation

of

conditions.

That

is,

the

DTOs

have

become -- to quote Sánchez's brief -- "an insurgency threatening
the

sovereignty

of

the

[Mexican]

government."

The

evidence

adduced by Sánchez does not, however, support this assertion.
Sánchez's claim of changed conditions centers on the
Mexican government's relations with the DTOs.

Beginning in 2006

with the Vincente Fox administration, and then later throughout
the Felipe Calderón administration, the Mexican government took
a hardline approach to the DTOs, attempting to eradicate the
criminal enterprises.

This aggressive policy, which sought the
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Case: 16-2416

Document: 00117182074

capture

of

high-ranking

Page: 8

members

Date Filed: 07/26/2017

of

the

DTOs,

Entry ID: 6108715

caused

the

organizations to splinter between 2008 and 2010, from four main
organizations to as many as eighty organizations (depending on
who is counting).

That is to say, the Mexican government's

aggressive policy towards the DTOs existed prior to 2011 and so
did the splintering of the DTOs.
Nonetheless,

Sánchez

asserts

that,

from

2011

until

2016, the DTOs' power has increased and that the DTOs are now
supplanting the Mexican government.

He does not, however, cite

to evidence in the record to support this contention.

Indeed,

on this score, the only article mentioned by Sánchez says that
the DTOs possess political influence and, in some instances,
operate as de facto security forces.

But this does nothing to

take us out of the realm of bad conditions that persist and into
the realm of changed conditions.
Instead, Sánchez focuses his efforts on pointing out
the rise in kidnappings and murders related to the DTOs.

One

article notes that complaints of kidnapping have increased from
.89 per day to 3.72 per day.
the

article

occurred.

does

not

While these numbers are shocking,

mention

over

what

years

the

increase

More to the point, Mexico was dealing with similar

levels of kidnappings prior to Sánchez's merits hearing.

For

instance, the 2009 Human Rights Report for Mexico reports 8,000
drug-related homicides and 820 kidnappings in 2008, with sources
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indicating that kidnappings are vastly underreported.
rates

have,

according

to

the

Mexican

government,

Murder

dropped

by

thirty-percent in 2012, fifteen-percent in 2013, and fifteenpercent in 2014.

Other violent crimes, though, have remained

elevated.
Sánchez
individuals
source

in

cited

also

Mexico

writes

highlights
evidence

to

the
changed

that,

as

of

disappearance

February

conditions.
2014,

the

of
One

Mexican

government confirmed that 26,000 persons remain "disappeared."
But the Mexico 2014 Human Rights Report, which reports similar
levels of disappearance, notes that the causes of disappearance
include

voluntary

absence,

migration,

death,

and

unlawful

imprisonment.

So the disappearances cannot be solely attributed

to the DTOs.

Notwithstanding, the 2009 Human Rights Report also

indicates that issues of disappearance existed in 2009 -- well
before Sánchez's merits hearing in 2011.
Accordingly,

the

record

does

not

support

Sánchez's

claim that crime and violence perpetrated by the DTOs in Mexico
represent changed conditions from 2011 to 2016.
BIA,

the

evidence

submitted

by

Sánchez

As noted by the

does

showcase

the

"influences and activities of crime and violence by criminal
organizations
grave

do

not

in

Mexico."

equate

to

But

grave

conditions

intensification

of

that

conditions.

Mejía-Ramaja v. Lynch, 806 F.3d 19, 21 (1st Cir. 2015).
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remain
See
After

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reviewing the evidence of record, the Court finds that the BIA
acted well within its discretion.
Because the BIA properly exercised its discretion and
found that Sánchez failed to demonstrate changed conditions, the
BIA did not need to determine whether Sánchez made out a prima
facie case for eligibility.
25, 29 (1st Cir. 2013).

Yang Zhao-Cheng v. Holder, 721 F.3d

This Court, having discerned no abuse

of discretion, likewise, need not examine Sánchez's remaining
assignments of error.

See Haizem Liu, 727 F.3d at 58.
III.

For the reasons set forth above, Sánchez's petition is
denied.

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