Sanchez-Romero v. Lynch


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]

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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). -2- Case: 16-2416 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 -3- the His petition Case: 16-2416 Document: 00117182074 Page: 4 Date Filed: 07/26/2017 Entry ID: 6108715 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 -4- Case: 16-2416 Document: 00117182074 Page: 5 Date Filed: 07/26/2017 Entry ID: 6108715 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 -5- Case: 16-2416 Document: 00117182074 Page: 6 Date Filed: 07/26/2017 Entry ID: 6108715 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 -6- 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 -7- 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 -8- Case: 16-2416 Document: 00117182074 Page: 9 Date Filed: 07/26/2017 Entry ID: 6108715 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). -9- remain See After Case: 16-2416 Document: 00117182074 Page: 10 Date Filed: 07/26/2017 Entry ID: 6108715 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. -10-

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