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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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
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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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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
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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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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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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.
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