Sanchez-Romero v. Sessions , 865 F.3d 43 ( 2017 )

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.
MCCONNELL, District Judge. The petitioner, Juan
Manuel Sánchez-Romero (Sánchez), seeks review of the Board of
Immigration Appeals' (BIA) denial of his untimely motion to
reopen removal proceedings based on changed conditions. 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, Arizona, in April 2003, without admission or
parole. 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 United States, and 8 U.S.C.
§ 1182(a)(7)(A)(i)(I), for not possessing a valid, 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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About half of a year later, Sánchez applied for
asylum, withholding of removal, and protection 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 gang, resulting in the gang member's
imprisonment. 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 and abuse, Sánchez left the army. 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. Shortly thereafter,
on July 5, 2011, Sánchez appealed the immigration judge's
denial. 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 petition, he moved to reopen removal
proceedings. In his motion to reopen, Sánchez argued that even
though his motion is untimely, his petition to reopen should be
granted because the conditions in his home country have
deteriorated and intensified. Those purported 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 available at the 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 opinion -- that is, his
stance of opposing the DTOs. 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. The BIA did not, however, stop the
analysis there. 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, on appeal, Sánchez claims that the BIA acted
arbitrarily in finding that he did not demonstrate 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, we review the BIA's
decision for abuse of discretion. Cardona v. Sessions, 848 F.3d
519, 521 (1st Cir. 2017). 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 judgment in an
arbitrary, capricious, or irrational manner." 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 days after the final
administrative order of removal. 8 U.S.C. § 1229a(c)(7)(C)(i);
8 C.F.R. § 1003.2(c)(2). One exception to this ninety-day rule
is materially changed conditions in the petitioner's home
country. See Xiao He Chen v. Lynch, 825 F.3d 83, 86 (1st Cir.
2016). 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. Larngar v. Holder, 562 F.3d 71, 74 (1st
Cir. 2009). In evaluating changed conditions, "[t]he BIA
'compares the evidence of country conditions submitted with the
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motion to those that existed at the time of the merits
hearing.'" 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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capture of high-ranking members of the DTOs, 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. While these numbers are shocking,
the article does not mention over what years the increase
occurred. 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. Murder
rates have, according to the Mexican government, dropped by
thirty-percent in 2012, fifteen-percent in 2013, and fifteen-
percent in 2014. Other violent crimes, though, have remained
elevated.
Sánchez also highlights the disappearance of
individuals in Mexico to evidence changed conditions. One
source cited writes that, as of February 2014, the 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. As noted by the
BIA, the evidence submitted by Sánchez does showcase the
"influences and activities of crime and violence by criminal
organizations in Mexico." But grave conditions that remain
grave do not equate to intensification of conditions. See
Mejía-Ramaja v. Lynch, 806 F.3d 19, 21 (1st Cir. 2015). 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. Yang Zhao-Cheng v. Holder, 721 F.3d
25, 29 (1st Cir. 2013). 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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