Perez-Tino v. Barr ( 2019 )

United States Court of Appeals
For the First Circuit
No. 18-1860
MARTA PEREZ-TINO,
Petitioner,
v.
WILLIAM P. BARR, Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Kayatta, and Barron,
Circuit Judges.
Nancy J. Kelly, Esq., with whom John Willshire Carrera, Esq.,
Maggie Morgan, Esq., and Harvard Law School Immigration & Refugee
Clinic at Greater Boston Legal Services, were on brief, for
petitioner.
Jacob A. Bashyrov, Trial Attorney, Office of Immigration
Litigation, with whom Joseph H. Hunt, Assistant Attorney General,
Civil Division, and M. Jocelyn Lopez Wright, Senior Litigation
Counsel, Office of Immigration Litigation, were on brief for
respondent.
August 30, 2019

Pursuant to Fed. R. App. P. 43(c)(2), Attorney General
William P. Barr has been substituted for former Acting Attorney
General Matthew G. Whitaker as the respondent.
BARRON, Circuit Judge. Marta Perez-Tino is a Guatemalan
national of Mayan K'Iche' descent who entered the United States in
2001 without inspection. Facing the prospect of removal on the
basis of a 2010 Board of Immigration Appeals ("BIA") decision
denying her asylum, withholding of removal, and relief under the
Convention Against Torture ("CAT"), Perez-Tino filed a motion to
reopen with the BIA years later, on February 28, 2018. She sought
to excuse the untimeliness of that motion on the basis of changed
country conditions in Guatemala. See 8 U.S.C.
§ 1229a(c)(7)(C)(ii). The BIA denied her motion to reopen as
untimely. She petitioned for our review, and we now vacate and
remand.
I.
On March 6, 2007, Immigration and Customs Enforcement
("ICE") detained Perez-Tino after a raid on her workplace in New
Bedford, Massachusetts. After the raid, she was briefly detained
by ICE in Massachusetts before being transferred to the Port Isabel
Detention Center in Texas. Perez-Tino was served with a notice to
appear, which charged that she was inadmissible because she was
present in the United States without being admitted or paroled.
See 8 U.S.C. § 1182(a)(6)(A)(i). She was released on bond that
same month and her case was transferred to the Boston Immigration
Court that May.
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Perez-Tino appeared before the Immigration Court and
admitted the factual allegations against her, conceded
removability, and indicated that she intended to apply for
withholding of removal, protection under the CAT, and voluntary
departure. She submitted those applications in September 2007.
In her application for asylum, withholding of removal,
and protection under the CAT, she described her grandfather's
status as a Mayan community leader and harassment by the "guerrilla
and the Civil Patrol," the murders of her uncles "because they
were Mayans," and the discrimination from authorities that her
mother faced while seeking protection from Perez-Tino's abusive
father. She further explained that because of this long history
of discrimination and threats based on her family's Mayan ancestry,
she feared further harm in Guatemala, especially as a woman who
could be sexually targeted.
Perez-Tino appeared before the Boston Immigration Court
on April 3, 2009 and testified in support of her application for
relief. During that testimony, she stated that her uncles "were
killed by the army, by the military" during the Guatemalan civil
war. Perez-Tino then asserted that she expected negative treatment
from the Guatemalan government if she were forced to return, as
the then-president of Guatemala would "not help [indigenous
people] at all." Perez-Tino also expressed concern that a return
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to Guatemala would leave her unable to "provide for [her] children"
and "help [her] mom" because the country was "very poor."
At the close of the hearing, the Immigration Judge ("IJ")
found that Perez-Tino's testimony was credible, but nevertheless
denied her application for withholding of removal or relief under
the CAT. The IJ did, however, grant her request for voluntary
departure.
Perez-Tino filed an appeal of the IJ's decision to the
BIA, which the BIA rejected on October 7, 2010. The BIA then
reinstated the IJ's grant of voluntary departure for a period of
sixty days. The United States Citizenship and Immigration Services
granted a stay of removal to Perez-Tino, which was repeatedly
extended until her last application was denied on November 21,
2017. She was ordered to, and did, report to ICE on February 5,
2018 with an airline ticket to depart the United States by March
5, 2018. At that time, ICE placed Perez-Tino on an ankle monitor.
On February 28, 2018, more than seven years after the
BIA's decision, Perez-Tino filed a motion to reopen. In that
motion, she seeks to apply for asylum, withholding of removal, and
relief under the CAT, despite the lateness of her filing, on the
ground that she could satisfy the "changed country conditions"
exception to the requirement that a motion to reopen be filed
within ninety days, see 8 U.S.C. § 1229a(c)(7)(C)(ii), because the
country conditions in Guatemala had changed since the IJ's 2009
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decision. On August 7, 2018, the BIA denied the motion as untimely
on the ground that she had failed to make the requisite changed
country conditions showing. Perez-Tino timely petitioned for our
review of the BIA's denial of her motion to reopen.
II.
To prevail on a motion to reopen, the applicant must
establish both "a prima facie case for the underlying substantive
relief sought" and that the evidence supporting the motion to
reopen was "previously unavailable [and] material." INS v. Abudu,
485 U.S. 94, 104 (1988). A motion to reopen must generally be
submitted less than ninety days after the final administrative
decision is issued, 8 U.S.C. § 1229a(c)(7)(C)(i), unless the
applicant can demonstrate "changed country conditions arising in
the country of nationality or the country to which removal has
been ordered, if such evidence is material and was not available
and would not have been discovered or presented at the previous
proceeding." Id. § 1229a(c)(7)(C)(ii).
We review a denial of a motion to reopen for abuse of
discretion. INS v. Doherty, 502 U.S. 314, 323 (1992). "The BIA
can abuse its discretion," according to our Court, "by neglecting
to consider a significant factor that appropriately bears on the
discretionary decision, by attaching weight to a factor that does
not appropriately bear on the decision, or by assaying all the
proper factors and no improper ones, but nonetheless making a clear
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judgmental error in weighing them." Murillo-Robles v. Lynch, 839
F.3d 88, 91 (1st Cir. 2016) (quoting Henry v. INS, 74 F.3d 1, 4
(1st Cir. 1996)).
Perez-Tino submitted evidence to the BIA that, since the
relevant "previous proceeding," 18 U.S.C. § 1229a(c)(7)(C)(ii),
conditions in Guatemala had materially worsened for her in three
distinct ways. First, she argued that the "expected deportation
to Guatemala" of a former paramilitary commander who she asserted
was responsible for atrocities committed against her family during
the Guatemalan civil war would result "in an increase in danger
for [her]." Second, Perez-Tino asserted that the remilitarization
of Guatemala in 2011 meant that the country had become much more
dangerous for the Maya K'Iche' and thus for her. Lastly, she
asserted that Guatemala had become a much more hostile place for
members of the Organizacion Maya K’Iche' ("OMK") -- a Mayan
activist organization which the parties agree Perez-Tino joined
after her arrival in the United States in 2001. We consider each
contention in turn.
A.
To show that country conditions had worsened for her
during the relevant period, Perez-Tino first submitted evidence
that Juan Samayoa had been arrested in the United States in 2017
and was facing "deportation" to Guatemala. Perez-Tino explained
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that Samayoa was a former Ladino1 paramilitary commander in
Guatemala who had been arrested for committing war crimes during
that country's civil war. She claimed that Samayoa and his
underlings had tortured her grandfather and murdered two of her
uncles for their role in indigenous activism during the Guatemalan
civil war. She thus asserted that Samayoa's impending return to
Guatemala placed her in danger of being "targeted for persecution
by Ladinos who support Samayoa as well as right-wing Ladinos who
support those policies and attacks on the Maya Quiche community."
In support of the contention that the prospect of
Samayoa's return to Guatemala makes her "return to Guatemala
exceedingly dangerous," Perez-Tino asserted that, as a "member of
a particularly targeted indigenous family," she "is a witness to
Samayoa's atrocities during the Civil War, as well as [a member
of] an influential indigenous family." Perez-Tino further
asserted that the danger presented by his return is "heightened by
the remilitarization of the conflict between the Ladinos and" her
"indigenous communities in Guatemala, which has empowered and
emboldened supporters of Samayoa" in Guatemala.2
1
Ladino is a term that refers to people of mixed race in
Guatemala. According to Perez-Tino, Ladinos currently hold
governmental power and have historically discriminated against the
Maya K'Iche' people.
2
Perez-Tino also asserted that the danger posed to her by
the return of Samayoa was increased due to her involvement in OMK.
But, for present purposes, we set that assertion aside, as, later
in this opinion, we separately consider the BIA's rejection of her
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The BIA rejected this ground for finding "changed
country conditions." The BIA did so by concluding that Perez-Tino
had not "adequately explain[ed]" why she did not mention Samayoa's
past actions with regard to her family during her prior immigration
hearing in 2009, given that one of her claims then was that her
family had been previously targeted during the Civil War.
In both her motion to reopen before the BIA and her
briefing to us, however, Perez-Tino plainly explains that the
reason that she did not mention Samayoa in her 2009 hearing was
that his arrest in the United States -- and the potential for
deportation to Guatemala that arose from it -- did not occur until
2017. Consequently, we fail to see why this explanation does not
"adequately explain" Perez-Tino's decision to refer to Samayoa for
the first time in her 2018 motion to reopen.
We note in this regard both that Perez-Tino supported
her Samayoa-related assertions in support of her motion to reopen
to the BIA with multiple affidavits from friends and family
attesting to the veracity of those claims and that the BIA does
not expressly mention any concerns regarding the credibility of
her Samayoa-based claims. In fact, the government asserts to us
that the BIA did not ground its decision regarding her Samayoa-
attempt to show changed country conditions in connection with her
involvement with OMK.
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based claim of changed country conditions on an adverse credibility
determination.
The BIA did separately conclude that Perez-Tino's "fear
based on the arrest and detention of Samayoa" was too
"speculative," as Samayoa has not, as of yet, "been removed or
extradited to Guatemala." But, the government does not dispute
that Samayoa was issued a notice to appear for removal proceedings
nearly five months prior to Perez-Tino filing her motion to reopen
or that an IJ ordered his deportation on March 29, 2018, a decision
that he is currently challenging in this Circuit.3 Nor does the
BIA explain why Perez-Tino requires more than evidence of Samayoa's
pending removal to support her fear that he will be returned to
Guatemala.
In sum, the grounds that the BIA gave for rejecting
Perez-Tino's Samayoa-based changed country conditions arguments
are not sustainable. They thus cannot support the BIA's decision
to reject Perez-Tino's motion as untimely.
3
We note that the IJ issued his order for Samayoa's
deportation well before the BIA's August 7, 2018 decision to deny
Perez-Tino's motion to reopen. We may take judicial notice of the
past proceedings in Samayoa's case. See LeBlanc v. Salem (In re
Mailman Steam Carpet Cleaning Corp.), 196 F.3d 1, 8 (1st Cir. 1999)
(noting that courts can take judicial notice of their own dockets);
Kowalski v. Gagne, 914 F.2d 299, 305 (1st Cir. 1990) ("It is well-
accepted that federal courts may take judicial notice of
proceedings in other courts if those proceedings have relevance to
the matters at hand.").
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B.
Perez-Tino also sought to show that "the changing
political landscape in Guatemala" since the denial of her initial
application for asylum and withholding of removal resulted in
worsened conditions for her safety and that, for this, too, she
could satisfy the "changed country conditions" exception to the
deadline for filing a motion to reopen that otherwise would apply.
Specifically, Perez-Tino argued to the BIA in support of her motion
to reopen that the 2011 election in Guatemala and the subsequent
remilitarization of the Quiche region in and of themselves amounted
to a change in country conditions.
The BIA rejected that argument. It concluded that:
[t]he voluminous country condition evidence
submitted along with the respondent's motion
does not demonstrate a material change in
circumstances in Guatemala, but rather a
continuation of discrimination against and
land disputes involving indigenous people as
well as human rights abuses, including police
corruption and societal violence, which
existed at the time of the respondent's 2009
merits hearing.
Perez-Tino argues to us that the BIA reversibly erred in
reaching this conclusion because it failed "to consider critical
evidence of changes in political conditions within Guatemala, and
by considering facts in isolation rather than considering the
totality of the circumstances of [Perez-Tino's] case." But, the
BIA's express reference to the "voluminous country condition
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evidence" that Perez-Tino submitted precludes us from agreeing.
Moreover, Perez-Tino develops no argument that the BIA's
determination that there had not been a "material change in
circumstances" with respect to this aspect of her attempted showing
to the contrary was unsupported by substantial evidence. (Emphasis
added.) See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.
1990) (noting that arguments not developed on appeal are deemed
waived). We thus see no basis for upsetting this aspect of the
BIA's ruling.
C.
Perez-Tino's final basis for contending that country
conditions had changed relates to her involvement with OMK. The
BIA rejected this contention on the ground that she had shown only
a change in personal circumstances and not a change in country
conditions. There is no doubt that Perez-Tino's decision to become
involved with OMK in 2001 was a personal choice. Nor is there any
doubt that a change in personal circumstances is not itself a
change in country conditions. See Xin Qiang Liu v. Lynch, 802
F.3d 69, 77 (1st Cir. 2015); Yang Zhao-Cheng v. Holder, 721 F.3d
25, 28 (1st Cir. 2013). Nevertheless, Perez-Tino argues to us --
as she argued to the BIA in support of her motion to reopen --
that our decision in Larngar v. Holder, 562 F.3d 71 (1st Cir. 2009)
supports her OMK-based contention that country conditions had
changed.
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In Larngar, we held that a petitioner could establish
changed country conditions based on the fact that a man that the
petitioner had assaulted ascended to a position of substantial
political power in Liberia after the petitioner had been removed.
See id. at 77-78. In so holding, we made clear that the BIA abuses
its discretion "when it impliedly conclude[s] that, regardless of
whether the petitioner induced the changed circumstances [in the
country to which she will be removed] or not, so long as the
petitioner originally induced the reason for [her] fear of harm
[s]he cannot establish changed country circumstances." Id. at 78.
We explained that the BIA must avoid making such conclusions
because they do not "further[] the policy interest behind the
personal-circumstances rule -- preventing applicants from
orchestrating changes that serve their self-interest." Id. And,
we concluded, because the BIA had failed to consider the changed
circumstances in Liberia that the petitioner "had and has no
control over" and focused instead only on the fact that the
petitioner was responsible for the assault, we had to vacate "the
BIA's denial of the motion to reopen." Id.
According to Perez-Tino, her case requires the same
outcome. She asserts that country conditions have become
materially worse for members of OMK since the proceedings before
the IJ in 2009 because the current Guatemalan administration views
OMK and its members as a threat to its systematic oppression of
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indigenous people. Perez-Tino claims, for example, that since her
failed attempt to secure relief from removal, the fathers of two
OMK activists were killed in retaliation for the OMK's "organizing
activities." Yet, she contends, the BIA did not address this
aspect of her OMK-based argument for establishing changed country
conditions and instead focused only on the fact that her
involvement with OMK was the consequence of a personal choice,
even if it were one that she made prior to the 2009 proceedings
before the IJ. For that reason, she maintains, Larngar precludes
us from sustaining the BIA's reasons for rejecting her OMK-based
claim of changed country conditions.
We agree. The BIA rejected Perez-Tino's OMK-based
changed country conditions argument by stating: "The only change
shown is the respondent's activities in the United States with the
Organization Maya K'Iche, which is a change in the respondent's
personal circumstances." In doing so, the BIA cited to the portion
of Larngar that merely sets forth examples of changes in
circumstances, such as the birth of a child, marriage, or
conversion to a particular religion, that would, on their own,
like joining an organization, "typically . . . be categorized as
a change in personal circumstances" because they are "self-
induced." Larngar, 562 F.3d at 76-77 (emphasis added) (collecting
cases). Thus, nothing in the BIA's decision indicates that it
assessed how the treatment of OMK members in Guatemala may have
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changed since the IJ's 2009 decision. From all that we can discern
from the face of the BIA's opinion, it appears that, as Perez-Tino
contends, the BIA mistakenly "assumed that, because Ms. Perez-Tino
voluntarily associated herself with OMK, that condition was a
personal circumstance and could not support her motion to
reopen[.]"
We note that the government's argument on appeal in
defense of the BIA's ruling reinforces the concern that it was
based on the same mistake that led us to vacate the BIA's decision
in Larngar. The government contends that we must uphold the BIA's
decision because Perez-Tino's "joining" OMK was "self-induced."
But, the government does not suggest that the BIA assessed, at any
point, how the danger posed to members of OMK in Guatemala may
have changed after the IJ's decision in 2009. Instead, the
government appears to be of the view that the mere fact that
Perez-Tino joined the OMK -- even if she did so prior to the
proceedings before the IJ in 2009 -- precludes her OMK-based effort
to show a change in country conditions from succeeding. But, while
it is true that Perez-Tino's decision to join OMK in 2001 was a
personal choice, that fact alone is not necessarily dispositive of
the matter, given our decision in Larngar.
Simply put, Perez-Tino offered evidence to support her
contention that Guatemala had become a much more dangerous place
for OMK members since the IJ's 2009 decision. The BIA must assess
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that evidence and find it wanting before it may conclude that her
OMK-based argument fails to establish the requisite change in
country conditions.
III.
Of course, even if a petitioner can establish a change
in country conditions, the BIA "may still deny the motion [to
reopen] if the evidence fails to 'establish a prima facie case
sufficient to ground a claim of eligibility for the underlying
substantive relief.'" Larngar, 562 F.3d at 78 (quoting Raza v.
Gonzales, 484 F.3d 125, 128 (1st Cir. 2007)). But, we agree with
the government that the BIA did not reach the issue of whether
Perez-Tino had established prima facie eligibility for relief,
notwithstanding its curious reference to whether the "general
country conditions evidence . . . prima facie demonstrate[s] that
the respondent faces an individualized risk of harm rising to the
level of persecution." (Emphasis added.) Nor does Perez-Tino
argue that the record "compel[s]" that we find she has established
a prima facie basis for relief. Accordingly, we vacate and remand
the BIA's ruling. See Castañeda-Castillo v. Gonzales, 488 F.3d
17, 24-25 (1st Cir. 2007) (noting that remanding to the BIA is the
"ordinary course" where the record does not "compel[]" a decision
in the petitioner's favor).
In doing so, we note that "'[p]rima facie' scrutiny of
a motion to reopen means an evaluation of the evidence that
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accompanies the motion as well as relevant evidence that may exist
in the record of the prior hearing, in light of the applicable
statutory requirements for relief." Smith v. Holder, 627 F.3d
427, 438 (1st Cir. 2010) (quoting Sevoian v. Ashcroft, 290 F.3d
166, 173 (3d Cir. 2002)). We note, too, that, because new evidence
proffered in support of a motion to reopen must be "material," "it
follows that the prima facie showing will always include some new
evidence." Id. But, we emphasize, this prima facie showing need
not "be made entirely through new evidence" and instead may "be
based on the new evidence coupled with 'the facts already of
record.'" Id. (quoting In re L-O-G-, 21 I. & N. Dec. 413, 419
(BIA June 14, 1996)).
IV.
The petition for review is granted. The decision of the
Board of Immigration Appeals is vacated and remanded for further
consideration consistent with this opinion.
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