Tenezaca-Dutan v. Barr ( 2021 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 8, 2021
_________________________________
Christopher M. Wolpert
Clerk of Court
ELVIA TENEZACA-DUTAN,
Petitioner,
v. No. 20-9586
(Petition for Review)
MERRICK B. GARLAND,
United States Attorney General, 
Respondent.
_________________________________
ORDER AND JUDGMENT * *
_________________________________
Before HARTZ, BRISCOE, and BACHARACH, Circuit Judges.
_________________________________
In this petition for review, we consider what constitutes a material
change in country conditions. The issue arises from Ms. Elvia

After the filing of the petition for review, Merrick B. Garland
became the Attorney General of the United States. So we have substituted
Attorney General Garland as the respondent. See Fed. R. App. P. 43(c)(2).
**
We conclude that oral argument would not materially help us to
decide the appeal. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G).
So we have decided the appeal based on the record and the parties’ briefs.
Our order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value if
otherwise appropriate. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A).
Tenezaca-Dutan’s application for reconsideration of the denial of a motion
to reopen.
Reopening may be available to noncitizens after they unsuccessfully
seek asylum or reconsideration. But a motion to reopen is ordinarily due 90
days from the date of removal. See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R.
§ 1003.23(b)(1). Ms. Tenezaca-Dutan missed the 90-day deadline by over a
decade: The Board of Immigration Appeals ordered her removal in 2008,
and she waited until 2019 to seek reopening. But federal law excuses
satisfaction of the 90-day deadline upon proof of a material change in
country conditions. 8 C.F.R. § 1003.23(b)(4)(i); 8 U.S.C.
§ 1229a(c)(7)(C)(ii).
Invoking this law, Ms. Tenezaca-Dutan moved for reopening based
on changes taking place in Ecuador. The immigration judge denied the
motion and a request to reconsider this ruling. The Board dismissed her
appeal of the ruling on her motion to reconsider. Ms. Tenezaca-Dutan
petitions for judicial review, arguing that the Board failed to explain its
reasoning and lacked substantial evidence for its findings. We reject these
arguments.
I. The Board adequately explained its reasons for denying
reconsideration.
In part, Ms. Tenezaca-Dutan contends that the Board (1) ignored her
evidence of a surge in Ecuadorian femicides, (2) deferred to the
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immigration judge rather than reweigh the evidence, and (3) failed to
explain why it did not regard the increase in femicides as a material change
in country conditions.
First, Ms. Tenezaca-Dutan identifies no evidence that the Board
ignored. The Board need not discuss every piece of evidence in the record.
See Hadjimehdigholi v. I.N.S., 49 F.3d 642, 648 n.2 (10th Cir. 1995). And
the Board specifically addressed the evidence of an increase in femicides
in 2017. Admin. R. at 4.
Second, the Board did not err by failing to reweigh the evidence.
Rather, the Board appropriately reviewed the immigration judge’s factual
findings for clear error. See 8 C.F.R. § 1003.1(d)(3)(i).
Third, the Board provided an adequate explanation. “[A]ll that is
necessary is a decision that sets out terms sufficient to enable us as a
reviewing court to see that the Board has heard, considered, and decided.”
Hadjimehdigholi, 49 F.3d at 648 n.2 (internal quotation marks omitted).
We know why the Board decided the way it did, for it said that
Ms. Tenezaca-Dutan had not “persuasively explained how [the evidence of
increased femicides in 2017] constitute[d] materially changed country
conditions arising in Ecuador, rather than a continuation of the same or
similar conditions in that country.” Admin. R. at 4.
According to Ms. Tenezaca-Dutan, the Board did not say why it had
questioned the sufficiency of her explanation. But the Board hadn’t
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addressed the issue in a vacuum, for the Board was responding to Ms.
Tenezaca-Dutan’s criticism of the immigration judge’s decision. So an
understanding of the Board’s explanation requires consideration of the
immigration judge’s reasoning. See Sarr v. Gonzales, 474 F.3d 783, 790
(10th Cir. 2007) (“Where the [Board] does not explicitly incorporate or
summarize the [immigration judge’s] reasoning, but its opinion is opaque
or otherwise unclear, we may look to the [immigration judge’s] opinion for
guidance on the theory that the [Board] did the same.”).
The immigration judge had recognized an extensive history of
violence inflicted on women in Ecuador:
As to changed circumstances in Ecuador, the evidence she
presents seems to show that women have had problems there for
years. For example, she presents evidence from 2012 that 60
percent of the women who responded to the National Survey on
Family Relations and Gender Violence said that they had
suffered gender violence . . . and one out of four had suffered
sexual violence.” In her affidavit, the Respondent states, “My
mother was accused of witchcraft. As a woman, her life was in
danger so was mine,” which seems to evidence danger to women
before the Respondent left Ecuador.
Admin. R. at 53 (citations omitted). In denying her motion to reconsider,
the immigration judge concluded that Ms. Tenezaca-Dutan had not shown
“that [the increase in femicides in 2017] was a material change in country
conditions as opposed to a continuation of, with some fluctuation in,
existing conditions that dated back to before she [had] left Ecuador in
2007.” Id. at 61.
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Ms. Tenezaca-Dutan appealed to the Board, relying on an increase in
femicides and characterizing them as the most violent possible
manifestations of violence against women. Id. at 43–44. The Board
concluded that Ms. Tenezaca-Dutan hadn’t explained the significance of
the new evidence. Id. at 4. Given the backdrop of the immigration judge’s
reasoning, we can easily discern the Board’s reasoning.
Ms. Tenezaca-Dutan points out that we regarded the Board’s
explanation as inadequate in Qiu v. Sessions, 870 F.3d 1200 (10th Cir.
2017). There the Board had provided no explanation for rejecting evidence
of a 300% increase in persecution of Christians since the noncitizen’s
removal hearing, unprecedented violations of religious freedom, and
possibly the most egregious and persistent wave of persecution against
Christians in roughly 50 years. Id. at 1204.
The difference here is that the Board did explain its reasoning. The
immigration judge downplayed the uptick in femicides, and Ms. Tenezaca-
Dutan appealed based solely on the numerical increase. The Board
acknowledged this assertion but pointed out that Ms. Tenezaca-Dutan had
not explained the significance of the surge in femicides. Even now, Ms.
Tenezaca-Dutan does not suggest anything else that the Board needed to
say. So Qiu does not support relief.
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II. The Board acted within its discretion in questioning Ms.
Tenezaca-Dutan’s explanation for the significance of the
numerical increase in femicides.
Ms. Tenezaca-Dutan also challenges the evidentiary support for the
Board’s finding. In reviewing this challenge, we apply the
abuse-of-discretion standard. Rodas-Orellana v. Holder, 780 F.3d 982, 990
(10th Cir. 2015). “The [Board] abuses its discretion when its decision
provides no rational explanation, inexplicably departs from established
policies, is devoid of any reasoning, or contains only summary or
conclusory statements.” Id. (internal quotation marks omitted). The
agency’s “findings of fact are conclusive unless any reasonable adjudicator
would be compelled to conclude to the contrary.” 8 U.S.C.
§ 1252(b)(4)(B).
To consider whether the Board abused its discretion, we consider
 when a change in country conditions is material and
 what the pertinent time-period is for assessing the materiality
of a change in country conditions.
We consider these questions based on Ms. Tenezaca-Dutan’s evidence of a
change in country conditions.
To determine the materiality of the change in country conditions, the
agency compares the frequency of femicides from the time of the removal
order to the time that Ms. Tenezaca-Dutan moved to reopen. See In re S-Y-
G-, 24 I. & N. Dec. 247, 253 (B.I.A. 2007).
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To show a material change in country conditions, Ms. Tenezaca-
Dutan relies on this bar-graph as evidence of increased femicides from
2014 to 2017:
R. at 176.
The bar-graph shows an increase in femicides after 2014, but
 the order of removal issued in 2008 and
 Ms. Tenezaca-Dutan did not point to any information about
femicides from 2008 to 2014. 1
But let’s assume that femicides remained relatively constant from
2008 to 2014. A change in country conditions could be material only if it
1
The record contains little information about femicides prior to 2014.
But the record does show 47 femicides in one Ecuadorian city from 2010 to
2012.
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“would likely change the result in the case.” Maatougui v. Holder, 738
F.3d 1230, 1240 (10th Cir. 2013) (quoting In re Coelho, 20 I. & N. Dec.
464, 473 (B.I.A. 1992)).
Ms. Tenezaca-Dutan put it this way in her motion to reconsider: “The
critical question is not whether there is generalized abuse against women,
but rather whether circumstances have changed sufficiently that a
petitioner who previously did not have a legitimate claim for asylum now
has a well-founded fear of future persecution.” Admin. R. at 71.
Ms. Tenezaca-Dutan never explained how the increase in femicides
would have affected her eligibility for asylum or withholding of removal.
She sought asylum and withholding of removal based on her Catholic
religion, political beliefs, and membership in a group of daughters of
Ecuadorean women accused of witchcraft. 2 Petitioner’s Opening Br. at 34.
None of these groupings bore an obvious link to femicide. So even if
femicides had increased significantly from 2008 to 2019, the Board could
reasonably question the relevance of that increase to Ms. Tenezaca-Dutan’s
applications for asylum and withholding of removal. See Ramos-Lopez v.
Lynch, 823 F.3d 1024, 1026 (5th Cir. 2016) (concluding that an increase in
femicides in Guatemala was immaterial when the petitioner had not
2
She also sought asylum based on past persecution, but the change in
country conditions would bear only on the fear of future persecution. See
Part III, below.
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compared the recent figures to those existing at the time of removal or
shown how the increase in femicides related to the petitioner’s claims).
And even if femicides bore on Ms. Tenezaca-Dutan’s eligibility for
asylum and withholding of removal, the Board could reasonably question
the significance of the numerical increase absent further explanation from
Ms. Tenezaca-Dutan. Certainly the Board might be alarmed by an increase
of 81 femicides in three years. But Ms. Tenezaca-Dutan did not present
evidence of the number of femicides in Ecuador in 2008. Moreover, in
2017, over 8 million females lived in Ecuador. United Nations, Dep’t of
Econ. and Soc. Affs., World Population Prospects 18 (2017 rev.). 3 Given
the presence of millions of women in Ecuador and uncertainty regarding
the frequency of femicides from 2008 to 2014, the Board could reasonably
question Ms. Tenezaca-Dutan’s explanation for the materiality of 81 more
femicides in 2017 than in 2014. See Tovar v. Lynch, 674 F. App’x 691, 693
(9th Cir. 2017) (unpublished) (upholding the Board’s conclusion that a
300% increase in femicides was not material because the total number of
femicides represented only about 1/10,000 of the female population in
Guatemala).
3
We can take judicial notice of the United Nations’s report. See
United States v. Burch, 169 F.3d 666, 671 (10th Cir. 1999).
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III. Past persecution does not support reconsideration of the refusal
to reopen the proceedings.
Ms. Tenezaca-Dutan also argues that the Board failed to recognize
her past persecution. But she is challenging only the refusal to reconsider
the denial of a motion to reopen; she is not challenging the earlier denial
of her applications for asylum and withholding of removal. Past
persecution does not bear on a change in country conditions, which is
required to reopen the proceedings after 90 days. See note 2, above; see
also Zeah v Lynch, 828 F.3d 699, 704 (8th Cir. 2016) (“Although helpful
for a claim of asylum, the fact that [the petitioner] may have suffered past
persecution undermines her claim of changed country conditions.”).
IV. Conclusion
Ms. Tenezaca-Dutan has not shown error in the denial of the motion
for reconsideration. We thus deny the petition for review.
Entered for the Court
Robert E. Bacharach
Circuit Judge
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