Lorena Gallegos-Mendoza v. Merrick Garland ( 2021 )


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  •                               NOT FOR PUBLICATION                        FILED
    UNITED STATES COURT OF APPEALS                        JUN 28 2021
    MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    LORENA ESMERALDA GALLEGOS-                      No.    20-71549
    MENDOZA,
    Agency No. A078-282-077
    Petitioner,
    v.                                             MEMORANDUM*
    MERRICK B. GARLAND, Attorney
    General,
    Respondent.
    On Petition for Review of an Order of the
    Board of Immigration Appeals
    Submitted June 17, 2021**
    San Francisco, California
    Before: THOMAS, Chief Judge, and BRESS and BUMATAY, Circuit Judges.
    Lorena Esmeralda Gallegos-Mendoza (Gallegos), an El Salvador citizen,
    seeks review of a Board of Immigration Appeals (BIA) decision dismissing her
    appeal of an Immigration Judge (IJ) order denying her untimely motion to reopen
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by Ninth Circuit Rule 36-3.
    **
    The panel unanimously concludes this case is suitable for decision
    without oral argument. See Fed. R. App. P. 34(a)(2).
    her applications for asylum, withholding of removal, and relief under the Convention
    Against Torture (CAT). We review the denial of a motion to reopen for abuse of
    discretion and may grant relief only if the BIA’s decision was “arbitrary, irrational,
    or contrary to law.”    Ocampo v. Holder, 
    629 F.3d 923
    , 925 (9th Cir. 2010)
    (quotations omitted). We have jurisdiction under 
    8 U.S.C. § 1252
    . We deny the
    petition.
    The BIA did not abuse its discretion in denying Gallegos’s untimely motion
    to reopen based on changed country conditions. See 8 U.S.C. § 1229a(c)(7)(C)(ii);
    
    8 C.F.R. § 1003.2
    (c)(3)(ii).1 To show she was entitled to reopening on this basis,
    Gallegos had to:
    (1) produce evidence that conditions have changed in the country of
    removal; (2) demonstrate that the evidence is material; (3) show that
    the evidence was not available and would not have been discovered or
    presented at the previous hearings; and (4) demonstrate that the new
    evidence, when considered together with the evidence presented at the
    original hearing, would establish prima facie eligibility for the relief
    sought.
    Agonafer v. Sessions, 
    859 F.3d 1198
    , 1204 (9th Cir. 2017) (quotations omitted). The
    BIA reasonably concluded that Gallegos did not make this showing.
    First, the BIA did not abuse its discretion in concluding that Gallegos failed
    to show that conditions materially changed in El Salvador since her original
    1
    The BIA treated Gallegos’s motion as one brought on this ground, and we thus do
    the same.
    2
    immigration proceedings. The BIA reasonably concluded that Gallegos failed to
    provide “sufficient evidence of related changed country conditions,” rather than
    simply changed personal circumstances. Rodriguez v. Garland, 
    990 F.3d 1205
    , 1209
    (9th Cir. 2021) (emphasis added). Evidence in the record supported the BIA’s
    determination that any worsening of violence in El Salvador since 2001 is
    incremental, and that circumstances there have not changed materially during the
    relevant time.2
    Second, the BIA did not abuse its discretion in finding that Gallegos failed to
    establish a prima facie case for asylum, withholding of removal, or CAT protection.
    See Silva v. Garland, 
    993 F.3d 705
    , 718–19 (9th Cir. 2021) (legal standards). On
    this record, the BIA could conclude that Gallegos did not meet her “heavy burden of
    proving that, if proceedings were reopened, the new evidence would likely change
    the result in the case.” Young Sun Shin v. Mukasey, 
    547 F.3d 1019
    , 1025 (9th Cir.
    2008) (quotations omitted).
    Because Gallegos did not contend that she suffered past persecution in El
    Salvador, to qualify for asylum she needed to show “a well-founded fear of future
    persecution” in El Salvador because of a protected ground. 
    8 C.F.R. § 1208.13
    (b).
    2
    Our recent decision in Kaur v. Garland, — F.3d —, 
    2021 WL 2521610
     (9th Cir.
    June 21, 2021), is distinguishable because in that case, the petitioner showed
    changed country conditions, namely, that “violence against women has materially
    increased in India.” 
    Id. at *1
    . Gallegos has not shown a comparable material change
    in conditions in El Salvador.
    3
    This included “showing, by credible, direct, and specific evidence in the record, . . .
    facts that would support a reasonable fear of persecution.” Silva, 993 F.3d at 719
    (quotations omitted).
    The BIA could reasonably conclude that Gallegos did not make the required
    prima facie showing. Gallegos does not contend that she suffered past persecution
    in El Salvador. Nor has Gallegos made out a prima facie case of a reasonable fear
    of future persecution. Gallegos admitted that she was not certain what would happen
    to her if she returned to El Salvador. And she only alleged that gangs “might look
    for” her. She did not, however, submit any “specific evidence” supporting a well-
    founded fear that this would occur. Nagoulko v. INS, 
    333 F.3d 1012
    , 1018 (9th Cir.
    2003). Gallegos provided no evidence that MS-13 continues to target her family,
    and it is unclear how MS-13 would know to target Gallegos considering she left El
    Salvador 20 years ago. Although the killing of her family members was tragic, the
    BIA could conclude that the possibility gangs would target Gallegos if she is
    returned to El Salvador is “too speculative to be credited as a basis for fear of future
    persecution.” Silva, 993 F.3d at 719 (quotations omitted).
    Because Gallegos did not meet her burden of proof for asylum, she also could
    not meet the more stringent requirements for withholding of removal and CAT
    protection. See E. Bay Sanctuary Covenant v. Trump, 
    950 F.3d 1242
    , 1277 (9th Cir.
    2020) (“The evidentiary standard that applicants must meet for either withholding-
    4
    of-removal or CAT relief is higher than the evidentiary standard for asylum.”).
    PETITION DENIED.
    5
    

Document Info

Docket Number: 20-71549

Filed Date: 6/28/2021

Precedential Status: Non-Precedential

Modified Date: 6/28/2021