Jaime Alonso Rodriguez v. Merrick Garland ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAIME ALONSO RODRIGUEZ, No. 20-70240
Petitioner,
Agency No.
v. A095-625-165
MERRICK B. GARLAND, Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 5, 2021 *
Pasadena, California
Filed March 15, 2021
Before: Ronald M. Gould, John B. Owens, and
Lawrence VanDyke, Circuit Judges.
Opinion by Judge VanDyke
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 RODRIGUEZ V. GARLAND
SUMMARY **
Immigration
Denying Jaime Alonso Rodriguez’s petition for review
of the Board of Immigration Appeals’ denial of a motion to
reopen removal proceedings, the panel held that the Board
did not abuse its discretion in concluding that Rodriguez
failed to establish materially changed country conditions to
warrant reopening.
Rodriguez sought to reopen removal proceedings to seek
asylum and related relief based on a “hybrid” change in
personal circumstances and country conditions since his
original removal hearing. The panel wrote that a petitioner’s
personal circumstances may act as a necessary predicate to
the success of a motion to reopen where the new personal
circumstances make the provided changed country
conditions evidence relevant to the petitioner’s changed
personal circumstances. The panel observed that in this
case, Rodriguez did not actually provide evidence of
changes in both his personal circumstances and Mexico’s
country conditions. Instead, he provided evidence of
changes in his personal circumstances, along with evidence
supporting his argument that, given his changed personal
circumstances, he could now be persecuted or tortured based
on current country conditions in Mexico. The panel wrote
that what was noticeably absent from Rodriguez’s “hybrid”
changed conditions claim was evidence of actual changed
country conditions between his original 2003 hearing and his
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
RODRIGUEZ V. GARLAND 3
2016 motion to reopen. The panel held that the Board
therefore did not abuse its discretion in concluding that
Rodriguez failed to establish materially changed country
conditions to warrant reopening.
COUNSEL
Henry A. Posada, Law Offices of Henry A. Posada, Downey,
California, for Petitioner.
Robbin K. Blaya, Trial Attorney; John S. Hogan, Assistant
Director; Evan P. Davis, Acting Assistant Attorney General;
Office of Immigration Litigation, Civil Division, United
States Department of Justice, Washington, D.C.; for
Respondent.
OPINION
VANDYKE, Circuit Judge:
I.
Jaime Alonso Rodriguez (Petitioner) challenges the
Board of Immigration Appeals’ (BIA) denial of his motion
to reopen his removal proceedings.
Petitioner is a Mexican citizen who was first deported
from the U.S. pursuant to an order of removal in 2003. He
was caught in 2012 attempting to smuggle back into the U.S.
with several others in a boat. After being apprehended,
Petitioner and his wife were privately interviewed by law
enforcement, where they confirmed their smugglers’
identities. Petitioner subsequently filed a motion to reopen
4 RODRIGUEZ V. GARLAND
his 2003 removal proceedings based on a “hybrid change in
personal circumstances and country conditions” since 2003,
so that the agency could consider a new petition for asylum,
withholding of removal, and protection under the
Convention Against Torture (CAT). Petitioner claims he
submitted evidence with his motion that demonstrates both
(1) a change in personal circumstances, because the
smugglers know of his 2012 assistance to law enforcement,
and so as a “snitch” he will now be subject to future
persecution and torture from cartels; and (2) a related change
in country conditions in Mexico since his 2003 removal.
The Immigration Judge (IJ) denied Petitioner’s motion
to reopen, which the BIA affirmed because Petitioner “had
not sufficiently established changed country conditions
… since … November 2003” that “were relevant in light of
[his] personal circumstances.” We now deny his petition for
review because the BIA did not abuse its discretion in
denying his motion. See 8 C.F.R. § 1003.2(a).
Motions to reopen like Petitioner’s require evidence that
conditions relevant to the petitioner have materially changed
in the country of removal since the date of the prior order of
removal. See id. § 1003.2(c)(3)(ii). Without a showing that
country conditions have changed, the motion to reopen need
not be granted—mere changes in a petitioner’s personal
circumstances are not sufficient. Id. Because the BIA did
not abuse its discretion in reaching that conclusion, and that
determination alone was sufficient to deny the petition, we
need not go beyond that issue to evaluate Petitioner’s claims
for prima facie relief.
II. FACTUAL AND PROCEDURAL BACKGROUND
Petitioner was charged with removability in late 2003.
An IJ executed his order of removability on November 13,
RODRIGUEZ V. GARLAND 5
2003, and he was removed to Mexico shortly thereafter.
Petitioner and his wife later settled in Tijuana, where a man
“who earned a lot of money from doing illegal things” gave
him a smuggler’s contact information to get back into the
U.S. On February 2, 2012, Petitioner and his wife attempted
to enter the U.S. on a boat with 15 to 20 other people, but
they were apprehended upon landing on Huntington Beach,
California. The arresting officers took Petitioner and his
wife into a private office and asked them to identify the
leaders of the smuggling group. Petitioner and his wife
pointed to pictures of the smugglers and explained their
roles. 1 Petitioner has acknowledged that he “do[es] not
know exactly who the smuggling group is affiliated with,”
but argues in a declaration attached to his motion to reopen
that, based on his cooperation with law enforcement, he is
“now … considered a snitch” and cannot return to Mexico
for fear of reprisal from Mexican cartels.
Following a grant of deferred action, Petitioner filed a
motion to open his 2003 removal proceedings in 2016. On
March 15, 2016, the IJ denied the motion to reopen because
Petitioner did not present evidence sufficient to demonstrate
changed country conditions, nor did he establish prima facie
eligibility for asylum or withholding. The BIA affirmed.
Because the IJ did not address Petitioner’s request for
protection under CAT, our court granted a motion from the
government to remand the case to the Board, who then
remanded it back to the IJ.
1
While Petitioner had no further involvement with the smugglers’
prosecution, his wife was later identified on the docket as one of two
material witnesses in one smuggler’s criminal case and she attended a
hearing, but did not ultimately testify. At one point, the attorney for one
of the smugglers contacted Petitioner’s wife’s attorney, but Petitioner
never explained why or what was said.
6 RODRIGUEZ V. GARLAND
A. IJ’s Decision on the Motion to Reopen
On remand, the IJ again considered Petitioner’s motion
to reopen and again denied it. The IJ correctly recognized
that “[t]o reopen proceedings based on changed country
conditions,” Petitioner must carry a “heavy burden” to
demonstrate “qualitatively different” evidence that
addresses “two points in time: the … time of the petitioner’s
previous hearing, and … the time of the motion to reopen.”
In support of his motion to reopen, Petitioner submitted a
2013 expert declaration from Dr. Boerman, and Mexico
country reports from 2014 and 2015. The IJ observed that
the expert declaration’s sources were from 2011 and 2012,
and did not “identify any specific events … in Mexico from
the date of [Petitioner’s] individual hearing (November 13,
2003) or the date [Petitioner] filed his motion to reopen
(February 16, 2016).” And although the 2014 Human Rights
Report documented an increase in complaints of torture from
2003 to 2013, those complaints involved torture of criminal
suspects immediately after arrest outside of police
facilities—not torture committed by a cartel against
informants, i.e., “snitches.” The IJ concluded that
generalized evidence of unrelated torture did not meet
Petitioner’s burden to establish changes in country
conditions for individuals who cooperate with U.S. law
enforcement and return to Mexico between Petitioner’s
application dates of 2003 and 2016.
Although the IJ could have denied Petitioner’s motion to
reopen on that ground alone, in an alternative holding the IJ
also reviewed and rejected Petitioner’s claims for prima
facie relief. As to the asylum and withholding claims, the IJ
determined Petitioner did not provide sufficient evidence to
“establish a prima facie fear of persecution on account of his
political opinion … as a … ‘snitch.’” The IJ further
RODRIGUEZ V. GARLAND 7
concluded Petitioner did not establish membership in a
particular social group (PSG) akin to the group considered
in Henriquez-Rivas v. Holder, 707 F.3d 1081, 1091–93 (9th
Cir. 2013) (en banc), “because neither [he] nor [his] wife
actually testified as a material witness.” The IJ also
determined Petitioner failed to establish a prima facie claim
for protection under CAT because the expert declaration
only speculated, without factual support, that cartels would
target Petitioner upon his return to Mexico. The IJ
concluded that neither the expert report nor the country
reports demonstrated that it was “more likely than not that
[Petitioner], specifically, will be tortured if he is removed to
Mexico.” Accordingly, the IJ denied the motion to reopen.
B. BIA Decision
Petitioner appealed the IJ’s denial of his motion to
reopen to the BIA. The BIA affirmed the IJ’s decision,
agreeing that Petitioner did not demonstrate “that country
conditions in Mexico have materially changed to a sufficient
extent since the [IJ’s] November 13, 2003” removal
decision. Observing that Petitioner did not provide “record
evidence showing changed country conditions in how
smugglers treat witnesses, or how the police work with
smugglers,” the BIA concluded that Petitioner “had not
sufficiently established changed country conditions arising
in Mexico that were material to [his] fear from identifying
smugglers since … November 2003.” The BIA also
affirmed the IJ’s alternative holding that Petitioner did not
establish a prima facie case for asylum or withholding of
removal based on imputed political opinion or membership
in a PSG, 2 nor did he allege facts sufficient for eligibility for
2
The BIA noted that Petitioner on appeal also raised another PSG
of “family,” but declined to address that PSG because “it was his burden
to do so in his motion [before the IJ] if he wanted [it] considered.”
8 RODRIGUEZ V. GARLAND
protection under CAT. The BIA therefore denied
Petitioner’s motion to reopen.
This petition follows, where Petitioner argues that the
BIA abused its discretion in denying his motion to reopen.
III. STANDARD OF REVIEW
We review the denial of a motion to reopen for abuse of
discretion. Martinez v. Barr, 941 F.3d 907, 921 (9th Cir.
2019). The BIA abuses its discretion if the decision was
“arbitrary, irrational, or contrary to law.” Perez v. Mukasey,
516 F.3d 770, 773 (9th Cir. 2008) (citation omitted). For the
BIA to grant a motion to reopen based on changed country
conditions, a petitioner must “clear four hurdles: (1) he
[must] produce evidence that [country] conditions [have]
changed … (2) the evidence [must] be ‘material;’ (3) the
evidence must not have been available … previous[ly]
… and (4) … the new evidence … would establish prima
facie eligibility for the relief sought.” Toufighi v. Mukasey,
538 F.3d 988, 996 (9th Cir. 2008) (citation omitted); 8
C.F.R. § 1003.2(c)(3)(ii). A petitioner’s personal
circumstances may act as “a necessary predicate to the
success of [a] motion” to reopen where the new personal
circumstances make the provided changed country
conditions evidence relevant to the petitioner’s (changed)
personal circumstances. Chandra v. Holder, 751 F.3d 1034,
1036–38 (9th Cir. 2014).
IV. NO EVIDENCE OF CHANGED COUNTRY
CONDITIONS
Relying on our court’s Chandra decision, Petitioner
frames his motion to reopen as presenting a “hybrid”
changed conditions claim—that is, a claim based on changes
in both his personal circumstances and in Mexico’s country
RODRIGUEZ V. GARLAND 9
conditions. But as explained by the BIA, Petitioner in this
case did not actually provide evidence of changes in both his
personal circumstances and Mexico’s country conditions.
Instead, Petitioner provided evidence of changes in his
personal circumstances, along with evidence supporting his
argument that, given his changed personal circumstances, he
could now be persecuted or tortured based on current
country conditions in Mexico. 3 What is noticeably absent
from Petitioner’s “hybrid” changed conditions claim is
evidence of actual changed country conditions between 2003
and his 2016 motion to reopen.
As explained in Chandra, while changes in personal
circumstances may be relevant to a motion to reopen based
on changed country conditions, a petitioner cannot succeed
on such a motion that “relies solely on a change in personal
circumstances,” without also providing sufficient evidence
of related changed country conditions. Chandra, 751 F.3d
at 1037. This is because the regulatory language governing
such claims requires that a motion to reopen be based on
“changed circumstances arising in the country of nationality
or deportation.” Id. at 1036 (emphasis added) (citing 8
C.F.R. § 1003.2(c)(3)(ii)). Changes in a petitioner’s
personal circumstances are only relevant where those
changes are related to the changed country conditions that
form the basis for the motion to reopen. Put differently, a
petitioner is always required to demonstrate changed
country conditions, but may also present evidence of
changed personal circumstances to the extent that is helpful
“to establish the materiality” of the changed country
conditions. Id. at 1037. Changed country conditions are
always mandatory to a motion to reopen based on “changed
3
Because our disposition does not require it, we do not reach the
merits of Petitioner’s claims, and so take no position on the strength of
the evidence presented by Petitioner.
10 RODRIGUEZ V. GARLAND
conditions”—even one based on a “hybrid” claim. Changed
personal circumstances, by contrast, are optional, and should
be included where helpful to show how the changed country
conditions could now affect the petitioner.
Here, the BIA did not abuse its discretion in determining
that Petitioner’s motion failed to meet the most basic
requirement for reopening: changed country conditions.
None of Petitioner’s proffered evidence revealed any
changed conditions in Mexico since 2003 for people fearing
retribution from alien smugglers or associated cartels. See 8
C.F.R. § 1003.2(c)(3)(ii). Petitioner’s expert report only
provided an analysis of current Mexico country conditions
as of January 2013, when the report was filed—ten years
after Petitioner’s removal hearing. Tellingly, Petitioner
himself characterized his expert’s report as “explaining
country conditions in Mexico as it relates to [Petitioner’s]
changed circumstances”—omitting any reference to the
report evincing changed country conditions, because it
doesn’t. Petitioner’s expert never purports to present or
explain any changes in country conditions since 2003, aside
from noting that the Tijuana cartel with the most power has
gone back and forth since 2002. 4 But this change has
nothing to do with changed conditions in Mexico for those
who identify smugglers to law enforcement. The expert
report is simply silent on that key issue.
Despite this, Petitioner repeatedly asserts he made the
required showing of changed country conditions before the
agency, but cites no specific evidence, other than a single
citation to the first page of the 2014 Mexico Human Rights
Country Report. Like Petitioner’s expert report, that country
report omits any information on relevant changes in Mexican
4
Petitioner’s expert then explicitly disclaimed any impact from
whichever cartel was the most influential.
RODRIGUEZ V. GARLAND 11
country conditions between 2003 and 2016. The only
changes specifically quantified in the record at all in the
relevant time period have no relation to Petitioner’s
circumstances—a 600 percent increase in the torture of
prison detainees by police from 2003 to 2013, and a 266
percent increase in child abuse between 2006 and 2012.
Rather than showing increases in retaliatory attacks on
“snitches” from cartels, the country reports provided by
Petitioner in support of his motion to reopen—the 2014
Human Rights report, 2015 Mexico Crime and Safety report,
2015 Mexico Travel Warning, 2015 Human Rights report,
and the 2016 Amnesty International report—all simply
document that the situation in Mexico “remained” or
“continued” to be poor. General references to “continuing”
or “remaining” problems is not evidence of a change in a
country’s conditions. See Najmabadi v. Holder, 597 F.3d
983, 989 (9th Cir. 2010) (determining that where a submitted
“2003 Report merely describes conditions similar to those
found in the 1999 Report” it did not demonstrate
“qualitatively different” country conditions). Because
Petitioner only alleged “a ‘purely personal change in
circumstances’” and did not provide evidence of related
“‘separate but simultaneous changes’ in … country
conditions,” the BIA did not abuse its discretion in denying
the motion to reopen. Chandra, 751 F.3d at 1038 (citation
omitted).
V. CONCLUSION
Petitioner did not present any evidence demonstrating
that relevant conditions in Mexico changed since his 2003
removal order, and a change in personal circumstances alone
is not sufficient to support a motion to reopen his removal
proceedings. See Chandra, 751 F.3d at 1037. Even
assuming a petitioner’s changed personal conditions could
12 RODRIGUEZ V. GARLAND
affect his anticipated experience upon return to his country
of removal, by regulation the BIA is not required to grant a
motion to reopen based on changed conditions absent a
change in that country’s conditions. See 8 C.F.R.
§ 1003.2(c)(3)(ii). The BIA therefore did not abuse its
discretion in denying Petitioner’s motion to reopen on the
grounds that he did not demonstrate a relevant change in
country conditions.
Because this is an “independent ground[] on which the
BIA may deny a motion to reopen,” INS v. Abudu, 485 U.S.
94, 104 (1988), there is no need for us to reach Petitioner’s
other arguments regarding his prima facie eligibility for
relief. Najmabadi, 597 F.3d at 991–92 (“Because the Board
denied [Petitioner’s] motion to reopen based on her failure
to introduce previously unavailable, material evidence, it did
not need to reach the question of whether [Petitioner]
established a prima facie case for relief.”).
PETITION DENIED. 5
5
Petitioner’s motion to hold this case in abeyance (ECF No. 27) is
also DENIED.