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Garcia-Aguilar v. Whitaker

United States Court of Appeals, First Circuit

January 16, 2019



          Randy Olen on brief for petitioner.

          Joseph H. Hunt, Assistant Attorney General, Civil Division, Ernesto H. Molina, Jr., Deputy Director, Office of Immigration Litigation, and Nancy N. Safavi, Trial Attorney, Office of Immigration Litigation, on brief for respondent.

          Before Thompson, Selya, and Barron, Circuit Judges.

          SELYA, Circuit Judge.

         The petitioner, Maria Leticia Garcia-Aguilar, is a Mexican national. She seeks judicial review of a decision of the Board of Immigration Appeals (BIA) denying her untimely motion to reopen removal proceedings - a motion grounded upon her claim that country conditions in her native land had materially changed, thus making her newly eligible for asylum. After careful consideration, we deny the petition.

         We set the stage. The petitioner entered the United States illegally in 2005 near El Paso, Texas. Following a 2007 raid at the factory where she worked, the Department of Homeland Security initiated removal proceedings against her. The petitioner denied the factual allegations underpinning the government's case for removal. Relatedly, she moved to suppress some of the evidence upon which the government sought to rely, claiming that the evidence had been procured in violation of her constitutional rights.

         On August 11, 2009, the petitioner's first merits hearing was held before an immigration judge (IJ). The IJ denied the motion to suppress, ordered the petitioner removed to Mexico, and granted her the privilege of voluntary departure. The petitioner appealed to the BIA, which vacated the IJ's decision and remanded the case for reconsideration of the motion to suppress, including the underlying constitutional issues.

         The petitioner had another merits hearing on February 17, 2012. The IJ reconsidered facts pertinent to the petitioner's motion to suppress and determined that the evidence used against her was admissible. In the end, the results of this second merits hearing reprised the results of the petitioner's first merits hearing: on February 1, 2013, the IJ denied the petitioner's motion to suppress, ordered her removed, and granted voluntary departure.

         Once again, the petitioner appealed the IJ's decision to the BIA. Nearly a year later, the BIA upheld the IJ's decision. Undaunted, the petitioner sought judicial review. See 8 U.S.C. § 1252(b)(4). On November 25, 2015, we denied her petition. See Garcia-Aguilar v. Lynch, 806 F.3d 671, 677 (1st Cir. 2015).

         The matter did not end there. Almost two years later (on August 28, 2017), the petitioner filed a motion to reopen, arguing that a dramatic shift in conditions in Mexico - specifically, an increase in kidnappings and murders due to violence associated with drug cartels and gangs - made her newly eligible for asylum. In support of her nascent asylum claim, she alleged a fear of persecution based on her imputed "American nationality." To flesh out this claim, she further alleged that she had lived in the United States since 2005; that she was the mother of an American-born child; and that she had an older child who, though born in Mexico, had resided in the United States since infancy.

          The BIA denied the motion to reopen. It noted that the motion was untimely and went on to hold that the evidence that the petitioner submitted failed to achieve the level of proof needed for the granting of an untimely motion to reopen. In the BIA's view, the submitted evidence did "not establish materially changed circumstances or changed country conditions arising in Mexico since [the petitioner's] merits hearing below." Taking a belt-and-suspenders approach, the BIA also concluded that the petitioner had failed to explain how her imputed American nationality would make her risk of persecution different from that of the general population in Mexico. So, too, the BIA concluded that the petitioner had failed to show a nexus between the persecution that she allegedly feared and a statutorily protected ground for asylum. See 8 U.S.C. § 1158(b)(1)(B)(i).

         This timely petition for judicial review ensued. In it, the petitioner seeks review only of the BIA's denial of her motion to reopen.

         Motions to reopen are disfavored in immigration practice. See Sihotang v. Sessions, 900 F.3d 46, 48 (1st Cir. 2018); Xiao He Chen v. Lynch, 825 F.3d 83, 86 (1st Cir. 2016). After all, reopening a proceeding is "contrary to 'the compelling public interests in finality and the expeditious processing of [removal] proceedings.'" Raza v. Gonzales, 484 F.3d 125, 127 (1st Cir. 2007) (quoting Roberts v. Gonzales, 422 F.3d 33, 35 (1st Cir. ...

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