PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION
Olen on brief for petitioner.
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.
Thompson, Selya, and Barron, Circuit Judges.
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.
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.
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
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.
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).
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.
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. §
timely petition for judicial review ensued. In it, the
petitioner seeks review only of the BIA's denial of her
motion to reopen.
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