United States Court of Appeals For the First Circuit No. 18-1860

MARTA PEREZ-TINO,

Petitioner,

v.

WILLIAM P. BARR, Attorney General,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

Before Lynch, Kayatta, and Barron, Circuit Judges.

Nancy J. Kelly, Esq., with whom John Willshire Carrera, Esq., Maggie Morgan, Esq., and Harvard Law School Immigration & Refugee Clinic at Greater Boston Legal Services, were on brief, for petitioner. Jacob A. Bashyrov, Trial Attorney, Office of Immigration Litigation, with whom Joseph H. Hunt, Assistant Attorney General, Civil Division, and M. Jocelyn Lopez Wright, Senior Litigation Counsel, Office of Immigration Litigation, were on brief for respondent.

August 30, 2019

 Pursuant to Fed. R. App. P. 43(c)(2), Attorney General William P. Barr has been substituted for former Acting Attorney General Matthew G. Whitaker as the respondent. BARRON, Circuit Judge. Marta Perez-Tino is a Guatemalan

national of Mayan K'Iche' descent who entered the United States in

2001 without inspection. Facing the prospect of removal on the

basis of a 2010 Board of Immigration Appeals ("BIA") decision

denying her asylum, withholding of removal, and relief under the

Convention Against Torture ("CAT"), Perez-Tino filed a motion to

reopen with the BIA years later, on February 28, 2018. She sought

to excuse the untimeliness of that motion on the basis of changed

country conditions in Guatemala. See 8 U.S.C.

§ 1229a(c)(7)(C)(ii). The BIA denied her motion to reopen as

untimely. She petitioned for our review, and we now vacate and

remand.

I.

On March 6, 2007, Immigration and Customs Enforcement

("ICE") detained Perez-Tino after a raid on her workplace in New

Bedford, Massachusetts. After the raid, she was briefly detained

by ICE in Massachusetts before being transferred to the Port Isabel

Detention Center in Texas. Perez-Tino was served with a notice to

appear, which charged that she was inadmissible because she was

present in the United States without being admitted or paroled.

See

(a)(6)(A)(i). She was released on bond that

same month and her case was transferred to the Boston Immigration

Court that May.

- 2 - Perez-Tino appeared before the Immigration Court and

admitted the factual allegations against her, conceded

removability, and indicated that she intended to apply for

withholding of removal, protection under the CAT, and voluntary

departure. She submitted those applications in September 2007.

In her application for asylum, withholding of removal,

and protection under the CAT, she described her grandfather's

status as a Mayan community leader and harassment by the "guerrilla

and the Civil Patrol," the murders of her uncles "because they

were Mayans," and the discrimination from authorities that her

mother faced while seeking protection from Perez-Tino's abusive

father. She further explained that because of this long history

of discrimination and threats based on her family's Mayan ancestry,

she feared further harm in Guatemala, especially as a woman who

could be sexually targeted.

Perez-Tino appeared before the Boston Immigration Court

on April 3, 2009 and testified in support of her application for

relief. During that testimony, she stated that her uncles "were

killed by the army, by the military" during the Guatemalan civil

war. Perez-Tino then asserted that she expected negative treatment

from the Guatemalan government if she were forced to return, as

the then-president of Guatemala would "not help [indigenous

people] at all." Perez-Tino also expressed concern that a return

- 3 - to Guatemala would leave her unable to "provide for [her] children"

and "help [her] mom" because the country was "very poor."

At the close of the hearing, the Immigration Judge ("IJ")

found that Perez-Tino's testimony was credible, but nevertheless

denied her application for withholding of removal or relief under

the CAT. The IJ did, however, grant her request for voluntary

departure.

Perez-Tino filed an appeal of the IJ's decision to the

BIA, which the BIA rejected on October 7, 2010. The BIA then

reinstated the IJ's grant of voluntary departure for a period of

sixty days. The United States Citizenship and Immigration Services

granted a stay of removal to Perez-Tino, which was repeatedly

extended until her last application was denied on November 21,

2017. She was ordered to, and did, report to ICE on February 5,

2018 with an airline ticket to depart the United States by March

5, 2018. At that time, ICE placed Perez-Tino on an ankle monitor.

On February 28, 2018, more than seven years after the

BIA's decision, Perez-Tino filed a motion to reopen. In that

motion, she seeks to apply for asylum, withholding of removal, and

relief under the CAT, despite the lateness of her filing, on the

ground that she could satisfy the "changed country conditions"

exception to the requirement that a motion to reopen be filed

within ninety days, see 8 U.S.C. § 1229a(c)(7)(C)(ii), because the

country conditions in Guatemala had changed since the IJ's 2009

- 4 - decision. On August 7, 2018, the BIA denied the motion as untimely

on the ground that she had failed to make the requisite changed

country conditions showing. Perez-Tino timely petitioned for our

review of the BIA's denial of her motion to reopen.

II.

To prevail on a motion to reopen, the applicant must

establish both "a prima facie case for the underlying substantive

relief sought" and that the evidence supporting the motion to

reopen was "previously unavailable [and] material." INS v. Abudu,

(1988). A motion to reopen must generally be

submitted less than ninety days after the final administrative

decision is issued, 8 U.S.C. § 1229a(c)(7)(C)(i), unless the

applicant can demonstrate "changed country conditions arising in

the country of nationality or the country to which removal has

been ordered, if such evidence is material and was not available

and would not have been discovered or presented at the previous

proceeding." Id. § 1229a(c)(7)(C)(ii).

We review a denial of a motion to reopen for abuse of

discretion. INS v. Doherty,

(1992). "The BIA

can abuse its discretion," according to our Court, "by neglecting

to consider a significant factor that appropriately bears on the

discretionary decision, by attaching weight to a factor that does

not appropriately bear on the decision, or by assaying all the

proper factors and no improper ones, but nonetheless making a clear

- 5 - judgmental error in weighing them." Murillo-Robles v. Lynch,

(1st Cir. 2016) (quoting Henry v. INS,

(1st Cir. 1996)).

Perez-Tino submitted evidence to the BIA that, since the

relevant "previous proceeding," 18 U.S.C. § 1229a(c)(7)(C)(ii),

conditions in Guatemala had materially worsened for her in three

distinct ways. First, she argued that the "expected deportation

to Guatemala" of a former paramilitary commander who she asserted

was responsible for atrocities committed against her family during

the Guatemalan civil war would result "in an increase in danger

for [her]." Second, Perez-Tino asserted that the remilitarization

of Guatemala in 2011 meant that the country had become much more

dangerous for the Maya K'Iche' and thus for her. Lastly, she

asserted that Guatemala had become a much more hostile place for

members of the Organizacion Maya K’Iche' ("OMK") -- a Mayan

activist organization which the parties agree Perez-Tino joined

after her arrival in the United States in 2001. We consider each

contention in turn.

A.

To show that country conditions had worsened for her

during the relevant period, Perez-Tino first submitted evidence

that Juan Samayoa had been arrested in the United States in 2017

and was facing "deportation" to Guatemala. Perez-Tino explained

- 6 - that Samayoa was a former Ladino1 paramilitary commander in

Guatemala who had been arrested for committing war crimes during

that country's civil war. She claimed that Samayoa and his

underlings had tortured her grandfather and murdered two of her

uncles for their role in indigenous activism during the Guatemalan

civil war. She thus asserted that Samayoa's impending return to

Guatemala placed her in danger of being "targeted for persecution

by Ladinos who support Samayoa as well as right-wing Ladinos who

support those policies and attacks on the Maya Quiche community."

In support of the contention that the prospect of

Samayoa's return to Guatemala makes her "return to Guatemala

exceedingly dangerous," Perez-Tino asserted that, as a "member of

a particularly targeted indigenous family," she "is a witness to

Samayoa's atrocities during the Civil War, as well as [a member

of] an influential indigenous family." Perez-Tino further

asserted that the danger presented by his return is "heightened by

the remilitarization of the conflict between the Ladinos and" her

"indigenous communities in Guatemala, which has empowered and

emboldened supporters of Samayoa" in Guatemala.2

1 Ladino is a term that refers to people of mixed race in Guatemala. According to Perez-Tino, Ladinos currently hold governmental power and have historically discriminated against the Maya K'Iche' people. 2 Perez-Tino also asserted that the danger posed to her by the return of Samayoa was increased due to her involvement in OMK. But, for present purposes, we set that assertion aside, as, later in this opinion, we separately consider the BIA's rejection of her

- 7 - The BIA rejected this ground for finding "changed

country conditions." The BIA did so by concluding that Perez-Tino

had not "adequately explain[ed]" why she did not mention Samayoa's

past actions with regard to her family during her prior immigration

hearing in 2009, given that one of her claims then was that her

family had been previously targeted during the Civil War.

In both her motion to reopen before the BIA and her

briefing to us, however, Perez-Tino plainly explains that the

reason that she did not mention Samayoa in her 2009 hearing was

that his arrest in the United States -- and the potential for

deportation to Guatemala that arose from it -- did not occur until

2017. Consequently, we fail to see why this explanation does not

"adequately explain" Perez-Tino's decision to refer to Samayoa for

the first time in her 2018 motion to reopen.

We note in this regard both that Perez-Tino supported

her Samayoa-related assertions in support of her motion to reopen

to the BIA with multiple affidavits from friends and family

attesting to the veracity of those claims and that the BIA does

not expressly mention any concerns regarding the credibility of

her Samayoa-based claims. In fact, the government asserts to us

that the BIA did not ground its decision regarding her Samayoa-

attempt to show changed country conditions in connection with her involvement with OMK.

- 8 - based claim of changed country conditions on an adverse credibility

determination.

The BIA did separately conclude that Perez-Tino's "fear

based on the arrest and detention of Samayoa" was too

"speculative," as Samayoa has not, as of yet, "been removed or

extradited to Guatemala." But, the government does not dispute

that Samayoa was issued a notice to appear for removal proceedings

nearly five months prior to Perez-Tino filing her motion to reopen

or that an IJ ordered his deportation on March 29, 2018, a decision

that he is currently challenging in this Circuit.3 Nor does the

BIA explain why Perez-Tino requires more than evidence of Samayoa's

pending removal to support her fear that he will be returned to

Guatemala.

In sum, the grounds that the BIA gave for rejecting

Perez-Tino's Samayoa-based changed country conditions arguments

are not sustainable. They thus cannot support the BIA's decision

to reject Perez-Tino's motion as untimely.

3 We note that the IJ issued his order for Samayoa's deportation well before the BIA's August 7, 2018 decision to deny Perez-Tino's motion to reopen. We may take judicial notice of the past proceedings in Samayoa's case. See LeBlanc v. Salem (In re Mailman Steam Carpet Cleaning Corp.),

(1st Cir. 1999) (noting that courts can take judicial notice of their own dockets); Kowalski v. Gagne,

(1st Cir. 1990) ("It is well- accepted that federal courts may take judicial notice of proceedings in other courts if those proceedings have relevance to the matters at hand.").

- 9 - B.

Perez-Tino also sought to show that "the changing

political landscape in Guatemala" since the denial of her initial

application for asylum and withholding of removal resulted in

worsened conditions for her safety and that, for this, too, she

could satisfy the "changed country conditions" exception to the

deadline for filing a motion to reopen that otherwise would apply.

Specifically, Perez-Tino argued to the BIA in support of her motion

to reopen that the 2011 election in Guatemala and the subsequent

remilitarization of the Quiche region in and of themselves amounted

to a change in country conditions.

The BIA rejected that argument. It concluded that:

[t]he voluminous country condition evidence submitted along with the respondent's motion does not demonstrate a material change in circumstances in Guatemala, but rather a continuation of discrimination against and land disputes involving indigenous people as well as human rights abuses, including police corruption and societal violence, which existed at the time of the respondent's 2009 merits hearing.

Perez-Tino argues to us that the BIA reversibly erred in

reaching this conclusion because it failed "to consider critical

evidence of changes in political conditions within Guatemala, and

by considering facts in isolation rather than considering the

totality of the circumstances of [Perez-Tino's] case." But, the

BIA's express reference to the "voluminous country condition

- 10 - evidence" that Perez-Tino submitted precludes us from agreeing.

Moreover, Perez-Tino develops no argument that the BIA's

determination that there had not been a "material change in

circumstances" with respect to this aspect of her attempted showing

to the contrary was unsupported by substantial evidence. (Emphasis

added.) See United States v. Zannino,

(1st Cir.

1990) (noting that arguments not developed on appeal are deemed

waived). We thus see no basis for upsetting this aspect of the

BIA's ruling.

C.

Perez-Tino's final basis for contending that country

conditions had changed relates to her involvement with OMK. The

BIA rejected this contention on the ground that she had shown only

a change in personal circumstances and not a change in country

conditions. There is no doubt that Perez-Tino's decision to become

involved with OMK in 2001 was a personal choice. Nor is there any

doubt that a change in personal circumstances is not itself a

change in country conditions. See Xin Qiang Liu v. Lynch,

(1st Cir. 2015); Yang Zhao-Cheng v. Holder,

(1st Cir. 2013). Nevertheless, Perez-Tino argues to us --

as she argued to the BIA in support of her motion to reopen --

that our decision in Larngar v. Holder,

(1st Cir. 2009)

supports her OMK-based contention that country conditions had

changed.

- 11 - In Larngar, we held that a petitioner could establish

changed country conditions based on the fact that a man that the

petitioner had assaulted ascended to a position of substantial

political power in Liberia after the petitioner had been removed.

See

. In so holding, we made clear that the BIA abuses

its discretion "when it impliedly conclude[s] that, regardless of

whether the petitioner induced the changed circumstances [in the

country to which she will be removed] or not, so long as the

petitioner originally induced the reason for [her] fear of harm

[s]he cannot establish changed country circumstances."

.

We explained that the BIA must avoid making such conclusions

because they do not "further[] the policy interest behind the

personal-circumstances rule -- preventing applicants from

orchestrating changes that serve their self-interest."

And,

we concluded, because the BIA had failed to consider the changed

circumstances in Liberia that the petitioner "had and has no

control over" and focused instead only on the fact that the

petitioner was responsible for the assault, we had to vacate "the

BIA's denial of the motion to reopen."

According to Perez-Tino, her case requires the same

outcome. She asserts that country conditions have become

materially worse for members of OMK since the proceedings before

the IJ in 2009 because the current Guatemalan administration views

OMK and its members as a threat to its systematic oppression of

- 12 - indigenous people. Perez-Tino claims, for example, that since her

failed attempt to secure relief from removal, the fathers of two

OMK activists were killed in retaliation for the OMK's "organizing

activities." Yet, she contends, the BIA did not address this

aspect of her OMK-based argument for establishing changed country

conditions and instead focused only on the fact that her

involvement with OMK was the consequence of a personal choice,

even if it were one that she made prior to the 2009 proceedings

before the IJ. For that reason, she maintains, Larngar precludes

us from sustaining the BIA's reasons for rejecting her OMK-based

claim of changed country conditions.

We agree. The BIA rejected Perez-Tino's OMK-based

changed country conditions argument by stating: "The only change

shown is the respondent's activities in the United States with the

Organization Maya K'Iche, which is a change in the respondent's

personal circumstances." In doing so, the BIA cited to the portion

of Larngar that merely sets forth examples of changes in

circumstances, such as the birth of a child, marriage, or

conversion to a particular religion, that would, on their own,

like joining an organization, "typically . . . be categorized as

a change in personal circumstances" because they are "self-

induced." Larngar,

(emphasis added) (collecting

cases). Thus, nothing in the BIA's decision indicates that it

assessed how the treatment of OMK members in Guatemala may have

- 13 - changed since the IJ's 2009 decision. From all that we can discern

from the face of the BIA's opinion, it appears that, as Perez-Tino

contends, the BIA mistakenly "assumed that, because Ms. Perez-Tino

voluntarily associated herself with OMK, that condition was a

personal circumstance and could not support her motion to

reopen[.]"

We note that the government's argument on appeal in

defense of the BIA's ruling reinforces the concern that it was

based on the same mistake that led us to vacate the BIA's decision

in Larngar. The government contends that we must uphold the BIA's

decision because Perez-Tino's "joining" OMK was "self-induced."

But, the government does not suggest that the BIA assessed, at any

point, how the danger posed to members of OMK in Guatemala may

have changed after the IJ's decision in 2009. Instead, the

government appears to be of the view that the mere fact that

Perez-Tino joined the OMK -- even if she did so prior to the

proceedings before the IJ in 2009 -- precludes her OMK-based effort

to show a change in country conditions from succeeding. But, while

it is true that Perez-Tino's decision to join OMK in 2001 was a

personal choice, that fact alone is not necessarily dispositive of

the matter, given our decision in Larngar.

Simply put, Perez-Tino offered evidence to support her

contention that Guatemala had become a much more dangerous place

for OMK members since the IJ's 2009 decision. The BIA must assess

- 14 - that evidence and find it wanting before it may conclude that her

OMK-based argument fails to establish the requisite change in

country conditions.

III.

Of course, even if a petitioner can establish a change

in country conditions, the BIA "may still deny the motion [to

reopen] if the evidence fails to 'establish a prima facie case

sufficient to ground a claim of eligibility for the underlying

substantive relief.'" Larngar,

(quoting Raza v.

Gonzales,

(1st Cir. 2007)). But, we agree with

the government that the BIA did not reach the issue of whether

Perez-Tino had established prima facie eligibility for relief,

notwithstanding its curious reference to whether the "general

country conditions evidence . . . prima facie demonstrate[s] that

the respondent faces an individualized risk of harm rising to the

level of persecution." (Emphasis added.) Nor does Perez-Tino

argue that the record "compel[s]" that we find she has established

a prima facie basis for relief. Accordingly, we vacate and remand

the BIA's ruling. See Castañeda-Castillo v. Gonzales,

(1st Cir. 2007) (noting that remanding to the BIA is the

"ordinary course" where the record does not "compel[]" a decision

in the petitioner's favor).

In doing so, we note that "'[p]rima facie' scrutiny of

a motion to reopen means an evaluation of the evidence that

- 15 - accompanies the motion as well as relevant evidence that may exist

in the record of the prior hearing, in light of the applicable

statutory requirements for relief." Smith v. Holder,

(1st Cir. 2010) (quoting Sevoian v. Ashcroft,

(3d Cir. 2002)). We note, too, that, because new evidence

proffered in support of a motion to reopen must be "material," "it

follows that the prima facie showing will always include some new

evidence."

But, we emphasize, this prima facie showing need

not "be made entirely through new evidence" and instead may "be

based on the new evidence coupled with 'the facts already of

record.'"

(quoting In re L-O-G-,

(BIA June 14, 1996)).

IV.

The petition for review is granted. The decision of the

Board of Immigration Appeals is vacated and remanded for further

consideration consistent with this opinion.

- 16 -