United States Court of Appeals For the First Circuit

No. 19-1965

NOE SOSA MOLINA,

Petitioner,

v.

WILLIAM P. BARR, ATTORNEY GENERAL,

Respondent.

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

Before

Lynch, Stahl, and Kayatta, Circuit Judges.

Stanley H. Cooper on brief for petitioner. Joseph H. Hunt, Assistant Attorney General, Civil Division, Leslie McKay, Senior Litigation Counsel, Office of Immigration Litigation, and Corey L. Farrell, Attorney, United States Department of Justice, Civil Division, Office of Immigration Litigation, on brief for respondent.

March 9, 2020 STAHL, Circuit Judge. Noe Sosa Molina ("Molina"), 1 a

native and citizen of Guatemala who illegally entered the United

States in 2002 and was placed in removal proceedings in 2005,

applied for asylum and withholding of removal on the grounds that

he feared gang violence upon his return to Guatemala. An

Immigration Judge ("IJ") denied Molina's applications in 2007, and

the Board of Immigration Appeals ("BIA") denied his appeal in 2008.

In 2018, Molina moved to reopen his case on the grounds

that he had received ineffective assistance of counsel in the 2007

proceedings and that country conditions in Guatemala had changed

substantially since his merits hearing. The BIA denied the motion

to reopen, finding it was not timely and was not subject to

equitable tolling because Molina had not demonstrated due

diligence in the ten years between his final removal order and his

motion to reopen. The BIA also determined that Molina had not

demonstrated that conditions in Guatemala had changed

substantially since 2007.

Molina now petitions this court for review of the BIA's

denial. After careful consideration of Molina's claims and the

BIA's order, we deny the petition for review.

1While the cover of Molina's brief and several documents in the record refer to the petitioner as "Noe Sasa Molina," we refer to him as "Noe Sosa Molina" in accordance with the weight of record evidence, including the respondent's birth certificate, marriage certificate, sworn declarations, and other filings submitted in his immigration proceedings.

- 2 - I. Factual Background and Procedural History

In 2002, Molina entered the United States without

inspection. In 2005, the Department of Homeland Security issued

Molina a Notice to Appear and placed him in removal proceedings.

Sometime in 2005, after he received the Notice to Appear, Molina

retained Susan Mills as his attorney. In 2006, Molina conceded

removability.

Later in 2006, Molina applied for asylum and withholding

of removal, requesting voluntary departure in the alternative.

Molina stated that he had come to the United States because he

"wanted to help [his] mother," but that after he left Guatemala,

gang members had broken into his mother's home in an attempt to

rob her, as they believed she had money. He also claimed that

gang members had killed a neighbor whose husband had spent time in

the United States after she fought back during an attempted

robbery. As Molina stated in his application, he feared

"returning to Guatemala because of the rising power of these gangs,

who especially target those who have been in the U.S. and are

therefore believed to have money." Molina also submitted

documentary evidence describing general country conditions in

Guatemala, including widespread human rights violations. The 2006

State Department Country Report on Human Rights Practices (the

"State Department Report"), which the IJ also considered, stated

that "[s]ocietal violence," including gang activity, "occurred

- 3 - widely throughout" Guatemala at that time.

On June 11, 2007, the IJ denied Molina's applications

for asylum and withholding of removal and granted voluntary

departure, ordering Molina to depart on or before August 10, 2007.

Regarding Molina's asylum application, the IJ found Molina

statutorily ineligible because he had failed to apply within one

year of entering the United States and had not established

extraordinary circumstances necessary to obtain tolling of the

delay.

Regarding Molina's withholding of removal application,

the IJ stated that Molina could qualify for withholding of removal

to Guatemala "if he demonstrates that his life or freedom would be

threatened in that country on account of one of the protected

grounds under the [Immigration and Nationality] Act,"

§ 241(b)(3)(A),

(b)(3)(A). However, the IJ

determined that Molina was not a victim of past persecution, as he

had "testified that nothing ever happened to him when he was in

Guatemala." The IJ also concluded that Molina could not establish

that it was more likely than not that he would face future

persecution in Guatemala on account of a protected ground, as

Molina had testified that he feared gang members would target him

because they suspected he had money, not because of any particular

belief he held nor any membership in a particular social group, as

the statute requires.

- 4 - Molina timely appealed the IJ's decision to the BIA,

where he argued that the IJ erred in finding he had not established

a well-founded fear of future persecution upon returning to

Guatemala on account of his membership in a particular social

group. He contended that the "relevant social group" was "a

Guatemalan man who has lived in the U.S., which situation is known

to Guatemalan gangmembers [sic] who thereby believe that he has

access to money." Molina argued further that "[b]ackground

reports in the record certainly confirm[ed] widespread violence

and inability of the police to control gang and criminal violence

in Guatemala," and that the State Department Report in particular

"indicate[d] that gang violence remains a prevalent problem in

Guatemala" and that there was a "pattern of [governmental] failure

to protect victims of gang violence."

On June 13, 2008, the BIA dismissed Molina's appeal,

agreeing with the IJ's conclusion that Molina had not shown that

he would more likely than not suffer persecution upon his return

to Guatemala. In reaching this conclusion, the BIA determined

that it was "speculative to presume that gangs in Guatemala will

more likely than not target the respondent." The BIA also

concluded that any potential targeting by gang members "would

appear to be motivated by their desire to steal from the respondent

and not to punish him on account of a protected ground," noting

that "[a]n alien's fear of his nation's general condition is not

- 5 - a protected ground." Accordingly, the BIA dismissed the appeal,

affirming the IJ's grant of voluntary departure and ordering Molina

to depart within sixty days of its decision.

Molina did not depart as ordered, and ten years after

the adverse decision of the BIA, he moved the BIA to reopen his

case on two grounds: first, that but for what he alleged was

ineffective assistance of counsel, the IJ would have approved his

withholding of removal application, and second, that country

conditions in Guatemala had changed substantially since 2007.

Regarding ineffective assistance of counsel, Molina argued that

though he had retained Mills, he had at his 2007 hearing instead

been greeted by another attorney, whom Molina alleged he had not

previously spoken to with respect to his proposed testimony.

Molina also contended that neither Mills nor the substitute

attorney had prepared him to testify at the hearing. Thus, Molina

alleged that "his failure to give more complete in[-]depth and

persuasive testimony . . . was a result of lack of preparation and

understanding of the complete nature of the proceeding." Molina

stated that he had not moved to reopen sooner because he had not

become aware of his ineffective assistance claim until he consulted

another attorney in 2018. He offered no explanation for why he

waited until 2018 to consult an attorney after his deportation

order a decade before.

In support of his claim that country conditions in

- 6 - Guatemala had changed substantially since 2007, Molina submitted

declarations from his mother and brother, who stated they were

being harassed and threatened by gang members there. Molina's

mother further stated in her declaration that family members of a

"coyote" who had sold her a visa for Molina's travel to the United

States had begun extorting her once she stopped paying him and had

threatened to kill Molina upon his return to Guatemala. Molina

also submitted documents describing general country conditions in

Guatemala, which discussed, among other topics, widespread gang-

related extortion and violence.2

On September 3, 2019, the BIA denied Molina's motion to

reopen. While the BIA acknowledged Molina's assertion that he was

not aware of his ineffective assistance claim until he consulted

another attorney, it denied the motion with respect to this claim

as time-barred, as it was filed long after the expiration of the

statutory ninety-day filing deadline. 8 U.S.C.

§ 1229a(c)(7)(C)(i). Citing this court's decision in Tay-Chan v.

Barr,

(1st Cir. 2019), the BIA declined Molina's

request to equitably toll the deadline, concluding that Molina had

not shown that during the ten years between the final order and

the motion to reopen he was "pursuing his rights diligently" or

2 Molina also submitted a USAID Central America and Mexico Gang Assessment dated April 2006 (the "2006 USAID Report"), which identified Guatemala's "thriving gang culture" and the ongoing "problem of gang violence" during and before 2006.

- 7 - was prevented from so moving because of an "extraordinary

circumstance" that "stood in his way." The BIA also determined

that "[i]t was not a reasonable exercise of due diligence for the

respondent to remain unlawfully in the United States for such a

length of time without taking any action." See Meng Hua Wan v.

Holder,

(1st Cir. 2015).

The BIA also concluded that Molina had not sufficiently

shown that country conditions in Guatemala had changed

substantially since 2007. While the BIA acknowledged that

Molina's submitted documentary evidence "show[ed] poor conditions

in Guatemala, including ongoing violence and threats of violence,"

it determined that the new evidence did not show a material change

in conditions that were not present at the original merits hearing.

Accordingly, the BIA denied the motion to reopen. Molina timely

petitioned this court for review of the BIA's denial.

II. Discussion

"We review the BIA's denial of [Molina's] motion to

reopen under the 'highly deferential abuse-of-discretion

standard.'" Tay-Chan,

(quoting Pineda v.

Whitaker,

(1st Cir. 2018)). Under this standard,

we uphold the BIA's decision unless Molina "can show that the BIA

'committed a material error of law or exercised its authority

arbitrarily, capriciously, or irrationally.'"

(quoting Gyamfi

v. Whitaker,

(1st Cir. 2019)). Moreover, "an

- 8 - alien who seeks to reopen removal proceedings out of time

ordinarily faces a steep uphill climb." Pineda,

(quoting Sihotang v. Sessions,

(1st Cir. 2018)).

Molina now contends that the BIA erred in declining to

equitably toll the ninety-day filing deadline and in concluding he

had not demonstrated that country conditions in Guatemala had

substantially changed since his hearing. We address each argument

in turn, and conclude that both are unavailing.

A. Equitable Tolling of the Statutory Filing Deadline

A noncitizen is generally limited to a single motion to

reopen, which must ordinarily be filed within ninety days of a

final administrative order of removal. See 8 U.S.C.

§ 1229a(c)(7)(C)(i);

(c)(2). While this court

has acknowledged certain exceptions to this rule, we "have not yet

given the thumbs-up on applying equitable tolling to motions to

reopen." Tay-Chan,

. Thus, whether such motions

may be equitably tolled at all remains an "open question." Pineda,

.

We need not resolve this question, however, as Molina's

claim fails even assuming arguendo that equitable tolling applies.

Equitable tolling "is a rare remedy to be applied in unusual

circumstances, not a cure-all for an entirely common state of

affairs." Neves v. Holder,

(1st Cir. 2010)

(quoting Wallace v. Kato,

(2007)). A noncitizen

- 9 - cannot begin to meet the requirement for equitable tolling where

he has not shown "(1) that he has been pursuing his rights

diligently, and (2) that some extraordinary circumstance stood in

his way."

(quoting Pace v. DiGuglielmo,

(2005)). Here, the BIA did not abuse its discretion in concluding

that Molina had made neither showing.

As the BIA did, we acknowledge Molina's argument that he

could not have known about his ineffective assistance of counsel

claim until he consulted another attorney. But as we held in Tay-

Chan, where we considered this very argument, Molina's assertion

"tells us nothing about why he waited nearly [ten] years before

taking any steps at all to address his immigration status."

. Molina does not identify -- and the record does not

show -- evidence of any steps he took between the 2008 final order

of removal and his 2018 consultation with a new attorney to pursue

further relief in his case. Indeed, "it is this unexplained delay

that . . . undermines any assertion that he pursued his rights

(the ineffective assistance claim, the motion to reopen) with the

requisite due diligence."

Molina also does not identify --

and again, the record does not show -- evidence of any

"extraordinary circumstance" that prevented him from timely moving

to reopen.3 Neves,

(quoting Pace,

).

3The respondent argues that Molina has waived appellate consideration of the extraordinary circumstances prong because - 10 - Accordingly, we find that the BIA did not abuse its discretion in

declining to equitably toll the filing deadline and do not reach

the merits of Molina's ineffective assistance claim.

B. Changed Country Conditions

Molina next contends that the BIA abused its discretion

in concluding he had not established changed country conditions

since his merits hearing. This argument also fails.

Motions to reopen based on previously unavailable

evidence of changed country conditions are not subject to statutory

time limits. See 8 U.S.C. § 1229a(c)(7)(C)(ii);

(c)(3)(ii). A petitioner seeking to reopen his case on

materially changed country conditions grounds must "(1)

demonstrate changed conditions through evidence that was not

available at the original merits hearing and (2) establish a prima

facie case of eligibility for relief." Sánchez-Romero v.

Sessions,

(1st Cir. 2017). In making its

determination, the BIA "compare[s] the evidence of country

conditions submitted with the motion to those that existed at the

time of the merits hearing below." Haizem Liu v. Holder,

(1st Cir. 2013) (alteration in original) (quoting In re S-

Y-G-,

(BIA 2007)).

Molina's opening brief did not challenge the BIA's determination that he had failed to make this specific showing. We do not decide whether Molina has waived the issue, as we in any event find no error in the BIA's conclusion.

- 11 - As to the first prong, a petitioner must make a

"'convincing demonstration' that the conditions in his home

country have intensified or deteriorated between his merits

hearing . . . and his motion to reopen." Sánchez-Romero,

(quoting Tandayu v. Mukasey,

(1st Cir.

2008)). However, "[i]f the newly submitted evidence reveals no

more than a continuation of previously existing conditions, it is

inadequate to show changed country circumstances." Nantume v.

Barr,

(1st Cir. 2019) (quoting Xiao He Chen v.

Lynch,

(1st Cir. 2016)).

The BIA did not abuse its discretion in concluding that

while the evidence presented by Molina in his motion to reopen

"show[s] poor conditions" in Guatemala, it "does not show a

material change in [country] conditions since [Molina's] last

hearing." (Emphasis added). At his 2007 merits hearing, Molina

argued and submitted evidence to show both that gang violence was

prevalent in Guatemala generally and that he and his family were

specifically endangered by gang violence given his presence in the

United States. And while Molina now offers reports detailing more

recent gang violence in Guatemala and declarations outlining more

recent gang-related threats to himself and his family, 4 his

4 The declarations provided by Molina's family detailing recent threats only bear on our analysis should we reach the question of Molina's prima facie eligibility for relief, as "a significant change in . . . personal circumstances" is "relevant - 12 - argument remains substantively the same: that he fears a return

to his home country due to gang activity.

Molina did not articulate to the BIA in his motion to

reopen -- and does not articulate to this court now -- any material

change in conditions in Guatemala, as both his 2007 and 2018

arguments rest on his fear of gang violence there. Nor does he

"point to [any]thing in [the new evidence] that plausibly suggests

the existence of a material change in country conditions," or

identify "any meaningful inconsistency between the [new evidence]

and the BIA's decision." Nantume,

. Nothing in the

record suggests that the BIA abused its discretion in concluding

that the recent country condition reports, which discuss gang

activity in Guatemala and in Central America more broadly,

establish only "ongoing violence and threats of violence" -- not

a material change in country conditions.5 Indeed, the record makes

clear that "the situation [in Guatemala] is dreadful -- but it has

been dreadful throughout the relevant period."

.

only to the extent that [a petitioner] can demonstrate that conditions have worsened generally" in the country for a particular social group. Nantume,

. As Molina has not established changed country conditions, we do not consider his prima facie eligibility. 5 Some evidence submitted with Molina's motion to reopen shows that gang violence had proliferated in Guatemala for many years. In particular, the 2006 USAID Report, issued a year before Molina's merits hearing, identified Guatemala's "thriving gang culture" and the ongoing "problem of gang violence."

- 13 - We therefore conclude that the BIA did not abuse its

discretion in denying Molina's motion to reopen on the grounds

that he did not establish changed country conditions.

III. Conclusion

For the reasons above, we deny the petition for review

of the BIA's denial of Molina's motion to reopen.

- 14 -