Lorena Gallegos-Mendoza v. Merrick Garland
20-71549
| 9th Cir. | Jun 28, 2021Background
- Petitioner Lorena Esmeralda Gallegos-Mendoza, an El Salvadoran national, sought review of the BIA’s dismissal of her untimely motion to reopen removal proceedings to pursue asylum, withholding of removal, and CAT relief.
- Her motion to reopen was premised on changed country conditions in El Salvador; she did not claim past persecution but cited family killings by gangs and alleged risk if returned after 20 years abroad.
- The BIA treated the motion as a changed-country-conditions reopening and found the evidence insufficient to establish material change or prima facie eligibility for relief.
- The IJ had denied the untimely motion; the BIA dismissed her appeal; Gallegos petitioned this court.
- The Ninth Circuit reviewed the BIA’s denial for abuse of discretion and denied the petition, concluding the BIA reasonably found the evidence showed at most incremental changes and speculative risk, not material changed conditions or a well-founded fear.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the BIA abused its discretion in denying an untimely motion to reopen based on changed country conditions | Gallegos argued El Salvador’s conditions changed materially since her proceedings, warranting reopening | Government argued evidence did not show material change in country conditions or justify reopening | Denied — no abuse of discretion; BIA reasonably concluded evidence insufficient |
| Whether Gallegos produced sufficient evidence of materially changed country conditions | Gallegos pointed to increased gang violence and the killing of family members as evidence of changed conditions | Government argued any worsening was incremental and not the sort of material change required | Held for government — record showed only incremental change, not the required material change |
| Whether Gallegos established a prima facie case for asylum (well‑founded fear of future persecution) | Gallegos asserted gangs might target her if returned based on family history | Government argued she offered speculative, non‑specific evidence and had been away 20 years, undermining a reasonable fear claim | Held for government — fear was too speculative; no credible, specific evidence of likely future persecution |
| Whether failure to show asylum eligibility also precludes withholding of removal and CAT relief | Gallegos sought withholding and CAT in the alternative if asylum established | Government argued the standards for withholding and CAT are more stringent and not met | Held for government — because asylum burden not met, higher standards for withholding and CAT also unmet |
Key Cases Cited
- Ocampo v. Holder, 629 F.3d 923 (9th Cir. 2010) (standard of review for motions to reopen)
- Agonafer v. Sessions, 859 F.3d 1198 (9th Cir. 2017) (elements for reopening based on changed country conditions)
- Rodriguez v. Garland, 990 F.3d 1205 (9th Cir. 2021) (distinguishing changed country conditions from changed personal circumstances)
- Silva v. Garland, 993 F.3d 705 (9th Cir. 2021) (evidentiary standard for asylum well‑founded fear)
- Nagoulko v. INS, 333 F.3d 1012 (9th Cir. 2003) (requirement for specific evidence to support fear claims)
- Young Sun Shin v. Mukasey, 547 F.3d 1019 (9th Cir. 2008) (applicant must show new evidence would likely change outcome)
- E. Bay Sanctuary Covenant v. Trump, 950 F.3d 1242 (9th Cir. 2020) (noting higher evidentiary standards for withholding and CAT relief)