Maria Vargas v. Jefferson Sessions, 706 F. App'x 378

Background

Petitioners Maria Isabel Vargas and Jose Filomeno Valencia Baron, Mexican nationals, sought asylum, withholding of removal, and CAT protection; IJ denied relief and the BIA affirmed.
Petitioners filed a motion to reopen more than fifteen months after the final removal order, relying on newly proffered evidence of increased drug-related violence along the U.S.–Mexico border.
The BIA denied the motion to reopen as untimely and found the new evidence did not establish materially changed country conditions sufficient to excuse the 90-day filing rule.
On the merits, the BIA concluded petitioners failed to establish proposed particular social groups met the "particularity" and "social distinction" requirements for asylum/withholding.
The BIA also found petitioners failed to show a likelihood of future torture under CAT because internal relocation to non-border regions of Mexico was reasonable.
The Ninth Circuit denied the consolidated petitions for review, finding substantial evidence supported the BIA’s timeliness and merits determinations.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the BIA abused its discretion in denying the motion to reopen as untimely and failing to apply the regulatory exception for changed country conditions	Petitioners argued the motion was timely under the regulatory exception because new evidence of escalating drug-related violence constituted materially changed country conditions	Government argued motion was untimely (filed >15 months after final order) and new evidence was not qualitatively different from prior record	BIA did not abuse discretion: motion untimely and new evidence did not show materially changed conditions to excuse the time bar
Whether petitioners established eligibility for asylum/withholding based on proposed particular social groups	Petitioners contended their proposed social groups warranted protection from persecution	Government argued groups lacked required "particularity" and "social distinction"; evidence insufficient to meet asylum/withholding standard	Substantial evidence supports BIA: proposed groups failed particularity and social distinction requirements; asylum/withholding denied
Whether petitioners established entitlement to CAT protection	Petitioners argued risk of torture on return based on drug-violence targeting border residents	Government argued CAT relief was not required because petitioners could reasonably relocate internally to avoid torture	Substantial evidence supports BIA denial: internal relocation to non-border regions made future torture not sufficiently likely

Key Cases Cited

Ali v. Holder, 637 F.3d 1025 (9th Cir. 2011) (standard of review for BIA denial of motion to reopen)
Najmabadi v. Holder, 597 F.3d 983 (9th Cir. 2010) (analysis of materially changed country conditions and qualitative difference standard)
Lopez v. Ashcroft, 366 F.3d 799 (9th Cir. 2004) (BIA decision sufficient if it shows it "heard and thought" about issues)
Movsisian v. Ashcroft, 395 F.3d 1095 (9th Cir. 2005) (BIA abuses discretion when decision lacks reasoned analysis)
Reyes v. Lynch, 842 F.3d 1125 (9th Cir. 2016) (upholding BIA interpretation of particular social group requirements)