27 F.4th 353
5th Cir.2022Background
- Martinez-Guevara entered the U.S. in 2006, was released with an NTA, failed to appear, and a removal order issued.
- Thirteen years later she filed a motion to reopen, claiming changed country conditions in El Salvador: coordinated gang attacks and threats against police officers’ families, including relatives of hers (who are police).
- She submitted personal documents, a post-order State Department report, and seven news articles reporting attacks and Salvadoran officials’ beliefs that gangs targeted officers’ families.
- The immigration judge denied the motion as untimely, concluding she failed to meet the heavy burden to show materially changed country conditions; the BIA affirmed, finding only an incremental increase in violence and no nationwide change.
- Martinez-Guevara did not file a motion for reconsideration with the BIA and petitioned the Fifth Circuit, arguing the BIA ignored two articles and misapplied Singh.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction — exhaustion of administrative remedies (did petitioner need a BIA motion for reconsideration before seeking review?) | Martinez-Guevara argued she exhausted her remedies by presenting the claims to the BIA on appeal and thus a reconsideration motion was not required. | Government argued reconsideration is an available administrative remedy and failure to pursue it may deprive the court of jurisdiction. | Court: Jurisdiction exists. Claims were presented to the BIA on appeal, so reconsideration was not required; only wholly new issues would need a reconsideration motion. |
| Merits — abuse of discretion / changed country conditions (did BIA err by ignoring evidence and misapplying Singh?) | Martinez-Guevara argued the news articles (including officials’ statements) showed a systematic, coordinated campaign by gangs targeting police families, proving a material worsening of conditions under Singh. | Government and BIA argued evidence showed at most incremental or localized increases; officials’ statements were speculative and did not prove a dramatic nationwide change. | Court: BIA did not abuse discretion. It permissibly weighed the evidence, need not discuss every item, and reasonably concluded petitioner failed to show a material nationwide deterioration under Singh. |
Key Cases Cited
- Singh v. Lynch, 840 F.3d 220 (5th Cir. 2016) (per curiam) (requires showing a substantial/material nationwide deterioration of country conditions to excuse untimely reopening)
- Omari v. Holder, 562 F.3d 314 (5th Cir. 2009) (motion to reconsider not generally required to exhaust if issue was presented to the BIA)
- Ibrahim v. Garland, 19 F.4th 819 (5th Cir. 2021) (exhaustion requires that claims be presented to the BIA; ‘‘brand new’’ arguments are unexhausted)
- Dale v. Holder, 610 F.3d 294 (5th Cir. 2010) (exhaustion promotes BIA expertise and finality; no need to give BIA a second bite at the apple for errors it already resolved)
- Avelar-Oliva v. Barr, 954 F.3d 757 (5th Cir. 2020) (claims that the BIA never had a chance to consider are unexhausted and require reconsideration)
- Abdel-Masieh v. INS, 73 F.3d 579 (5th Cir. 1996) (BIA may not ignore critical evidence or draw absurd conclusions)
- Efe v. Ashcroft, 293 F.3d 899 (5th Cir. 2002) (BIA must state reasons sufficient for a reviewing court to perceive consideration but need not address every piece of evidence)
- Gomez-Palacios v. Holder, 560 F.3d 354 (5th Cir. 2009) (standard for denying motions to reopen: review only for capriciousness, irrationality, or foundationlessness)