473 F. App'x 9
1st Cir.2012Background
- Perezes, Guatemalan nationals, entered the U.S. without inspection and sought asylum/withholding in 1998; IJ denied and BIA summarily affirmed in 2002.
- They remained in removal proceedings; they did not timely appeal the BIA decision and did not depart.
- In 2008 Ruben Perez’s brother Cesar Hernandez was murdered in Guatemala; additional violence occurred in Guatemala affecting Perez family.
- In 2011 the Perezes moved to reopen based on changed country conditions, arguing the Hernandez murder showed conditions had changed.
- BIA denied reopening as untimely, stating fear was generalized violence, not tied to a statutorily protected ground; petitioners appealed to the First Circuit.
- Court reviews for abuse of discretion and applies the prima facie case and changed-conditions standards to determine eligibility for asylum and reopening.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the motion to reopen was properly denied as untimely under changed conditions | Perezes contend changed conditions evidence warrants tolling | BIA reasoned the evidence did not show a material change tied to a protected ground | No abuse of discretion; denial sustained |
| Whether the Perezes established a prima facie asylum case given lack of nexus | They argued potential nexus to Guatemalans returning from the U.S. or related to violence | No recognized statutorily protected ground and no nexus shown | Lacked prima facie case for asylum; petition denied |
| Whether fear of generalized violence can support asylum/reopening | Claim of generalized violence constitutes material country condition | Generalized violence cannot support asylum absent a protected ground | Generalized violence not sufficient for asylum; no reopening relief on that basis |
| Whether violence against a family member constitutes material change in country conditions | Recent family violence could show changed conditions | Evidence insufficient to show a protected-ground nexus; not enough to trigger reopening | Not enough to establish a material change with a nexus to a protected ground |
| Whether the returning Guatemalans constitute a protected class for asylum purposes | Suggests status as Guatemalans returning from the U.S. is a protected ground | Such group not recognized; no nexus shown | Not recognized as a protected ground; no asylum relief |
Key Cases Cited
- Smith v. Holder, 627 F.3d 427 (1st Cir. 2010) (well-founded fear requiring nexus to a ground; changed conditions standard applied to asylum)
- Raza v. Gonzales, 484 F.3d 125 (1st Cir. 2007) (abuse-of-discretion standard for reopening; changed country condition analysis)
- Tandayu v. Mukasey, 521 F.3d 97 (1st Cir. 2008) (motions to reopen reviewed for abuse of discretion)
- In re L-O-G-, 21 I. & N. Dec. 413 (BIA 1996) (standard for allowing opening and need for material evidence)
- Palma-Mazariegos v. Gonzales, 428 F.3d 30 (1st Cir. 2005) (fear of guerrillas due to political groups; limitations on group-based asylum)
- Rodriguez-Ramirez v. Ashcroft, 398 F.3d 120 (1st Cir. 2005) (guerrilla-related fear not sufficient for asylum)
- Quevedo v. Ashcroft, 336 F.3d 39 (1st Cir. 2003) (non-political, pervasive violence not basis for asylum)
- Lopez-Castro v. Holder, 577 F.3d 49 (1st Cir. 2009) (evidence lacking nexus; status as returning Guatemalans not protected)
- Malty v. Ashcroft, 381 F.3d 942 (9th Cir. 2004) (recognition of violence against family members as material change in some contexts)