926 F.3d 1050
8th Cir.2019Background
- Rivera-Guerrero entered the U.S. unlawfully in 2001, conceded removability in 2002, and was ordered removed; removal warrant indicates removal to Mexico in May 2002.
- Nearly 15 years later (April 2017) he filed a motion to reopen, alleging changed country conditions in Mexico and risk from prior involvement in a Christian anti-drug youth group (1992–1998).
- His reopening evidence included news articles about increased gang violence, an affidavit from a friend describing threats, and assertions of prior threats for refusing to sell drugs.
- The IJ denied reopening, finding the evidence failed to show changed country conditions or a prima facie entitlement to asylum/withholding/CAT relief; threats were vague/unfulfilled and country evidence was not particularized.
- The BIA affirmed, concluding that even if country conditions changed, Rivera-Guerrero did not show prima facie eligibility for relief and that he had not been denied due process in 2002.
- The Eighth Circuit denied review, holding the BIA/IJ did not abuse discretion in rejecting the motion to reopen and found no due process violation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether untimely motion to reopen is excused by changed country conditions | Rivera-Guerrero: Mexico is far more dangerous now; new evidence shows changed conditions warrant reopening | Gov: Evidence is generalized, undated, and fails to show material changed conditions specific to him | Denied — evidence did not adequately show changed country conditions particularized to him |
| Whether petitioner made prima facie showing for asylum/withholding | Rivera-Guerrero: Threats and past anti-drug group membership make him a future persecution target | Gov: Threats are vague/unfulfilled; countrywide violence is not individualized persecution | Denied — threats insufficient and documentary evidence not particularized to establish eligibility |
| Whether petitioner met CAT standard | Rivera-Guerrero: Risk of torture on return given gang threats and conditions | Gov: Petitioner failed to show it is more likely than not he would be tortured | Denied — petitioner did not renew CAT arguments on appeal and failed to meet standard |
| Whether petitioner was denied due process in 2002 proceedings | Rivera-Guerrero: He was not informed of relief options and thus waived rights improperly | Gov: Record shows he knew rights and waived hearing; no due process violation | Denied — BIA found no due process violation; argument also inadequately raised/merited |
Key Cases Cited
- Lee v. Holder, 765 F.3d 851 (8th Cir. 2014) (standard for reopening: new material evidence must likely change result)
- Li Yun Lin v. Mukasey, 526 F.3d 1164 (8th Cir. 2008) (motions to reopen reviewed for abuse of discretion)
- Zhong Qin Zheng v. Mukasey, 523 F.3d 893 (8th Cir. 2008) (deference in reviewing BIA denials of reopening)
- Lemus-Arita v. Sessions, 854 F.3d 476 (8th Cir. 2017) (threats are persecutory only when specific, imminent, and causing significant harm)
- Agha v. Holder, 743 F.3d 609 (8th Cir. 2014) (future fear must be particularized to the individual rather than generalized country conditions)