918 F.3d 215
1st Cir.2019Background
- Rosemary Wanjiku, a Kenyan national, was ordered removed in 2013 after conceding she overstayed a temporary visa; she remained in the U.S. and filed a motion to reopen in 2016.
- Her 2016 motion sought asylum based on changed country conditions in Kenya: intensified land disputes tied to rising land values, increased anti-LGBT hostility (including alleged political statements equating homosexuality with "terrorism"), and escalation of al-Shabaab violence.
- The IJ denied the motion as untimely and concluded Wanjiku failed to show material changed country conditions (finding the harms were continuations, not new or intensified since 2013); the IJ also found the motion largely raised changed personal circumstances.
- The BIA affirmed on discretionary grounds, agreeing the record reflected continuing, not changed, country conditions and declined to reopen proceedings.
- Wanjiku appealed to the First Circuit arguing the agency overlooked or misweighed evidence showing escalation on LGBT-targeted rhetoric, al-Shabaab activity, and land-dispute violence.
Issues
| Issue | Wanjiku's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether Wanjiku established "changed country conditions" to excuse the 90-day filing limit and justify reopening | Evidence (politician quote, al-Shabaab "war zone" statement, rising land-value violence) shows intensification since 2013 | Record shows those conditions pre-dated 2013; evidence reflects continuation, not a material change | Denied: petitioner failed to show changed country conditions sufficient to reopen |
| Whether the agency failed to adequately consider specific evidentiary statements (e.g., political anti-LGBT quote, al-Shabaab declaration) | Agency overlooked or gave insufficient weight to those statements | Agency expressly considered the statements and weighed them against pre-2013 evidence | Denied: court finds agency adequately considered the evidence and did not abuse discretion |
| Whether violence tied to rising land values constituted a new country condition post-2013 | Rise in land values only produced violent disputes after 2013, creating a new risk | Evidence (news reports and historical incidents) indicates violent land disputes existed before 2013 | Denied: petitioner did not convincingly demonstrate escalation distinct from continuing conditions |
| Standard of review: whether the BIA abused its discretion in denying reopening | Agency erred in legal or factual judgment warranting reversal | BIA enjoys broad discretion and must be overturned only for arbitrary, capricious, or legal error | Denied: First Circuit applies abuse-of-discretion review and finds no reversible error |
Key Cases Cited
- Larngar v. Holder, 562 F.3d 71 (1st Cir. 2009) (movant bears burden to establish changed country circumstances)
- Xin Qiang Liu v. Lynch, 802 F.3d 69 (1st Cir. 2015) (movant must make a convincing demonstration; review of evidentiary weight is deferential)
- Raza v. Gonzales, 484 F.3d 125 (1st Cir. 2007) (agency need not address every contention in minute detail; must show considered decision)
- Haizem Liu v. Holder, 727 F.3d 53 (1st Cir. 2013) (BIA compares new evidence to conditions at prior hearing to assess change)
- Tawardrous v. Holder, 565 F.3d 35 (1st Cir. 2009) (changed conditions requires intensification or deterioration, not mere continuation)