Case Information
*1 Nоt for Publication in West's Federal Reporter United States Court of Appeals For the First Circuit
No. 11-1853
RUBEN PEREZ and AURA ORTEGA PEREZ,
Petitioners,
v. ERIC H. HOLDER, Attorney General,
Respondent. PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS Before
Howard, Stahl, and Lipez, Circuit Judges.
Randy Olen, on brief for petitioner. Monica G. Antoun, Trial Attorney, Office of Immigration Litigation, Tony West, Assistant Attorney General, Office of Immigration Litigation, and Jennifer Parker Levings, Senior
Litigation Counsel, Office of Immigration Litigation, on brief for
respondent.
June 20, 2012
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STAHL, Circuit Judge . Ruben Perez and his wife, Aura Ortega Perez, petition for our review of the denial by the Board of Immigration Appeals (BIA) of their motion to reopen thеir removal proceedings. Though the facts of this case are troubling, we see no abuse of discretion in the BIA's actions, and we therefore deny the petition.
I. Background
Ruben Perez, a Guatemalan citizen, entered the United States without inspection on July 1, 1990. [1] He and his family remained in the United States illegally for some time, eventually applying for asylum and withholding of removal on June 26, 1998. The Perezes' application was referred to an immigration judge (IJ) for adjudication and the family was placed in rеmoval proceedings; they received their notice to appear on October 5, 1998. [2]
The Perez family appeared before the IJ for their merits hearing on March 20, 2000. At the hearing, both Ruben and Aura testified that Ruben's cousin was murdered by guerrillas in Guatemala. Ruben testified that he never personally had any contact with guerrillas. Aura testified that, though she had never *3 observed it herself, she had heard that Ruben was followed by unknown people. She also testified that she had never had any contact with the guerrillas. Both Ruben and Aura testified that they had never belonged to any political group in Guatemala. They both also testified that they feared for Ruben's life if they returned to Guatemala because his cousin had been killed, allegedly by guerrillas.
The IJ issued an oral decision on the same day, denying the application for asylum and withholding of removal and holding that the Perezes had not established a well-founded fear of future persecution because the war betweеn the Guatemalan government and the guerrillas had ended years earlier. The IJ did, however, grant voluntary departure. The Perezes appealed the IJ's decision to the BIA, which summarily affirmed the IJ on April 19, 2002. The Perezes did not appeal that decision, nor did they depart from the United States.
However, Ruben's brother, Cesar Perez Hernandez, did return to Guatemala. On November 19, 2008, two months after leaving the United States, Hernandez was driving in his car with his family when another car pulled up beside them and begаn shooting. Hernandez was shot numerous times and killed, and his wife, son, and daughter were all injured from gun shot wounds. Hernandez's son was shot in the face and lost his right eye as a *4 result. The police did not solve the crime or establish a motive therefor.
On March 29, 2011, neаrly nine years after the BIA's decision and some twenty-eight months after the murder of Hernandez, the Perezes filed a motion with the BIA to reopen their removal proceedings, recounting the facts of the grisly attack, and renewing their argument that they рossessed a well-founded fear of future persecution should they return to Guatemala. They based their argument on their speculation that Hernandez was killed because he had recently returned to Guatemala from the United States and thе Perezes feared the same outcome should they go back to Guatemala. The Perezes supported their motion to reopen with an affidavit from Ruben and a newspaper article reporting on the murder.
On July 7, 2011, the BIA denied the motiоn to reopen as untimely, finding that the exception to the ninety-day time limit based on changed circumstances did not apply. See 8 C.F.R. § 1003.2(c)(3)(ii). The BIA found instead that the Perezes had merely demonstrated that a "terrible crime" had taken place, and that their fear was of "generalized violence and crime in their home country," which did not amount to a valid basis for asylum. The Perezes timely appealed to this court.
II. Discussion
We review the denial of a motion to reopen only for abuse
of discretion, meaning that we will uphold the BIA "unless the
complaining party can show that the BIA committed an error of law
or exercised its judgment in an arbitrary, capricious, or
irrational way." Tandayu v. Mukasey,
In order to be eligible for asylum, among other
rеquirements, an applicant must show that he possesses a well-
founded fear of future persecution on account of one of five
statutory bases: race, religion, nationality, membership in a
particular social group, or pоlitical opinion. See, e.g., Smith v.
Holder, 627 F.3d 427, 436-37 (1st Cir. 2010) (citing 8 C.F.R.
§ 208.13(b)(2)(i)(A)). When the BIA has found that an applicant
has not met the requirements for relief, that applicant is
permitted to file one motion to reopen the removal proceedings
within ninety days of the BIA's final decision. 8 C.F.R.
§ 1003.2(c)(2). These time and number limitations do not apply if
the applicant can show changed circumstances in his home country
and if the evidence of those changed circumstances is "material to
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the underlying substantive relief" sought and was unavailable at
the time of the prior proceedings. See Raza, 484 F.3d at 127
(citing 8 C.F.R. § 1003.2(c)(3)(ii)). In addition to providing
previously unavailable material evidence of changed country
conditions, an applicant needs to "establish a prima facie case
sufficient to ground a claim of eligibility for the underlying
substantive relief requested." Id. at 128. In other words, "the
new facts alleged, when coupled with the facts already of record,
[must] satisfy us that it would be worthwhile to develop the issues
further аt a plenary hearing on reopening." Smith,
The Perezes argue that, though their motion to reopen was
filed years after the BIA's final decision, the brutal attack
against the Hernandez family, combined with thе previous murder of
Ruben's cousin, qualifies as changed country conditions and that
therefore the ninety-day limit should not be applied to their
motion. The Perezes have one thing working in their favor: we have
previously held that "recent violencе against a petitioner's family
members can constitute a material change in country conditions for
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a petitioner seeking to reopen his or her removal proceedings."
Id. at 436; see also Malty v. Ashcroft,
However, we need not dеcide if the two murders of Ruben's
family members are sufficient to show a material change in country
conditions, because the Perezes cannot establish a prima facie case
for asylum.
[3]
To make out a prima facie case, thе persecution
feared must be on account of a statutorily protected ground.
[4]
See,
e.g., Smith, 627 F.3d at 436-37. In their initial asylum
application, the Perezes seemed to allege membership in the
particular social group of those people who refused to join the
guerrillas. They have abandoned that stance in these proceedings,
and for good reason: since the civil war in Guatemala ended, we
have repeatedly held that fear of persecution by guerrillas will no
longer give rise to a successful asylum claim. See, e.g., Palma-
Mazariegos v. Gonzales, 428 F.3d 30, 35-37 (1st Cir. 2005);
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Rodriguez-Ramirez v. Ashcroft,
In their motion to reopen and on appeal here, the Perezes
do not clearly identify any nexus to a statutory ground. The
closest they come is to speculate that Hernandez was killed due to
his status as a Guatemalan who had recently returned from the
United States, and presumably, because the Perezes would also be
Guatemalans returning from the United States, that they would be
persecuted on that account. We have previously declined the
opportunity to recognize Guatemalans returning from the United
States as a "particular social group" for purposes of asylum
relief. See, e.g., Socoр v. Holder,
It is more likely that this is just another tragic
occurrence of the widespread violence in Guatemala that we have
frequently observed, but fear of this pervasive violence cannot be
a basis for asylum. See Palma-Mazariegos,
III. Conclusion
Discerning no abuse of discretion, we deny the petition for review.
Notes
[1] Aura and the couple's son, Esvin, entered without inspection on August 1, 1993.
[2] The referral was based on the fact that the aрplication fell well outside of the one year statute of limitations for asylum applications, but the IJ found that the Perezes' failure to file was based on their retained representative's ineffective assistance and excused the late filing.
[3] A failure to make a prima facie case for asylum necessarily
means the Perezes have also failed to do so with regard to their
withholding of removal claim. See Parvez v. Keisler,
[4] We note that, in instances where courts, including ours,
have held that violence against family members was sufficient to
show a material change in country conditions, there has been a
close nexus to a statutory basis. See Smith, 627 F.3d at 431
(violence connected to political activism); Malty ,