United States v. Charles White

United States Court of Appeals
For the Eighth Circuit
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No. 18-1234
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Oscar Rivera-Guerrero
lllllllllllllllllllllPetitioner
v.
William P. Barr, Attorney General of the United States
lllllllllllllllllllllRespondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: April 18, 2019
Filed: June 20, 2019
[Published]
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Before SHEPHERD, MELLOY, and GRASZ, Circuit Judges.
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PER CURIAM.
Oscar Rivera-Guerrero petitions for review of an order of the Board of
Immigration Appeals denying his motion to reopen. He filed the motion many years
after receiving an order of removal and sought reopening to assert claims for asylum,
withholding of removal, and relief under the Convention Against Torture (CAT). To
justify reopening, he alleged changed circumstances in Mexico, in particular, an

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increase in gang violence generally and a risk of future persecution due to his prior
involvement with a Christian group that opposed illegal drugs. He also alleged he
was denied due process in his earlier proceedings. The BIA rejected his arguments.
We reject his petition for review and affirm.
I.
Petitioner unlawfully entered the United States in 2001. In 2002, he was
charged with removability. Through counsel, he conceded removability and waived
his hearing. On May 23, 2002, he was ordered removed. A warrant of removal
indicates he was removed to Mexico on May 24, 2002, although in his present motion
to reopen, he alleges he never left the United States.
Almost fifteen years later, in April 2017, Petitioner filed the current motion to
reopen. He sought to be excused from the time-bar for his motion due to changed
country conditions, as permitted by 8 C.F.R. § 1003.23(b)(4). Relying on news
articles and an affidavit from a friend, Petitioner alleged that his evidence
demonstrated: (1) gang violence had increased in Mexico such that Mexico was “at
least 20 times more dangerous” than before he left Mexico; (2) Petitioner had been
involved in a Christian youth group from 1992–98 that opposed illegal drugs; (3)
Petitioner had received threatening phone calls for refusing to sell drugs; and (4) gang
members had threatened to kill Petitioner if he returned to Mexico.
An immigration judge rejected his arguments and denied his motion to reopen.
The IJ first held Petitioner failed to show changed country conditions. The IJ
determined Petitioner’s evidence failed to identify dates of alleged threats and failed
to articulate country conditions with sufficient detail to allow a comparison of current
conditions to conditions at the time of his earlier proceedings. In addition, the IJ
noted that none of the articles referred to the group Petitioner allegedly belonged to
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in the 1990s. Finally, the IJ noted that Petitioner’s alleged activities with the group
had occurred years prior to his earlier proceedings.
In the alternative, the IJ held Petitioner failed to establish a reasonable
likelihood that his applications for asylum, withholding of removal, and CAT
protection would be granted. The IJ held that unfulfilled and vague threats of
violence cited by his friend were not sufficient to establish past persecution. The IJ
also held general documentary evidence of crime and violence in Mexico did not
show Petitioner would be a specific target for persecution on a protected basis or that
it was more likely than not that he would be tortured.
Petitioner appealed to the BIA. The BIA affirmed, holding, “even if
[Petitioner] demonstrated changed country conditions or circumstances in Mexico,
the Immigration Judge properly denied reopening because [Petitioner] did not
demonstrate prima facie eligibility for relief.” Petitioner argued to the BIA that he
was denied due process in that, during his 2002 proceedings, he was not made aware
of the various forms of relief that might be available. The BIA found no denial of due
process, concluding the record demonstrated Petitioner knew of his rights and
potential forms of relief yet waived his rights. Petitioner appeals.
II.
In limited circumstances, the untimeliness of a motion to reopen may be
excused if a petitioner shows changed country conditions based on evidence not
previously available and if he makes a prima facie showing that, if reopened, his case
would lead to relief. See 8 C.F.R. § 1003.2(c)(3)(ii) (providing for relief from the
time limitations for motions to reopen based on evidence that “is material and was not
available and could not have been discovered or presented at the previous hearing”);
Lee v. Holder, 765 F.3d 851, 855 (8th Cir. 2014) (stating that to satisfy “the heavy
burden required to merit a reopening of proceedings,” the new evidence “must be
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such that [it] would likely change the result in the case” (citation omitted)). “Because
motions to reopen are disfavored, particularly untimely motions to reopen, we review
the BIA’s decision . . . under a highly deferential abuse of discretion standard.” Li
Yun Lin v. Mukasey, 526 F.3d 1164, 1165 (8th Cir. 2008) (per curiam) (quoting
Zhong Qin Zheng v. Mukasey, 523 F.3d 893 (8th Cir. 2008)).
Here, we find no abuse of discretion. The IJ and BIA permissibly determined
Petitioner’s evidence of vague and unfulfilled threats failed to establish past
persecution. See Lemus-Arita v. Sessions, 854 F.3d 476, 481 (8th Cir. 2017)
(“[T]hough a single death threat may constitute persecution, a threat that is
exaggerated, nonspecific, or lacking in immediacy may be insufficient. . . . Rather,
[t]hreats alone constitute persecution in only a small category of cases, and only when
the threats are so menacing as to cause significant actual suffering or harm.” (citations
and internal quotation marks omitted)). The IJ and BIA also permissibly determined
Petitioner’s evidence of general crime and violence in Mexico failed to establish a
well-founded fear of future persecution based on Petitioner’s alleged involvement
with the Christian anti-drug group. See Agha v. Holder, 743 F.3d 609, 617 (8th Cir.
2014) (noting that, to prove a well-founded fear of future persecution, the harm
alleged “must be particularized to the individual rather than suffered by the entire
population” (citation omitted)). Further, the failure to show eligibility for asylum
precludes satisfaction of the higher standard applicable for withholding of removal.
Id. at 618. And, Petitioner did not renew his CAT arguments in his brief on appeal.
Finally, we find no denial of due process in Petitioner’s earlier proceedings.
To the extent he alleges the IJ’s analysis in the present matter was so infirm as to
amount to a denial of due process, he did not raise this argument with the BIA. In any
event, his argument is not fully articulated and is without merit. We affirm the BIA
and deny the petition for review.
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