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hearingmotionasylumdeportation
tortappealhearingmotionasylumdeportation

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Perez-Tino v. Barr

Facts

Marta Perez-Tino, a Guatemalan national of Mayan K'Iche' descent, entered the U.S. in 2001 without inspection. After being detained by ICE in 2007, she applied for asylum and other forms of relief, citing past persecution due to her family's Mayan heritage. Her applications were denied, and she filed a motion to reopen in 2018, arguing that conditions in Guatemala had worsened since her initial hearing, particularly due to the potential deportation of a former paramilitary commander responsible for atrocities against her family.

Marta Perez-Tino is a Guatemalan national of Mayan K'Iche' descent who entered the United States in 2001 without inspection. Facing the prospect of removal on the basis of a 2010 Board of Immigration Appeals ('BIA') decision denying her asylum, withholding of removal, and relief under the Convention Against Torture ('CAT'), Perez-Tino filed a motion to reopen with the BIA years later, on February 28, 2018. She sought to excuse the untimeliness of that motion on the basis of changed country conditions in Guatemala.

Issue

Did the BIA err in denying Perez-Tino's motion to reopen her immigration case based on a lack of demonstrated changed country conditions?

Did the BIA err in denying Perez-Tino's motion to reopen her immigration case based on a lack of demonstrated changed country conditions?

Rule

To prevail on a motion to reopen, the applicant must establish both a prima facie case for the underlying substantive relief sought and that the evidence supporting the motion was previously unavailable and material.

To prevail on a motion to reopen, the applicant must establish both 'a prima facie case for the underlying substantive relief sought' and that the evidence supporting the motion to reopen was 'previously unavailable [and] material.' INS v. Abudu, 485 U.S. 94, 104, 108 S. Ct. 904, 99 L. Ed. 2d 90 (1988). A motion to reopen must generally be submitted less than ninety days after the final administrative decision is issued, 8 U.S.C. 1229a(c)(7)(C)(i), unless the applicant can demonstrate 'changed country conditions arising in the country of nationality or the country to which removal has been ordered, if such evidence is material and was not available and would not have been discovered or presented at the previous proceeding.' Id. 1229a(c)(7)(C)(ii).

Analysis

The court found that the BIA's rejection of Perez-Tino's claims regarding changed country conditions was not supported by substantial evidence. The BIA failed to adequately consider the implications of the former paramilitary commander's potential deportation and the worsening conditions for indigenous people in Guatemala. The court noted that the BIA's reasoning was flawed and did not properly assess the evidence presented by Perez-Tino.

The BIA rejected this ground for finding 'changed country conditions.' The BIA did so by concluding that Perez-Tino had not 'adequately [**8] explain[ed]' why she did not mention Samayoa's past actions with regard to her family during her prior immigration hearing in 2009, given that one of her claims then was that her family had been previously targeted during the Civil War. In both her motion to reopen before the BIA and her briefing to us, however, Perez-Tino plainly explains that the reason that she did not mention Samayoa in her 2009 hearing was that his arrest in the United States — and the potential for deportation to Guatemala that arose from it — did not occur until 2017.

Conclusion

The court granted Perez-Tino's petition for review, vacated the BIA's decision, and remanded the case for further proceedings to properly evaluate the evidence of changed country conditions.

Accordingly, we vacate and remand the BIA's ruling. See Castaneda-Castillo v. Gonzales, 488 F.3d 17, 24-25 (1st Cir. 2007) (noting that remanding to the BIA is the 'ordinary course' where the record does not 'compel[]' a decision in the petitioner's favor).

Who won?

Marta Perez-Tino prevailed in the case because the court found that the BIA's reasoning for denying her motion to reopen was not sustainable and failed to consider significant evidence.

Marta Perez-Tino prevailed in the case because the court found that the BIA's reasoning for denying her motion to reopen was not sustainable and failed to consider significant evidence.

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