Opinion
20-72787
10-17-2022
EMELIO SEBASTIAN LUCAS BASILO, AKA Antonio Santiz Gomez, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.
NOT FOR PUBLICATION
Submitted October 7, 2022 Pasadena, California
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A072-997-356
Before: TASHIMA and LEE, Circuit Judges, and BENNETT, Senior District Judge.
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
MEMORANDUM
Petitioner Emelio Lucas Basilio ("Basilio"), a native and citizen of Guatemala, seeks review of the Board of Immigration Appeals' ("BIA's") denial of his untimely motion to reopen proceedings. The sole issue raised by this petition is whether Basilio has presented evidence of materially changed conditions in Guatemala, as necessary to justify an exception to the ninety-day filing deadline. We have jurisdiction under 8 U.S.C. § 1252(b), and we deny the petition for review.
Basilio was removed from the United States on July 10, 2007, pursuant to an order of an Immigration Judge ("IJ"). He reentered without inspection on September 2, 2007. Immigration officials apprehended Basilio in August 2017, placed him in expedited removal proceedings, and reinstated his removal order on August 7, 2017. Basilio applied for withholding of removal and protection under the Convention Against Torture. The IJ denied relief, and the BIA dismissed Basilio's appeal on September 17, 2018. On January 28, 2020, Basilio filed a motion to reopen proceedings in order to advance a new claim for withholding of removal based on his conversion to Evangelical Christianity. The BIA denied this motion as untimely, concluding that Basilio had only offered evidence of changed personal circumstances and that he failed to demonstrate how conditions had changed in Guatemala since his 2018 hearing.
The sole issue in this case is whether the BIA abused its discretion by denying Basilio's motion to reopen proceedings as untimely. Ordinarily, a motion to reopen must be filed "within 90 days of the date of entry of a final administrative order of removal." 8 U.S.C. § 1229a(c)(7)(C)(i). This deadline does not apply to a motion to reopen "based on changed country conditions arising in the country of nationality." Id. § 1229a(c)(7)(C)(ii). As this Court outlined in Agonafer v. Sessions, "a petitioner must clear four hurdles" to establish this exception, which require him to:
(1) produce evidence that conditions have changed in the country of removal; (2) demonstrate that the evidence is material; (3) show that the evidence was not available and would not have been discovered or presented at the previous hearings; and (4) demonstrate that "the new evidence, when considered together with the evidence presented at the original hearing, would establish prima facie eligibility for the relief sought."859 F.3d 1198, 1204 (9th Cir. 2017) (quoting Toufighi v. Mukasey, 538 F.3d 988, 996 (9th Cir. 2008)). The denial of a motion to reopen is reviewed for an abuse of discretion, Rubalcaba v. Garland, 998 F.3d 1031, 1035 (9th Cir. 2021), and may only be reversed if the BIA acted "arbitrarily, irrationally, or contrary to the law," or "fail[ed] to provide a reasoned explanation for its actions," Tadevosyan v. Holder, 743 F.3d 1250, 1252-53 (9th Cir. 2014) (quoting Movsisian v. Ashcroft, 395 F.3d 1095, 1098 (9th Cir. 2005)).
The BIA did not abuse its discretion by denying Basilio's motion. Basilio argues that his conversion to Evangelical Christianity and his indigenous ethnic background leave him vulnerable to discrimination in Guatemala. However, while the applicable statute "does not prohibit a motion to reopen based on evidence of changed country conditions that are relevant in light of the petitioner's changed circumstances," it does prohibit "a motion to reopen that relies solely on a change in personal circumstances." Chandra v. Holder, 751 F.3d 1034, 1037 (9th Cir. 2014). Basilio fails to offer any evidence that the conditions in Guatemala have changed since his 2018 hearing. Cf. Agonafer, 859 F.3d at 1206 (finding changed circumstances where petitioner offered evidence demonstrating that "the treatment of homosexuals in Ethiopia" was "qualitatively different from the country conditions [initially] presented to the IJ"); Salim v. Lynch, 831 F.3d 1133, 1139 (9th Cir. 2016) (finding changed circumstances where petitioner offered evidence that "conditions for Christians have 'changed dramatically'" in Indonesia). Absent "evidence that conditions have changed in the country of removal," Basilio's motion to reopen proceedings is untimely. Agonafer, 859 F.3d at 1204.
Additionally, the BIA correctly concluded that Basilio failed to offer evidence of persecution. "To secure withholding of removal, a petitioner must demonstrate that his 'life ... would be threatened in that country because of [his] race, religion, nationality, membership in a particular social group, or political opinion.'" Barbosa v. Barr, 926 F.3d 1053, 1059 (9th Cir. 2019) (as amended) (quoting 8 U.S.C. § 1231(b)(3)(A)). "Persecution is 'an extreme concept that does not include every sort of treatment our society regards as offensive.'" Wakkary v. Holder, 558 F.3d 1049, 1059 (9th Cir. 2009) (quoting Nagoulko v. INS, 333 F.3d 1012, 1016 (9th Cir. 2003)).
Basilio argues that the Guatemalan government has infringed on the religious rights of indigenous populations by denying their access to a natural monument by imposing prohibitive fees. He contends that his country conditions report "reflects the rampant discrimination that indigenous people continue to endure in Guatemala," and that he has faced discrimination in the past on account of ethnicity. The totality of this evidence reflects "mere discrimination" that does not rise to the level of persecution. See id. (quoting Fisher v. INS, 79 F.3d 955, 962 (9th Cir. 1996) (cleaned up)). Accordingly, Basilio fails to establish "prima facie eligibility for the relief sought." Agonafer, 859 F.3d at 1204.
PETITION DENIED.
The Honorable Richard D. Bennett, United States Senior District Judge for the District of Maryland, sitting by designation.