Anos v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 24, 2023
• Docket: 21-729
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 24 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

Emmanuel Quiaoit Anos, No. 21-729

Petitioner, Agency No. A200-247-335

v. MEMORANDUM* Merrick B. Garland, U.S. Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted March 15, 2023** Pasadena, California

Before: LEE, BRESS, MENDOZA, Circuit Judges.

Emmanuel Quiaoit Anos, a native and citizen of the Philippines, petitions

for review of an order from the Board of Immigration Appeals (BIA) dismissing

his appeal from an Immigration Judge’s (IJ) denial of a motion to reopen. We

have jurisdiction under 8 U.S.C. § 1252(a). We deny the petition.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). We review the denial of a motion to reopen for abuse of discretion and will

reverse the agency’s decision only if it is “arbitrar[y], irrationa[l], or contrary to

law.” Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir. 2002) (citation and

quotation marks omitted). When the BIA adopts the reasoning of the IJ and adds

some of its own reasoning, we review both decisions. Nehad v. Mukasey, 535

F.3d 962, 966 (9th Cir. 2008).

But for a few limited exceptions, a motion to reopen “must be filed no later

than 90 days after the date on which the final administrative decision was

rendered in the proceeding sought to be reopened.” 8 C.F.R. § 1003.2(c)(2).

Here, Anos was granted pre-conclusion voluntary departure on November 6,

2018. Anos did not, however, depart the United States within the required 120

days. 8 U.S.C.A. § 1229c. Instead, Anos remained in the United States until he

was apprehended by the Department of Homeland Security in December 2020.

On January 12, 2021, Anos filed a motion to reopen with the IJ.

Despite filing his motion to reopen approximately two years too late, Anos

argues that the agency erred in denying the motion because: (1) he established

equitable tolling was warranted; (2) country conditions in the Philippines had

materially changed such that he was eligible for asylum, withholding or removal,

and/or protection under the Convention Against Torture (CAT); and (3) he would

potentially be eligible for adjustment of status based on his recent engagement to

a U.S. legal permanent resident.

1. The BIA did not abuse its discretion in concluding Anos failed to

2 21-729 establish equitable tolling was warranted. Equitable tolling of the time in which

to file a motion to reopen may be available “when a petitioner is prevented from

filing because of deception, fraud, or error, as long as the petitioner acts with due

diligence in discovering the deception, fraud, or error” or when “despite all due

diligence,” the petitioner “is unable to obtain vital information bearing on the

existence of the claim.” Lona v. Barr, 958 F.3d 1225, 1230 (9th Cir. 2020)

(citation and quotation marks omitted). Anos argues the IJ failed to provide a

“reasoned explanation” for denying his request for equitable tolling. See

Movsisian v. Ashcroft, 395 F.3d 1095, 1098 (9th Cir. 2005). But the record

supports the BIA’s conclusion that Anos never presented an equitable tolling

argument to the IJ. Moreover, the record also supports the BIA’s conclusion that

Anos failed to allege any facts that could support a claim for equitable tolling.

We thus deny this claim.

2. The BIA did not abuse its discretion in concluding Anos failed to

establish changed country conditions warranted reopening. A petitioner may file

a motion to reopen at any time for the purpose of submitting an application for

relief based on changed country conditions. 8 C.F.R. § 1003.2(c)(3)(ii); Agonafer

v. Sessions, 859 F.3d 1198, 1203–04 (9th Cir. 2017) (noting the 90-day deadline

does not apply to motions to reopen based on changed country conditions). This

changed country conditions exception focuses on two points in time: “the

circumstances of the country at the time of the petitioner’s previous hearing, and

3 21-729 those at the time of the motion to reopen.” Salim v. Lynch, 831 F.3d 1133, 1137

(9th Cir. 2016).

The BIA did not act arbitrarily, irrationally, or contrary to law in

concluding Anos failed to establish country conditions in the Philippines changed

between November 6, 2018—the date of his last hearing—and January 12,

2021—the date he filed his motion to reopen—in ways that are material to Anos’s

claims for asylum, withholding of removal, or relief under CAT. Anos states that

he fears he will be persecuted and/or tortured if removed to the Philippines

because “as a longtime resident of the United States [he] will be perceived to have

wealth” and “[k]idnapping for ransom is very prevalent in the Philippines.” He

states that people who are “known to return from the United States become targets

of this type of crime.”

Anos submitted several publications that confirm kidnappings “for

criminal purposes” occur in the Philippines, but “[g]eneral references to

‘continuing’ or ‘remaining’ problems is not evidence of a change in a country’s

conditions.” Rodriguez v. Garland, 990 F.3d 1205, 1210 (9th Cir. 2021). The

record contains no evidence from which one could conclude longtime residents

of the United States were at greater risk of kidnapping in 2021 than in 2018. Nor

do any of the publications Anos presented report a general increase in

kidnappings between 2018 and 2021. One publication states that the Philippine

National Police reported “crime decreased from 2018 to 2019.” Thus, the BIA

4 21-729 did not abuse its discretion in concluding Anos failed to establish changed

country conditions warranted reopening.

3. The BIA did not abuse its discretion in declining to reopen despite

Anos’s engagement to a U.S. legal permanent resident. Anos argues the BIA

should have reopened his proceedings because he would be able to establish

eligibility for adjustment of status on account of his planned marriage to a U.S.

legal permanent resident who intended to file a visa petition on his behalf. But

changes in personal circumstances do not provide a basis for an exception to the

90-day deadline to file a motion to reopen. See 8 C.F.R. § 1003.2(c)(3);

Rodriguez v. Garland, 990 F.3d 1205, 1209–10 (9th Cir. 2021) (“Changes in a

petitioner’s personal circumstances are only relevant where those changes are

related to the changed country conditions that form the basis for the motion to

reopen.”). Additionally, to the extent the BIA concluded this change in personal

circumstances did not warrant sua sponte reopening under 8 C.F.R. § 1003.2(a),

we lack jurisdiction to review its decision. See Bonilla v. Lynch, 840 F.3d 575,

588 (9th Cir. 2016) (noting we may review an agency’s decision to decline sua

sponte reopening only for “legal or constitutional error”).

Petition DENIED in part and DISMISSED in part.

5 21-729