Maria Pablo Matias v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 15, 2021
• Docket: 20-70518
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 15 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MARIA PABLO MATIAS; ROLMO No. 20-70518 JERONIMO PABLO, Agency Nos. A208-302-246 Petitioners, A208-302-247

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Argued and Submitted May 7, 2021 Seattle, Washington

Before: BOGGS,** BERZON, and MURGUIA, Circuit Judges.

Petitioners, Maria Pablo Matias (“Pablo”) and her minor son, Rolmo Jeronimo

Pablo (“Rolmo”), are natives and citizens of Guatemala, petitioning for review of

their motion to reopen immigration proceedings, which was denied as untimely filed

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Danny J. Boggs, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. by the Board of Immigration Appeals (“BIA”). For the reasons set forth below, we

deny their petition.

As set forth in the underlying decision of the immigration judge (“IJ”), Pablo

is an indigenous Guatemalan Mam woman. While in Guatemala, she lived with her

domestic partner, Andres, and they had a son together, Rolmo. After Rolmo was

born, Andres began to beat, insult, and threaten Pablo on a regular basis. He would

get mad and threaten to kill her if she and Rolmo did not leave the house. Pablo

tried to leave once, going to her parents, but Andres found her and threatened to kill

her and Rolmo if they did not return home. Pablo testified that she never reported

the abuse because she was embarrassed to tell her family, and the police were far

away and did not speak her language.

Eventually, Pablo and Rolmo escaped from Andres and came to the United

States, in May 2015. They were put into removal proceedings, and Pablo moved for

asylum, withholding of removal, and protection under the Convention Against

Torture (“CAT”). She requested protection from persecution based on her

membership in the particular social groups of Guatemalan women who are viewed

as property and unable to leave a relationship, and of indigenous Guatemalan women

who are at risk of femicide. In March 2016, the IJ denied her relief and ordered her

removed. On appeal, the BIA held that the IJ erred in finding Pablo was not credible

2 and, on remand, directed the IJ to reassess whether Pablo had articulated a

cognizable social group.

In August 2017, the IJ issued a second removal order, denying Pablo’s claim

for protection on the grounds that neither of her proposed social groups was

considered socially distinct and therefore she was not prima facie eligible for relief.

Pablo filed a second appeal. In December 2018, the BIA held that her proposed

social groups were not cognizable and denied her appeal. Pablo did not petition for

review of this decision.

When Andres learned that Pablo and Rolmo were being deported back to

Guatemala, he renewed his threats to harm them. Afraid to return to Guatemala,

Pablo filed an untimely motion to reopen with the BIA in September 2019, seeking

asylum and withholding of removal based on changed country conditions. Pablo’s

changed circumstances argument rested solely on these new personal threats from

Andres; she proffered no evidence of general changes in country conditions in

Guatemala. In January 2020, the BIA denied Pablo’s motion, holding that her claim

did not constitute a material change in conditions that would warrant an untimely

reopening of her asylum case. The BIA also held that Pablo’s fear of harm did not

bear a nexus to a cognizable social group or any other protected ground. Pablo filed

this petition for review.

3 We review denial of a motion to reopen for abuse of discretion. Martinez v.

Barr, 941 F.3d 907, 921 (9th Cir. 2019). The BIA abuses its discretion if its decision

is “arbitrary, irrational, or contrary to law.” Perez v. Mukasey, 516 F.3d 770, 773

(9th Cir. 2008) (quoting Singh v. INS, 295 F.3d 1037, 1039 (9th Cir. 2002)). To

succeed on an untimely motion to reopen based on changed conditions, a petitioner

must provide evidence of changed country conditions. Chandra v. Holder, 751 F.3d

1034, 1036-38 (9th Cir. 2014). Those claims must be based on “changed

circumstances arising in the country of nationality” or deportation. 8 C.F.R. §

1003.2(c)(3)(ii).

Here, it is undisputed that Pablo proffered no evidence of changed conditions

generally in the country of Guatemala. She instead solely relied on alleged changes

in her personal circumstances, the new threats from Andres. Andres’s “new” threats

did not constitute a change in Pablo’s personal circumstances, as they were a

continuation of Andres’s earlier threats and abusive behavior, the very behavior from

which Pablo sought refuge in the United States. In particular, Pablo stated at her

hearing that Andres had threatened while she was in the United States to kill her if

she returned to Guatemala, essentially the same threat he repeated later and which is

the basis for her motion to reopen. These “new” threats thus did not create a change

in Pablo’s personal circumstances.

4 In addition to there being no change in Pablo’s personal circumstances, Pablo

failed to present any evidence of changed country conditions. This court recently

stated that changes in personal circumstances may be relevant to a motion to reopen

based on changed country conditions, but the petitioner could not rely solely on a

change in personal circumstances. Rodriguez v. Garland, 990 F.3d 1205, 1209-10

(9th Cir. 2021); see Kaur v. Garland, No. 18-72786, __ F.4th __, __, 2021 WL

2521610, slip op. at 11-15 & n.3 (9th Cir. June 21, 2021) (distinguishing Rodriguez

where the changed personal circumstances occurred “in the country of nationality,”

were beyond the petitioner’s control, and were accompanied by broader changed

country conditions).

The BIA thus did not abuse its discretion in rejecting Pablo’s motion to

reopen. For that reason, we do not reach the questions whether Pablo was a member

of a cognizable social group or whether her fear of harm bore a nexus to a particular

social group or any other protected ground.

The petition is DENIED.