Unreported / Non-Citable
Background
Amalia Tianguistengo-Otero, a native and citizen of Mexico, entered the United States in 1995 without being admitted, and removal proceedings began in 2010. In January 2018 an immigration judge denied her application for cancellation of removal. In March 2018 she moved to reopen the proceedings to apply for asylum and withholding of removal. An immigration judge denied the motion, and in 2019 the Board of Immigration Appeals dismissed her appeal and denied her motion to terminate. She asked the Ninth Circuit to review only the denial of reopening.
Her motion relied on several kinds of evidence: the 2015 robbery and murder of a cousin, domestic violence she had suffered, her ex-husband's presence in the town where she would expect to live if removed, hardship to her children, and the shooting and wounding of two cousins after the 2018 merits hearing. She argued that she fears future persecution because of her membership in her family, which she characterized as a particular social group. The court exercised jurisdiction under 8 U.S.C. § 1252(a), reviewed the denial of reopening for abuse of discretion, and reviewed the due process claims de novo.
The Court’s Holding
The panel denied the petition. It first held that the BIA permissibly ruled that some of the evidence was not new and could have been presented at the 2018 hearing, as required for reopening under 8 C.F.R. § 1003.2(c)(1) and Iturribarria v. INS. The cousin's murder occurred in 2015, and the domestic violence also appeared to have occurred before the merits hearing. As to the ex-husband's presence in the relevant town, the BIA permissibly found no evidence that her fear rested on new facts discovered after the hearing. The BIA also permissibly found that the evidence of hardship to her children was not new.
For the facts that were new, the court held that the BIA permissibly concluded they did not show a reasonable likelihood of success on the asylum and withholding claims. The panel recognized that family can be a particular social group. But the evidence did not explain the circumstances of the cousins' shootings, so it did not show a reasonable likelihood that she could establish that she might be targeted in the future because of her family membership. The court stressed that the persecutor's motive is crucial for asylum and that withholding requires a clear probability of persecution on a protected ground. It concluded the BIA did not act arbitrarily, irrationally, or contrary to law.
The court rejected the due process claim. It presumes the BIA considered all relevant evidence, and nothing in the record suggested otherwise. The BIA also gave more than a cursory explanation, which was enough to permit meaningful judicial review. The petition was denied. The decision does not revisit the underlying cancellation ruling or the denial of the motion to terminate, which were not before the court.
Key Takeaways
- A motion to reopen can be granted only on material evidence that was not available and could not have been discovered or presented at the earlier hearing, so events that predated the hearing generally cannot support reopening.
- Even genuinely new evidence must reveal a reasonable likelihood that the statutory requirements for relief are satisfied, and unexplained violence against relatives does not meet that standard on its own.
- Family can qualify as a particular social group, but an applicant still has to connect the feared harm to family membership, and evidence that does not explain the circumstances or motive of an attack is weak on that link.
- The Ninth Circuit presumes the BIA considered all relevant evidence, and a due process claim based on alleged failure to consider evidence needs record support to overcome that presumption.
- The BIA need not write at length, but it must give a reasoned explanation that allows meaningful judicial review, and a response that is more than cursory satisfied that requirement here.
Why It Matters
This is an unpublished memorandum disposition. It is not precedent except as provided by Ninth Circuit Rule 36-3, so it carries limited weight beyond this case. It applies settled standards to the record before it.
The decision shows how deferential abuse-of-discretion review of motions to reopen can be. Petitioners must separate evidence that is truly new from evidence that could have been offered earlier, and must show with the new evidence a plausible nexus to a protected ground. The ruling also illustrates the difficulty of winning due process or inadequate-explanation challenges to BIA denials.