                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 17a0621n.06

                                          No. 13-4452                              FILED
                                                                              Nov 09, 2017
                         UNITED STATES COURT OF APPEALS                   DEBORAH S. HUNT, Clerk
                              FOR THE SIXTH CIRCUIT

GABRIELA TELLO-ESPANA,                                  )
                                                        )
       Petitioner,                                      )
                                                        )
v.                                                      )     ON PETITION FOR REVIEW
                                                        )     FROM THE UNITED STATES
JEFFERSON B. SESSIONS, III, U.S. Attorney               )     BOARD OF IMMIGRATION
General,                                                )     APPEALS
                                                        )
       Respondent.                                      )




       BEFORE: BOGGS, BATCHELDER, and BUSH, Circuit Judges.

       BOGGS, Circuit Judge. Gabriela Tello-Espana petitions this court for review of a final

order of removal entered by the Board of Immigration Appeals (“BIA” or “Board”). For the

reasons set forth below, we affirm the BIA’s order.

     1. Background

       Tello-Espana is a native and citizen of Mexico. She entered the United States illegally

sometime shortly before June 2003. In October 2010, the Department of Homeland Security

(“DHS”) initiated removal proceedings against her after she was arrested earlier that month for

shoplifting. At a hearing in Immigration Court in March 2011, Tello-Espana conceded that she

was removable under 8 U.S.C § 1182(a)(6)(A)(i) for being a citizen of Mexico who entered and

was present in the United States without admission or parole. On May 2, 2011, Tello-Espana
No. 13-4452, Tello-Espana v. Sessions


filed an application for withholding of removal1 and protection under the Convention Against

Torture (“CAT”). In the application, Tello-Espana sought withholding based upon the statutory

grounds of nationality, political opinion, and membership in a particular social group. She stated

that her brother-in-law and a friend both had recently been murdered in Mexico. She claimed

that they were victims of organized crime, and that she feared that she too would “suffer the

consequences of the organized crime for simply returning to Mexico after a prolonged absence.”

She also reported that she was afraid that returning to Mexico would put her at risk of harm

because people would wrongly believe that she was wealthy after living in the United States for

so many years.

       On April 5, 2012, after a hearing on the merits, an Immigration Judge (“IJ”) denied Tello-

Espana’s application for withholding and protection under CAT and ordered her removed from

the United States to Mexico. During the hearing, Tello-Espana withdrew her political-opinion

claim, but continued to press her particular-social-group and nationality claims. She explained

that the social group that she was a member of consisted of single women with children who are

United States citizens.2 She also clarified that her nationality claim was based not on her status

as a Mexican citizen, but on the fact that she would be falsely perceived to be a citizen of the

United States if she returned to Mexico.




1
 A petitioner is eligible for withholding of removal if she can establish that it is more likely than
not that her life or freedom would be threatened in the proposed country of removal on account
of a protected ground, such as her nationality, political opinion, or membership in a particular
social group. 8 U.S.C. § 1231(b)(3)(A); 8 C.F.R. § 1208.16(b)(2). The petitioner bears the
burden of proving eligibility for withholding of removal. 8 U.S.C. § 1229a(c)(4)(A); 8 C.F.R. §
1208.16(b).
2
 Tello-Espana has three young daughters, all of whom were born in the United States and are
United States citizens.
                                                -2-
No. 13-4452, Tello-Espana v. Sessions


       The IJ found that Tello-Espana failed to meet her burden in that she did not establish any

of the following three necessary elements: (1) that it is more likely than not that she would be

harmed by anyone were she to return to Mexico, (2) that such harm would constitute persecution,

and (3) that a statutory ground would be a central reason for such persecution. The IJ also

denied Tello-Espana’s claim for CAT protection, finding that she did not demonstrate that it is

more likely than not that she would be tortured by anyone in Mexico.

       Tello-Espana appealed the IJ’s decision to the BIA and also filed a motion for remand

and a motion requesting that the BIA administratively close the case. The BIA denied the

appeal, concluding that Tello-Espana had failed to meet her burden of establishing that she

would be persecuted on the basis of a statutory ground if she were returned to Mexico.

       In her motion requesting administrative closure, Tello-Espana asked the BIA to close her

case until a travel warning for Mexico issued by the United States Department of State (“State

Department”) is lifted.   DHS opposed the motion for administrative closure, arguing that

administrative closure was not appropriate because the travel warning was irrelevant to the

outcome of Tello-Espana’s case. The BIA stated that it agreed with DHS’s position and denied

Tello-Espana’s motion for administrative closure.

       The BIA also denied Tello-Espana’s motion for remand, which was premised on the

claim that country conditions in Mexico had declined precipitously since the time of her hearing

before the IJ in 2012. The BIA denied the motion, holding that the changed conditions, even

assuming they existed, did not support her claim for withholding of removal. The BIA also

declined to take administrative notice of evidence of changed country conditions that Tello-

Espana had provided in support of her motion to remand and her motion for administrative

closure.



                                               -3-
No. 13-4452, Tello-Espana v. Sessions


         Tello-Espana timely appealed the BIA’s decision to this court. Tello-Espana makes three

principal arguments on appeal.3 First, she contends that the case must be remanded so that the IJ

can re-evaluate her particular-social-group claim in light of new case law concerning the

definition of “particular social group.” Second, she claims that the BIA erred in declining to take

administrative notice of evidence of changed country conditions. Third, she argues that the BIA

erred in denying her motion for administrative closure.

      2. Discussion

             a. Standard of Review

         “Where, as here, the BIA issues its own decision rather than summarily affirming the IJ,

the BIA decision is reviewed as the final agency decision, but the IJ’s decision is also reviewed

to the extent that the BIA adopted it.” Harmon v. Holder, 758 F.3d 728, 732 (6th Cir. 2014).

“Questions of law involving immigration proceedings are reviewed de novo.” Ceraj v. Mukasey,

511 F.3d 583, 588 (6th Cir. 2007).         We review the agency’s factual findings under the

substantial-evidence standard of review. Harmon, 758 F.3d at 732. “Under this standard, we

will not reverse a factual determination . . . unless we find ‘that the evidence not only supports a

contrary conclusion, but compels it.’” Ceraj, 511 F.3d at 588 (quoting Marku v. Ashcroft,

380 F.3d 982, 986 (6th Cir. 2004)).

         We review the denial of a motion to remand for an abuse of discretion. Abu-Khaliel v.

Gonzales, 436 F.3d 627, 634 (6th Cir. 2006). We also review the denial of a motion for

administrative closure for abuse of discretion. Garza-Moreno v. Gonzales, 489 F.3d 239, 242

(6th Cir. 2007). “In determining whether the Board abused its discretion, this Court must decide

whether the denial . . . was made without a rational explanation, inexplicably departed from



3
    Tello-Espana does not appeal the IJ’s denial of protection under CAT.
                                                 -4-
No. 13-4452, Tello-Espana v. Sessions


established policies, or rested on an impermissible basis such as invidious discretion.” Abu-

Khaliel, 436 F.3d at 634 (alteration in original) (quoting Balani v. I.N.S., 669 F.2d 1157, 1161

(6th Cir. 1982)).

           b. Analysis

                    i. Motion to Remand

       Tello-Espana argues that the BIA abused its discretion in denying her motion to remand.

The crux of her argument is that the law concerning the definition of “particular social group”

has changed fundamentally since the IJ and BIA heard her case. She relies primarily on Matter

of M-E-V-G-, 26 I. & N. Dec. 227 (BIA 2014) and Matter of W-G-R-, 26 I. & N. Dec. 208 (BIA

2014). Remand is necessary, Tello-Espana asserts, so that her particular-social-group claim can

be decided under the new standard that these cases created.

       We have considered and rejected a similar argument a number of times in recent years.

See, e.g., Reyna v. Lynch, 631 F. App’x 366, 370–71 (6th Cir. 2015); Alvarez-Mejia v. Lynch,

628 F. App’x 388, 390–91 (6th Cir. 2015). In these cases, we have held that Matter of M-E-V-G-

and Matter of W-G-R- did not meaningfully change the requirements for proving a particular-

social-group claim. See Reyna, 631 F. App’x at 371; Alvarez-Mejia, 628 F. App’x at 390–91.

Since Matter of M-E-V-G- and Matter of W-G-R- worked no such change, no remand is required.

                    ii. Administrative Closure

       Administrative closure “is used to temporarily remove a case from an Immigration

Judge’s active calendar or from the Board’s docket.” Matter of Avetisyan, 25 I. & N. Dec. 688,

692 (BIA 2012). In Matter of Avetisyan, the BIA held that IJs and the BIA have the authority to

administratively close proceedings even if a party, such as DHS, opposes the closure. Id. at 694.

       [W]hen evaluating a request for administrative closure, it is appropriate for an
       Immigration Judge or the Board to weigh all relevant factors presented in the

                                                 -5-
No. 13-4452, Tello-Espana v. Sessions


       case, including but not limited to: (1) the reason administrative closure is sought;
       (2) the basis for any opposition to administrative closure; (3) the likelihood the
       respondent will succeed on any petition, application, or other action he or she is
       pursuing outside of removal proceedings; (4) the anticipated duration of the
       closure; (5) the responsibility of either party, if any, in contributing to any current
       or anticipated delay; and (6) the ultimate outcome of removal proceedings (for
       example, termination of the proceedings or entry of a removal order).

Id. at 696. The BIA clarified that a grant of a request for administrative closure would not be

appropriate “if the request is based on a purely speculative event or action . . . or an event or

action that may or may not affect the course of an alien’s immigration proceedings.” Ibid.

       Tello-Espana claims that the BIA abused its discretion in denying her motion for

administrative closure. The BIA erred, she contends, in failing to explicitly consider each of the

six factors laid out in Matter of Avetisyan. She argues that the BIA is required to apply this six-

part framework in considering motions for administrative closure. In Reyna, we considered an

identical argument and found it “unpersuasive.” 631 F. App’x at 373.

       The actual text of Avetisyan states that “when evaluating a request for
       administrative closure, it is appropriate for an Immigration Judge or the Board to
       weigh all relevant factors presented in the case,” including certain enumerated
       factors. This is not an imposition of a requirement, but rather a statement that an
       IJ or the BIA may consider various factors.

Ibid. (citation omitted) (quoting Matter of Avetisyan, 25 I. & N. Dec. at 696). We concluded that

the BIA did not abuse its discretion in denying administrative closure without explicitly

mentioning all of the Avetisyan factors. Ibid. So too here, the BIA did not abuse its discretion in

denying Tello-Espana’s administrative-closure motion, even though it did not explicitly consider

each of the factors set forth in Avetisyan. In stating that it agreed with DHS that administrative

closure was not appropriate because the travel warning was irrelevant to the outcome of the case,

the BIA sufficiently explained its rationale for denying the motion.          Moreover, the BIA’s

decision was appropriate in light of Matter of Avetisyan’s guidance that a request for



                                                -6-
No. 13-4452, Tello-Espana v. Sessions


administrative closure would not be proper “if the request is based on . . . an event or action that

may or may not affect the course of an alien’s immigration proceedings.” 25 I. & N. Dec. at 696.


                  iii. Administrative Notice

       In reviewing an IJ’s decision, the BIA generally is not permitted to engage in fact-

finding, but it may take “administrative notice of commonly known facts such as current events

or the contents of official documents.” 8 C.F.R. § 1003.1(d)(3)(iv). In the instant case, Tello-

Espana asked the BIA to take administrative notice of evidence of changed country conditions

that she documented in exhibits that she attached to her appellate brief to the BIA. The BIA

declined to do so, finding that even if it accepted the additional evidence, the evidence would not

change the outcome of the case.

       Tello-Espana argues that the BIA erred because it was required to take administrative

notice of the changed country conditions. She is incorrect. “[A]lthough the BIA is empowered

to take administrative notice of ‘commonly known facts such as current events or the contents of

official documents,’ . . . it is not compelled to do so.” Kaihua Huang v. Holder, 312 F. App’x

420, 422 (2d Cir. 2009) (quoting 8 C.F.R. § 1003.1(d)(3)(iv)); see also Yang Zhao-Cheng v.

Holder, 721 F.3d 25, 28 (1st Cir. 2013). Where, as here, the BIA finds that taking administrative

notice of additional evidence would have no bearing on the outcome of the case, the BIA does

not err if it declines to take administrative notice of the evidence.

   3. Conclusion

       For the foregoing reasons, we AFFIRM the BIA’s order. The BIA did not abuse its

discretion in denying Tello-Espana’s motion to remand or her request to close the case

administratively. The BIA also did not err in declining to take administrative notice of changed

country conditions.


                                                  -7-
