          United States Court of Appeals
                     For the First Circuit

No. 12-2261

                       JESUS VALDEZ LOPEZ,

                           Petitioner,

                               v.

               ERIC HOLDER, JR., Attorney General,

                           Respondent.


              PETITION FOR REVIEW FROM AN ORDER OF
                 THE BOARD OF IMMIGRATION APPEALS


                             Before

                       Lynch, Chief Judge,
              Howard and Thompson, Circuit Judges.


     Martin D. Harris for petitioner.
     Brendan P. Hogan, Attorney, Office of Immigration Litigation,
with whom Stuart F. Delery, Acting Assistant Attorney General, and
Song Park, Senior Litigation Counsel, Office of Immigration
Litigation, were on brief for respondent.



                          July 15, 2013
              LYNCH, Chief Judge.         Petitioner Jesus Valdez-Lopez, a

native and citizen of Mexico, seeks review of an October 11, 2012

Board of Immigration Appeals (BIA) decision denying his untimely

motion to reopen his concluded removal proceedings, based on his

claim of changed country conditions. Because the BIA did not abuse

its discretion in its decision, we deny his petition.

                                        I.

A.   Original Removal Proceedings

              In order to evaluate the denial of the motion to reopen,

we first discuss the earlier removal proceedings, which ended in

November of 2009.        Valdez-Lopez had lawfully entered the United

States on June 23, 2001 as a visitor, with permission to remain for

30 days.       He overstayed.      Four years later, the Department of

Homeland Security (DHS) began removal proceedings by filing a

Notice   to    Appear    with    the   Immigration     Court,      charging   that

Valdez-Lopez was removable pursuant to 8 U.S.C. § 1182(a)(6)(A)(i),

as an alien who was present in the United States without being

admitted or paroled. Upon the DHS amending the factual allegations

contained in the Notice to Appear to charge Valdez-Lopez with

removability pursuant to 8 U.S.C. § 1227(a)(1)(B) as an alien who

remained   in    the    United   States      beyond   July   22,    2001   without

authorization, Valdez-Lopez admitted the amended allegations and




                                       -2-
conceded removability.          He sought relief in the form of asylum and

withholding of removal (WOR).1

              Valdez-Lopez's      merits         hearing    was     held    before    an

immigration judge (IJ) on April 3, 2008.                          The IJ noted that

Valdez-Lopez was ineligible for asylum, reasoning that Valdez-Lopez

had neither established that his application for asylum was timely,

see 8 U.S.C. § 1158(a)(2)(B) (requiring that application for asylum

be    filed   within     one   year   of    entry    into    United    States),      nor

established any basis as to the applicability of one of the

exceptions to the timeliness requirement, see id. § 1158 (a)(2)(D).

              As to WOR, Valdez-Lopez had testified that between 1984

and    1985   he   and    his    brother     engaged        in    various    community

improvement projects, including a project to pave their home

community's roads.         A neighboring community invited Valdez-Lopez

and his brother to discuss their project.                        The members of that

community discovered to their anger during that meeting that one

Hector Martinez-Trejo2 was overcharging them for a similar service;

Martinez-Trejo had to flee the meeting.                      Martinez-Trejo later

accosted Valdez-Lopez and his brother on a public street, opening

fire and killing the brother. Valdez-Lopez complained to the local



       1
        Valdez-Lopez did not seek protection under the Convention
Against Torture.
       2
        The parties dispute whether Valdez-Lopez's assailant is
named "Martinez-Trejo" or "Martinez-Trujillo."  For purposes of
this decision, that dispute is immaterial.

                                           -3-
police, and provided testimony that resulted in the conviction and

lengthy incarceration of Martinez-Trejo.

             Fifteen years later, a newly released Martinez-Trejo

again opened fire on Valdez-Lopez, this time at his family home.

No one was injured.      Valdez-Lopez again reported Martinez-Trejo to

the police.     This time, however, officials informed Valdez-Lopez

that Martinez-Trejo was working for the police, and that other

officers could testify as to his whereabouts at the time of the

shooting.        After    Valdez-Lopez     left   the     police   station,

Martinez-Trejo again confronted him, threatening to murder both him

and his children as payback for the time Martinez-Trejo had spent

in prison.

             Valdez-Lopez immediately relocated his family to another

region in Mexico, and left for the United States; his wife and

children followed a few months later.

             The IJ found that Valdez-Lopez's testimony was credible,

but held that Valdez-Lopez was nonetheless ineligible for WOR.

First, Valdez-Lopez had failed to establish a clear probability of

future harm on account of a protected ground.            While Valdez-Lopez

had a genuine and reasonable fear, his was a fear of personal

retaliation from Martinez-Trejo, and not one of persecution on

account   of   his   race,   religion,    nationality,    membership   in   a

particular social group, or political opinion.             Second, Valdez-

Lopez had provided no evidence of persecution at the hands of a


                                    -4-
group that the government was unable or unwilling to control.

While Valdez-Lopez had introduced evidence of police corruption and

impunity in general, he had not shown that Martinez-Trejo was

acting for the police so much as having a personal dispute with

Valdez-Lopez.

           Valdez-Lopez appealed the IJ's decision to the BIA, which

dismissed the appeal on November 13, 2009. The BIA, confirming the

IJ, also reasoned that Valdez-Lopez had "failed to show that he was

targeted in the past or that there is a clear probability that he

will be targeted in the future on account of a protected ground for

withholding   of   removal."      The   BIA   reasoned   that   "[a]lthough

[Valdez-Lopez] may fear a general state of lawlessness in his home

country, the law does not authorize withholding for someone who may

be subject to such general violence."          Valdez-Lopez did not seek

judicial review of the BIA's 2009 decision.          Rather, he did not

leave, but more than two years later filed the motion at issue.

B.   Motion to Reopen

           On May 15, 2012, Valdez-Lopez filed a motion with the BIA

to reopen his removal proceedings to reapply for asylum, WOR, and

protection under the Convention Against Torture.           Valdez-Lopez's

motion was untimely, as it was not filed within 90 days of the

BIA's final administrative decision. 8 U.S.C. § 1229a(c)(7)(C)(i);

8 C.F.R. § 1003.2(c)(2).       Valdez-Lopez claimed, however, that the

motion fell within the changed country conditions exception to the


                                    -5-
applicable time limitation.     8 U.S.C. 1229a(c)(7)(C)(ii); 8 C.F.R.

§ 1003.2(c)(3)(ii).      In addition, Valdez-Lopez urged the BIA to

reopen his proceedings sua sponte under 8 C.F.R. § 1003.2(a) on

hardship grounds.

             Valdez-Lopez introduced evidence concerning an incident

involving his daughter who, despite the threats Valdez-Lopez had

said were made to his family, had returned to Mexico for college.

In an unsworn statement, Valdez-Lopez's daughter reported that she

was a victim of auto theft at the hands of armed robbers.         She

claimed, without specificity, that the perpetrators "gave [her] the

message that they are waiting for [her] father."         Valdez-Lopez

argued, for the first time, that this incident supported a fear of

harm based on his membership in a "particular social group"

consisting of himself and his immediate family.

             In addition, Valdez-Lopez introduced evidence purporting

to show an increase in gang violence and police corruption in

Mexico.   Valdez-Lopez's daughter's unsworn declaration also said

that, in addition to having continuing ties with the police,

Martinez-Trejo was now involved with organized crime.           Thus,

Valdez-Lopez argued, insofar as general lawlessness within Mexico

had increased, so too had his personal risk of harm at the hands of

a group the government was unwilling or unable to control.

             On October 11, 2012, the BIA denied Valdez-Lopez's motion

to reopen.     The BIA rejected Valdez-Lopez's argument that changed


                                  -6-
conditions in Mexico materially affected his case.                     It noted that

the auto theft reports filed by Valdez-Lopez's daughter gave no

indication that the incident was attributable to Martinez-Trejo or

his previous threat against Valdez-Lopez.                 Even on the assumption

that Valdez-Lopez's family constituted a "particular social group,"

evidence of his daughter's incident did not demonstrate that

Martinez-Trejo now sought to harm Valdez-Lopez on account of his

membership in that group.            The same was true with respect to

evidence of Martinez-Trejo's ties to organized crime.                    Rather, the

BIA    explained,   the     harm   that         Valdez-Lopez     now    feared    was

essentially   the    same    as    before,       namely    a   fear     of   personal

retaliation on account of Valdez-Lopez's role in Martinez-Trejo's

incarceration.      As to increased lawlessness in Mexico, the BIA

reasoned that even if the evidence presented illustrated crimes,

violence, and police corruption in that country, such conditions

were not materially different from those that existed at the time

of    Valdez-Lopez's   hearing       in    2008.        Indeed,    Valdez-Lopez's

submission of similar evidence at the time of that hearing made

that clear.

            Before this court, Valdez-Lopez argues generally that the

BIA "commit[ted] errors of law" and that it "exercise[d] its

judgment in an arbitrary, capricious, or irrational manner" in

denying relief. More specifically, he says that the BIA's decision

assigns   insufficient      weight    to        the   evidence    surrounding     the


                                          -7-
incident   with     his    daughter,          and    that   this    was   an      abuse   of

discretion.3

                                              II.

             Because      of   the       "strong     public   interest       in   bringing

litigation     to   a     close      .    .   .     promptly,"     motions     to   reopen

deportation proceedings are disfavored.                     Fesseha v. Ashcroft, 333

F.3d 13, 20 (1st Cir. 2003) (alteration in original) (quoting INS

v. Abudu, 485 U.S. 94, 107 (1988)) (internal quotation marks

omitted). As a result, "the BIA enjoys a broad measure of latitude

in passing upon such motions."                    Lemus v. Gonzales, 489 F.3d 399,

401 (1st Cir. 2007).           We review the BIA's denial of a motion to

reopen for abuse of discretion, reversing its decision "only if the

BIA 'misread the law' or acted 'in an arbitrary or capricious

fashion.'" Fesseha, 333 F.3d at 20 (quoting Carter v. INS, 90 F.3d

14, 17 (1st Cir. 1996)).

             Motions to reopen must be filed within ninety days of the

final administrative decision.                    8 C.F.R. § 1003.2(c)(2).            This

requirement may be relaxed "if a petitioner 'makes a convincing

demonstration of changed conditions in his homeland.'" Tandayu v.



     3
        The BIA declined also to reopen Valdez-Lopez's proceedings
sua sponte, finding that the case did not present "exceptional
circumstances" that would warrant the exercise of that discretion.
In its brief, the Government argues that this court lacks
jurisdiction to review the BIA's discretionary decision declining
to reopen Valdez-Lopez's proceedings sua sponte. We agree, see,
e.g., Matos-Santana v. Holder, 660 F.3d 91, 94 (1st Cir. 2011), but
do not understand Valdez-Lopez to argue otherwise.

                                              -8-
Mukasey,   521    F.3d   97,    100     (1st   Cir.   2008)    (quoting      Raza   v.

Gonzalez, 484 F.3d 125, 127 (1st Cir. 2007)).                    "The change in

conditions 'must be material to the underlying substantive relief

that the alien is seeking . . . and the evidence tendered in

support    thereof     must    have    been    unavailable     during   the    prior

proceedings.'" Smith v. Holder, 627 F.3d 427, 434 (1st. Cir. 2010)

(alteration      in   original)       (quoting   Raza,   484    F.3d    at   127).

"Crucially, this evidence must demonstrate the intensification or

deterioration of country conditions, not their mere continuation."

Tawadrous v. Holder, 565 F.3d 35, 38 (1st Cir. 2009).

            The BIA was within its discretion in finding that none of

the evidence introduced calls into question its and the IJ's

earlier determination that Valdez-Lopez's fear is one of personal

retaliation, not one of persecution on account of a protected

ground.    Even if Martinez-Trejo now has ties to organized crime,

the   dispute    with    Valdez-Lopez      reasonably    could    be    thought      a

personal one.         Likewise, even assuming that Martinez-Trejo was

involved in the incident involving Valdez-Lopez's daughter (which,

as the BIA noted, is unclear), that incident would provide no new

indication that the risk to Valdez-Lopez is on account of his

membership in a "particular social group." Indeed, in the original

denial of relief, the IJ explicitly acknowledged the threats by

Martinez-Trejo were against Valdez-Lopez and his children.




                                         -9-
            Valdez-Lopez's motion to reopen attempts to call into

question the earlier decision.            His opportunity to do that,

however, is long past.          See 8 U.S.C. § 1252(b)(1) (requiring

petition for review of agency final order of removal to be filed

within 30 days); Stone v. INS, 514 U.S. 386, 394, 405 (1995)

(observing that time limits are "mandatory and jurisdictional," and

that "deportation orders are to be reviewed in a timely fashion

after issuance, irrespective of the later filing of a motion to

reopen") (quoting Missouri v. Jenkins, 495 U.S. 33, 45 (1990)

(internal quotation marks omitted)).

            The BIA was also within its discretion in determining

that the evidence introduced does not reveal increased lawlessness

in Mexico sufficient to amount to changed country conditions, much

less a change material to his claim.              As the BIA correctly

observed, the evidence introduced by Valdez-Lopez in 2008 is

substantially similar to that at issue here.           Cf. Tawadrous, 565

F.3d   at   39   (determining   that   evidence   of   changed   conditions

"describe only the persistence of . . . tensions that . . . [the

Court] had occasion to document before").

            The petition is denied.

            So ordered.




                                   -10-
