          United States Court of Appeals
                      For the First Circuit
No. 16-2416

                   JUAN MANUEL SÁNCHEZ-ROMERO,

                           Petitioner,

                                v.

                   JEFFERSON B. SESSIONS, III,
              ATTORNEY GENERAL OF THE UNITED STATES,

                           Respondent.


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


                              Before

                       Howard, Chief Judge,
                      Selya, Circuit Judge,
                 and McConnell, District Judge.


     Theodore J. Murphy on brief for petitioner.
     Chad A. Readler, Acting Assistant Attorney General, Civil
Division, Eric W. Marsteller, Senior Litigation Counsel, Office
of Immigration Litigation, and Rosanne M. Perry, Trial Attorney,
U.S.   Department  of   Justice,   Civil   Division, Office   of
Immigration Litigation, on brief for respondent.



                          July 26, 2017



     
        Pursuant to Fed. R. App. P. 43(c)(2), Attorney General
Jefferson B. Sessions, III, is substituted for former Attorney
General Loretta E. Lynch as respondent.
     
        Of the District of Rhode Island, sitting by designation.
            MCCONNELL,      District          Judge.         The     petitioner,        Juan

Manuel Sánchez-Romero (Sánchez), seeks review of the Board of

Immigration     Appeals'       (BIA)    denial     of    his    untimely       motion      to

reopen removal proceedings based on changed conditions.                             Because

we do not spot an abuse of discretion, Sánchez's petition is

denied.

                                            I.

            Sánchez, a Mexican national, entered the United States

via    Douglas,   Arizona,       in     April     2003,      without        admission      or

parole.    On October 17, 2009, United States Customs and Border

Protection officers encountered Sánchez at the Luiz Muñoz Marín

International     Airport       in    San     Juan,    Puerto       Rico.      That   day,

Sánchez was served with a Notice to Appear, charging him with

removability      under    8     U.S.C.       §   1182(a)(6)(A)(i),           for     being

present in the United States without being admitted or paroled.

In    addition,   Sánchez       was    charged        with   removability          under    8

U.S.C. § 1182(a)(6)(C)(ii), for falsely representing that he was

a     citizen      of      the         United         States,        and      8      U.S.C.

§ 1182(a)(7)(A)(i)(I),          for     not    possessing       a    valid,       unexpired

entry document at the time of application for admission.

            On November 10, 2009, Sánchez had a hearing before an

immigration judge, where he conceded the charge of removability

under 8 U.S.C. § 1182(a)(6)(A)(i) but denied the charges under 8

U.S.C. § 1182(a)(6)(C)(ii) and 8 U.S.C. § 1182(a)(7)(A)(i)(I).

                                            -2-
               About    half    of   a   year   later,       Sánchez     applied     for

asylum,    withholding          of   removal,      and      protection     under     the

Convention Against Torture (CAT), and on March 24, 2011, he

amended his application.             In his application, Sánchez stated his

fear of criminal gangs (a.k.a. Drug Trafficking Organizations or

"DTOs") and the Mexican army, from which Sánchez abandoned his

post due to corruption.

               According to Sánchez's petition, the criminal gangs

killed his brother and sister, and the gangs would target him as

well.     Sánchez's sister was killed for testifying against a

member    of    a   criminal     gang,     resulting        in   the   gang     member's

imprisonment.          The petition does not state the reason for the

death of Sánchez's brother, but it does say that the killer had

disappeared.        Sánchez also feared that, upon return to Mexico,

the gangs would mistake him for a relative of Mariano Rivera, a

former baseball player for the New York Yankees, whose family

Sánchez befriended.            These gangs would, Sánchez thinks, kidnap,

extort, and torture him.

               In   addition    to   fearing    the      criminal      gangs,    Sánchez

also believed that he would be harmed by the Mexican army.                             A

sergeant in the army forced Sánchez into dealing drugs, and when

Sánchez later refused, he was beaten.                        As a result of this

corruption      and    abuse,    Sánchez    left      the    army.      His     petition



                                          -3-
stated his belief that there would be consequences for leaving

the army, including torture.

             An immigration judge conducted a merits hearing and

denied Sánchez's petition on June 7, 2011.                      Shortly thereafter,

on    July   5,    2011,    Sánchez       appealed      the    immigration       judge's

denial.      And on March 11, 2013, the BIA, after review, denied

Sánchez's appeal.         No immediate action was taken by Sánchez.

             On August 25, 2016, more than three years after the

BIA    denied     Sánchez's      petition,       he    moved     to    reopen    removal

proceedings.       In his motion to reopen, Sánchez argued that even

though his motion is untimely, his petition to reopen should be

granted      because      the    conditions       in    his     home     country       have

deteriorated       and      intensified.               Those     purported       changed

conditions consist of an increase in crime and kidnappings, an

increase in power wielded by the DTOs who now operate as a de

facto government, and an increase in violence against those who

oppose the DTOs.           And evidence of the worsened conditions was

not    available     at    the   time     of   the     last    hearing     because     the

evidence relates to events that occurred after the hearing.

             After     dealing     with    the    timeliness          issue,    Sánchez's

petition went on to discuss the merits of his claims.                                  His

application for asylum and withholding of removal was predicated

upon   persecution        for    his   political       opinion    --     that    is,   his

stance of opposing the DTOs.                   As for his CAT claim, Sánchez

                                           -4-
believed that, upon returning to Mexico, he would be at a high

risk of torture because of his political opinion and because he

would be identifiable as a recent deportee.                      The torture would

be perpetrated by the Mexican government and the DTOs, to whom

the government acquiesces.

            Ultimately, the BIA denied Sánchez's motion to reopen.

The BIA began by noting that Sánchez failed to file his motion

within ninety days of the BIA's final decision.                       As such, this

untimeliness acted as a bar to his motion to reopen unless an

exception   applied.        The    BIA    then       went   on   to    consider     the

exception to the timeliness requirement asserted by Sánchez: the

existence of changed conditions since the merits hearing.                         After

considering the evidence submitted by Sánchez, which depicted

crime and violence perpetrated by the DTOs, the BIA concluded

that Sánchez had failed to demonstrate that the conditions were

more than a mere continuation of conditions that existed at the

time of his hearing in 2011.          The BIA did not, however, stop the

analysis there.         Instead, the Board went on to consider -- and

ultimately reject -- Sánchez's ability to set forth a prima

facie case for asylum, withholding of removal, or protection

under the CAT.

            Now,   on    appeal,   Sánchez       claims     that      the   BIA   acted

arbitrarily   in   finding     that      he    did    not   demonstrate       changed

conditions, abused its discretion by determining that Sánchez

                                         -5-
was not eligible for asylum and withholding of removal based on

his political opinion, and acted arbitrarily by only focusing on

a portion of his CAT claim.

                                             II.

             The BIA is given broad discretion to grant or deny

petitions    to     reopen,      and    as    a    result,    we    review    the   BIA's

decision for abuse of discretion.                   Cardona v. Sessions, 848 F.3d

519, 521 (1st Cir. 2017).              The court will, therefore, uphold the

BIA's decision "unless the petitioner can show that the BIA

committed    an     error    of   law     or      exercised       its   judgment    in    an

arbitrary, capricious, or irrational manner."                           Bbale v. Lynch,

840 F.3d 63, 66 (1st Cir. 2016).

             A petitioner normally must file a motion to reopen

proceedings       no    later      than        ninety      days     after    the        final

administrative order of removal.                    8 U.S.C. § 1229a(c)(7)(C)(i);

8 C.F.R. § 1003.2(c)(2).               One exception to this ninety-day rule

is     materially      changed     conditions         in    the     petitioner's        home

country.     See Xiao He Chen v. Lynch, 825 F.3d 83, 86 (1st Cir.

2016).     To this end, a petitioner must (1) demonstrate changed

conditions    through       evidence         that    was     not    available      at    the

original merits hearing and (2) establish a prima facie case of

eligibility for relief.           Larngar v. Holder, 562 F.3d 71, 74 (1st

Cir.    2009).         In   evaluating         changed     conditions,       "[t]he       BIA

'compares the evidence of country conditions submitted with the

                                             -6-
motion     to   those    that       existed     at    the    time       of    the     merits

hearing.'"      Xin Qiang Liu v. Lynch, 802 F.3d 69, 76 (1st Cir.

2015) (quoting Haizem Liu v. Holder, 727 F.3d 53, 57 (1st Cir.

2013)).

             We begin our analysis -- and end -- with the existence

vel non of changed conditions.                   To meet his burden, Sánchez

needs to make a "convincing demonstration" that the conditions

in his home country have intensified or deteriorated between his

merits hearing on March 24, 2011, and his motion to reopen on

August 25, 2016.        Tandayu v. Mukasey, 521 F.3d 97, 100 (1st Cir.

2008) (quoting Raza v. Gonzales, 484 F.3d 125, 127 (1st Cir.

2007)).     Sánchez,         claiming   error    with       the   BIA's       decision     to

deny his motion to reopen, posits that, because the size and

scope of the DTOs' power has increased, the BIA erred in finding

a   mere   continuation        of   conditions.         That      is,   the        DTOs   have

become -- to quote Sánchez's brief -- "an insurgency threatening

the   sovereignty       of    the   [Mexican]        government."            The    evidence

adduced by Sánchez does not, however, support this assertion.

             Sánchez's claim of changed conditions centers on the

Mexican government's relations with the DTOs.                       Beginning in 2006

with the Vincente Fox administration, and then later throughout

the Felipe Calderón administration, the Mexican government took

a hardline approach to the DTOs, attempting to eradicate the

criminal enterprises.            This aggressive policy, which sought the

                                         -7-
capture     of    high-ranking    members      of    the    DTOs,    caused    the

organizations to splinter between 2008 and 2010, from four main

organizations to as many as eighty organizations (depending on

who is counting).         That is to say, the Mexican government's

aggressive policy towards the DTOs existed prior to 2011 and so

did the splintering of the DTOs.

            Nonetheless,       Sánchez    asserts     that,   from    2011    until

2016, the DTOs' power has increased and that the DTOs are now

supplanting the Mexican government.               He does not, however, cite

to evidence in the record to support this contention.                      Indeed,

on this score, the only article mentioned by Sánchez says that

the DTOs possess political influence and, in some instances,

operate as de facto security forces.                But this does nothing to

take us out of the realm of bad conditions that persist and into

the realm of changed conditions.

            Instead, Sánchez focuses his efforts on pointing out

the rise in kidnappings and murders related to the DTOs.                        One

article notes that complaints of kidnapping have increased from

.89 per day to 3.72 per day.             While these numbers are shocking,

the   article     does   not   mention     over     what   years    the   increase

occurred.        More to the point, Mexico was dealing with similar

levels of kidnappings prior to Sánchez's merits hearing.                       For

instance, the 2009 Human Rights Report for Mexico reports 8,000

drug-related homicides and 820 kidnappings in 2008, with sources

                                         -8-
indicating that kidnappings are vastly underreported.                                    Murder

rates    have,     according       to    the    Mexican      government,           dropped    by

thirty-percent in 2012, fifteen-percent in 2013, and fifteen-

percent in 2014.            Other violent crimes, though, have remained

elevated.

               Sánchez      also        highlights           the         disappearance        of

individuals       in    Mexico     to    evidence       changed          conditions.         One

source    cited       writes    that,     as    of    February          2014,    the    Mexican

government confirmed that 26,000 persons remain "disappeared."

But the Mexico 2014 Human Rights Report, which reports similar

levels of disappearance, notes that the causes of disappearance

include        voluntary       absence,     migration,         death,           and    unlawful

imprisonment.          So the disappearances cannot be solely attributed

to the DTOs.          Notwithstanding, the 2009 Human Rights Report also

indicates that issues of disappearance existed in 2009 -- well

before Sánchez's merits hearing in 2011.

               Accordingly,       the     record      does    not        support      Sánchez's

claim that crime and violence perpetrated by the DTOs in Mexico

represent changed conditions from 2011 to 2016.                            As noted by the

BIA,     the    evidence        submitted       by    Sánchez           does    showcase     the

"influences and activities of crime and violence by criminal

organizations         in   Mexico."        But       grave   conditions          that    remain

grave    do     not    equate    to     intensification            of    conditions.         See

Mejía-Ramaja v. Lynch, 806 F.3d 19, 21 (1st Cir. 2015).                                    After

                                               -9-
reviewing the evidence of record, the Court finds that the BIA

acted well within its discretion.

          Because the BIA properly exercised its discretion and

found that Sánchez failed to demonstrate changed conditions, the

BIA did not need to determine whether Sánchez made out a prima

facie case for eligibility.   Yang Zhao-Cheng v. Holder, 721 F.3d

25, 29 (1st Cir. 2013).    This Court, having discerned no abuse

of discretion, likewise, need not examine Sánchez's remaining

assignments of error.   See Haizem Liu, 727 F.3d at 58.

                               III.

          For the reasons set forth above, Sánchez's petition is

denied.




                               -10-
