          United States Court of Appeals
                      For the First Circuit


No. 18-1086

                  MARIA LETICIA GARCIA-AGUILAR,

                           Petitioner,

                                v.

                      MATTHEW G. WHITAKER,
                    ACTING ATTORNEY GENERAL,

                           Respondent.


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


                              Before

                   Thompson, Selya, and Barron,
                          Circuit Judges.


     Randy Olen on brief for petitioner.
     Joseph H. Hunt, Assistant Attorney General, Civil Division,
Ernesto H. Molina, Jr., Deputy Director, Office of Immigration
Litigation, and Nancy N. Safavi, Trial Attorney, Office of
Immigration Litigation, on brief for respondent.


                         January 16, 2019




     
       Pursuant to Fed. R. App. P. 43(c)(2), Acting Attorney
General Matthew G. Whitaker has been substituted for former
Attorney General Jefferson B. Sessions, III as the respondent.
             SELYA, Circuit Judge.                 The petitioner, Maria Leticia

Garcia-Aguilar, is a Mexican national.                   She seeks judicial review

of a decision of the Board of Immigration Appeals (BIA) denying

her untimely motion to reopen removal proceedings — a motion

grounded upon her claim that country conditions in her native land

had materially changed, thus making her newly eligible for asylum.

After careful consideration, we deny the petition.

             We set the stage.               The petitioner entered the United

States illegally in 2005 near El Paso, Texas.                       Following a 2007

raid at the factory where she worked, the Department of Homeland

Security     initiated           removal     proceedings     against      her.         The

petitioner        denied     the       factual     allegations      underpinning       the

government's case for removal.                   Relatedly, she moved to suppress

some of the evidence upon which the government sought to rely,

claiming that the evidence had been procured in violation of her

constitutional rights.

             On    August        11,    2009,    the   petitioner's      first   merits

hearing was held before an immigration judge (IJ).                       The IJ denied

the motion to suppress, ordered the petitioner removed to Mexico,

and   granted      her     the    privilege       of   voluntary    departure.         The

petitioner appealed to the BIA, which vacated the IJ's decision

and   remanded      the     case       for   reconsideration       of   the   motion    to

suppress, including the underlying constitutional issues.




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            The petitioner had another merits hearing on February

17, 2012.    The IJ reconsidered facts pertinent to the petitioner's

motion to suppress and determined that the evidence used against

her was admissible.       In the end, the results of this second merits

hearing reprised the results of the petitioner's first merits

hearing: on February 1, 2013, the IJ denied the petitioner's motion

to suppress, ordered her removed, and granted voluntary departure.

            Once again, the petitioner appealed the IJ's decision to

the BIA.     Nearly a year later, the BIA upheld the IJ's decision.

Undaunted, the petitioner sought judicial review.              See 8 U.S.C.

§ 1252(b)(4).      On November 25, 2015, we denied her petition.            See

Garcia-Aguilar v. Lynch, 806 F.3d 671, 677 (1st Cir. 2015).

            The matter did not end there.          Almost two years later

(on August 28, 2017), the petitioner filed a motion to reopen,

arguing     that   a    dramatic   shift    in   conditions   in   Mexico     —

specifically,      an   increase   in   kidnappings   and   murders   due    to

violence associated with drug cartels and gangs — made her newly

eligible for asylum.       In support of her nascent asylum claim, she

alleged a fear of persecution based on her imputed "American

nationality."      To flesh out this claim, she further alleged that

she had lived in the United States since 2005; that she was the

mother of an American-born child; and that she had an older child

who, though born in Mexico, had resided in the United States since

infancy.


                                    - 3 -
             The BIA denied the motion to reopen.                It noted that the

motion was untimely and went on to hold that the evidence that the

petitioner submitted failed to achieve the level of proof needed

for the granting of an untimely motion to reopen.                       In the BIA's

view, the submitted evidence did "not establish materially changed

circumstances or changed country conditions arising in Mexico

since [the petitioner's] merits hearing below."                    Taking a belt-

and-suspenders       approach,      the      BIA   also    concluded       that   the

petitioner     had   failed    to     explain      how    her    imputed    American

nationality would make her risk of persecution different from that

of the general population in Mexico.                So, too, the BIA concluded

that   the   petitioner      had    failed    to   show   a     nexus   between   the

persecution that she allegedly feared and a statutorily protected

ground for asylum.      See 8 U.S.C. § 1158(b)(1)(B)(i).

             This timely petition for judicial review ensued.                 In it,

the petitioner seeks review only of the BIA's denial of her motion

to reopen.

             Motions    to    reopen      are      disfavored      in    immigration

practice.     See Sihotang v. Sessions, 900 F.3d 46, 48 (1st Cir.

2018); Xiao He Chen v. Lynch, 825 F.3d 83, 86 (1st Cir. 2016).

After all, reopening a proceeding is "contrary to 'the compelling

public interests in finality and the expeditious processing of

[removal] proceedings.'"           Raza v. Gonzales, 484 F.3d 125, 127 (1st

Cir. 2007) (quoting Roberts v. Gonzales, 422 F.3d 33, 35 (1st Cir.


                                       - 4 -
2005)).   Despite these drawbacks, motions to reopen are allowed

under some circumstances.    See 8 U.S.C. § 1229a(c)(7).

           Withal, those circumstances are narrowly circumscribed.

Of particular pertinence for present purposes, motions to reopen

are time-limited in immigration cases. See id. § 1229a(c)(7)(C)(i)

(providing that such a motion ordinarily must be filed within 90

days of the final order in the proceeding sought to be reopened);

see also 8 C.F.R. § 1003.2(c)(2).

           The uphill climb that a petitioner faces when seeking to

reopen removal proceedings — steep in any event — is steeper still

where, as here, she seeks to reopen after the time for moving to

reopen has expired.      See Sihotang, 900 F.3d at 48.               In such

circumstances, the petitioner must jump through two hoops.            First,

she must adduce material evidence, previously unavailable, showing

changed   country   conditions   in   her   homeland.      See   8    C.F.R.

§ 1003.2(c)(3)(ii); Sugiarto v. Holder, 761 F.3d 102, 103 (1st

Cir. 2014).    Second, she must make out a prima facie case of

eligibility for the substantive relief sought.          See Sihotang, 900

F.3d at 50.

           "We afford the BIA 'wide latitude in deciding whether to

grant or deny such a motion'" and review its decision only for

abuse of discretion.    Id. at 49 (quoting Bbale v. Lynch, 840 F.3d

63, 66 (1st Cir. 2016)).         To prevail under this deferential

standard, "the petitioner must show that the BIA either 'committed


                                 - 5 -
an   error   of   law   or   exercised   its    judgment   in   an   arbitrary,

capricious, or irrational manner.'"            Id. at 50 (quoting Bbale, 840

F.3d at 66).

             Here, the final agency order was dated January 15, 2014,

and the motion to reopen was filed more than three years later.

Thus, the motion to reopen was well out of time.                 See 8 U.S.C.

§ 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2).

             To satisfy the first requirement, the petitioner — who

bears the burden of proof — must submit evidence of changed country

conditions material to the underlying substantive relief that she

seeks; show that such evidence was unavailable or undiscoverable

during the prior proceedings; and show that the change was more

than a continuation of previously existing conditions.                See Xiao

He Chen, 825 F.3d at 86-87; see also Raza, 484 F.3d at 127.                 To

determine whether the petitioner has carried this multifaceted

burden, the BIA is obligated to compare "evidence of country

conditions submitted with the motion to those that existed at the

time of the merits hearing."         Sihotang, 900 F.3d at 50 (quoting

Sánchez-Romero v. Sessions, 865 F.3d 43, 46 (1st Cir. 2017)).

             Here, however, there is a stumbling block:                  before

embarking upon our analysis, we must identify the particular merits

hearing that forms the baseline for assessing the existence vel

non of changed country conditions.          This uncertainty arises out of

the fact that the petitioner had two separate merits hearings


                                    - 6 -
before the IJ, resulting in two separate decisions.               Her first

merits hearing took place in 2009 and her second merits hearing

took place in 2012.     Each of these hearings culminated in an order

of removal.    When it denied the petitioner's motion to reopen, the

BIA did not distinguish between these two merits hearings but,

rather, referred generically to the "merits hearing below."                By

the same token, the petitioner does not identify which hearing she

views as the operative one.

             Logic   suggests    that   the   more   recent   (2012)    merits

hearing should establish the baseline for the petitioner's motion

to reopen.    The government agrees:        its brief leaves no doubt that

it considers the 2012 hearing as the baseline hearing.                 Indeed,

its brief does not so much as mention the 2009 merits hearing.

The petitioner had an opportunity to file a reply brief contesting

this view, see Fed. R. App. P. 31(a)(1), but she chose not to do

so.   What is more, she acknowledges that the overwhelming bulk of

the country conditions information submitted to the BIA depicts

changes in Mexico that have taken place during the five years next

preceding — a time span roughly equivalent to the period beginning

with the 2012 merits hearing and ending with the filing of the

2017 motion to reopen.          Against this backdrop, we conclude that

the 2012 merits hearing sets the baseline for the "changed country

conditions" inquiry.




                                    - 7 -
                  With this baseline in place, we turn to the petitioner's

motion to reopen.          In that motion, the petitioner indicated that

the substantive relief sought was asylum.                The fact that she had

not sought asylum during the earlier removal proceedings does not,

in and of itself, pretermit her claim.              After all, an alien may

"apply or reapply for asylum" in a motion to reopen.                   8 C.F.R.

§ 1003.2(c)(3)(ii).          It follows that the petitioner had a right to

advance her claim for asylum for the first time in her motion to

reopen.       See Smith v. Holder, 627 F.3d 427, 439 n.13 (1st Cir.

2010).

                  Because the petitioner did not seek asylum at all during

the 2012 merits hearing, the record of that hearing contains no

direct evidence of country conditions then existing in Mexico.

This       does    not   mean,   though,   that   such    evidence   was   either

unavailable or undiscoverable.              Indeed, the petitioner has not

suggested that accurate information concerning country conditions

in Mexico was either unavailable to her or undiscoverable by her

at the time of the 2012 merits hearing.                  And in any event, the

petitioner's 2017 submissions to the BIA indicate with sufficient

clarity that gang and drug-cartel violence (including murders and

kidnappings) in Mexico was both prevalent and well-publicized at

and before the time of the 2012 merits hearing.1


       1
      It is true that many of the reports and articles proffered
by the petitioner were published in 2014 or thereafter.      But


                                       - 8 -
            Nor does the petitioner deny that conditions in Mexico

were going downhill as early as 2011.           Rather, she argues that

country conditions grew increasingly grim between the date of the

2012 merits hearing and the date on which she moved to reopen.           To

buttress her contention that conditions in Mexico deteriorated

during the relevant period, the petitioner submitted an array of

reports from government agencies and advocacy groups, along with

media   articles.     These    materials,    collectively,   describe   the

parlous conditions resulting from drug and gang violence in Mexico.

            This proffer falls short. Although some of the submitted

documents depict an increase in the rate of murders and kidnappings

beginning    around    2015,    others      describe   the   violence    as

intensifying around 2011 and persisting since that time.                For

example, one such article not only noted an uptick in murders in

2016 but also noted that the rate of killings was lower than it

was "in the first halves of 2011 and 2012, when the drug war's

violence" peaked.     Other articles support this statement, relating

that there were 27,213 murders in 2011, 20,670 murders in 2014,

and around 23,000 murders in 2016.            So, too, with respect to

kidnappings, another report, published in March of 2017, commented

that "Mexico has consistently featured in the top kidnapping


nothing indicates that the facts summarized in those reports and
articles, insofar as they reflect conditions existing in and around
2012, were either unavailable or undiscoverable at the time of the
petitioner's 2012 merits hearing.


                                   - 9 -
hotspots globally for several years."    Here, as in Sánchez-Romero

— a case that also considered evidence of gang-related violence in

Mexico — the proffered documents do not clearly "take us out of

the realm of bad conditions that persist and into the realm of

changed conditions."   865 F.3d at 47.

          We add a coda. Even though there may have been an uptick

in violence between 2012 and 2017, the petitioner's burden was to

show more than just an incremental change in country conditions:

she had to show a material change in country conditions.        See

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

v. Holder, 727 F.3d 53, 57 (1st Cir. 2013); Smith, 627 F.3d at

435-36.   In this regard, materiality has two dimensions.    First,

the evidence must show a degree of change that is sufficiently

substantial to be material.   See Tawadrous v. Holder, 565 F.3d 35,

38 (1st Cir. 2009).     Second, the evidence must be such as to

demonstrate a change that is material to the underlying substantive

relief that the petitioner seeks (here, asylum).     See Raza, 484

F.3d at 127.

          On this record, it was within the BIA's discretion to

conclude that the petitioner had not carried either aspect of her

burden.   To satisfy the first aspect, she would have had to show

a material increase in the incidence of violence, see Sánchez-

Romero, 865 F.3d at 46-47, and the BIA found (at least implicitly)

that she failed to do so.      To satisfy the second aspect, the


                              - 10 -
petitioner would need to show that any change in country conditions

would    impact       her    uniquely      because     of   her    imputed     American

nationality.       See Smith, 627 F.3d at 435-36; Raza, 484 F.3d at

127-28.    Here, however, her submissions wholly fail to make such

a   showing.      As        late    as   2017,   the   State      Department   Country

Conditions Report, introduced by the petitioner, noted the absence

of any "evidence that criminal organizations have targeted U.S.

citizens based on their nationality."

            In sum, we discern neither an error of law nor an abuse

of the BIA's wide discretion.                  The documents that the petitioner

proffered plausibly may be read to suggest "a persistent problem

rather    than    a    recent       change."        Sugiarto,     761   F.3d   at   104.

Moreover, those documents do not forge anything resembling a solid

link between an alleged change in country conditions and the

petitioner's underlying claim for asylum.                   For these reasons, we

cannot    say     that        the    BIA    acted      erroneously,       arbitrarily,

capriciously, or irrationally in determining that the petitioner

failed to demonstrate a material change in country conditions.

            In an effort to blunt the force of this reasoning, the

petitioner       asserts       that      the     BIA   ignored      her   evidentiary

submissions.          In her counsel's words, the BIA "offer[ed] no

indication that the evidence was considered carefully, or even at

all."




                                           - 11 -
            We do not agree.     An agency is not required to parse an

alien's submissions one by one and cite book and verse when

rejecting the alien's conclusions.          See Raza, 484 F.3d at 128.      As

relevant here, the BIA was under no obligation to dismantle the

petitioner's proffer and separately analyze the component parts of

that proffer.      See Sugiarto, 761 F.3d at 104.          "It is enough if

the agency fairly considers the points raised by the complainant

and articulates its decision in terms adequate to allow a reviewing

court to conclude that the agency has thought about the evidence

and the issues and reached a reasoned conclusion."           Raza, 484 F.3d

at 128; cf. Fen Tjong Lie v. Holder, 729 F.3d 28, 30 (1st Cir.

2013) (observing that even though "[t]he BIA's decision was concise

. . . that does not make it cursory").

            The BIA's decision passes muster under this standard.

Its   decision    refers   explicitly   to    various    items   of   evidence

submitted by the petitioner and offers a reasoned basis for denying

the motion.   On this record, it is rank speculation to assert that

the   BIA   failed   to    consider   the    materials   submitted     by   the

petitioner.      And it is equally speculative to assert that the BIA

rejected the petitioner's argument for any reason other than its

conclusion that the argument was unpersuasive.                   No more was

exigible.




                                  - 12 -
          We need go no further.2      For the reasons elucidated

above, the petition for judicial review is



Denied.




     2 Because the BIA supportably found that the petitioner failed
to carry her threshold burden of showing materially changed country
conditions, we need not reach other issues such as those pertaining
to the petitioner's "nexus" showing and her prima facie case for
asylum.


                              - 13 -
