             United States Court of Appeals
                       For the First Circuit

No. 14-1970

                     JOSÉ MIGUEL MEJÍA-RAMAJA,

                            Petitioner,

                                 v.

                         LORETTA E. LYNCH,*
               ATTORNEY GENERAL OF THE UNITED STATES,

                            Respondent.


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


                               Before

                    Torruella, Selya and Lynch,
                          Circuit Judges.


     Randy Olen on brief for petitioner.
     Benjamin C. Mizer, Principal Deputy Assistant Attorney
General, Civil Division, United States Department of Justice,
Jesse M. Bless, Senior Litigation Counsel, Office of Immigration
Litigation, and Alexander J. Lutz, Trial Attorney, Office of
Immigration Litigation, on brief for respondent.



                         November 20, 2015


__________
    *Pursuant to Fed. R. App. P. 43(c)(2), Attorney General Loretta
E. Lynch has been substituted for former Attorney General Eric H.
Holder, Jr. as the respondent.
             SELYA, Circuit Judge. The sole issue in this immigration

case is whether the Board of Immigration Appeals (BIA) abused its

discretion     in    declining    to    reopen    the     petitioner's      removal

proceedings.        After careful consideration, we conclude that the

BIA acted well within the realm of its discretion.                   Accordingly,

we deny the petition for judicial review.

             We   briefly   rehearse     the     travel   of   the    case.     The

petitioner, José Miguel Mejía-Ramaja, is a Guatemalan national.

He entered the United States without inspection in 2003.                    Roughly

two    years      later,    federal      authorities       instituted       removal

proceedings against him.         See 8 U.S.C. § 1182(a)(6)(A)(i).

             The petitioner conceded removability and cross-applied

for withholding of removal and protection under the United Nations

Convention     Against     Torture     (CAT).      Following    an    evidentiary

hearing held on December 22, 2010, the Immigration Judge (IJ)

denied the petitioner's cross-applications and ordered him removed

to Guatemala.

             The petitioner appealed to the BIA. After full briefing,

the BIA denied his appeal on February 26, 2013.                 Judicial review

was not sought, and the order for removal became final.

             More than a year elapsed.           Then — on March 31, 2014 —

the petitioner filed a motion to reopen his removal proceedings.

In    his   motion   papers,     he   alleged    in   substance      that   country

conditions in his homeland had changed for the worse and that he


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had new evidence to submit in support of his applications for

withholding of removal and CAT protection.

           On August 19, 2014, the BIA denied the motion to reopen.

It held that the motion was untimely and that, in all events, the

petitioner had not made a sufficient showing to warrant reopening

the removal proceedings.   This timely petition for judicial review

ensued.

           We review the BIA's denial of a motion to reopen removal

proceedings for abuse of discretion.    See Kucana v. Holder, 558

U.S. 233, 242 (2010); Xue Su Wang v. Holder, 750 F.3d 87, 89 (1st

Cir. 2014).   We conclude, without serious question, that the BIA's

assessment of the timeliness of the motion to reopen in this case

was not an abuse of discretion.

           Normally, a motion to reopen immigration proceedings

must be filed within 90 days of the entry of the final order of

removal.   See Meng Hua Wan v. Holder, 776 F.3d 52, 56 (1st Cir.

2015); 8 C.F.R. § 1003.2(c)(2).   The petitioner's motion was filed

well past this 90-day limit.   But there is an exception open to an

alien (like the petitioner) who has applied, inter alia, for

withholding of removal.     This exception is available when the

motion to reopen is "based on changed circumstances arising in

. . . the country to which deportation has been ordered."   8 C.F.R.

§ 1003.2(c)(3)(ii).




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             To invoke this exception, the alien must adduce new and

material evidence that was not, in the exercise of reasonable

diligence, available at the time of his original removal hearing.

See Perez v. Holder, 740 F.3d 57, 62 (1st Cir. 2014); 8 C.F.R.

§ 1003.2(c)(3)(ii). The petitioner labors to mitigate the lateness

of his motion by invoking this exception.            The BIA found this

effort unavailing and, thus, found the exception inapplicable.               We

agree.

             As we have said, an alien seeking to reopen removal

proceedings on the ground of changed country conditions must point

to new and material evidence — "evidence that was not available at

the original merits hearing."      Perez, 740 F.3d at 62; see Sugiarto

v. Holder, 761 F.3d 102, 103 (1st Cir. 2014).            "In determining if

evidence submitted in support of a motion to reopen demonstrates

a material change in country conditions justifying reopening of

proceedings, the . . . [BIA] compares the evidence of country

conditions submitted with the motion to those that existed at the

time of the merits hearing below."         Haizem Liu v. Holder, 727 F.3d

53, 57 (1st Cir. 2013) (citing In re S-Y-G-, 24 I.&N. Dec. 247,

253   (BIA   2007)).    If   the   evidence    reveals    no   more   than    a

continuation of previously existing conditions, the evidence is

inadequate to show changed country conditions.           See Sugiarto, 761

F.3d at 104; Fen Tjong Lie v. Holder, 729 F.3d 28, 31 (1st Cir.

2013).


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            In this case, the relevant period spans the interval

from December 22, 2010 (the date of the petitioner's merits

hearing) to March 31, 2014 (the date when petitioner filed his

motion to reopen).     At the merits hearing, the IJ referred to a

State Department report of country conditions in 2009 (the latest

such report that was then available).           The petitioner does not

contend that the 2013 country conditions report reflects any

material change in those conditions.      Nor could he: while the 2013

report paints an unattractive picture of life in Guatemala, that

picture shows nothing more than a continuation of the pattern of

negative conditions — including rampant crime, poorly controlled

violence, and police corruption — that has plagued Guatemala for

several years.   The 2009 report and the other evidence adduced at

the   petitioner's   2010   removal   hearing   painted   much   the   same

picture.1   That conditions have failed to improve is not enough to

show that they have changed.     See Sugiarto, 761 F.3d at 104.

            In an endeavor to alter the trajectory of the debate,

the petitioner avers that, in 2013, a gas station in Guatemala

that he and his brothers owned was attacked; masked men armed with




       1For example, at the 2010 removal hearing, the petitioner
submitted a working paper describing Guatemala as "a vicious state
of nature," which was "wracked by some of the worst crime rates in
the world" and where "security forces are unable to staunch a tide
of criminal violence." This is not materially different from the
Guatemala portrayed in submissions accompanying the petitioner's
motion to reopen.


                                 - 6 -
high-powered firearms entered the premises and shot three people

(killing         one).   The    marauders      proceeded   to   steal   money    and

property.         The petitioner argues that his account of the attack is

new    and       material     evidence     that   manifests       changed   country

conditions.

                 This argument lacks force.            In contrast to the cases

that       the   petitioner    cites     (in   which   specific    incidents    were

indicative of a broader conclusion that country conditions had

deteriorated),2 the robbery at the gas station was merely one more

ugly episode in a continuing pattern of crime and violence that

has existed in Guatemala for several years.                Consequently, the BIA

did not abuse its discretion by denying the petitioner's motion to

reopen as untimely.            See 8 U.S.C. § 1229a(c)(7)(C); 8 C.F.R. §

1003.2(c)(3)(ii); see also Jutus v. Holder, 723 F.3d 105, 110 (1st

Cir. 2013).

                 As a fallback, the petitioner submits that the BIA

applied the wrong legal standard in refusing to reopen his case.

But that argument, as phrased, does not go to the timeliness of

the motion but, rather, to the merits.                     Inasmuch as we have

determined that the BIA's decision to deny the motion as untimely

was not an abuse of discretion, we need not reach the BIA's




       2
       See, e.g., Smith v. Holder, 627 F.3d 427, 431-32 (1st Cir.
2010); Malty v. Ashcroft, 381 F.3d 942, 946 (9th Cir. 2004);
Ananeh-Firempong v. INS, 766 F.2d 621, 626 (1st Cir. 1985).


                                          - 7 -
additional holding concerning the merits of the motion. See Perez,

740 F.3d at 62; Jutus, 723 F.3d at 110.          It is, therefore,

irrelevant whether the BIA used the appropriate legal standard in

appraising the merits of the motion to reopen.

          We need go no further. For the reasons elucidated above,

the petition for judicial review is denied.



So Ordered.




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