                 Not for Publication in West's Federal Reporter

          United States Court of Appeals
                        For the First Circuit

No. 11-1853

                 RUBEN PEREZ and AURA ORTEGA PEREZ,

                               Petitioners,

                                      v.

                  ERIC H. HOLDER, Attorney General,

                                Respondent.


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


                                   Before

              Howard, Stahl, and Lipez, Circuit Judges.


     Randy Olen, on brief for petitioner.
     Monica G. Antoun, Trial Attorney, Office of Immigration
Litigation, Tony West, Assistant Attorney General, Office of
Immigration Litigation, and Jennifer Parker Levings, Senior
Litigation Counsel, Office of Immigration Litigation, on brief for
respondent.



                               June 20, 2012
             STAHL, Circuit Judge.     Ruben Perez and his wife, Aura

Ortega Perez, petition for our review of the denial by the Board of

Immigration Appeals (BIA) of their motion to reopen their removal

proceedings.     Though the facts of this case are troubling, we see

no abuse of discretion in the BIA's actions, and we therefore deny

the petition.

                              I. Background

             Ruben Perez, a Guatemalan citizen, entered the United

States without inspection on July 1, 1990.1             He and his family

remained in the United States illegally for some time, eventually

applying for asylum and withholding of removal on June 26, 1998.

The Perezes' application was referred to an immigration judge (IJ)

for adjudication and the family was placed in removal proceedings;

they received their notice to appear on October 5, 1998.2

             The Perez family appeared before the IJ for their merits

hearing on March 20, 2000.       At the hearing, both Ruben and Aura

testified    that   Ruben's   cousin   was   murdered   by   guerrillas   in

Guatemala.      Ruben testified that he never personally had any

contact with guerrillas. Aura testified that, though she had never



     1
      Aura and the couple's son, Esvin, entered without inspection
on August 1, 1993.
     2
       The referral was based on the fact that the application fell
well outside of the one year statute of limitations for asylum
applications, but the IJ found that the Perezes' failure to file
was based on their retained representative's ineffective assistance
and excused the late filing.

                                   -2-
observed it herself, she had heard that Ruben was followed by

unknown people.    She also testified that she had never had any

contact with the guerrillas.    Both Ruben and Aura testified that

they had never belonged to any political group in Guatemala.   They

both also testified that they feared for Ruben's life if they

returned to Guatemala because his cousin had been killed, allegedly

by guerrillas.

            The IJ issued an oral decision on the same day, denying

the application for asylum and withholding of removal and holding

that the Perezes had not established a well-founded fear of future

persecution because the war between the Guatemalan government and

the guerrillas had ended years earlier. The IJ did, however, grant

voluntary departure. The Perezes appealed the IJ's decision to the

BIA, which summarily affirmed the IJ on April 19, 2002.        The

Perezes did not appeal that decision, nor did they depart from the

United States.

            However, Ruben's brother, Cesar Perez Hernandez, did

return to Guatemala.     On November 19, 2008, two months after

leaving the United States, Hernandez was driving in his car with

his family when another car pulled up beside them and began

shooting.    Hernandez was shot numerous times and killed, and his

wife, son, and daughter were all injured from gun shot wounds.

Hernandez's son was shot in the face and lost his right eye as a




                                 -3-
result.    The police did not solve the crime or establish a motive

therefor.

            On March 29, 2011, nearly nine years after the BIA's

decision    and   some   twenty-eight    months   after   the   murder   of

Hernandez, the Perezes filed a motion with the BIA to reopen their

removal proceedings, recounting the facts of the grisly attack, and

renewing their argument that they possessed a well-founded fear of

future persecution should they return to Guatemala.             They based

their argument on their speculation that Hernandez was killed

because he had recently returned to Guatemala from the United

States and the Perezes feared the same outcome should they go back

to Guatemala. The Perezes supported their motion to reopen with an

affidavit from Ruben and a newspaper article reporting on the

murder.

            On July 7, 2011, the BIA denied the motion to reopen as

untimely, finding that the exception to the ninety-day time limit

based on changed circumstances did not apply.              See 8 C.F.R.

§ 1003.2(c)(3)(ii).      The BIA found instead that the Perezes had

merely demonstrated that a "terrible crime" had taken place, and

that their fear was of "generalized violence and crime in their

home country," which did not amount to a valid basis for asylum.

The Perezes timely appealed to this court.




                                   -4-
                                     II. Discussion

              We review the denial of a motion to reopen only for abuse

of discretion, meaning that we will uphold the BIA "unless the

complaining party can show that the BIA committed an error of law

or    exercised      its     judgment     in    an    arbitrary,   capricious,      or

irrational way."           Tandayu v. Mukasey, 521 F.3d 97, 100 (1st Cir.

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

2007)). This is because "motions to reopen removal proceedings are

disfavored as contrary to the compelling public interests in

finality and the expeditious processing of proceedings."                           Id.

(quoting Raza, 484 F.3d at 127) (internal quotation marks omitted).

              In     order    to    be    eligible     for   asylum,     among    other

requirements, an applicant must show that he possesses a well-

founded fear of future persecution on account of one of five

statutory bases: race, religion, nationality, membership in a

particular social group, or political opinion. See, e.g., Smith v.

Holder, 627 F.3d 427, 436-37 (1st Cir. 2010) (citing 8 C.F.R.

§ 208.13(b)(2)(i)(A)).              When the BIA has found that an applicant

has   not    met     the     requirements      for   relief,   that    applicant    is

permitted to file one motion to reopen the removal proceedings

within      ninety    days     of   the   BIA's      final   decision.      8    C.F.R.

§ 1003.2(c)(2).        These time and number limitations do not apply if

the applicant can show changed circumstances in his home country

and if the evidence of those changed circumstances is "material to


                                            -5-
the underlying substantive relief" sought and was unavailable at

the time of the prior proceedings.          See Raza, 484 F.3d at 127

(citing 8 C.F.R. § 1003.2(c)(3)(ii)).         In addition to providing

previously     unavailable   material    evidence   of   changed   country

conditions, an applicant needs to "establish a prima facie case

sufficient to ground a claim of eligibility for the underlying

substantive relief requested."      Id. at 128.     In other words, "the

new facts alleged, when coupled with the facts already of record,

[must] satisfy us that it would be worthwhile to develop the issues

further at a plenary hearing on reopening." Smith, 627 F.3d at 438

(quoting In re L-O-G-, 21 I. & N. Dec. 413, 419 (BIA 1996)).          This

means   that   the   Perezes'   proffered   evidence     must   present   "a

reasonable likelihood that [they] will face future persecution

based on a statutory ground." Id. at 437 (internal quotation marks

omitted). The standard for granting reopening is the same for both

asylum and withholding of removal.       Id. at 437 n.10.

             The Perezes argue that, though their motion to reopen was

filed years after the BIA's final decision, the brutal attack

against the Hernandez family, combined with the previous murder of

Ruben's cousin, qualifies as changed country conditions and that

therefore the ninety-day limit should not be applied to their

motion. The Perezes have one thing working in their favor: we have

previously held that "recent violence against a petitioner's family

members can constitute a material change in country conditions for


                                   -6-
a petitioner seeking to reopen his or her removal proceedings."

Id. at 436; see also Malty v. Ashcroft, 381 F.3d 942, 945-46 (9th

Cir. 2004).

             However, we need not decide if the two murders of Ruben's

family members are sufficient to show a material change in country

conditions, because the Perezes cannot establish a prima facie case

for asylum.3       To make out a prima facie case, the persecution

feared must be on account of a statutorily protected ground.4                 See,

e.g.,    Smith,   627   F.3d   at    436-37.      In   their   initial   asylum

application,      the   Perezes     seemed   to   allege   membership    in   the

particular social group of those people who refused to join the

guerrillas.    They have abandoned that stance in these proceedings,

and for good reason: since the civil war in Guatemala ended, we

have repeatedly held that fear of persecution by guerrillas will no

longer give rise to a successful asylum claim.              See, e.g., Palma-

Mazariegos    v. Gonzales, 428 F.3d 30, 35-37 (1st Cir. 2005);




     3
       A failure to make a prima facie case for asylum necessarily
means the Perezes have also failed to do so with regard to their
withholding of removal claim. See Parvez v. Keisler, 506 F.3d 93,
98 (1st Cir. 2007).     We therefore do not further address the
withholding of removal claim.
     4
       We note that, in instances where courts, including ours,
have held that violence against family members was sufficient to
show a material change in country conditions, there has been a
close nexus to a statutory basis.     See Smith, 627 F.3d at 431
(violence connected to political activism); Malty, 381 F.3d at 946
(violence connected to status as a Coptic Christian).

                                       -7-
Rodriguez-Ramirez v. Ashcroft, 398 F.3d 120, 125 (1st Cir. 2005);

Quevedo v. Ashcroft, 336 F.3d 39, 44-45 (1st Cir. 2003).

          In their motion to reopen and on appeal here, the Perezes

do not clearly identify any nexus to a statutory ground.       The

closest they come is to speculate that Hernandez was killed due to

his status as a Guatemalan who had recently returned from the

United States, and presumably, because the Perezes would also be

Guatemalans returning from the United States, that they would be

persecuted on that account.     We have previously declined the

opportunity to recognize Guatemalans returning from the United

States as a "particular social group" for purposes of asylum

relief.   See, e.g., Socop v. Holder, 407 F. App'x 495, 498 & n.1

(1st Cir. 2011) (finding "unassailable" the BIA's rejection of the

petitioner's claim that he would be targeted on account of his

status as a Guatemalan returning from the United States and

approving of BIA's determination that criminals in Guatemala would

target anyone who might provide money or valuables); Reyes Beteta

v. Holder, 406 F. App'x 496, 499 (1st Cir. 2011) (rejecting

petitioner's claimed fear of future persecution based on belonging

to the group "expatriates returning from working in the United

States and are perceived to have wealth" because criminal activity

was widespread and non-targeted); see also Perez-Hernandez v. Att'y

Gen., 444 F. App'x 390, 393 (11th Cir. 2011) (rejecting claim of

well-founded fear of future persecution based on membership in the


                               -8-
group    of   "Guatemalans      returning      from   the   United     States"   as

unsupported     by    the    record,    which    instead    showed     widespread

violence); Gonzalez v. Holder, 420 F. App'x 703, 704 (9th Cir.

2011) (rejecting similar claim).             This case does not compel us to

recognize such a group for the first time, as the Perezes have not

provided a shred of evidence connecting Hernandez's repatriation to

the attack.        A complete lack of documentation is certainly not

sufficient to show a "reasonable likelihood" that the Perezes will

face    persecution    on     account   of    their    status     as   Guatemalans

returning from the United States.             See López-Castro v. Holder, 577

F.3d 49, 53 (1st Cir. 2009) ("Without knowing who was responsible

for the killings [of the petitioner's family members] or what had

prompted them, it is no more than a guess that a nexus existed

between the deaths and a statutorily protected ground.").

              It is more likely that this is just another tragic

occurrence of the widespread violence in Guatemala that we have

frequently observed, but fear of this pervasive violence cannot be

a basis for asylum.         See Palma-Mazariegos, 428 F.3d at 37 (noting

that the State Department Country Conditions Report "attests that

the threat of violence afflicts all Guatemalans to a roughly equal

extent, regardless of their membership in a particular group or

class," and that threat will therefore not support a well-founded

fear of future persecution); Quevedo, 336 F.3d at 44 ("This Circuit

has     rejected     the    contention       that     pervasive    non-political


                                        -9-
criminality in Guatemala constitutes a basis for asylum.").   This

is the same conclusion that the BIA reached when it determined that

the Perezes had not shown the attack on the Hernandez family "to be

something other than a terrible crime" and that the Perezes'

resulting fear was "of generalized violence and crime" in Guatemala

and thus insufficient as a basis for asylum. While we are troubled

and saddened by the attack on the Hernandez family, we are not

persuaded that "it would be worthwhile to develop the issues

further at a plenary hearing on reopening."    Smith, 627 F.3d at

438.

                         III. Conclusion

          Discerning no abuse of discretion, we deny the petition

for review.




                               -10-
