PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION
J. Kelly, Esq., with whom John Willshire Carrera, Esq.,
Maggie Morgan, Esq., and Harvard Law School Immigration &
Refugee Clinic at Greater Boston Legal Services, were on
brief, for petitioner.
A. Bashyrov, Trial Attorney, Office of Immigration
Litigation, with whom Joseph H. Hunt, Assistant Attorney
General, Civil Division, and M. Jocelyn Lopez Wright, Senior
Litigation Counsel, Office of Immigration Litigation, were on
brief for respondent.
Lynch, Kayatta, and Barron, Circuit Judges.
Barron, Circuit Judge.
Perez-Tino is a Guatemalan national of Mayan K'Iche'
descent who entered the United States in 2001 without
inspection. Facing the prospect of removal on the basis of a
2010 Board of Immigration Appeals ("BIA") decision
denying her asylum, withholding of removal, and relief under
the Convention Against Torture ("CAT"), Perez-Tino
filed a motion to reopen with the BIA years later, on
February 28, 2018. She sought to excuse the untimeliness of
that motion on the basis of changed country conditions in
Guatemala. See 8 U.S.C. § 1229a(c)(7)(C)(ii).
The BIA denied her motion to reopen as untimely. She
petitioned for our review, and we now vacate and remand.
March 6, 2007, Immigration and Customs Enforcement
("ICE") detained Perez-Tino after a raid on her
workplace in New Bedford, Massachusetts. After the raid, she
was briefly detained by ICE in Massachusetts before being
transferred to the Port Isabel Detention Center in Texas.
Perez-Tino was served with a notice to appear, which charged
that she was inadmissible because she was present in the
United States without being admitted or paroled. See
8 U.S.C. § 1182(a)(6)(A)(i). She was released on bond
that same month and her case was transferred to the Boston
Immigration Court that May.
appeared before the Immigration Court and admitted the
factual allegations against her, conceded removability, and
indicated that she intended to apply for withholding of
removal, protection under the CAT, and voluntary departure.
She submitted those applications in September 2007.
application for asylum, withholding of removal, and
protection under the CAT, she described her grandfather's
status as a Mayan community leader and harassment by the
"guerrilla and the Civil Patrol," the murders of
her uncles "because they were Mayans," and the
discrimination from authorities that her mother faced while
seeking protection from Perez-Tino's abusive father. She
further explained that because of this long history of
discrimination and threats based on her family's Mayan
ancestry, she feared further harm in Guatemala, especially as
a woman who could be sexually targeted.
appeared before the Boston Immigration Court on April 3, 2009
and testified in support of her application for relief.
During that testimony, she stated that her uncles "were
killed by the army, by the military" during the
Guatemalan civil war. Perez-Tino then asserted that she
expected negative treatment from the Guatemalan government if
she were forced to return, as the then-president of Guatemala
would "not help [indigenous people] at all."
Perez-Tino also expressed concern that a return to Guatemala
would leave her unable to "provide for [her]
children" and "help [her] mom" because the
country was "very poor."
close of the hearing, the Immigration Judge ("IJ")
found that Perez-Tino's testimony was credible, but
nevertheless denied her application for withholding of
removal or relief under the CAT. The IJ did, however, grant
her request for voluntary departure.
filed an appeal of the IJ's decision to the BIA, which
the BIA rejected on October 7, 2010. The BIA then reinstated
the IJ's grant of voluntary departure for a period of
sixty days. The United States Citizenship and Immigration
Services granted a stay of removal to Perez-Tino, which was
repeatedly extended until her last application was denied on
November 21, 2017. She was ordered to, and did, report to ICE
on February 5, 2018 with an airline ticket to depart the
United States by March 5, 2018. At that time, ICE placed
Perez-Tino on an ankle monitor.
February 28, 2018, more than seven years after the BIA's
decision, Perez-Tino filed a motion to reopen. In that
motion, she seeks to apply for asylum, withholding of
removal, and relief under the CAT, despite the lateness of
her filing, on the ground that she could satisfy the
"changed country conditions" exception to the
requirement that a motion to reopen be filed within ninety
days, see 8 U.S.C. § 1229a(c)(7)(C)(ii),
because the country conditions in Guatemala had changed since
the IJ's 2009 decision. On August 7, 2018, the BIA denied
the motion as untimely on the ground that she had ...