LAURA LEMUS; MANUEL M. LEMUS, Petitioners,
JEFFERSON B. SESSIONS, III, ATTORNEY GENERAL, Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION
Jeffrey B. Rubin, Todd C. Pomerleau, and Rubin Pomerleau P.C.
on brief for petitioners
Elizabeth K. Fitzgerald-Sambou, Trial Attorney, Office of
Immigration Litigation, Civil Division, U.S. Department of
Justice, Chad A. Readler, Acting Assistant Attorney General,
Civil Division, and Margaret Kuehne Taylor, Senior Litigation
Counsel, on brief for respondent.
Torruella, Lynch, and Barron, Circuit Judges.
and Manuel Lemus, both natives of Guatemala, were ordered
removed by an immigration judge (IJ) in 2000. The Board of
Immigration Appeals (BIA) denied their appeal in 2001. Since
then, the Lemuses have filed seventeen motions with the BIA
to reopen or reconsider that removal order. Their latest
motion, filed on August 29, 2017 with the BIA, claimed that
there was new relief available to them and that
"exceptional circumstances" should lead the BIA to
reopen their removal proceedings sua sponte. The BIA was
unpersuaded, and said so in a reasoned decision.
Lemuses now petition for judicial review of the BIA's
denial of their motion. We hold that the BIA did not abuse
its discretion in denying the Lemuses' time- and
number-barred motion to reopen. The BIA also determined that
sua sponte reopening was unwarranted. We dismiss the
Lemuses' challenge to that decision for lack of
Lemuses -- Laura, Manuel, and their three children -- came to
the United States from Guatemala in 1993. Their nonimmigrant
tourist visas authorized a six-month stay. They overstayed.
1997, Laura applied for asylum, listing each family member as
a derivative applicant. Laura stated in her application that
she feared she and her family would be killed if they
returned to Guatemala. She said that she had been an active
member of the Union Centro Nacional (UCN) party. The night of
an election, armed men from the rival political party had
come to Laura's home, guns drawn, searching for her and
her brother. Laura and her brother escaped, but Laura's
aunt (a fellow UCN member) was not so fortunate. Several
years later, shortly after the Lemuses came to the United
States, the UCN leader, Jorge Carpio Nicolle, was
assassinated. Laura testified to this effect before an asylum
officer. That officer determined that Laura's testimony
was not credible. Among other issues, Laura could not
describe the UCN's politics. The officer concluded that
Laura had not shown that she qualified for asylum and so he
referred Laura's application to the Immigration Court.
Immigration and Naturalization Service, in June 1999, sent
the Lemuses a Notice to Appear at removal proceedings. The
agency charged each as subject to removal. At the hearing, in
March 2000, the Lemuses conceded removability. Laura renewed
her asylum request and requested statutory withholding of
removal under 8 U.S.C. § 1231(b)(3). She repeated the
political opinion claim from her asylum application. Like the
asylum officer, the IJ found Laura's testimony not
credible. He denied asylum and statutory withholding of
removal, but granted the Lemuses voluntary departure.
Lemuses appealed this decision to the BIA. They argued that
the BIA should reverse the IJ for failing to find that Laura
had a "well founded fear of persecution." The BIA
summarily dismissed each appeal -- the Lemuses did not file
briefs, and the short statements in their appeal forms
"fail[ed] to apprise [the BIA] of the reasons" why
it should reverse the IJ.
the BIA entered its final removal order on October 30, 2001,
the Lemuses filed seventeen motions to reopen or reconsider.
Among other things, they raised claims of ineffective
assistance of counsel and of changed country conditions in
Guatemala. The BIA denied each motion. The Lemuses filed
three petitions for our review. This Court denied each
petition. See Lemus v. Gonzales, 489 F.3d 399 (1st
Cir. 2007) (denying the petition); Lemus, et al. v.
Gonzales, No. 05-1273 (1st Cir. July 12, 2005)
(dismissing the petition); Lemus v. Ashcroft, No.
03-1825 (1st Cir. Mar. 31, 2004) (summarily affirming the
latest motion, filed on August 29, 2017 with the BIA, Laura
and Manuel once again argued for reopening. This time there
was a new ground: their daughter, Mirna, had become a U.S.
citizen and filed visa petitions on their behalf. The visa
petitions were accepted, so the Lemuses would have been
eligible to apply to adjust their status to lawful permanent
residents but for the removal order. They ...