United States Court of Appeals 

For the First Circuit 

No. 19-1965 

NOE SOSA MOLINA, 

Petitioner, 

v. 

WILLIAM P. BARR, 

ATTORNEY GENERAL, 

Respondent. 

PETITION FOR REVIEW OF AN ORDER OF THE 

BOARD OF IMMIGRATION APPEALS 

Before 

Lynch, Stahl, and Kayatta, 

Circuit Judges. 

Stanley H. Cooper on brief for petitioner. 

Joseph H. Hunt, Assistant Attorney General, Civil Division, 

Leslie McKay, Senior Litigation Counsel, Office of Immigration 

Litigation, and Corey L. Farrell, Attorney, United States 

Department of Justice, Civil Division, Office of Immigration 

Litigation, on brief for respondent. 

March 9, 2020 
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STAHL, Circuit Judge. Noe Sosa Molina ("Molina"),1 a 

native and citizen of Guatemala who illegally entered the United 

States in 2002 and was placed in removal proceedings in 2005, 

applied for asylum and withholding of removal on the grounds that 

he feared gang violence upon his return to Guatemala. An 

Immigration Judge ("IJ") denied Molina's applications in 2007, and 

the Board of Immigration Appeals ("BIA") denied his appeal in 2008. 

In 2018, Molina moved to reopen his case on the grounds 

that he had received ineffective assistance of counsel in the 2007 

proceedings and that country conditions in Guatemala had changed 

substantially since his merits hearing. The BIA denied the motion 

to reopen, finding it was not timely and was not subject to 

equitable tolling because Molina had not demonstrated due 

diligence in the ten years between his final removal order and his 

motion to reopen. The BIA also determined that Molina had not 

demonstrated that conditions in Guatemala had changed 

substantially since 2007. 

Molina now petitions this court for review of the BIA's 

denial. After careful consideration of Molina's claims and the 

BIA's order, we deny the petition for review. 

 1 While the cover of Molina's brief and several documents in 

the record refer to the petitioner as "Noe Sasa Molina," we refer 

to him as "Noe Sosa Molina" in accordance with the weight of record 

evidence, including the respondent's birth certificate, marriage 

certificate, sworn declarations, and other filings submitted in 

his immigration proceedings. 
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I. Factual Background and Procedural History 

In 2002, Molina entered the United States without 

inspection. In 2005, the Department of Homeland Security issued 

Molina a Notice to Appear and placed him in removal proceedings. 

Sometime in 2005, after he received the Notice to Appear, Molina 

retained Susan Mills as his attorney. In 2006, Molina conceded 

removability. 

Later in 2006, Molina applied for asylum and withholding 

of removal, requesting voluntary departure in the alternative. 

Molina stated that he had come to the United States because he 

"wanted to help [his] mother," but that after he left Guatemala, 

gang members had broken into his mother's home in an attempt to 

rob her, as they believed she had money. He also claimed that 

gang members had killed a neighbor whose husband had spent time in 

the United States after she fought back during an attempted 

robbery. As Molina stated in his application, he feared 

"returning to Guatemala because of the rising power of these gangs, 

who especially target those who have been in the U.S. and are 

therefore believed to have money." Molina also submitted 

documentary evidence describing general country conditions in 

Guatemala, including widespread human rights violations. The 2006 

State Department Country Report on Human Rights Practices (the 

"State Department Report"), which the IJ also considered, stated 

that "[s]ocietal violence," including gang activity, "occurred 
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widely throughout" Guatemala at that time. 

On June 11, 2007, the IJ denied Molina's applications 

for asylum and withholding of removal and granted voluntary 

departure, ordering Molina to depart on or before August 10, 2007. 

Regarding Molina's asylum application, the IJ found Molina 

statutorily ineligible because he had failed to apply within one 

year of entering the United States and had not established 

extraordinary circumstances necessary to obtain tolling of the 

delay. 

Regarding Molina's withholding of removal application, 

the IJ stated that Molina could qualify for withholding of removal 

to Guatemala "if he demonstrates that his life or freedom would be 

threatened in that country on account of one of the protected 

grounds under the [Immigration and Nationality] Act," 

§ 241(b)(3)(A), 8 U.S.C. § 1231(b)(3)(A). However, the IJ 

determined that Molina was not a victim of past persecution, as he 

had "testified that nothing ever happened to him when he was in 

Guatemala." The IJ also concluded that Molina could not establish 

that it was more likely than not that he would face future 

persecution in Guatemala on account of a protected ground, as 

Molina had testified that he feared gang members would target him 

because they suspected he had money, not because of any particular 

belief he held nor any membership in a particular social group, as 

the statute requires. 
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Molina timely appealed the IJ's decision to the BIA, 

where he argued that the IJ erred in finding he had not established 

a well-founded fear of future persecution upon returning to 

Guatemala on account of his membership in a particular social 

group. He contended that the "relevant social group" was "a 

Guatemalan man who has lived in the U.S., which situation is known 

to Guatemalan gangmembers [sic] who thereby believe that he has 

access to money." Molina argued further that "[b]ackground 

reports in the record certainly confirm[ed] widespread violence 

and inability of the police to control gang and criminal violence 

in Guatemala," and that the State Department Report in particular 

"indicate[d] that gang violence remains a prevalent problem in 

Guatemala" and that there was a "pattern of [governmental] failure 

to protect victims of gang violence." 

On June 13, 2008, the BIA dismissed Molina's appeal, 

agreeing with the IJ's conclusion that Molina had not shown that 

he would more likely than not suffer persecution upon his return 

to Guatemala. In reaching this conclusion, the BIA determined 

that it was "speculative to presume that gangs in Guatemala will 

more likely than not target the respondent." The BIA also 

concluded that any potential targeting by gang members "would 

appear to be motivated by their desire to steal from the respondent 

and not to punish him on account of a protected ground," noting 

that "[a]n alien's fear of his nation's general condition is not 
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a protected ground." Accordingly, the BIA dismissed the appeal, 

affirming the IJ's grant of voluntary departure and ordering Molina 

to depart within sixty days of its decision. 

Molina did not depart as ordered, and ten years after 

the adverse decision of the BIA, he moved the BIA to reopen his 

case on two grounds: first, that but for what he alleged was 

ineffective assistance of counsel, the IJ would have approved his 

withholding of removal application, and second, that country 

conditions in Guatemala had changed substantially since 2007. 

Regarding ineffective assistance of counsel, Molina argued that 

though he had retained Mills, he had at his 2007 hearing instead 

been greeted by another attorney, whom Molina alleged he had not 

previously spoken to with respect to his proposed testimony. 

Molina also contended that neither Mills nor the substitute 

attorney had prepared him to testify at the hearing. Thus, Molina 

alleged that "his failure to give more complete in[-]depth and 

persuasive testimony . . . was a result of lack of preparation and 

understanding of the complete nature of the proceeding." Molina 

stated that he had not moved to reopen sooner because he had not 

become aware of his ineffective assistance claim until he consulted 

another attorney in 2018. He offered no explanation for why he 

waited until 2018 to consult an attorney after his deportation 

order a decade before. 

In support of his claim that country conditions in 
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Guatemala had changed substantially since 2007, Molina submitted 

declarations from his mother and brother, who stated they were 

being harassed and threatened by gang members there. Molina's 

mother further stated in her declaration that family members of a 

"coyote" who had sold her a visa for Molina's travel to the United 

States had begun extorting her once she stopped paying him and had 

threatened to kill Molina upon his return to Guatemala. Molina 

also submitted documents describing general country conditions in 

Guatemala, which discussed, among other topics, widespread gangrelated extortion and violence.2 

On September 3, 2019, the BIA denied Molina's motion to 

reopen. While the BIA acknowledged Molina's assertion that he was 

not aware of his ineffective assistance claim until he consulted 

another attorney, it denied the motion with respect to this claim 

as time-barred, as it was filed long after the expiration of the 

statutory ninety-day filing deadline. 8 U.S.C. 

§ 1229a(c)(7)(C)(i). Citing this court's decision in Tay-Chan v. 

Barr, 918 F.3d 209, 213 (1st Cir. 2019), the BIA declined Molina's 

request to equitably toll the deadline, concluding that Molina had 

not shown that during the ten years between the final order and 

the motion to reopen he was "pursuing his rights diligently" or 

 2 Molina also submitted a USAID Central America and Mexico 

Gang Assessment dated April 2006 (the "2006 USAID Report"), which 

identified Guatemala's "thriving gang culture" and the ongoing 

"problem of gang violence" during and before 2006. 
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was prevented from so moving because of an "extraordinary 

circumstance" that "stood in his way." The BIA also determined 

that "[i]t was not a reasonable exercise of due diligence for the 

respondent to remain unlawfully in the United States for such a 

length of time without taking any action." See Meng Hua Wan v. 

Holder, 776 F.3d 52, 58 (1st Cir. 2015). 

The BIA also concluded that Molina had not sufficiently 

shown that country conditions in Guatemala had changed 

substantially since 2007. While the BIA acknowledged that 

Molina's submitted documentary evidence "show[ed] poor conditions 

in Guatemala, including ongoing violence and threats of violence," 

it determined that the new evidence did not show a material change 

in conditions that were not present at the original merits hearing. 

Accordingly, the BIA denied the motion to reopen. Molina timely 

petitioned this court for review of the BIA's denial. 

II. Discussion

"We review the BIA's denial of [Molina's] motion to 

reopen under the 'highly deferential abuse-of-discretion 

standard.'" Tay-Chan, 918 F.3d at 212 (quoting Pineda v. 

Whitaker, 908 F.3d 836, 840 (1st Cir. 2018)). Under this standard, 

we uphold the BIA's decision unless Molina "can show that the BIA 

'committed a material error of law or exercised its authority 

arbitrarily, capriciously, or irrationally.'" Id. (quoting Gyamfi 

v. Whitaker, 913 F.3d 168, 172 (1st Cir. 2019)). Moreover, "an 
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alien who seeks to reopen removal proceedings out of time 

ordinarily faces a steep uphill climb." Pineda, 908 F.3d at 838 

(quoting Sihotang v. Sessions, 900 F.3d 46, 48 (1st Cir. 2018)). 

Molina now contends that the BIA erred in declining to 

equitably toll the ninety-day filing deadline and in concluding he 

had not demonstrated that country conditions in Guatemala had 

substantially changed since his hearing. We address each argument 

in turn, and conclude that both are unavailing. 

A. Equitable Tolling of the Statutory Filing Deadline 

A noncitizen is generally limited to a single motion to 

reopen, which must ordinarily be filed within ninety days of a 

final administrative order of removal. See 8 U.S.C. 

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

has acknowledged certain exceptions to this rule, we "have not yet 

given the thumbs-up on applying equitable tolling to motions to 

reopen." Tay-Chan, 918 F.3d at 214. Thus, whether such motions 

may be equitably tolled at all remains an "open question." Pineda, 

908 F.3d at 841. 

We need not resolve this question, however, as Molina's 

claim fails even assuming arguendo that equitable tolling applies. 

Equitable tolling "is a rare remedy to be applied in unusual 

circumstances, not a cure-all for an entirely common state of 

affairs." Neves v. Holder, 613 F.3d 30, 36 (1st Cir. 2010) 

(quoting Wallace v. Kato, 549 U.S. 384, 396 (2007)). A noncitizen 
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cannot begin to meet the requirement for equitable tolling where 

he has not shown "(1) that he has been pursuing his rights 

diligently, and (2) that some extraordinary circumstance stood in 

his way." Id. (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 

(2005)). Here, the BIA did not abuse its discretion in concluding 

that Molina had made neither showing. 

As the BIA did, we acknowledge Molina's argument that he 

could not have known about his ineffective assistance of counsel 

claim until he consulted another attorney. But as we held in TayChan, where we considered this very argument, Molina's assertion 

"tells us nothing about why he waited nearly [ten] years before 

taking any steps at all to address his immigration status." 918 

F.3d at 214. Molina does not identify -- and the record does not 

show -- evidence of any steps he took between the 2008 final order 

of removal and his 2018 consultation with a new attorney to pursue 

further relief in his case. Indeed, "it is this unexplained delay 

that . . . undermines any assertion that he pursued his rights 

(the ineffective assistance claim, the motion to reopen) with the 

requisite due diligence." Id. Molina also does not identify -- 

and again, the record does not show -- evidence of any 

"extraordinary circumstance" that prevented him from timely moving 

to reopen.3 Neves, 613 F.3d at 36 (quoting Pace, 544 U.S. at 418). 

 3 The respondent argues that Molina has waived appellate 

consideration of the extraordinary circumstances prong because 
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Accordingly, we find that the BIA did not abuse its discretion in 

declining to equitably toll the filing deadline and do not reach 

the merits of Molina's ineffective assistance claim. 

B. Changed Country Conditions 

Molina next contends that the BIA abused its discretion 

in concluding he had not established changed country conditions 

since his merits hearing. This argument also fails. 

Motions to reopen based on previously unavailable 

evidence of changed country conditions are not subject to statutory 

time limits. See 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. 

§ 1003.2(c)(3)(ii). A petitioner seeking to reopen his case on 

materially changed country conditions grounds must "(1) 

demonstrate changed conditions through evidence that was not 

available at the original merits hearing and (2) establish a prima 

facie case of eligibility for relief." Sánchez-Romero v. 

Sessions, 865 F.3d 43, 45 (1st Cir. 2017). In making its 

determination, the BIA "compare[s] 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) (alteration in original) (quoting In re SY-G-, 24 I. & N. Dec. 247, 253 (BIA 2007)). 

 

Molina's opening brief did not challenge the BIA's determination 

that he had failed to make this specific showing. We do not decide 

whether Molina has waived the issue, as we in any event find no 

error in the BIA's conclusion. 
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As to the first prong, a petitioner must make a 

"'convincing demonstration' that the conditions in his home 

country have intensified or deteriorated between his merits 

hearing . . . and his motion to reopen." Sánchez-Romero, 865 F.3d 

at 45 (quoting Tandayu v. Mukasey, 521 F.3d 97, 100 (1st Cir. 

2008)). However, "[i]f the newly submitted evidence reveals no 

more than a continuation of previously existing conditions, it is 

inadequate to show changed country circumstances." Nantume v. 

Barr, 931 F.3d 35, 38 (1st Cir. 2019) (quoting Xiao He Chen v. 

Lynch, 825 F.3d 83, 87 (1st Cir. 2016)). 

The BIA did not abuse its discretion in concluding that 

while the evidence presented by Molina in his motion to reopen 

"show[s] poor conditions" in Guatemala, it "does not show a 

material change in [country] conditions since [Molina's] last 

hearing." (Emphasis added). At his 2007 merits hearing, Molina 

argued and submitted evidence to show both that gang violence was 

prevalent in Guatemala generally and that he and his family were 

specifically endangered by gang violence given his presence in the 

United States. And while Molina now offers reports detailing more 

recent gang violence in Guatemala and declarations outlining more 

recent gang-related threats to himself and his family, 4 his 

 4 The declarations provided by Molina's family detailing 

recent threats only bear on our analysis should we reach the 

question of Molina's prima facie eligibility for relief, as "a 

significant change in . . . personal circumstances" is "relevant 
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argument remains substantively the same: that he fears a return 

to his home country due to gang activity. 

Molina did not articulate to the BIA in his motion to 

reopen -- and does not articulate to this court now -- any material 

change in conditions in Guatemala, as both his 2007 and 2018 

arguments rest on his fear of gang violence there. Nor does he 

"point to [any]thing in [the new evidence] that plausibly suggests 

the existence of a material change in country conditions," or 

identify "any meaningful inconsistency between the [new evidence] 

and the BIA's decision." Nantume, 931 F.3d at 40. Nothing in the 

record suggests that the BIA abused its discretion in concluding 

that the recent country condition reports, which discuss gang 

activity in Guatemala and in Central America more broadly, 

establish only "ongoing violence and threats of violence" -- not 

a material change in country conditions.5 Indeed, the record makes 

clear that "the situation [in Guatemala] is dreadful -- but it has 

been dreadful throughout the relevant period." Id. at 39. 

 

only to the extent that [a petitioner] can demonstrate that 

conditions have worsened generally" in the country for a particular 

social group. Nantume, 931 F.3d at 40-41. As Molina has not 

established changed country conditions, we do not consider his 

prima facie eligibility. 

5 Some evidence submitted with Molina's motion to reopen shows 

that gang violence had proliferated in Guatemala for many years. 

In particular, the 2006 USAID Report, issued a year before Molina's 

merits hearing, identified Guatemala's "thriving gang culture" and 

the ongoing "problem of gang violence." 
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We therefore conclude that the BIA did not abuse its 

discretion in denying Molina's motion to reopen on the grounds 

that he did not establish changed country conditions. 

III. Conclusion 

For the reasons above, we deny the petition for review 

of the BIA's denial of Molina's motion to reopen.