Deep v. Barr, No. 19-60391 (5th Cir. July 27, 2020) (Dennis, Elrod, Costa) (per curiam)

This case involves Deep's petition for review of the BIA's denial of his successive motion to reopen his removal proceeding. Deep left his native country of India and entered the United States illegally in 2015. DHS apprehended him immediately. While detained, Deep expressed fear of returning to India. After an asylum officer conducted a credible fear interview, DHS found that Deep had established a credible fear of persecution in India.

About a month later, DHS served Deep with a notice to appear charging him with removability. When Deep failed to appear at his removal hearing, an IJ ordered him removed in absentia. Deep moved to reopen his removal proceedings. The IJ denied his motion, and Deep didn't appeal to the BIA.

About six months later, Deep filed a second motion to reopen. He sought reopening to apply for asylum, withholding of removal, and protection under the Convention Against Torture. Deep's second motion faced serious legal hurdles, however. Not only was it successive, but it was also filed more than 90 days after the removal order. Successive motions are generally prohibited, and motions filed outside the 90-day window are time-barred. 8 U.S.C. § 1229a(c)(7)(A), (C); 8 C.F.R. § 1003.23(b)(1); 8 C.F.R. § 1003.2(c)(2). To overcome these obstacles, Deep argued that there was a changed country condition warranting reopening in his case.

Deep was born into the Chamar caste, also known as Dalit or the untouchable caste in India. He argued that since he left India, persecution and attacks on the Dalit caste had worsened. He also alleged that as an untouchable, the police wouldn't protect him or his rights.

Concluding that Deep failed to carry his “heavy burden” to demonstrate the requisite “material change in country conditions in India since his December 7, 2016 removal order,” the IJ denied Deep's motion, and the BIA affirmed. Deep then petitioned the Fifth Circuit for review.

To demonstrate that the BIA had abused its discretion in denying his successive motion to reopen, Deep needed to show that the changed-country-conditions exception to the otherwise-applicable limitations on successive motions applied. 8 U.S.C. § 1229a(c)(7)(C)(ii). Deep made three arguments in this regard:

  1. the BIA applied an incorrect legal standard;
  2. the BIA erred by failing to consider an increase in violence a changed country condition; and
  3. the BIA failed to take into account certain probative evidence he had submitted in support of his claim of changed country conditions.

The Fifth Circuit rejected all three arguments. Regarding the first, the Fifth Circuit explained that the IJ and BIA had applied the correct legal standard, namely the one the Court announced in Nunez v. Sessions, 882 F.3d 499, 508 (5th Cir. 2018). There, the Fifth Circuit held that an alien must “mak[e] a meaningful comparison between the conditions at the time of [his] removal hearing and the conditions at the time [he] filed h[is] motion to reopen.” That standard requires more than merely showing a continuation of pre-existing violent conditions. In particular, an alien must "show a meaningful material change." Because the violent conditions members of Deep's caste "were ongoing at the time of his removal hearing in 2016," the BIA reasoned, Deep had not carried his burden under Nunez. The Fifth Circuit held that the BIA's conclusion in that regard was not an abuse of discretion.

Nunez doomed Deep's second argument–that the BIA had erroneously failed to consider an increase in violence a changed country condition–as well, according to the panel:

As a result, the Court held, the BIA's application of the same standard in his case wasn't an abuse of discretion.

Third and finally, Deep argued that the BIA's failure to consider a 2018 article he submitted discussing a recent decision from the India Supreme Court barring the immediate arrest of those who discriminate against the Dalit caste was an abuse of discretion. The Fifth Circuit disagreed. Given the "presumption of regularity" that courts give to agency action, the panel explained, "Deep's assertion that [the IJ and BIA] did not consider this evidence" simply because "they did not specifically cite [it in their decisions]" failed. The IJ and BIA's rulings made clear they had "consider[ed] the issues raised," and had "announce[d] [their] decision[s] in terms sufficient to enable [the] reviewing court to perceive that [they had] heard and thought and not merely reacted." Because nothing more was required of the IJ or BIA, Deep had failed to show an abuse of discretion.

Having rejected each of Deep's arguments, the Court denied his petition.

Deep v. Barr, No. 19-60391 (5th Cir. July 27, 2020)
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