NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________
No. 20-3328 _____________
ANA CECILIA DOMINGUEZ, Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA _____________
On Petition for Review of a Decision of the Board of Immigration Appeals (Agency No. A094-760-527) Immigration Judge: Frederic G. Leeds ___________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a) September 20, 2021 ___________
Before: CHAGARES, HARDIMAN, and MATEY, Circuit Judges.
(Filed: September 29, 2021)
___________
OPINION* ____________
* This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. CHAGARES, Circuit Judge.
Ana Cecilia Dominguez petitions for review of an order of the Board of
Immigration Appeals (“BIA”) denying her motion to reopen removal proceedings so that
she could apply for cancellation of removal. For the following reasons, we will deny the
petition.
I.
We write for the parties and so recount only the facts necessary to our decision.
Dominguez is a native and citizen of El Salvador who entered the United States in 2000
and overstayed her visa. She now lives in New Jersey with two adult daughters and an
eleven-year-old son who is a United States citizen. In 2008, the Department of
Homeland Security issued a notice to appear (“NTA”) that placed Dominguez in removal
proceedings. Though Dominguez did not realize it at the time, that NTA was defective
because it lacked a date and time for her hearing. She conceded removability and applied
for Temporary Protected Status (“TPS”), which an immigration judge denied in 2009
based on her failure to establish that she was continuously present in the United States for
the required period of time. Dominguez appealed to the BIA, which affirmed the denial
of relief.
Dominguez moved to reopen her removal proceedings on three separate occasions
between 2014 and 2018, but the BIA denied her motions each time. In her first motion to
reopen, Dominguez again sought TPS status. In her second, she claimed prior counsel
was ineffective for failing to apply for asylum based on the murder of her brother and
daughter by gang members in El Salvador. In her third motion, filed in May 2018,
2 Dominguez argued that changed conditions in El Salvador warranted reopening her
removal proceedings so that she could apply for asylum.
Dominguez filed a fourth motion to reopen in April 2020, this time to apply for
cancellation of removal. She asserted that the NTA placing her in removal proceedings
was defective pursuant to the Supreme Court’s decision in Pereira v. Sessions, 138 S. Ct.
2105 (2018), and this Court’s decision in Guadalupe v. Attorney General, 951 F.3d 161
(3d Cir. 2020). Dominguez contended that she had now resided in the United States for
long enough to apply successfully for cancellation of removal, as only service of a
complete NTA stops the accrual of time counted towards a noncitizen’s period of
residency in the United States under the “stop-time” rule of 8 U.S.C. § 1229b(d)(1)(A).
According to Dominguez, this Court’s decision in Guadalupe effected a change in law
justifying her motion to reopen. The BIA denied the motion as untimely, reasoning that
the 2018 Pereira decision caused the relevant change in law. The BIA held that
Dominguez failed to show why she could not have presented similar arguments within 90
days of that decision, as her third motion to reopen was still pending when the Supreme
Court decided Pereira. The BIA also noted that Dominguez failed to submit an
application for cancellation of removal and supporting evidence, so she had not
established a prima facie case for relief. Dominguez timely petitioned for review.
II.
The BIA had jurisdiction under 8 C.F.R. § 1003.2, and we have jurisdiction to
review its order under 8 U.S.C. § 1252(a)(1). “We review the denial of
a motion to reopen for abuse of discretion and will not disturb the BIA’s decision unless
3 it is . . . arbitrary, irrational, or contrary to law.” Liem v. Att’y Gen., 921 F.3d 388, 395
(3d Cir. 2019) (quotation marks omitted).1
III.
Motions to reopen removal proceedings are subject to multiple procedural
requirements and limitations. A petitioner is typically limited to one motion to reopen,
and that motion must usually be filed within ninety days of the date of entry of a final
order of removal. See 8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(2). The motion must
also “state the new facts that will be proven at a hearing to be held if the motion is
granted” and “be supported by affidavits or other evidentiary material.” 8 U.S.C. §
1229a(c)(7)(B); see also 8 C.F.R. § 1003.2(c)(1) (“A motion to reopen proceedings for
the purpose of submitting an application for relief must be accompanied by the
appropriate application for relief and all supporting documentation.”). The BIA does not
abuse its discretion by denying a motion to reopen if the petitioner has not established a
prima facie case for relief, which requires that the evidence reveal a “reasonable
likelihood” that the petitioner can satisfy the statutory and regulatory requirements for the
underlying relief sought. Sevoian v. Ashcroft, 290 F.3d 166, 173–74 (3d Cir. 2002).
Dominguez seeks cancellation of removal, which she may be eligible for if she “(A) has
been physically present in the United States for a continuous period of not less than 10
1 Dominguez does not appear to challenge the BIA’s decision not to reopen her removal proceedings sua sponte. Regardless, we lack jurisdiction to review that exercise of discretion under the circumstances presented here. See Alzaarir v. Att’y Gen., 639 F.3d 86, 89 n.2. (3d Cir. 2011) (citing Calle–Vujiles v. Ashcroft, 320 F.3d 472, 475 (3d Cir. 2003)). 4 years immediately preceding the date of [her] application; (B) has been a person of good
moral character during such period; (C) has not been convicted of [certain specified
offenses]; and (D) establishes that removal would result in exceptional and extremely
unusual hardship” to her United States citizen son. 8 U.S.C. § 1229b(b)(1).
The parties primarily dispute whether Dominguez is barred from moving to reopen
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________
No. 20-3328 _____________
ANA CECILIA DOMINGUEZ, Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA _____________
On Petition for Review of a Decision of the Board of Immigration Appeals (Agency No. A094-760-527) Immigration Judge: Frederic G. Leeds ___________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a) September 20, 2021 ___________
Before: CHAGARES, HARDIMAN, and MATEY, Circuit Judges.
(Filed: September 29, 2021)
___________
OPINION* ____________
* This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. CHAGARES, Circuit Judge.
Ana Cecilia Dominguez petitions for review of an order of the Board of
Immigration Appeals (“BIA”) denying her motion to reopen removal proceedings so that
she could apply for cancellation of removal. For the following reasons, we will deny the
petition.
I.
We write for the parties and so recount only the facts necessary to our decision.
Dominguez is a native and citizen of El Salvador who entered the United States in 2000
and overstayed her visa. She now lives in New Jersey with two adult daughters and an
eleven-year-old son who is a United States citizen. In 2008, the Department of
Homeland Security issued a notice to appear (“NTA”) that placed Dominguez in removal
proceedings. Though Dominguez did not realize it at the time, that NTA was defective
because it lacked a date and time for her hearing. She conceded removability and applied
for Temporary Protected Status (“TPS”), which an immigration judge denied in 2009
based on her failure to establish that she was continuously present in the United States for
the required period of time. Dominguez appealed to the BIA, which affirmed the denial
of relief.
Dominguez moved to reopen her removal proceedings on three separate occasions
between 2014 and 2018, but the BIA denied her motions each time. In her first motion to
reopen, Dominguez again sought TPS status. In her second, she claimed prior counsel
was ineffective for failing to apply for asylum based on the murder of her brother and
daughter by gang members in El Salvador. In her third motion, filed in May 2018,
2 Dominguez argued that changed conditions in El Salvador warranted reopening her
removal proceedings so that she could apply for asylum.
Dominguez filed a fourth motion to reopen in April 2020, this time to apply for
cancellation of removal. She asserted that the NTA placing her in removal proceedings
was defective pursuant to the Supreme Court’s decision in Pereira v. Sessions, 138 S. Ct.
2105 (2018), and this Court’s decision in Guadalupe v. Attorney General, 951 F.3d 161
(3d Cir. 2020). Dominguez contended that she had now resided in the United States for
long enough to apply successfully for cancellation of removal, as only service of a
complete NTA stops the accrual of time counted towards a noncitizen’s period of
residency in the United States under the “stop-time” rule of 8 U.S.C. § 1229b(d)(1)(A).
According to Dominguez, this Court’s decision in Guadalupe effected a change in law
justifying her motion to reopen. The BIA denied the motion as untimely, reasoning that
the 2018 Pereira decision caused the relevant change in law. The BIA held that
Dominguez failed to show why she could not have presented similar arguments within 90
days of that decision, as her third motion to reopen was still pending when the Supreme
Court decided Pereira. The BIA also noted that Dominguez failed to submit an
application for cancellation of removal and supporting evidence, so she had not
established a prima facie case for relief. Dominguez timely petitioned for review.
II.
The BIA had jurisdiction under 8 C.F.R. § 1003.2, and we have jurisdiction to
review its order under 8 U.S.C. § 1252(a)(1). “We review the denial of
a motion to reopen for abuse of discretion and will not disturb the BIA’s decision unless
3 it is . . . arbitrary, irrational, or contrary to law.” Liem v. Att’y Gen., 921 F.3d 388, 395
(3d Cir. 2019) (quotation marks omitted).1
III.
Motions to reopen removal proceedings are subject to multiple procedural
requirements and limitations. A petitioner is typically limited to one motion to reopen,
and that motion must usually be filed within ninety days of the date of entry of a final
order of removal. See 8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(2). The motion must
also “state the new facts that will be proven at a hearing to be held if the motion is
granted” and “be supported by affidavits or other evidentiary material.” 8 U.S.C. §
1229a(c)(7)(B); see also 8 C.F.R. § 1003.2(c)(1) (“A motion to reopen proceedings for
the purpose of submitting an application for relief must be accompanied by the
appropriate application for relief and all supporting documentation.”). The BIA does not
abuse its discretion by denying a motion to reopen if the petitioner has not established a
prima facie case for relief, which requires that the evidence reveal a “reasonable
likelihood” that the petitioner can satisfy the statutory and regulatory requirements for the
underlying relief sought. Sevoian v. Ashcroft, 290 F.3d 166, 173–74 (3d Cir. 2002).
Dominguez seeks cancellation of removal, which she may be eligible for if she “(A) has
been physically present in the United States for a continuous period of not less than 10
1 Dominguez does not appear to challenge the BIA’s decision not to reopen her removal proceedings sua sponte. Regardless, we lack jurisdiction to review that exercise of discretion under the circumstances presented here. See Alzaarir v. Att’y Gen., 639 F.3d 86, 89 n.2. (3d Cir. 2011) (citing Calle–Vujiles v. Ashcroft, 320 F.3d 472, 475 (3d Cir. 2003)). 4 years immediately preceding the date of [her] application; (B) has been a person of good
moral character during such period; (C) has not been convicted of [certain specified
offenses]; and (D) establishes that removal would result in exceptional and extremely
unusual hardship” to her United States citizen son. 8 U.S.C. § 1229b(b)(1).
The parties primarily dispute whether Dominguez is barred from moving to reopen
her proceedings because this is now her fourth motion to reopen. While Dominguez’s
motion appears to be time- and number-barred, those limits may be subject to equitable
tolling so long as Dominguez exercised due diligence in filing her motion. See Alzaarir
v. Att’y Gen., 639 F.3d 86, 90 (3d Cir. 2011). The parties agree that a change in law may
justify equitable tolling, but they differ on whether the relevant change of law happened
when the Supreme Court decided Pereira or when we decided Guadalupe. The
Government argues that the relevant benchmark is Pereira, as the Supreme Court
recognized in that case that a defective NTA does not trigger the stop-time rule for
cancellation of removal purposes. See 138 S. Ct. at 2110. If the Government is correct,
then Dominguez did not demonstrate due diligence because she took two years to file her
motion to reopen. Dominguez argues that the proper benchmark is Guadalupe, in which
we recognized that Pereira abrogated a prior decision where we held that a defective
NTA could be cured by a subsequent notice of hearing and thus trigger the stop-time rule
(as happened in her proceedings). See 951 F.3d at 162, 165–66. If Dominguez is correct,
then her filing of a motion to reopen within ninety days of the Guadalupe decision might
demonstrate the due diligence necessary to justify equitable tolling.
5 We need not resolve this dispute. As the BIA correctly observed, Dominguez’s
motion to reopen did not include the required application for cancellation of removal or
supporting documentation. See 8 C.F.R. § 1003.2(c)(1). And while Dominguez argues
that she can “now explain . . . how the murder of her brother and daughter would cause
exceptional and extremely unusual hardship to her qualifying relative,” Dominguez Br.
13, she did not actually provide that explanation to either the BIA or this Court. That
falls short of the statutory requirement that a motion to reopen “state the new facts that
will be proven at a hearing to be held if the motion is granted.” 8 U.S.C. §
1229a(c)(7)(B). The failure to state these facts and provide supporting evidence also
prevents us from assessing whether there is a reasonable likelihood that Dominguez’s
application for cancellation of removal would be granted. See Sevoian, 290 F.3d at 173–
74. We do not address whether Dominguez’s removal might result in “exceptional and
extremely unusual hardship” to her son, 8 U.S.C. § 1229b(b)(1)(D), because Dominguez
has not provided an adequate factual basis to support that conclusion. Because
Dominguez has not established prima facie entitlement to relief, we conclude that the
BIA did not abuse its discretion by denying her motion to reopen.
IV.
For the foregoing reasons, we will deny the petition for review.