Bayardo Sandoval v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 18, 2024
• Docket: 23-1443
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 18 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

GUILLERMO BAYARDO No. 23-1443 SANDOVAL; ALBERTA HERNANDEZ, Agency Nos. A095-304-031 Petitioners, A095-304-032 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted June 13, 2024** Pasadena, California

Before: MURGUIA, Chief Judge, and CHRISTEN and VANDYKE, Circuit Judges.

Petitioners Guillermo Bayardo Sandoval and Alberta Hernandez, natives and

citizens of Mexico, petition for review of the Board of Immigration Appeals’

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). (“BIA”) order denying their motion to reopen. Because the parties are familiar

with the facts, we do not recount them here. We have jurisdiction pursuant to

8 U.S.C. § 1252, and we deny the petition in part and dismiss it in part.

We review the BIA’s denial of a motion to reopen for abuse of discretion

and defer unless the BIA “acted arbitrarily, irrationally, or contrary to law.”

Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010). We review legal issues

de novo and factual findings for substantial evidence. Id. To obtain relief on a

motion to reopen based on changed country conditions,1 Petitioners must “clear

four hurdles” by: (1) producing evidence of changed country conditions that (2) is

material and (3) was previously unavailable, and (4) demonstrating that the new

evidence, when considered together with the evidence presented at the original

hearing, would establish prima facie eligibility for relief. Rodriguez v. Garland,

990 F.3d 1205, 1209 (9th Cir. 2021) (citation omitted).

1. The BIA did not abuse its discretion by denying the motion to reopen

because Petitioners did not produce evidence showing a material change in country

conditions. We begin with Guillermo’s declaration, which states that Guillermo’s

brother Aciano disappeared after Aciano publicly refused to help the Zetas cartel

1 Although Petitioners’ motion to reopen is both time-barred and number-barred, 8 U.S.C. § 1229a(c)(7)(A), (C), an exception to those restrictions applies if the motion is based on changed country conditions. Greenwood v. Garland, 36 F.4th 1232, 1235 (9th Cir. 2022) (citing 8 U.S.C. § 1229a(c)(7)(C)(ii)).

2 23-1443 traffic drugs in 2018. Petitioners fail to show that this evidence reflects a change

that is material to their claim of feared harm in Mexico. The declaration does not

assert that the Zetas harmed Aciano, and instead states that Aciano may have “fled

to another part of Mexico or came to the U.S. and applied for asylum.” The

declaration also does not suggest that the Zetas have contacted Petitioners or any

family members other than Aciano. Accordingly, this evidence reflects the general

problem of violent crime perpetrated by Mexican drug cartels, and it is not

“qualitatively different from the evidence presented at the previous hearing.”

Reyes-Corado v. Garland, 76 F.4th 1256, 1262 (9th Cir. 2023) (internal quotation

marks omitted) (quoting Najmabadi, 597 F.3d at 987).

With respect to Petitioners’ country conditions evidence, it shows that

violent crime at the hands of Mexican drug cartels like the Zetas has been ongoing

for decades. The BIA did not act arbitrarily, irrationally, or contrary to law by

concluding that the evidence did not demonstrate that such violence materially

worsened between June 15, 2006 (the date of Petitioners’ final hearing) and

November 8, 2021 (the date of Petitioners’ motion to reopen). See Salim v. Lynch,

831 F.3d 1133, 1137 (9th Cir. 2016) (“[T]he changed country conditions exception

is concerned with two points in time: the circumstances of the country at the time

of the petitioner’s previous hearing, and those at the time of the motion to

reopen.”). For example, a 2020 article about the Zetas notes that over 250,000

3 23-1443 people have been killed since Mexico began its drug war in 2006. This evidence

reflects “‘continuing’ or ‘remaining’ problems” and does not establish a material

change in conditions in Mexico between 2006 and 2021. Rodriguez, 990 F.3d at

1210.

2. We lack jurisdiction to review the BIA’s denial of Alberta’s request to

reopen proceedings to apply for cancellation of removal. For decisions relating to

the granting or denying of cancellation of removal, we retain jurisdiction only to

review constitutional claims or questions of law. 8 U.S.C. § 1252(a)(2)(B)(i),

(a)(2)(D); see also Figueroa Ochoa v. Garland, 91 F.4th 1289, 1294–95 (9th Cir.

2024). Because Petitioners do not advance any legal or constitutional claims, we

lack jurisdiction to review this aspect of the BIA’s decision.

PETITION DENIED in PART and DISMISSED in part.

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