Canales-Canales v. Bondi

Opinion

24-1962 Canales-Canales v. Bondi BIA

A209 228 323/324

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals for the Second 2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 3 Square, in the City of New York, on the 11th day of September, two thousand 4 twenty-five. 5 6 PRESENT: 7 MICHAEL H. PARK, 8 BETH ROBINSON, 9 MYRNA PÉREZ, 10 Circuit Judges. 11 _____________________________________ 12 13 RUTH ELIZABETH CANALES- 14 CANALES, Y.D.T.-C.*, 15 Petitioners, 16 17 v. 24-1962 18 NAC 19 PAMELA BONDI, UNITED STATES

* We use only initials to refer to the minor petitioner in this publicly accessible order, in accordance with Fed. R. Civ. P. 5.2(a)(3) and Fed. R. App. P. 25(a)(5).

1 ATTORNEY GENERAL, 2 Respondent. 3 _____________________________________ 4 5 FOR PETITIONERS: Rosemarie A. Barnett, Law Office of 6 Rosemarie Barnett, PLLC, Freeport, NY. 7 8 FOR RESPONDENT: Yaakov Roth, Acting Assistant Attorney 9 General, Civil Division; Sarah A. Byrd, 10 Allison Frayer, Senior Litigation Counsel, 11 Office of Immigration Litigation, United 12 States Department of Justice, Washington, 13 DC. 14 15 UPON DUE CONSIDERATION of this petition for review of a Board of

16 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND 17 DECREED that the petition for review is DENIED. 18 Petitioner Ruth Elizabeth Canales-Canales and her minor son, natives and 19 citizens of El Salvador, seek review of a June 21, 2024, decision of the BIA denying 20 their motion to reopen to reapply for asylum and withholding of removal. In re 21 Ruth Elizabeth Canales-Canales, et al., Nos. A 209 228 323/324 (B.I.A. June 21, 2024). 22 We assume the parties’ familiarity with the underlying facts and procedural 23 history.

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1 Movants seeking to reopen removal proceedings may file a motion to 2 reopen no later than 90 days after the date on which the final administrative 3 decision was rendered. 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). It is 4 undisputed that Canales-Canales’s 2023 motion to reopen was untimely because 5 she filed it over three years after the final administrative decision. 6 The time limit does not apply, however, if the motion is filed to apply for 7 asylum or withholding of removal “based on changed country conditions arising 8 in the country of nationality or the country to which removal has been ordered, if 9 such evidence is material and was not available and would not have been 10 discovered or presented at the previous proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii); 11 see also 8 C.F.R. § 1003.2(c)(3)(ii). “When reviewing whether . . . evidence 12 established changed country conditions, the BIA must ‘compare the evidence of 13 country conditions submitted with the motion to those that existed at the time of 14 the merits hearing below.’” Tanusantoso v. Barr, 962 F.3d 694, 698 (2d Cir. 2020) 15 (quoting In re S-Y-G-, 24 I. & N. Dec. 247, 253 (B.I.A. 2007)). “Change that is 16 incremental or incidental does not meet the regulatory requirements for late 17 motions of this type.” In re S-Y-G-, 24 I. & N. Dec. at 257. We review the denial of

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1 a motion to reopen for abuse of discretion and a country conditions determination 2 for substantial evidence. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 168–69 (2d Cir. 3 2008). 4 We find no error in the BIA’s analysis. Canales-Canales’s change in personal 5 circumstances based on the birth of a child in the United States does not satisfy the 6 exception. See Wei Guang Wang v. BIA, 437 F.3d 270, 273 (2d Cir. 2006). And 7 substantial evidence supports the BIA’s conclusion that Canales-Canales failed to 8 show changed country conditions. In particular, Canales-Canales did not submit 9 evidence of country conditions at the time of her merits hearing in 2018, and the 10 evidence she attached to her motion to reopen, including the 2022 State 11 Department Report, does not demonstrate a material worsening of gang violence 12 from 2018 to 2022. See Tanusantoso, 962 F.3d at 698. For example, the State 13 Department Report cites credible reports of significant human rights issues, 14 including a “lack of investigation and accountability for gender-based violence,” 15 but it does not comment on whether that problem is new or worsening. Certified 16 Administrative Record at 63. To the extent Canales-Canales relied on the 2022 17 Human Rights Watch Report’s documentation of worsening conditions between

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1 2003 and 2021, that evidence does not show a change in conditions between 2018 2 and 2021. The documented change was well underway by the time of her 2018 3 hearing, and the report reflects that the homicide rate peaked in 2015. Id. at 105 4 (2022 Human Rights Watch Report). Substantial evidence thus supports the BIA’s 5 determination that Canales-Canales has not demonstrated changed country 6 conditions. 7 For the foregoing reasons, the petition for review is DENIED. All pending 8 motions and applications are DENIED and stays VACATED.

9 FOR THE COURT: 10 Catherine O’Hagan Wolfe, 11 Clerk of Court