Ester Villalta-Portillo v. Attorney General United States of America

• Court: Court of Appeals for the Third Circuit
• Decided: June 20, 2025
• Docket: 24-2620
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________

No. 24-2620 ______________

ESTER NOEMY VILLALTA-PORTILLO, G.E.R.-V., Petitioners

v.

ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA

On Petition for Review of a Final Order of the Board of Immigration Appeals (Nos. A220-384-285, A220-384-286) Immigration Judge: Laura Pierro _______________

Submitted Under Third Circuit L.A.R. 34.1(a) June 12, 2025

Before: CHAGARES, Chief Judge, PORTER, and AMBRO, Circuit Judges.

(Filed: June 20, 2025) _______________

OPINION ∗ _______________

∗ This disposition is not an opinion of the full Court and, under I.O.P. 5.7, is not binding precedent. PORTER, Circuit Judge.

Ester Noemy Villalta-Portillo and her minor son (“Petitioners”), both citizens of El

Salvador, petition for review of a Board of Immigration Appeals (“BIA”) order denying

their motion to reopen removal proceedings. For the reasons below, we will deny the

petition in part and dismiss the petition in part.

I

In August 2021, Petitioners entered the United States unlawfully. That December,

they applied for asylum and withholding of removal. In later filings, they additionally

sought protection under the Convention Against Torture.

An Immigration Judge denied Petitioners’ application and ordered that they be

removed to El Salvador. On April 10, 2024, the BIA affirmed the Immigration Judge’s

order.

More than ninety days later, Petitioners moved to reopen their BIA proceeding. The

BIA denied that motion as untimely because it was filed after the ninety-day window to do

so. See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2).

Petitioners argued that their motion should nevertheless be reopened based on two

exceptions to the ninety-day filing window: (1) the ineffective assistance of their former

counsel and (2) a change in country conditions. The BIA rejected both arguments and also

declined Petitioners’ request to sua sponte reopen the proceeding. This petition followed. 1

1 The BIA had jurisdiction over the motion to reopen under 8 C.F.R. § 1003.2. We have jurisdiction over the petition for review under 8 U.S.C. § 1252(a).

2 II

A2

In their petition for review, Petitioners once again argue that reopening was

warranted due to a change in country conditions. The time limitation for filing motions to

reopen does not apply to motions seeking reopening “based on changed country conditions

arising in the country of nationality” and supported by material evidence that was not

available during the previous removal proceeding. 8 U.S.C. § 1229a(c)(7)(C)(ii); see also

8 C.F.R. § 1003.2(c)(3)(ii). But Petitioners have not presented any such evidence

warranting reopening.

Petitioners claim to have “[n]ew evidence regarding country conditions” that

“show[s] that MS-13 gang members have become more dangerous, aggressive and

unhinged,” and “have been involved in killing babies and young children.” Pet’rs Br. at 7

(citing Administrative Record (“A.R.”) at 49–50). But, as the BIA found, all but one of the

articles predated the Petitioners’ December 5, 2023 hearing and therefore could have been

discovered and presented at the previous proceeding. See A.R. 4; 8 U.S.C.

§ 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.23(b)(4)(i). The single article postdating the BIA’s

removal decision does not support the claim that there has been a change in El Salvador’s

conditions since December 2023. The article quotes Salvadoran President Nayib Bukele

2 Motions to reopen are “especially disfavored.” Darby v. Att’y Gen., 1 F.4th 151, 159 (3d Cir. 2021). “As a general rule, motions to reopen are granted only under compelling circumstances.” Id. (quoting Guo v. Ashcroft, 386 F.3d 556, 561 (3d Cir. 2004)). We review the BIA’s denial of a motion to reopen for abuse of discretion “and will not disturb the BIA’s determination unless it is arbitrary, irrational, or contrary to law.” Id.

3 describing MS-13’s violent conduct, but notes it to be an ongoing problem since at least

2017. A.R. 48–49. Accordingly, the BIA did not err in determining that country conditions

had not changed. 3

B

Petitioners also challenge the BIA’s refusal to reopen the matter sua sponte. Because

such decisions are discretionary and “functionally unreviewable,” we generally lack

jurisdiction to review them. Sang Goo Park v. Att’y Gen., 846 F.3d 645, 651 (3d Cir. 2017).

We have jurisdiction only where the BIA’s decision was based on an incorrect legal

premise or departed from a settled practice. Id. at 651–52.

Petitioners submit that “exceptional circumstances” warrant sua sponte reopening.

They assert that their previous attorney should have provided additional documentation to

support their positions and that the Immigration Judge failed to sufficiently develop the

record at their proceedings. Pet’rs Br. at 14–15. But Petitioners fail to raise a recognized

exception to the jurisdictional bar to reviewing the denial of a motion to reopen sua sponte.

The BIA did not rely on an incorrect legal premise and did not depart from a settled course

3 Petitioners forfeited any argument that the BIA abused its discretion in denying their motion to reopen for failure to comply with the procedural requirements in Matter of Lozada, 19 I. & N. Dec. 637 (B.I.A. 1988), because they do not address it in their opening brief. See Khan v. Att’y Gen., 691 F.3d 488, 495 n.4 (3d Cir. 2012). 4 of adjudication in its handling of the case. Therefore, we lack jurisdiction to review the

BIA’s decision.

* * *

Accordingly, we will dismiss the petition with respect to the motion for sua sponte

reopening and deny the petition in all other respects.