Maria Rodriguez-Del Toro v. Loretta E. Lynch

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 4, 2015
• Docket: 12-71970
• Status: Unpublished

Opinion

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT JUN 04 2015

MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

MARIA MAGDALENA RODRIGUEZ- No. 12-71970 DEL TORO, AKA Maria Magdalena Enriquez, Agency No. A076-611-025

Petitioner, MEMORANDUM* v.

ERIC H. HOLDER, Jr., Attorney General,

Respondent.

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

Submitted June 2, 2015** Pasadena, California

Before: THOMAS, Chief Judge, CALLAHAN, Circuit Judge and SINGLETON,*** Senior District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable James K. Singleton, Senior District Judge for the U.S. District Court for the District of Alaska, sitting by designation. Maria Rodriguez-Del Toro, a native and citizen of Mexico, petitions for

review of the Board of Immigration Appeals’s (BIA) denial of her second motion

to reopen proceedings, filed more than nine years after the order of removal

became final. We have jurisdiction under 8 U.S.C. § 1252, and we deny the

petition for review.1

Petitioner’s brief fails to address the BIA’s order, provide the correct

standard of review, or cite any record evidence. “[F]ailure to comply with [Federal

Rule of Appellate Procedure] 28, by itself, is sufficient ground to justify dismissal

of an appeal.” Cmty. Commerce Bank v. O’Brien (In re O’Brien), 312 F.3d 1135,

1136 (9th Cir. 2002). See also Arpin v. Santa Clara Valley Transp. Agency, 261

F.3d 912, 919 (9th Cir. 2001) (any argument not “specifically and distinctly argued

and raised” is waived).

Even had Petitioner complied with Rule 28, her petition fails. The BIA’s

denial of a motion to reopen is reviewed for abuse of discretion and will be

reversed only if “arbitrary, irrational, or contrary to law.” Valeriano v. Gonzalez,

474 F.3d 669, 672 (9th Cir. 2007) (internal quotation marks omitted). A petitioner

is generally limited to filing one motion to reopen within ninety days of the

1 Because the parties are familiar with the facts and procedural history, we restate them here only as necessary to explain our decision.

2 issuance of the final administrative decision, though the time and numerical

limitations do not apply to a motion filed to allow the petitioner to apply for

asylum based on changed circumstances arising in the country of nationality. 8

C.F.R. § 1003.2(c)(2)–(3). To qualify for this exception, the petitioner bears a

“heavy burden,” INS v. Abudu, 485 U.S. 94, 110–11 (1988), of producing

previously unavailable, material evidence of changed country conditions that

establish a prima facie case of eligibility for the relief sought. Toufighi v.

Mukasey, 538 F.3d 988, 996 (9th Cir. 2007).

The BIA did not abuse its discretion in concluding that Rodriguez failed to

meet that burden. The declarations submitted to the BIA in support of Rodriguez’s

motion lacked detail establishing that she was a member of a protected social

group, see Navas v. INS, 217 F.3d 646, 654 (9th Cir. 2000) (refugee status is

established by evidence that an applicant has a well-founded fear of future

persecution on account of race, religion, nationality, membership in a particular

social group, or political opinion), or that she was “more likely than not” to be

tortured upon return to Mexico, see 8 C.F.R. § 1208.16(c)(2). In the absence of

establishing eligibility for asylum or protection under the CAT, Rodriguez does not

dispute that her second motion to reopen, filed more than nine years after the order

of removal became final, is untimely and number-barred.

3 The petition for review is DENIED.