NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 8 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
VENTURA GUILLEN-HERNANDEZ, No. 16-73263 Agency No. Petitioner, A026-640-013 v. MEMORANDUM*
PAMELA BONDI, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Submitted October 6, 2025** Pasadena, California
Before: GILMAN, GOULD and KOH, Circuit Judges.***
Petitioner Ventura Guillen-Hernandez (“Guillen-Hernandez”) petitions our
Court to reverse the Board of Immigration Appeals’ (“BIA”) order denying his
Motion to Reopen (“MTR”) his final deportation order. As an initial matter, Guillen-
* 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). *** The Honorable Ronald Lee Gilman, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. Hernandez argues his otherwise time- and number-barred MTR is excepted from
those bars on the basis of changed country conditions. Guillen-Hernandez then
asserts that the BIA erred by ruling his failure to articulate the political opinion or
imputed political opinion for which his siblings were targeted foreclosed a well-
founded fear of persecution based on other grounds. Guillen-Hernandez also asserts
that the BIA erred in ruling that the evidence he presented failed to establish prima
facie eligibility for asylum. Guillen-Hernandez finally makes due process claims,
one against the BIA in this case, and one—raised for the first time in this appeal—
against the immigration judge (“IJ”) in his 1987 deportation hearing. We have
jurisdiction pursuant to 8 U.S.C. § 1252 and dismiss the appeal as time and number
barred.
Guillen-Hernandez’s MTR is time and number barred. Motions to reopen
must be filed within ninety days of the date upon which the final administrative
decision was made. 8 C.F.R. § 1003.2(c)(2). Petitioners may file only one motion
to reopen. Id. Motions based on changed country conditions, however, are excepted
from these general time and number bars. § 1003.2(c)(3)(ii). To qualify for the
exception, the petitioner’s evidence must (1) be material, (2) not have been available,
and (3) not have been previously discoverable or presented at the previous hearing.
Id. “[C]onditions relevant to the petitioner [must] have materially changed in the
country of removal since the date of the prior order of removal.” See Rodriguez v.
2 24-7303 Garland, 990 F.3d 1205, 1207 (9th Cir. 2021) (emphasis added). “The critical
question is . . . whether circumstances have changed sufficiently that a petitioner
who previously did not have a legitimate claim for asylum, now has a well-founded
fear of future persecution.” Malty v. Ashcroft, 381 F.3d 942, 945 (9th Cir. 2004).
Although Guillen-Hernandez could not have discovered and did not have
available to him the evidence proffered in his MTR, his proffered evidence is not
material because it does not affect the validity of his claims. His MTR accordingly
does not qualify for the changed country conditions exception to the bar on untimely
and subsequent MTRs. His proffered evidence that El Salvador has become more
violent and that his family members have been the victims of gang violence contains
no information regarding the basis upon which his family has been targeted or
whether his persecutors are government officials or those that the government is
unwilling or unable to control. See Parussimova v. Mukasey, 555 F.3d 734, 741 (9th
Cir. 2009) (protected group requirement); Avetovo-Elisseva v. INS, 213 F.3d 1192,
1196 (9th Cir. 2000) (government officials requirement). Without information that
the government is unwilling or unable to control gang violence in El Salvador, we
cannot say “circumstances have changed sufficiently that [Guillen-Hernandez] who
previously did not have a legitimate claim for asylum, now has a well-founded fear
of future persecution.” Malty, 381 F.3d at 945. Also, Guillen-Hernandez did not
include a Form I-589 with either of his MTRs, and that failure to attach Form I-589
3 24-7303 contravenes 8 C.F.R. § 1003.2(c)(1)’s requirement to include “the appropriate
application for relief” with an MTR. Guillen-Hernandez’s argument for having not
included a Form I-589 is unconvincing.
For similar reasons, the BIA did not err in ruling that Guillen-Hernandez’s
evidence does not set forth prima facie eligibility for asylum. To reopen a final
administrative decision, the petitioner must show prima facie eligibility for the
underlying relief requested. See Tzompantzi-Salazar v. Garland, 32 F.4th 696, 703
(9th Cir. 2022). “Prima facie eligibility for relief is established when the evidence
reveals a reasonable likelihood that the statutory requirements for relief have been
satisfied.” Sarkar v. Garland, 39 F.4th 611, 622 (9th Cir. 2022) (cleaned up). The
“burden of proof is on the applicant to establish” refugee status based on
“persecution or a well-founded fear of persecution on account of race, religion,
nationality, membership in a particular social group, or political opinion.” 8 U.S.C.
§ 1158(b)(1)(B)(i); 8 U.S.C. § 1101(a)(42). The applicant must show that
membership in a protected class “was or will be at least one central reason” the
applicant will be persecuted. See Parussimova, 555 F.3d at 740 (emphasis added)
(quoting 8 U.S.C. § 1158(b)(1)(B)(i)).
Contrary to Guillen-Hernandez’s contention that the BIA determined that
persecution on another protected ground was foreclosed by his failure to articulate
the actual or imputed political opinion for which his siblings were targeted, the BIA
4 24-7303 merely concluded there was insufficient evidence of targeting based upon any other
protected ground. Guillen-Hernandez has not met his burden of proof to establish
refugee status because he does not show a nexus between attacks on his family and
a protected group, his inclusion in that protected group, or the official actions of the
Salvadoran government. The BIA did not abuse its discretion by denying Guillen-
Hernandez’s motion on that basis. See Lopez-Vasquez v.
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 8 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
VENTURA GUILLEN-HERNANDEZ, No. 16-73263 Agency No. Petitioner, A026-640-013 v. MEMORANDUM*
PAMELA BONDI, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Submitted October 6, 2025** Pasadena, California
Before: GILMAN, GOULD and KOH, Circuit Judges.***
Petitioner Ventura Guillen-Hernandez (“Guillen-Hernandez”) petitions our
Court to reverse the Board of Immigration Appeals’ (“BIA”) order denying his
Motion to Reopen (“MTR”) his final deportation order. As an initial matter, Guillen-
* 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). *** The Honorable Ronald Lee Gilman, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. Hernandez argues his otherwise time- and number-barred MTR is excepted from
those bars on the basis of changed country conditions. Guillen-Hernandez then
asserts that the BIA erred by ruling his failure to articulate the political opinion or
imputed political opinion for which his siblings were targeted foreclosed a well-
founded fear of persecution based on other grounds. Guillen-Hernandez also asserts
that the BIA erred in ruling that the evidence he presented failed to establish prima
facie eligibility for asylum. Guillen-Hernandez finally makes due process claims,
one against the BIA in this case, and one—raised for the first time in this appeal—
against the immigration judge (“IJ”) in his 1987 deportation hearing. We have
jurisdiction pursuant to 8 U.S.C. § 1252 and dismiss the appeal as time and number
barred.
Guillen-Hernandez’s MTR is time and number barred. Motions to reopen
must be filed within ninety days of the date upon which the final administrative
decision was made. 8 C.F.R. § 1003.2(c)(2). Petitioners may file only one motion
to reopen. Id. Motions based on changed country conditions, however, are excepted
from these general time and number bars. § 1003.2(c)(3)(ii). To qualify for the
exception, the petitioner’s evidence must (1) be material, (2) not have been available,
and (3) not have been previously discoverable or presented at the previous hearing.
Id. “[C]onditions relevant to the petitioner [must] have materially changed in the
country of removal since the date of the prior order of removal.” See Rodriguez v.
2 24-7303 Garland, 990 F.3d 1205, 1207 (9th Cir. 2021) (emphasis added). “The critical
question is . . . whether circumstances have changed sufficiently that a petitioner
who previously did not have a legitimate claim for asylum, now has a well-founded
fear of future persecution.” Malty v. Ashcroft, 381 F.3d 942, 945 (9th Cir. 2004).
Although Guillen-Hernandez could not have discovered and did not have
available to him the evidence proffered in his MTR, his proffered evidence is not
material because it does not affect the validity of his claims. His MTR accordingly
does not qualify for the changed country conditions exception to the bar on untimely
and subsequent MTRs. His proffered evidence that El Salvador has become more
violent and that his family members have been the victims of gang violence contains
no information regarding the basis upon which his family has been targeted or
whether his persecutors are government officials or those that the government is
unwilling or unable to control. See Parussimova v. Mukasey, 555 F.3d 734, 741 (9th
Cir. 2009) (protected group requirement); Avetovo-Elisseva v. INS, 213 F.3d 1192,
1196 (9th Cir. 2000) (government officials requirement). Without information that
the government is unwilling or unable to control gang violence in El Salvador, we
cannot say “circumstances have changed sufficiently that [Guillen-Hernandez] who
previously did not have a legitimate claim for asylum, now has a well-founded fear
of future persecution.” Malty, 381 F.3d at 945. Also, Guillen-Hernandez did not
include a Form I-589 with either of his MTRs, and that failure to attach Form I-589
3 24-7303 contravenes 8 C.F.R. § 1003.2(c)(1)’s requirement to include “the appropriate
application for relief” with an MTR. Guillen-Hernandez’s argument for having not
included a Form I-589 is unconvincing.
For similar reasons, the BIA did not err in ruling that Guillen-Hernandez’s
evidence does not set forth prima facie eligibility for asylum. To reopen a final
administrative decision, the petitioner must show prima facie eligibility for the
underlying relief requested. See Tzompantzi-Salazar v. Garland, 32 F.4th 696, 703
(9th Cir. 2022). “Prima facie eligibility for relief is established when the evidence
reveals a reasonable likelihood that the statutory requirements for relief have been
satisfied.” Sarkar v. Garland, 39 F.4th 611, 622 (9th Cir. 2022) (cleaned up). The
“burden of proof is on the applicant to establish” refugee status based on
“persecution or a well-founded fear of persecution on account of race, religion,
nationality, membership in a particular social group, or political opinion.” 8 U.S.C.
§ 1158(b)(1)(B)(i); 8 U.S.C. § 1101(a)(42). The applicant must show that
membership in a protected class “was or will be at least one central reason” the
applicant will be persecuted. See Parussimova, 555 F.3d at 740 (emphasis added)
(quoting 8 U.S.C. § 1158(b)(1)(B)(i)).
Contrary to Guillen-Hernandez’s contention that the BIA determined that
persecution on another protected ground was foreclosed by his failure to articulate
the actual or imputed political opinion for which his siblings were targeted, the BIA
4 24-7303 merely concluded there was insufficient evidence of targeting based upon any other
protected ground. Guillen-Hernandez has not met his burden of proof to establish
refugee status because he does not show a nexus between attacks on his family and
a protected group, his inclusion in that protected group, or the official actions of the
Salvadoran government. The BIA did not abuse its discretion by denying Guillen-
Hernandez’s motion on that basis. See Lopez-Vasquez v. Holder, 706 F.3d 1072,
1078 (9th Cir. 2013) (stating a BIA denial of a motion to reopen is reviewed for
abuse of discretion). 1 We do not address the BIA’s determination that Guillen-
Hernandez failed to establish a prima facie case for Convention Against Torture
(“CAT”) protection because Guillen-Hernandez does not challenge that
determination rejecting CAT relief in his opening brief in this appeal. See, e.g.,
Hernandez v. Garland, 47 F.4th 908, 916 (9th Cir. 2022) (holding that issues not
“specifically and distinctly” argued in an opening brief may be deemed waived).
This Court would have jurisdiction to entertain Guillen-Hernandez’s due
process claims if his MTR were not time and number barred, but those claims are
without merit in any event. Guillen-Hernandez’s failure to raise his due process
argument against the IJ in 1987 does not preclude our review. See Santos-Zacaria
1 Guillen-Hernandez fails to qualify for withholding of removal for the same reasons. See 8 U.S.C. § 1231(b)(3)(A); INS v. Cardoza-Fonseca, 480 U.S. 421, 430– 32 (1987) (indicating overlapping standards between asylum and withholding of removal).
5 24-7303 v. Garland, 598 U.S. 411, 423 (2023) (holding that the § 1252(d)(1) exhaustion
requirement is not jurisdictional and is subject to waiver). His due process claim
that the BIA did not review all the evidence in front of it is conclusory and
unsupported by the record.
Guillen-Hernandez’s due process claim that the IJ in 1987 did not
“scrupulously and conscientiously probe into, inquire of, and explore for all the
relevant facts” likewise fails. Agyeman v. INS, 296 F.3d 871, 877 (9th Cir. 2002)
(internal quotation marks and citation omitted), The IJ gave Guillen-Hernandez a
“reasonable opportunity to examine the evidence against” him and “to present
evidence on [his] own behalf” under 8 U.S.C. § 1229a(b)(4)(B) in asking Guillen-
Hernandez whether he had evidence in his defense and whether he feared returning
to El Salvador. Guillen-Hernandez’s unequivocal response in the negative
establishes that the IJ developed the record sufficiently to determine Guillen-
Hernandez did not fear persecution in El Salvador. See Jacinto v. INS, 208 F.3d 725,
732–33 (9th Cir. 2000). Guillen-Hernandez also offered little evidence that any
violation would have been prejudicial. See Ibarra-Flores v. Gonzales, 439 F.3d 614,
620–21 (9th Cir. 2006). Guillen-Hernandez contends speculatively only that further
IJ probing would have prompted him to mention his fear of El Salvador’s “political
problems,” an argument the BIA concluded, on direct appeal, did not entitle him to
asylum.
6 24-7303 Even if his MTR were not barred, Guillen-Hernandez’s asylum claims are
without merit, and the BIA did not abuse its discretion in denying his motion.
Guillen-Hernandez’s MTR is time and number barred. Guillen-Hernandez’s appeal
fails.
PETITION FOR REVIEW DENIED.
7 24-7303