Case: 17-13125 Date Filed: 04/13/2018 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-13125 Non-Argument Calendar ________________________
Agency No. A098-979-850
YENY LISSETH GONZALEZ-RODRIGUEZ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the Board of Immigration Appeals ________________________
(April 13, 2018)
Before MARCUS, WILLIAM PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
Yeny Gonzalez-Rodriguez, a native and citizen of El Salvador who was
ordered removed in absentia in 2006, petitions for review of the order by the Board
of Immigration Appeal (“BIA”) denying her untimely second motion to reopen Case: 17-13125 Date Filed: 04/13/2018 Page: 2 of 7
removal proceedings. In her petition, she argues that: (1) the BIA erroneously
denied her motion to reopen as untimely, because she demonstrated that since her
2006 removal order, country conditions in El Salvador had materially changed and
asylum law had evolved to the point where family-based “particular social groups”
are cognizable under the Immigration and Nationality Act (“INA”); (2) the BIA
violated her due process rights by ignoring that her motion was based on a change
in asylum law, by ignoring most of evidence she submitted regarding changed
country conditions in El Salvador, and by conducting a perfunctory analysis of the
merits of her motion; and (3) the BIA abused its discretion in denying her motion
by ignoring its own precedent found in Matter of L-E-A-, 27 I&N Dec. 40 (BIA
2017), or, in the alternative, by failing to offer a reasoned explanation as to why it
did not apply that decision. After thorough review, we deny the petition.
We review the denial of a motion to reopen an immigration petition for
abuse of discretion. Jiang v. U.S. Att’y Gen., 568 F.3d 1252, 1256 (11th Cir.
2009). Our “review is limited to determining whether the BIA exercised its
discretion in an arbitrary or capricious manner.” Id. The moving party bears a
heavy burden, Ali v. U.S. Att’y Gen., 443 F.3d 804, 813 (11th Cir. 2006), since
motions to reopen are disfavored, especially in removal proceedings. INS v.
Doherty, 502 U.S. 314, 323 (1992); Jiang, 568 F.3d at 1256.
2 Case: 17-13125 Date Filed: 04/13/2018 Page: 3 of 7
The discretion afforded to the BIA under 8 C.F.R. § 1003.2(a) with respect
to granting and denying motions to reopen is expansive. See 8 C.F.R. § 1003.2(a)
(“The decision to grant or deny a motion to reopen or reconsider is within the
discretion of the Board . . . . The Board has discretion to deny a motion to reopen
even if the party moving has made out a prima facie case for relief.”)); see also
Gbaya v. U.S. Att’y Gen., 342 F.3d 1219, 1220 (11th Cir. 2003) (“[i]n this
particular area, the BIA’s discretion is quite broad”). We’ve held that the BIA may
deny a motion to reopen on at least three grounds: (1) failure to establish a prima
facie case; (2) failure to introduce evidence that was material and previously
unavailable; or (3) a determination that an alien is not entitled to a favorable
exercise of discretion despite statutory eligibility for relief. Al Najjar v. Ashcroft,
257 F.3d 1262, 1302 (11th Cir. 2001). Additionally, when reviewing a motion or
petition, as long as the BIA has given reasoned consideration to the motion and
made adequate findings, it need not address every piece of evidence the petitioner
presented. Tan v. U.S. Att’y Gen., 446 F.3d 1369, 1374 (11th Cir. 2006) (holding
that the IJ must “consider the issues raised and announce its decision in terms
sufficient to enable a reviewing court to perceive that it has heard and thought and
not merely reacted” (quotations omitted)).
An alien may file a motion to reopen her removal proceedings, but must do
so within 90 days of the date of entry of a final administrative order of removal,
3 Case: 17-13125 Date Filed: 04/13/2018 Page: 4 of 7
subject to certain exceptions. 8 U.S.C. § 1229a(c)(7)(C)(i). As relevant here, the
INA provides for an exception to the time limitation if the motion to reopen is
“based on changed circumstances arising in the country of nationality or the
country to which removal has been ordered, if such evidence is material and was
not available and would not have been discovered or presented at the previous
proceeding.” Id. § 1229a(c)(7)(C)(ii). That motion “shall state the new facts that
will be proven at a hearing to be held if the motion is granted, and shall be
supported by affidavits or other evidentiary material.” Id. § 1229a(c)(7)(B).
The Fifth Amendment entitles petitioners in removal proceedings to due
process of law. See Frech v. U.S. Att’y Gen., 491 F.3d 1277, 1281 (11th Cir.
2007). Due process requires that aliens be given notice and an opportunity to be
heard in their removal proceedings. See Tang v. U.S. Att’y Gen., 578 F.3d 1270,
1275 (11th Cir. 2009). Importantly, however, we’ve held that an alien has no
constitutionally protected liberty interest with respect to the granting of a motion to
reopen. Scheerer v. U.S. Att’y Gen., 513 F.3d 1244, 1253 (11th Cir. 2008).
Here, Gonzalez-Rodriguez cannot demonstrate that the BIA acted arbitrarily
or capriciously when it denied her untimely second motion to reopen, since she has
not shown that the relevant country conditions in El Salvador have materially
changed since her 2006 order of removal. 8 U.S.C. § 1229a(c)(7)(C)(ii). In her
application for relief, she said that, if she were returned to El Salvador, she feared
4 Case: 17-13125 Date Filed: 04/13/2018 Page: 5 of 7
that she would be harmed by the Reyes family, which has perpetrated a decades-
long, deadly feud against her own family. In support of her motion to reopen, she
submitted several news articles that reported on the rising tide of gang violence in
El Salvador. However, none of those articles dealt with the Reyes family, and,
therefore, the evidence of changed country conditions that she submitted was not
material. As a result, the BIA did not abuse its discretion in concluding that her
untimely filing of her motion to reopen could not be excused based on changed
country conditions. 8 U.S.C.
Free access — add to your briefcase to read the full text and ask questions with AI
Case: 17-13125 Date Filed: 04/13/2018 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-13125 Non-Argument Calendar ________________________
Agency No. A098-979-850
YENY LISSETH GONZALEZ-RODRIGUEZ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the Board of Immigration Appeals ________________________
(April 13, 2018)
Before MARCUS, WILLIAM PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
Yeny Gonzalez-Rodriguez, a native and citizen of El Salvador who was
ordered removed in absentia in 2006, petitions for review of the order by the Board
of Immigration Appeal (“BIA”) denying her untimely second motion to reopen Case: 17-13125 Date Filed: 04/13/2018 Page: 2 of 7
removal proceedings. In her petition, she argues that: (1) the BIA erroneously
denied her motion to reopen as untimely, because she demonstrated that since her
2006 removal order, country conditions in El Salvador had materially changed and
asylum law had evolved to the point where family-based “particular social groups”
are cognizable under the Immigration and Nationality Act (“INA”); (2) the BIA
violated her due process rights by ignoring that her motion was based on a change
in asylum law, by ignoring most of evidence she submitted regarding changed
country conditions in El Salvador, and by conducting a perfunctory analysis of the
merits of her motion; and (3) the BIA abused its discretion in denying her motion
by ignoring its own precedent found in Matter of L-E-A-, 27 I&N Dec. 40 (BIA
2017), or, in the alternative, by failing to offer a reasoned explanation as to why it
did not apply that decision. After thorough review, we deny the petition.
We review the denial of a motion to reopen an immigration petition for
abuse of discretion. Jiang v. U.S. Att’y Gen., 568 F.3d 1252, 1256 (11th Cir.
2009). Our “review is limited to determining whether the BIA exercised its
discretion in an arbitrary or capricious manner.” Id. The moving party bears a
heavy burden, Ali v. U.S. Att’y Gen., 443 F.3d 804, 813 (11th Cir. 2006), since
motions to reopen are disfavored, especially in removal proceedings. INS v.
Doherty, 502 U.S. 314, 323 (1992); Jiang, 568 F.3d at 1256.
2 Case: 17-13125 Date Filed: 04/13/2018 Page: 3 of 7
The discretion afforded to the BIA under 8 C.F.R. § 1003.2(a) with respect
to granting and denying motions to reopen is expansive. See 8 C.F.R. § 1003.2(a)
(“The decision to grant or deny a motion to reopen or reconsider is within the
discretion of the Board . . . . The Board has discretion to deny a motion to reopen
even if the party moving has made out a prima facie case for relief.”)); see also
Gbaya v. U.S. Att’y Gen., 342 F.3d 1219, 1220 (11th Cir. 2003) (“[i]n this
particular area, the BIA’s discretion is quite broad”). We’ve held that the BIA may
deny a motion to reopen on at least three grounds: (1) failure to establish a prima
facie case; (2) failure to introduce evidence that was material and previously
unavailable; or (3) a determination that an alien is not entitled to a favorable
exercise of discretion despite statutory eligibility for relief. Al Najjar v. Ashcroft,
257 F.3d 1262, 1302 (11th Cir. 2001). Additionally, when reviewing a motion or
petition, as long as the BIA has given reasoned consideration to the motion and
made adequate findings, it need not address every piece of evidence the petitioner
presented. Tan v. U.S. Att’y Gen., 446 F.3d 1369, 1374 (11th Cir. 2006) (holding
that the IJ must “consider the issues raised and announce its decision in terms
sufficient to enable a reviewing court to perceive that it has heard and thought and
not merely reacted” (quotations omitted)).
An alien may file a motion to reopen her removal proceedings, but must do
so within 90 days of the date of entry of a final administrative order of removal,
3 Case: 17-13125 Date Filed: 04/13/2018 Page: 4 of 7
subject to certain exceptions. 8 U.S.C. § 1229a(c)(7)(C)(i). As relevant here, the
INA provides for an exception to the time limitation if the motion to reopen is
“based on changed circumstances arising in the country of nationality or the
country to which removal has been ordered, if such evidence is material and was
not available and would not have been discovered or presented at the previous
proceeding.” Id. § 1229a(c)(7)(C)(ii). That motion “shall state the new facts that
will be proven at a hearing to be held if the motion is granted, and shall be
supported by affidavits or other evidentiary material.” Id. § 1229a(c)(7)(B).
The Fifth Amendment entitles petitioners in removal proceedings to due
process of law. See Frech v. U.S. Att’y Gen., 491 F.3d 1277, 1281 (11th Cir.
2007). Due process requires that aliens be given notice and an opportunity to be
heard in their removal proceedings. See Tang v. U.S. Att’y Gen., 578 F.3d 1270,
1275 (11th Cir. 2009). Importantly, however, we’ve held that an alien has no
constitutionally protected liberty interest with respect to the granting of a motion to
reopen. Scheerer v. U.S. Att’y Gen., 513 F.3d 1244, 1253 (11th Cir. 2008).
Here, Gonzalez-Rodriguez cannot demonstrate that the BIA acted arbitrarily
or capriciously when it denied her untimely second motion to reopen, since she has
not shown that the relevant country conditions in El Salvador have materially
changed since her 2006 order of removal. 8 U.S.C. § 1229a(c)(7)(C)(ii). In her
application for relief, she said that, if she were returned to El Salvador, she feared
4 Case: 17-13125 Date Filed: 04/13/2018 Page: 5 of 7
that she would be harmed by the Reyes family, which has perpetrated a decades-
long, deadly feud against her own family. In support of her motion to reopen, she
submitted several news articles that reported on the rising tide of gang violence in
El Salvador. However, none of those articles dealt with the Reyes family, and,
therefore, the evidence of changed country conditions that she submitted was not
material. As a result, the BIA did not abuse its discretion in concluding that her
untimely filing of her motion to reopen could not be excused based on changed
country conditions. 8 U.S.C. § 1229a(c)(7)(C)(i)-(ii).
As for Gonzalez-Rodriguez’s related argument -- that the BIA abused its
discretion in denying her motion because she had demonstrated changes in the law
with respect to asylum claims that might have inured to her benefit -- we disagree.
As the government correctly notes, the plain text of the “changed country
conditions” exception demonstrates that a change in the relevant law is not
sufficient to trigger that exception. See 8 U.S.C. § 1229a(c)(7)(C)(ii); see also 8
U.S.C. § 1229a(c)(7)(B) (“The motion to reopen shall state the new facts that will
be proven . . . .”). In other words, that exception applies to new facts, not law. Id.
Thus, the non-binding, sister circuit cases Gonzalez-Rodriguez identified as
representing a change in asylum law were not relevant to the sole issue in front of
5 Case: 17-13125 Date Filed: 04/13/2018 Page: 6 of 7
the BIA, and the BIA did not err in not specifically addressing them. 1 Tan, 446
F.3d at 1374.
Nor did the BIA abuse its discretion by refusing to follow Matter of L-E-A-,
or by not offering a reasoned explanation as to why it would not follow that case.
Much like Gonzalez-Rodriguez’s previous argument, this argument fails because
the BIA’s holding in that case -- that members of an immediate family can
constitute a “particular social group” for asylum purposes -- was not relevant to the
factual inquiry of whether Gonzalez-Rodriguez’s untimely filing of her motion to
reopen should have been excused based on changed country conditions in El
Salvador. See Matter of L-E-A-, 27 I&N Dec. at 40; see also 8 U.S.C. §
1229a(c)(7)(C)(ii). As a result, the BIA did not err in not explicitly addressing that
decision. Tan, 446 F.3d at 1374.
Finally, Gonzalez-Rodriguez’s due process arguments fail. As we held in
Scheerer, an alien has no constitutionally protected interest in the granting of a
motion to reopen. 513 F.3d at 1253. Accordingly, Gonzalez-Rodriguez’s due
process arguments -- which are premised on the BIA’s procedures in ruling on her
motion to reopen -- are foreclosed by our precedent. Id.
1 Moreover, while the BIA has held that it may exercise its sua sponte authority to reopen removal proceedings where one of its decisions “reflect[s] a fundamental change in the principles of the law of asylum,” In re G-D-, 22 I&N Dec. 1132, 1135 (BIA 1999), Gonzalez- Rodriguez does not challenge the BIA’s refusal to do so, and, more importantly, we would not have jurisdiction to consider that issue even if she had raised it. Lenis v. U.S. Att’y Gen., 525 F.3d 1291, 1294 (11th Cir. 2008). 6 Case: 17-13125 Date Filed: 04/13/2018 Page: 7 of 7
PETITION DENIED.