Espinal-Cruz v. Holder ( 2013 )

11-4909
Espinal-Cruz v. Holder
BIA
A099 668 207/208/209
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
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 18th day of September, two thousand thirteen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 RAYMOND J. LOHIER, JR.,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 CARMEN SUYAPA ESPINAL-CRUZ,
14 JONATHAN JOSUE ESPINAL-CRUZ,
15 DARWIN EDUARDO URBINA-ESPINAL,
16 Petitioners,
17
18 v. 11-4909
19 NAC
20 ERIC H. HOLDER, JR., UNITED STATES
21 ATTORNEY GENERAL,
22 Respondent.
23 _____________________________________
24
25 FOR PETITIONER: Michael P. DiRaimondo, DiRaimondo &
26 Masi, New York, NY.
27
28 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
29 Attorney General; Jamie M. Dowd,
1 Senior Litigation Counsel; Nancy N.
2 Safavi, Trial Attorney, Office of
3 Immigration Litigation, United
4 States Department of Justice,
5 Washington, D.C.
6
7 UPON DUE CONSIDERATION of this petition for review of a
8 Board of Immigration Appeals (“BIA”) decision, it is hereby
9 ORDERED, ADJUDGED, AND DECREED that the petition for review
10 is DENIED.
11 Petitioners, natives and citizens of Honduras, seek
12 review of the October 27, 2011, decision of the BIA denying
13 their motion to reopen. In re Carmen Suyapa Espinal-Cruz,
14 et al., Nos. A099 668 207/08/09 (B.I.A. Oct. 27, 2011). We
15 assume the parties’ familiarity with the underlying facts
16 and procedural history in this case.
17 The BIA’s denial of Petitioners’ motion to reopen as
18 untimely was not an abuse of discretion. See Kaur v. BIA,
19 413 F.3d 232, 233 (2d Cir. 2005) (per curiam). An alien may
20 file one motion to reopen no later than 90 days after the
21 date on which the final administrative decision has been
22 rendered in the proceedings sought to be reopened. 8 U.S.C.
23 § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). There is no
24 dispute that Petitioners’ 2011 motion was untimely, as the
25 final administrative decision was issued in 2009. See
2
1 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2).
2 However, the time and number limitations do not apply to a
3 motion to reopen if it is “based on changed circumstances
4 arising in the country of nationality or in the country to
5 which deportation has been ordered, if such evidence is
6 material and was not available and could not have been
7 discovered or presented at the previous hearing.” 8 C.F.R.
8 § 1003.2(c)(3)(ii); see also 8 U.S.C. § 1229a(c)(7)(C)(ii).
9 Here, there is no error in the BIA’s conclusion that
10 Petitioners failed to demonstrate materially changed country
11 conditions in Honduras that would excuse the untimely filing
12 of the motion to reopen.
13 As the BIA noted, Petitioners’ motion to reopen
14 reiterated their initial asylum claim, and included evidence
15 purporting to show that conditions in Honduras have worsened
16 and gang violence has increased. However, even if gang
17 violence has increased in Honduras, this evidence is not
18 material to Petitioners’ claim because it does not establish
19 a nexus between the feared harm and a protected ground. See
20 8 U.S.C. §§ 1101(a)(42), 1229a(c)(7)(C)(ii); Ucelo-Gomez v.
21 Mukasey, 509 F.3d 70, 73-74 (2d Cir. 2007).
22
3
1 Petitioners also argue that their due process right was
2 violated because the BIA failed to consider all of the
3 evidence in the record. However, aliens filing untimely
4 motions to reopen have no due process right in the
5 proceedings. See Yuen Jin v. Mukasey, 538 F.3d 143, 156-57
6 (2d Cir. 2008) (“We hold that an alien who has already filed
7 one asylum application, been adjudicated removable and
8 ordered deported, and who has nevertheless remained in the
9 country illegally for several years, does not have a liberty
10 or property interest in a discretionary grant of asylum.”).
11 Regardless, Petitioners do not establish that the BIA failed
12 to consider record evidence, as the BIA dedicated a full
13 paragraph in its decision to discussing the evidence
14 submitted with the motion to reopen. See Xiao Ji Chen v.
15 U.S. Dep’t of Justice, 471 F.3d 315, 336 n.17 (2d Cir. 2006)
16 (“we presume that [the agency] has taken into account all of
17 the evidence before [it], unless the record compellingly
18 suggests otherwise”).
19 For the foregoing reasons, the petition for review is
20 DENIED. As we have completed our review, any stay of
21 removal that the Court previously granted in this petition
22 is VACATED, and any pending motion for a stay of removal in
4
1 this petition is DISMISSED as moot. Any pending request for
2 oral argument in this petition is DENIED in accordance with
3 Federal Rule of Appellate Procedure 34(a)(2), and Second
4 Circuit Local Rule 34.1(b).
5 FOR THE COURT:
6 Catherine O’Hagan Wolfe, Clerk
5