Frank Nunez-Ramirez v. Attorney General United States ( 2022 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 21-1428
_____________
FRANK ANTHONY NUNEZ-RAMIREZ,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA
_______________
On Petition for Review from the
Board of Immigration Appeals
(Agency No. A094-354-686)
Immigration Judge: Charles M. Honeyman
_______________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
January 25, 2022
Before: CHAGARES, Chief Judge, McKEE, and MATEY, Circuit Judges.
(Filed: March 3, 2022)
_______________
OPINION ∗
_______________
∗
This disposition is not an opinion of the full Court and, under I.O.P. 5.7, does not
constitute binding precedent.
MATEY, Circuit Judge.
Frank Anthony Nunez-Ramirez appeals the Board of Immigration Appeals’
(“BIA”) denial of a motion to reopen his removal proceedings. Finding no error in the
BIA’s decision, we will deny Nunez-Ramirez’s petition.
I.
In 1995, the United States issued Nunez-Ramirez, a Honduras native, a visitor visa
allowing admission for six months. In 2000, still in the United States, Nunez-Ramirez
received Temporary Protected Status (“TPS”) after Hurricane Mitch struck Honduras. But
the Government revoked that status in 2018 when Nunez-Ramirez received a third DUI
conviction. As a result, in 2019, the Department of Homeland Security charged Nunez-
Ramirez with removability under 8 U.S.C. § 1227(a)(1)(b). Nunez-Ramirez conceded the
charge but filed applications for withholding of removal and protection under the
Convention Against Torture (“CAT”). 1
Nunez-Ramirez argued he was eligible for withholding of removal based on his
status in a particular social group comprised of “Honduran Men Who Grew Up in the
United States.” (A.R. at 522–29.) He expressed fear of returning home because a gang had
murdered his uncle, and he believed he would be targeted as well. After a hearing, an
Immigration Judge denied Nunez-Ramirez’s application for withholding of removal,
finding he did not establish the necessary clear probability of future persecution. The IJ
1
Nunez-Ramirez conceded ineligibility for asylum because he failed to file an
application within one year of arrival in the United States. 8 U.S.C. § 1158(a)(2)(B). He
now seeks to press an asylum claim, but as explained below, cannot successfully do so.
2
also found Nunez-Ramirez’s alleged particular social group was not legally cognizable
because it lacked “discrete and definable boundaries.” (A.R. at 424.) Finally, the IJ denied
his CAT claim, finding that Nunez-Ramirez did not prove likely torture in Honduras. The
BIA affirmed the IJ’s rulings and dismissed Nunez-Ramirez’s appeal.
In 2021, Nunez-Ramirez moved to reopen his case citing deficiencies in his hearing.
He also proposed a new particular social group: “family members of victims of gang
murders.” (A.R. at 82–89.) Finally, he moved to retract his asylum concession, arguing he
remained eligible for relief. The BIA denied the motion, concluding the asylum claim
waived and, in any event, unsupported by new facts. The BIA also declined to consider his
new particular social group, as it was not advanced before the IJ. And the BIA rejected his
due process claim, finding a failure to establish substantial prejudice. Seeing no grounds to
disturb those decisions, we will deny this petition for review. 2
II.
Motions to reopen are “disfavored,” I.N.S. v. Doherty, 502 U.S. 314, 323 (1992),
and the movant faces the “heavy burden,” I.N.S. v. Abudu, 485 U.S. 94, 110 (1988), of
showing that new evidence “would likely change the result in the case.” Matter of Coelho,
20 I. & N. Dec. 464, 473 (BIA 1992). The motion must “state the new facts that will be
proven . . . and [the motion] shall be supported by affidavits or other evidentiary material.”
8 U.S.C. § 1229a(c)(7)(B). And the motion “shall not be granted” unless the proffered
evidence is “material and was not available and could not have been discovered or
2
The BIA had jurisdiction under 8 C.F.R. § 1003.2 and we have jurisdiction under
8 U.S.C. § 1252(a).
3
presented at the former hearing.” 8 C.F.R. § 1003.2(c)(1). Consistent with these standards,
we review the BIA’s denial of a motion to reopen for an abuse of discretion and will not
disturb that decision unless it is arbitrary, irrational, or contrary to law. Liem v. Att’y Gen.,
921 F.3d 388, 395 (3d Cir. 2019). We review legal questions de novo and factual findings
for substantial evidence. Darby v. Att’y Gen., 1 F.4th 151, 159 (3d Cir. 2021).
A. Due Process
To show insufficient due process, Nunez-Ramirez must establish that he was
“prevented from reasonably presenting his case.” Uspango v. Ashcroft, 289 F.3d 226, 231
(3d Cir. 2002) (internal quotation marks omitted). Nunez-Ramirez argues that his mother’s
testimony required help from an interpreter to “fully explain the situation in Honduras
regarding her brother’s murder.” (Opening Br. at 14.) He pairs this argument with expert
reports purporting to show dangerous country conditions and the importance of the family
in Honduran culture. Both are insufficient.
First, while Ms. Ramirez’s expanded testimony might provide some extra details
about gang activity, the scope of gang violence in Honduras was well-covered at the
hearing. Indeed, Nunez-Ramirez testified about his fears and the dangers in Honduras.
Second, Ms. Ramirez, even without a translator, testified that gangs may target Nunez-
Ramirez, and a written statement reiterated that point. As did a written statement by Nunez-
Ramirez’s grandmother. All of which shows the absence of an interpreter did not prevent
4
Nunez-Ramirez from reasonably presenting his case and cannot ground a due process
claim. 3
Nor can Nunez-Ramirez show “a reasonable likelihood that the result would have
been different.” United States v. Charleswell, 456 F.3d 347, 362 (3d Cir. 2006). The IJ
denied Nunez-Ramirez’s application for withholding in part because his proposed
particular social group lacked “discrete and definable boundaries.” (A.R. at 424.) That
dispositive finding remains even if Ms. Ramirez testified with a translator. 4
B. Asylum
An asylum application must normally be filed within one year of entering the United
States, but that deadline may be extended if the applicant “maintained Temporary Protected
Status . . . until a reasonable period before the filing of the asylum application.” 8 C.F.R.
§ 208.4(a)(2), (5)(iv). Nunez-Ramirez maintained his TPS for eighteen years, until it was
revoked in 2018 after his third DUI conviction. Nunez-Ramirez, through counsel, did not
make an asylum claim or assert an exception to the one-year limitation. The BIA did not
abuse its discretion in declining to consider an argument that could have been made in
previous proceedings. See 8 C.F.R. § 1003.2(c)(1).
3
B.C. v. Att’y Gen., 12 F.4th 306 (3d Cir. 2021) does not alter that conclusion. B.C.
concerned a pro se petitioner facing deportation, not a witness called by counsel. A witness
who Nunez-Ramirez’s counsel stated was “competent” to testify in English. (A.R. at 452.)
And B.C. recognized the need to show prejudice from an alleged agency error. 12 F.4th at
318. Nunez-Ramirez has not, because the BIA’s denial rested in part on his inadequate
proposed social group.
4
Nunez-Ramirez proposes a new social group, but he offers no previously
unavailable evidence that supports this changed theory on appeal.
5
III.
For these reasons, we will deny Nunez-Ramirez’s petition.
6