Misternovo Bamaca-Cifuentes v. Attorney General United States , 870 F.3d 108 ( 2017 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 16-3104
_____________
MISTERNOVO BAMACA-CIFUENTES;
BYRON DONALDO BAMACA-BAUTISTA;
ABNER ABDIEL BAMACA-BAUTISTA,
Petitioners
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
_____________
On Petition for Review of a Final Order
Of the Board of Immigration Appeals
(Agency Nos. A070-673-932, A097-973-615, A097-761-129)
Immigration Judge: Steven A. Morley
_____________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
February 6, 2017
____________
Before: McKEE, COWEN and FUENTES, Circuit Judges.
(Opinion Filed: August 29, 2017)
_____________________
Theodore J. Murphy, Esq.
Murphy Law Firm
320 North High Street
West Chester, PA 19380
Attorney for Petitioners
Todd J. Cochran, Esq.
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Attorneys for Respondent
______________
OPINION OF THE COURT
______________
McKEE, Circuit Judge.
I. INTRODUCTION
Petitioners ask us to decide if the Board of Immigration
Appeals abused its discretion by denying an untimely motion
to reopen removal proceedings arising from a request for
protection under the U.N.’s Convention Against Torture or
“CAT.” Their petition requires us to determine if the time bar
contained in 8 C.F.R. § 1003.2(c) applies to motions to reopen
based on a request for withholding of removal under the CAT.
We have previously held that the time limitation does apply to
these motions to reopen, but we have only done so in a non-
precedential opinion that is not binding on this court. We now
take the opportunity to affirm that principle in this precedential
opinion. Accordingly, for the reasons that follow, we will hold
that the procedural requirements in 8 C.F.R. § 1003.2(c) apply
with equal force to motions to reopen removal proceedings
involving protection under the CAT. We will therefore deny
this petition for review.
2
II. FACTS AND PROCEDURAL HISTORY
Misternovo Bamaca-Cifuentes and his sons, Byron
Donaldo Bamaca-Bautista and Abner Abdiel Bamaca-
Bautista 1 are natives and citizens of Guatemala who first
entered the United States in 1990, 1998, and 2004,
respectively. 2 In 1999, Misternovo filed an application for
suspension of deportation or special rule cancellation of
removal under the Nicaraguan Adjustment and Central
American Relief Act (NACARA) that listed his sons as
derivatives. 3 The United States Citizenship and Immigration
Services refused to grant the NACARA application and
referred the petition to an Immigration Judge for adjudication.
In May 2008, the Department of Homeland Security
initiated removal proceedings against Misternovo and his two
sons. They were charged with removability as aliens who were
in the United States without being admitted or paroled, under
8 U.S.C. § 1182(a)(6)(A)(i). 4 At a hearing before the
Immigration Judge, Misternovo admitted the allegations
contained in the Notices to Appeal, and the Immigration Judge
ruled that Petitioners were therefore removable as charged.
Later, in January 2012, Misternovo’s NACARA
application received a full merits hearing before an
1
In order to avoid confusion, we refer to the three petitioners
by their first names.
2
Misternovo left the United States in October 1996, after his
wife was deported. He then returned in early 1997.
3
Misternovo also filed an application for asylum in 1993,
alleging persecution based on claimed membership in a
particular social group—specifically, the civil patrol in
Guatemala—but he later withdrew that application in January
2012.
4
DHS later added an additional charge of inadmissibility
against Abner, alleging that he was an alien who had been
convicted of, or who admitted committing the essential
elements of, a crime involving moral turpitude, pursuant to 8
U.S.C. § 1182(a)(2)(A)(i)(I). In 2007, Abner was convicted of
theft and conspiracy in the third degree, in violation of the
Delaware Criminal Code.
3
Immigration Judge. 5 The Immigration Judge denied the
NACARA application, holding that Misternovo had failed to
establish that he had timely registered for benefits pursuant to
the American Baptist Churches v. Thornburgh settlement
agreement; 6 consequently, Petitioners were ordered removed
to Guatemala. Petitioners thereafter timely appealed, but the
appeal was dismissed by the Board on May 29, 2013. The BIA
concluded that the IJ had properly denied Misternovo’s
NACARA application. Petitioners did not seek review of that
Board decision.
More than two years later, on December 21, 2015,
Petitioners filed a motion to reopen with the Board based on
changed country conditions in Guatemala. DHS opposed the
motion and the Board denied it on June 14, 2016. The Board
found that Petitioners had “not demonstrated a material change
in country conditions since the time they last appeared before
the Immigration Judge.” 7 This timely petition for review
followed.
III. JURISDICTION AND STANDARD OF REVIEW
The Board of Immigration Appeals had jurisdiction
over Petitioners’ motion to reopen under 8 C.F.R. §§
1003.1(b)(3), 1003.2(a), and 1240.15. We have jurisdiction to
5
Misternovo also withdrew his application for asylum at this
time.
6
760 F. Supp. 796 (N.D. Cal. 1991). Under the terms of what
has come to be known as the “ABC settlement agreement,”
eligible Guatemalans and Salvadorans are entitled to certain
immigration benefits. In order to qualify for these benefits, a
Guatemalan must have (1) been physically present in the U.S.
before September 19, 1990 and (2) sent in an ABC
registration form by December 31, 1999. See U.S. Citizenship
& Immigration Servs., American Baptist Churches v.
Thornburgh (ABC) Settlement Agreement,
https://www.uscis.gov/laws/legal-settlement-
notices/american-baptist-churches-v-thornburgh-abc-
settlement-agreement (last visited Aug. 10, 2017). In this
case, the IJ found that Misternovo had failed to comply with
the registration requirement.
7
Ohio App. at 4.
4
review the Board’s final orders of removal under Section
242(a)(1) of the Immigration and Nationality Act, 8 U.S.C. §
1252(a)(1). “We review the denial of a motion to reopen for
abuse of discretion and may reverse only if the denial is
arbitrary, irrational, or contrary to law.” 8
IV. DISCUSSION
It is clear from the unambiguous text of 8 C.F.R. §
1003.2(c) that the time and number restrictions in that
regulation apply to all motions to reopen removal proceedings,
regardless of the motion’s underlying basis for relief:
. . . an alien may file only one motion to reopen
removal proceedings (whether before the Board
or the Immigration Judge) and that motion must
be filed no later than 90 days after the date on
which the final administrative decision was
rendered in the proceeding sought to be
reopened. 9
The next section of the regulations, 8 C.F.R. § 1003.2(c)(3),
outlines exceptions to the time and number restrictions
articulated in 8 C.F.R. § 1003.2(c)(2). The section applicable
here is 8 C.F.R. § 1003.2(c)(3)(ii), which provides that:
The time and numerical limitations set forth in
paragraph (c)(2) of this section shall not apply to
a motion to reopen proceedings. . . . To apply or
reapply for asylum or withholding of deportation
based on changed circumstances arising in the
country of nationality or in the country to which
deportation has been ordered, if such evidence is
material and was not available and could not
have been discovered or presented at the
previous hearing. 10
8
Contreras v. Att’y Gen. of U.S., 665 F.3d 578, 583 (3d Cir.
2012) (citing Shardar v. Att’y Gen. of U.S., 503 F.3d 308,
311–12 (3d Cir. 2007)).
9
8 C.F.R. § 1003.2(c)(2).
10
8 C.F.R. § 1003.2(c)(3)(ii). This regulation echoes the
language of the INA, which states:
There is no time limit on the filing of a motion
to reopen if the basis of the motion is to apply
5
Thus, the 90-day time bar (and restriction to file only one
motion) will be waived for motions to reopen that (1) apply or
reapply for asylum or withholding of deportation that are (2)
based on changed country conditions and (3) supported by
material evidence unavailable at the previous hearing. This
changed-circumstances regulation effectively creates a
“procedural hurdle that must be overcome before an untimely
motion to reopen may be considered.” 11
Despite these procedural hurdles, Petitioners claim that
the Board abused its discretion “by not conducting a thorough
analysis of any of Petitioners’ evidence that support their
claims for [relief pursuant to the] CAT.” 12 Thus, Petitioners
imply that the Board, when evaluating their untimely motion
to reopen, should have ignored the time bar of 8 C.F.R. §1003.2
and its exceptions, and proceeded directly to the merits of the
underlying CAT claim. This implication, however, is not
“supported by the logic of our precedents and by holdings of
our sister circuits.” 13
As we noted at the outset, we have already concluded in
a non-precedential opinion that 8 C.F.R. §1003.2’s time bar
applies to motions to reopen removal proceedings seeking
withholding of removal under the CAT. In Thomas v. Attorney
for [asylum or withholding of removal] and is
based on changed country conditions 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 hearing.
8 U.S.C. §1229a(c)(7)(C)(ii).
11
Thomas v. Att’y Gen. of U.S., 308 F. App’x 587, 593 (3d
Cir. 2009) (citing Shardar, 503 F.3d at 314).
12
Petitioners’ Br. at 12.
13
Go v. Holder, 744 F.3d 604, 607 (9th Cir. 2014). In
addition, the First Circuit has applied 8 C.F.R. § 1003.2(c) to
CAT claims. Gasparian v. Holder, 700 F.3d 611, 613 (1st
Cir. 2012) (holding that new evidence of changed conditions
failed to establish a prima facie case of claims for asylum,
withholding of removal, or CAT relief).
6
General, we applied the time and number limitations of 8
C.F.R. § 1003.2(c) to a motion to reopen removal proceedings
involving relief under the CAT that was based on changed
country conditions. 14 The panel’s reasoning denying that
motion is persuasive, and we adopt our colleagues’ analysis in
this precedential opinion. We also note that the Court of
Appeals for the Ninth Circuit has correctly concluded in Go v.
Holder that “it appears that every circuit to have considered the
question [of whether 8 C.F.R. § 1003.2(c) applies to motions
to reopen to seek protection under the CAT] has concluded that
it does.” 15
Accordingly, we must now determine whether the
Board erred in relying on 8 C.F.R. § 1003.2(c) to reject
Petitioners’ “Motion to Reopen Removal Proceedings Based
on Changed Country Conditions.” 16 If the Board correctly
concluded that (1) the Petitioners’ motion to reopen was
untimely, and (2) the untimely motion did not meet the
changed country conditions exception, then the Board was
procedurally barred from examining the underlying merits of
any of Petitioners’ claims, including their claim for
withholding of removal under the CAT. Thus, in order to
resolve Petitioners’ appeal, we must determine whether these
two conditions were met.
We begin with the timeliness of Petitioners’ motion to
reopen. Petitioners filed their motion to reopen on December
21, 2015, well past 90 days after the Board’s “final
administrative decision” on May 29, 2013. 17 Though the Board
did not explicitly state that Petitioners’ motion was untimely,
its consideration of the changed country conditions exception
14
308 F. App’x at 591.
15
Go, 744 F.3d at 608–09 (collecting unpublished opinions
from the Second, Third, Sixth, and Eleventh Circuits)).
16
Ohio App. at 19.
17
8 C.F.R. § 1003.2(c)(2); 8 C.F.R. § 1003.39. The
government repeatedly characterizes December 21, 2015 as
being “nearly four years” after May 29, 2013. Respondent’s
Br. at 2, 6, 13. Though this is plainly wrong, it does not
change the fact that the 90 days had elapsed well before
Petitioners filed their motion to reopen.
7
necessarily implies this finding. 18 The Board clearly did not err
in this finding, as the untimely nature of the petition is obvious.
We must next examine whether the Board erred in
concluding that Petitioner did not meet the changed country
conditions exception. As explained above, we can only reverse
the Board’s conclusion that the motion did not meet the
changed country conditions exception if that decision were
“arbitrary, irrational, or contrary to law.” 19 It is clear on this
record that the decision was not arbitrary, irrational or contrary
to law.
To meet the changed country conditions exception,
Petitioners had to prove changed conditions in Guatemala by
providing evidence that (1) is material, and (2) “was not
available and could not have been discovered or presented at
the previous hearing.” 20 The Board found that Petitioners could
not satisfy either prong. In reviewing the motion to reopen, the
Board noted that Petitioners provided “applications for asylum,
United States government reports and non-governmental
reports relating to country conditions in Guatemala; media
reports covering Guatemala; an affidavit prepared by
[Misternovo]; and, letters from persons in Guatemala advising
of the situation there and the changes since [Petitioners] left 23
years ago.” 21 Because Petitioners’ motion did “not make clear
the exact onset of the changed country conditions underlying
the current request for relief,” the Board considered evidence
submitted that postdated January 31, 2012—the date of
Petitioners’ hearing before the Immigration Judge. 22 After
review of Petitioners’ evidence, the Board concluded that
Petitioners failed to demonstrate a material change in country
18
Ohio App. at 3 (“We will consider the respondents’ motion based
upon the assertion of changed country conditions in the
respondents’ county of nationality and the evidence that has
been submitted in support thereof that postdates the
respondents’ hearing before the Immigration Judge.”).
19
Contreras, 665 F.3d at 583.
20
8 C.F.R. § 1003.2(c)(3)(ii).
21
Ohio App. at 3.
22
App. at 3–4 (citing 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R.
§ 1003.2(c)(3)(ii); Matter of J-J-, 21 I&N Dec. 965 (BIA
1997)).
8
conditions since that date, and therefore refused to reopen the
proceedings. 23
A review of the evidence submitted confirms that it
largely dealt with ongoing problems in Guatemala, and did not
provide a basis for finding that there was a material change in
conditions there after January 2012. 24 Because the Board’s
decision is supported by the evidence, it cannot be
characterized as arbitrary, irrational, or contrary to law. Thus,
the Board’s failure to address Petitioners’ underlying claims
for protection under the CAT was not an abuse of discretion. 25
V. CONCLUSION
For the foregoing reasons, we will deny the petition for
review.
23
Ohio App. at 4.
24
Indeed, Petitioners’ evidence summaries note that some of
Guatemala’s street gangs “have been in operation for
decades,” discuss the “Continued Corruption and Government
Collusion with Criminal Organizations,” and detail the
ongoing repercussions of the Guatemalan civil war that lasted
from 1960–1996. App. at. 26, 30, 94–95.
25
Shardar, 503 F.3d at 314–15.
9