Guerra Portillo v. Garland ( 2021 )

Case: 20-60258 Document: 00515907417 Page: 1 Date Filed: 06/21/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
June 21, 2021
No. 20-60258
Summary Calendar Lyle W. Cayce
Clerk
Javier Enrique Guerra Portillo; Mariela Josefina Parra
Garcia; Jonas David Guerra Parra; Jeanvier Enmanuel
Guerra Parra,
Petitioners,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A087 352 525
BIA No. A087 352 526
BIA No. A087 352 527
BIA No. A087 352 528
Before Wiener, Southwick, and Duncan, Circuit Judges.
Per Curiam:*
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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No. 20-60258
Javier Enrique Guerra Portillo, along with his wife, Mariela Josefina
Parra Garcia, and their two children, Jonas David Guerra Parra and Jeanvier
Enmanuel Guerra Parra, petition this court for review of the decision of the
Board of Immigration Appeals (BIA) denying their second motion to reopen.
Guerra Portillo argues the BIA abused its discretion in denying his motion to
reopen because the evidence compels the conclusion that the conditions in
Venezuela have materially changed since his initial removal proceeding in
2009 and that a person who does not demonstrate support for the
government would be materially less safe today than in 2009. In addition, he
asserts that the BIA erred in declining to exercise its sua sponte power to
reopen his proceedings based on the changed conditions in Venezuela.
We review the denial of a motion to reopen under the “highly
deferential abuse-of-discretion standard.” Lugo-Resendez v. Lynch, 831 F.3d
337, 340 (5th Cir. 2016) (internal quotation marks and citation omitted).
“Under that standard, the BIA’s ruling will stand, even if this court
concludes it is erroneous, so long as it is not capricious, racially invidious,
utterly without foundation in the evidence, or otherwise so irrational that it
is arbitrary rather than the result of any perceptible rational approach.”
Singh v. Lynch, 840 F.3d 220, 222 (5th Cir. 2016) (internal quotation marks
and citation omitted). The court will affirm the BIA’s factual findings
“unless the evidence ‘compels a contrary conclusion.’” Nunez v. Sessions,
882 F.3d 499, 505 (5th Cir. 2018) (citation omitted).
A petitioner may file a motion to reopen beyond the 90-day limitations
period if the motion is based on changed country conditions and the
petitioner submits “new facts” supported by “material” evidence that was
unavailable or undiscoverable at the prior proceeding. 8 C.F.R.
§ 1003.2(c)(1)-(3); 8 U.S.C. § 1229a(c)(7). To establish changed country
conditions, the petitioner must present evidence showing “a meaningful
comparison” between conditions in his home country at the time of the
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No. 20-60258
motion to reopen and those at the time of the removal hearing. Nunez, 882
F.3d at 508. He must also relate the changed conditions to his specific claims.
Ramos-Lopez v. Lynch, 823 F.3d 1024, 1026 (5th Cir. 2016).
Guerra Portillo has not shown that the BIA abused its discretion in
denying his second motion to reopen. See Nunez, 882 F.3d at 508. He
presented evidence very similar to that presented in his first motion to
reopen; we denied his petition for review of the denial of that motion. See
Guerra Portillo v. Whitaker, 748 F. App’x 624, 625 (5th Cir. 2019). The BIA
found the evidence presented did not demonstrate a material change in the
country conditions since his 2009 removal proceedings, and he has not
shown that the evidence compels a contrary conclusion. See Nunez, 882 F.3d
at 505. The evidence he presented did not establish that conditions have
materially changed for Jehovah’s Witnesses, but rather that they remained
subject to the same ongoing, poor conditions as the rest of the Venezuelan
population. See Deep v. Barr, 967 F.3d 498, 500–03 (5th Cir. 2020). Because
the BIA did not abuse its discretion in denying the motion to reopen on the
basis that Guerra Portillo did not establish changed country conditions, we
need not reach his claims concerning his eligibility for asylum, withholding of
removal, and relief under the CAT. See Ramos-Lopez, 823 F.3d at 1026.
We lack jurisdiction to review the BIA’s refusal to reopen removal
proceedings sua sponte because that decision is committed to the agency’s
discretion. See Hernandez-Castillo v. Sessions, 875 F.3d 199, 206-07 (5th Cir.
2017). Further, our precedent on this issue has not been altered by any
Supreme Court decision. See, e.g., Hernandez-Castillo, 875 F.3d at 206-07 &
n.3; Qorane v. Barr, 919 F.3d 904, 911-12 (5th Cir. 2019).
Accordingly, the petition is DENIED in part and DISMISSED in
part for lack of jurisdiction.
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