Alvarado-Vallardes v. Mukasey , 296 F. App'x 419 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 21, 2008
No. 08-60048
Summary Calendar Charles R. Fulbruge III
Clerk
VICTOR MANUEL ALVARADO-VALLARDES
Petitioner
v.
MICHAEL B MUKASEY, U S ATTORNEY GENERAL
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A98 682 510
Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
In January 2006, Victor Manuel Alvarado-Vallardes (Alvarado), a native
and citizen of El Salvador, was ordered removed in absentia after he failed to
appear at a removal hearing and answer charges that he was an alien present
in the United States without being admitted or paroled. He filed a motion to
reopen removal proceedings in May 2007 claiming, inter alia, that he had not
understood the removal process in January 2006, and that gang-related
circumstances in El Salvador had worsened sufficiently to warrant reopening
*
Pursuant to 5TH CIR. R. 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should not be published and is not precedent except under the limited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 CIR. R. 47.5.4.
No. 08-60048
proceedings despite the untimeliness of his motion. In his petition for review,
Alvarado argues that the Board of Immigration Appeals (BIA) abused its
discretion by dismissing his appeal from the immigration judge’s (IJ’s) order
denying that motion. He challenges only the BIA’s holding that he had failed to
show materially changed conditions in El Salvador, and he has abandoned his
claim that his failure to attend the January 2006 hearing was justified. See
Soadjede v. Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003).
This court generally reviews only the BIA’s decision, not that of the IJ,
except to the extent that the IJ’s decision influences the BIA. See Mikhael v.
INS, 115 F.3d 299, 302 (5th Cir. 1997). We have jurisdiction to review the denial
of an untimely motion to reopen based on changed circumstances in the alien’s
home country. Panjwani v. Gonzales, 401 F.3d 626, 632 (5th Cir. 2005). The
denial of the motion is reviewed for an abuse of discretion and the factual
findings are reviewed for substantial evidence. Id. There is no abuse of
discretion where the BIA’s decision is not “capricious, racially invidious, utterly
without foundation in the evidence, or otherwise so aberrational that it is
arbitrary rather than the result of any perceptible rational approach.” Galvez-
Vergara v. Gonzales, 484 F.3d 798, 801 (5th Cir. 2007) (internal quotations and
citation omitted). Motions to reopen deportation proceedings are not favored.
INS v. Doherty, 502 U.S. 314, 323 (1992).
A party must ordinarily file a motion to reopen proceedings following the
issuance of an in absentia removal order no later than 180 days after the date
of the order. 8 C.F.R. § 1003.23(b)(4)(ii). The alien must also demonstrate that
the failure to appear was because of “exceptional circumstances as defined in
section 240(e)(1) of the Act.” Id. These limitations do not apply, however, to
motions to reopen 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.” See 8 C.F.R. § 1003.2(c)(3)(ii).
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No. 08-60048
Contrary to Alvarado’s assertions, the BIA’s dismissal reflects that it
considered the evidence submitted by Alvarado to show worsened conditions in
El Salvador, and found that those materials do not show material worsening of
gang-related conditions in El Salvador since January 2006. His case is thus
unlike those upon which he relies, including Gebreeyesus v. Gonzales, 482 F.3d
952, 955 (7th Cir. 2007), where the BIA was found to have rejected documents
offered in support of a motion to reopen “without any explanation.” The BIA did
not abuse its discretion in dismissing Alvarado’s appeal. See Panjwani, 401 F.3d
at 632.
AFFIRMED.
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