Lema Nogales v. Garland ( 2023 )

Case: 23-60150 Document: 00516886959 Page: 1 Date Filed: 09/07/2023
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
FILED
No. 23-60150
September 7, 2023
Summary Calendar
____________ Lyle W. Cayce
Clerk
Carlos Lema Nogales,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
______________________________
Petition for Review of an Order of the
Board of Immigration Appeals
Agency No. A092 961 344
______________________________
Before Willett, Duncan, and Douglas, Circuit Judges.
Per Curiam: *
Carlos Lema Nogales, a native and citizen of Ecuador, petitions for
review of the decision of the Board of Immigration Appeals (BIA) denying
his motion for reconsideration and motion to reopen. He filed those motions
seeking to challenge the earlier denial of his claim for deferral of removal
under the Convention Against Torture (CAT). We have jurisdiction to
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 23-60150
review the BIA’s decision. See Nasrallah v. Barr, 140 S. Ct. 1683, 1690
(2020).
The BIA’s denial of a motion to reopen or a motion for
reconsideration is reviewed under “a highly deferential abuse-of-discretion
standard.” Singh v. Gonzales, 436 F.3d 484, 487 (5th Cir. 2006) (internal
quotation marks and citation omitted). We review the BIA’s factual findings
under the substantial evidence standard. Nunez v. Sessions, 882 F.3d 499, 505
(5th Cir. 2018) (internal quotation marks and citation omitted). “A motion
to reopen proceedings shall not be granted unless it appears to the Board that
evidence sought to be offered is material and was not available and could not
have been discovered or presented at the former hearing.” 8 C.F.R.
§ 1003.2(c)(1). To qualify as “material,” the evidence “must be likely to
change the result of the alien’s underlying claim for relief.” Qorane v. Barr,
919 F.3d 904, 912 (5th Cir. 2019).
The BIA did not abuse its discretion in determining that Lema
Nogales failed to demonstrate changed country conditions warranting
reopening. The news articles he provided about violence in Ecuadorian
prisons were not material to the adverse credibility finding underlying the
prior denial of his CAT claim, as the findings of the immigration judge (IJ)
regarding his credibility were not related to the issue of prison violence in
Ecuador. Additionally, the BIA did not err in determining that the evidence
failed to show a change in country conditions that independently made it
more likely than not that Lema Nogales would be tortured in Ecuador. His
assertion that he will be detained in an Ecuadorian prison is speculative and
insufficient to support CAT relief. See Morales v. Sessions, 860 F.3d 812, 818
(5th Cir. 2017); see also Matter of F-S-N-, 28 I. & N. Dec. 1, 3 (BIA 2020).
Lema Nogales also contends that reopening was warranted because he
provided new evidence in the form of a 1994 newspaper article that
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No. 23-60150
documented the murder of his ex-wife’s father. Substantial evidence
supports the BIA’s finding that he failed to show that this article was
previously unavailable. Furthermore, the BIA did not err in finding that the
article failed to significantly rehabilitate Lema Nogales’s credibility. Most of
the discrepancies noted by the IJ in making the adverse credibility
determination were unrelated to the father’s murder. Accordingly, the BIA
did not abuse its discretion in determining that reopening was not warranted
based on the 1994 article. See Qorane, 919 F.3d at 912; § 1003.2(c)(1).
The BIA denied Lema Nogales’s motion for reconsideration because
he failed to show that administrative errors in the BIA’s earlier order had any
effect on that decision. Lema Nogales does not brief any argument here
disputing the BIA’s determination. He has thus waived any such argument
and has not shown that the BIA abused its discretion in denying his motion
for reconsideration. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993)
(recognizing that even pro se litigants must brief arguments in order to
maintain them).
The petition for review is DENIED.
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