Santos-Mendoza v. Lynch

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 18, 2015
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Elisabeth A. Shumaker
Clerk of Court
MIGUEL SANTOS-MENDOZA,
Petitioner,
No. 15-9506
v. (Petition for Review)
LORETTA E. LYNCH, United States
Attorney General,
Respondent.
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ORDER AND JUDGMENT
_________________________________
Before HARTZ, TYMKOVICH, and MORITZ, Circuit Judges.
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Miguel Santos-Mendoza, a native and citizen of Mexico, petitions for review
of a Board of Immigration Appeals’ (BIA) decision affirming an Immigration Judge’s
(IJ) denial of his motion to reopen the IJ’s 1990 order directing Santos-Mendoza’s
removal to Mexico. The BIA affirmed the denial of the motion as untimely and

Loretta E. Lynch is substituted for Eric H. Holder, Jr., as the respondent in
this action. See Fed. R. App. P. 43(c)(2).

After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value. See Fed. R. App. P. 32.1; 10th Cir.
R. 32.1.
dismissed Santos-Mendoza’s appeal. Exercising jurisdiction under 8 U.S.C.
§ 1252(a)(1), we deny Santos-Mendoza’s petition for review.
In March 1990, the Immigration and Naturalization Service (INS) instituted
removal proceedings against Santos-Mendoza alleging he entered the United States in
August 1989 without inspection. In April 1990, the IJ determined Santos-Mendoza
was removable for the reasons alleged by the INS and directed Santos-Mendoza’s
removal to Mexico. Almost immediately after his removal, Santos-Mendoza illegally
reentered the United States and he has remained here since 1990.
In July 2013, Santos-Mendoza moved to reopen the IJ’s 1990 removal order
based on (1) his presence in the United States since 1990, (2) the citizenship and
permanent residency status of several of his children, (3) his Mexican citizen wife’s
current application for a visa through her United States citizen brother, (4) his lack of
significant criminal history, and (5) the fact that he was “in the process of filing for
adjustment of status . . . when his prior order of removal was reinstated and he was
ordered to leave the United States.” Admin. R. at 62-63. The IJ denied the motion to
reopen as untimely because it was filed more than 90 days after the 1990 removal
order. The IJ also noted that Santos-Mendoza was not eligible to adjust his status
given his illegal reentry after the 1990 removal.
Santos-Mendoza appealed to the BIA, arguing the IJ failed to recognize that he
sought reopening to apply for withholding of removal and protection under the
Convention Against Torture (CAT) given “significant changes in Mexico” since
1990. Id. at 26-30. The BIA affirmed the IJ’s denial of the motion and dismissed the
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appeal, reasoning the motion was untimely and Santos-Mendoza failed to
demonstrate any exceptions to the time bar because Santos-Mendoza neither relied on
the CAT in his motion to reopen nor presented any evidence to either the IJ or the
BIA regarding the changed conditions.
In this timely petition for review,1 Santos-Mendoza contends both the IJ and
the BIA “failed to take into account that [he] is raising Withholding and CAT in his
motion to reopen, and there has been a significant change in his country’s condition
that should warrant [his] case to be reopened.” Pet’r Br., at 6-9.
We review a BIA order denying a motion to reopen for abuse of discretion.
Wei v. Mukasey, 545 F.3d 1248, 1254 (10th Cir. 2008). “The BIA abuses its
discretion when its decision provides no rational explanation, inexplicably departs
from established policies, is devoid of any reasoning, or contains only summary or
conclusory statements.” Maatougui v. Holder, 738 F.3d 1230, 1239 (10th Cir. 2013)
(quotations omitted). When, as here, a single member of the BIA issues a brief order
affirming the IJ’s decision, the BIA order “constitutes the final order of removal
under 8 U.S.C. § 1252(a), and thus [we] will not affirm on grounds raised in the IJ
decision unless they are relied upon by the BIA.” Sidabutar v. Gonzales, 503 F.3d
1116, 1123 (10th Cir. 2007) (internal quotation marks omitted).
1
Santos-Mendoza timely filed his petition for review on December 11, 2014,
but mistakenly filed it in the Ninth Circuit. The Ninth Circuit transferred the petition
to this court on January 15, 2015. Venue in this court is proper because Santos-
Mendoza’s removal proceedings concluded in Aurora, Colorado. See Admin R. at 43;
8 U.S.C. § 1252(b)(2).
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A motion to reopen an IJ decision “must be filed within 90 days of the date of
entry of a final administrative order of removal, deportation, or exclusion, or on or
before September 30, 1996, whichever is later.” 8 C.F.R. § 1003.23(b)(1); see also 8
U.S.C. §§ 1229a(c)(7)(A), (C)(i) (providing an applicant generally may file one
motion to reopen within 90 days of the final order of removal). Because the IJ’s order
directing Santos-Mendoza’s removal to Mexico became final in April 1990, he had
until September 30, 1996, to file a timely motion. Yet Santos-Mendoza did not file
his motion to reopen until July 2013—nearly 17 years later. The BIA did not abuse
its discretion in affirming the IJ’s denial of this untimely motion.
The BIA also properly rejected Santos-Mendoza’s argument that the IJ failed
to recognize that it could consider his untimely motion because he “expressed the
desire to seek relief under Withholding and CAT” based on “significant changes in
Mexico” since 1990. Admin. R. at 29. The 90-day limitation does not apply if the
movant seeks reopening to apply for “withholding of removal under the Convention
Against Torture . . . based on changed country conditions arising in the country of
nationality or the country to which removal has been ordered.” 8 C.F.R.
§ 1003.23(b)(4)(i); see also 8 U.S.C. § 1229a(c)(7)(C)(ii). As the BIA noted here,
Santos-Mendoza asserted several different circumstances justifying reopening his
removal order, but he did not seek withholding of removal or CAT protection based
on changed conditions in Mexico. Under these circumstances, we hold the BIA did
not abuse its discretion in concluding Santos-Mendoza failed to establish any
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exceptions to the 90-day time bar and we deny Santos-Mendoza’s petition for review.
Entered for the Court
Nancy L. Moritz
Circuit Judge
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