Benjamin Monterroso-Morales v. Attorney General United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
Nos. 12-4229 and 13-1248
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BENJAMIN FELIX MONTERROSO-MORALES,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A088 231 074)
Immigration Judge: Honorable Mirlande Tadal
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
August 14, 2013
Before: RENDELL, CHAGARES and NYGAARD, Circuit Judges
(Opinion filed: August 15, 2013)
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OPINION
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PER CURIAM
Benjamin Monterroso-Morales petitions for review of an order of the Board of
Immigration Appeals (“BIA”) denying his motion to reopen his immigration proceedings
and an order denying his motion to reconsider that ruling. For the reasons that follow, we
will deny the petitions, which have been consolidated for our review.
Monterroso-Morales, a native and citizen of Guatemala, entered the United States
in 1995 without inspection. In 2007, a notice to appear was issued charging that
Monterroso-Morales was subject to removal because he was present in the United States
without having been admitted or paroled. Monterroso-Morales conceded his
removability and applied for cancellation of removal. The Immigration Judge denied the
application because Monterroso-Morales had not shown that, if removed, his family
would suffer exceptional and extremely unusual hardship. The BIA dismissed
Monterroso-Morales’ appeal in 2009. We dismissed Monterroso-Morales’ petition for
review for lack of jurisdiction. Monterroso-Morales v. Att’y Gen., 429 F. App’x 149,
150 (3d Cir. 2011) (unpublished decision).
In 2012, Monterroso-Morales moved to reopen his proceedings. He sought to
apply for asylum based on alleged changed conditions in Guatemala. Monterroso-
Morales claimed that he was at risk of harm and submitted evidence of threats and
violence against his family.
The BIA denied the motion as untimely and concluded that Monterroso-Morales
had not shown changed country conditions arising in Guatemala since his 2007 merits
hearing that would affect his eligibility for relief. The BIA explained that the evidence
submitted, including affidavits, police reports, and other reports and news articles, did not
establish a change in conditions, but showed a continuation of the civil strife and criminal
activity that Monterroso-Morales has feared since he left Guatemala in 1995. The BIA
also ruled that Monterroso-Morales had not shown that he is prima facie eligible for
asylum or withholding of removal based on evidence of general violence in Guatemala or
2
evidence of threats to his family by unknown individuals. In addition, the BIA stated that
Monterroso-Morales had not shown any change in Guatemala making it now more likely
than not he would face torture with the consent or acquiescence of the government.1
Monterroso-Morales filed a timely motion to reconsider the denial of his motion to
reopen, disputing the BIA’s conclusion that he had not established his prima facie
eligibility for asylum. The BIA denied the motion, explaining that, in order for his
untimely motion to reopen to be considered, Monterroso-Morales also had to show
changed country conditions and had not done so. The BIA also rejected Monterroso-
Morales’ contention that it had failed to consider the evidence he had submitted.
Monterroso-Morales petitions for review of the denial of reopening and
reconsideration. We have jurisdiction pursuant to 8 U.S.C. § 1252(a). Our standard of
review is abuse of discretion. Borges v. Gonzales, 402 F.3d 398, 404 (3d Cir. 2005).
A motion to reopen must be filed within 90 days of the date of entry of a final
administrative order of removal. 8 U.S.C. § 1229a(c)(7)(C)(i). Monterroso-Morales’
motion was filed almost three years after the final administrative order in his case. He
thus relied on the exception to the time requirement allowing a motion to reopen to be
filed any time where the motion is “based on changed country conditions arising in the
country of nationality . . . , if such evidence is material and was not available and would
not have been discovered or presented at the previous proceeding.” Id.
§ 1229a(c)(7)(C)(ii).
1
The BIA also rejected any claim of ineffective assistance of counsel raised by
Monterroso-Morales and ruled that he had not shown exceptional circumstances
3
Monterroso-Morales argues in his brief that conditions in Guatemala have
deteriorated but he points to no evidence of record supporting that contention. To the
extent he relies on the affidavit of Victoria Sanford, which describes conditions in
Guatemala, that affidavit does not address how conditions in Guatemala have changed
since his hearing in 2007.2 Monterroso-Morales appears to primarily rely on evidence of
threats and violence against his family by unknown persons since his hearing, but these
acts also do not establish changed country conditions. See Liu v. Att’y Gen., 555 F.3d
145, 150-51 (3d Cir. 2009) (an alien seeking to file an untimely or successive asylum
application based on changed personal circumstances must show changed country
conditions when a motion to reopen is filed after the 90-day time limit expires). Thus,
Monterroso-Morales has not called into question the BIA’s conclusion that he did not
show changed conditions arising in Guatemala since his 2007 merits hearing.3
Because Monterroso-Morales has not shown that he submitted evidence of
changed country conditions, we need not address his arguments that he established prima
warranting reopening the proceedings sua sponte. These rulings are not at issue.
2
Sanford’s statement that the recent election of former General Otto Perez Molina as
President is “problematic” because his administration includes military officers and he
has “revamped the army’s anti-communist discourse of the 1980s into an anti-human
rights discourse” does not explain how conditions have changed. A.R. at 84.
3
The BIA’s statement that the evidence shows a continuation of the civil strife and
criminal activity that Monterroso-Morales has feared since 1995 appears to recognize
statements in his affidavit that he left Guatemala because he feared harm by the army and
guerillas and Sanford’s statements that he is at risk of harm by these groups today.
Although this evidence does not preclude a finding that conditions have deteriorated
since 2007, the administrative record supports the BIA’s conclusion that Monterroso-
Morales did not show such a change.
4
facie eligibility for asylum or that the BIA failed to consider the equities in his case. See
Shardar v. Att’y Gen., 503 F.3d 308, 312 (3d Cir. 2007) (noting that establishing changed
country conditions is a threshold requirement that allows an untimely motion to reopen to
be brought).
Finally, Monterroso-Morales argues that the BIA violated his due process rights
by failing to properly review the record and failing to refer to the evidence of country
conditions, including Sanford’s report, in its decision. As noted above, the BIA referred
to the affidavits, police reports, and reports and news articles submitted with Monterroso-
Morales’ motion and concluded that they did not show changed conditions. Monterroso-
Morales has not shown that the BIA failed to consider any evidence of changed country
conditions since his hearing or otherwise abused its discretion in denying his motions to
reopen and reconsider.
Accordingly, we will deny the petitions for review.4
4
Monterroso-Morales’ request for oral argument is denied.
5