Summary
The Fifth Circuit denied in part and dismissed in part a petition for review of the BIA's denial of a motion to reopen an in absentia removal order. The court held that the petitioner failed to demonstrate a material change in country conditions in El Salvador, as evidence of ongoing gang violence and changed personal circumstances was insufficient to warrant reopening for asylum or withholding of removal. The court also lacked jurisdiction over an unexhausted claim regarding the BIA's standard of review. The decision underscores that motions to reopen are disfavored and reviewed for abuse of discretion, and that personal changes do not equate to changed country conditions.
Topics
Practice areas
Questions Presented
- Whether the BIA and IJ erred in denying the motion to reopen based on failure to demonstrate materially changed country conditions
- Whether the BIA employed an incorrect standard of review (not exhausted, so dismissed for lack of jurisdiction)
Holdings
- The BIA did not abuse its discretion in denying the motion to reopen because the evidence presented only continuing gang violence and changed personal circumstances, which do not constitute materially changed country conditions.
- This court lacks jurisdiction to consider the claim that the BIA employed an incorrect standard of review because Alvarenga-Quijano failed to exhaust her administrative remedies as to that claim.
Key quotations
“A motion to reopen is a form of procedural relief that asks the [BIA] to change its decision in light of newly discovered evidence or a change in circumstances since the hearing.” (2)
“This court must affirm the BIA's decision unless it is '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.'” (2-3)
“We have upheld the denial of motions to reopen 'where the evidence of changed conditions shows only a continuance of ongoing violence in the home country.'” (3)
Factual background
Alvarenga-Quijano, a native and citizen of El Salvador, was ordered removed in absentia in 2004. She moved to reopen to rescind the order and apply for asylum or withholding of removal, claiming changed country conditions due to escalating gang violence in El Salvador. She argued that her sister witnessed a gang murder and that gangs have her under watch, and that she would be tracked if deported. She also argued that gang violence has worsened since she left.
Procedural history
The BIA dismissed Alvarenga-Quijano's appeal of the IJ's denial of her motion to reopen her 2004 in absentia removal order.