CORDON GOMEZ v. WILKINSON (2021)

United States Court of Appeals, Ninth Circuit.2021-02-22No. No. 20-71793

Summary · law.co

Holding. The petition for review was denied because the Board of Immigration Appeals did not abuse its discretion in denying the motion to reopen, as the motion was numerically barred and untimely, and the petitioners failed to establish that new evidence constituted material changed circumstances unavailable at the previous hearing.

Salvadoran nationals Flor de Maria Cordon-Gomez and her son petitioned for review of the Board of Immigration Appeals' denial of their second motion to reopen removal proceedings. The petitioners argued that new evidence regarding threats from the petitioner's ex-spouse constituted changed circumstances warranting reopening. The court found that the second motion was barred by numerical and timing restrictions under immigration law, and that the petitioners failed to demonstrate an exception to those limitations.

The court determined that the evidence presented in the second motion—including threats that the ex-spouse would harm the petitioner with a machete—was not qualitatively different from evidence already presented in the first motion to reopen. Although acknowledging the serious nature of the threats, the court concluded the Board did not abuse its discretion in refusing to reopen proceedings. The court also rejected the petitioners' remaining arguments, including a due process claim, as unsupported and insubstantial.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether a second motion to reopen removal proceedings is barred by statutory and regulatory time limits
Whether new threats from an ex-spouse constitute material changed circumstances sufficient to overcome reopening restrictions
Whether evidence of continued threats differs qualitatively from evidence presented in a prior motion to reopen

Procedural posture

Petitioners sought Ninth Circuit review of the Board of Immigration Appeals' denial of a second motion to reopen their removal proceedings under the abuse of discretion standard.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM **

Flor de Maria Cordon-Gomez and her son, natives and citizens of El Salvador, seek review of the Board of Immigration Appeals’ (“BIA”) order denying their second motion to reopen removal proceedings. We review for abuse of discretion, Perez v. Mukasey, 516 F.3d 770, 773 (9th Cir. 2008), and deny the petition.

1. Petitioners presented essentially the same evidence as in their previous motion to reopen, and we again conclude that the BIA did not abuse its discretion in denying the motion. See Cordon-Gomez v. Barr, No. 18-70439 (9th Cir. Aug. 27, 2019), ECF No. 19 (summarily dismissing Petitioners’ first motion to reopen). The second motion is numerically barred and untimely, 8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2), and Petitioners failed to establish they qualify for an exception to these limits, 8 C.F.R. § 1003.2(c)(3)(ii) (“changed circumstances ․ evidence [must be] material and was not available and could not have been discovered or presented at the previous hearing”); Toufighi v. Mukasey, 538 F.3d 988, 996 (9th Cir. 2008). The first motion to reopen included very similar evidence of Cordon-Gomezs ex-spouses recent threats, and she believed at that time that she would “very likely be killed” if she returned. Cordon Gomez now states her ex threatened to cut her to pieces with a machete. The continued threats, while disturbing, are not qualitatively different such that we can conclude the BIA abused its discretion in denying the motion to reopen.

2. We reject as unsupported by the record and as insubstantial Petitioners’ due process argument and any other remaining issues raised in the petition. See United States v. Hooton, 693 F.2d 857, 858-59 (9th Cir. 1982).

PETITION DENIED.

The new threats to the petitioner were serious and differed substantially from the threats contained in the original application. Because this evidence “is material and could not have been discovered or presented at the previous hearing,” I would grant the petition. See 8 C.F.R. § 1003.2(c)(3)(ii). Therefore, I respectfully dissent.

FOOTNOTES

FOOTNOTE

. This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

Dissent by Chief Judge THOMAS