CORDON GOMEZ v. WILKINSON (2021)

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

Summary · law.co

Holding. The petition was denied because the second motion to reopen was numerically barred and untimely under immigration statutes and regulations, the petitioners failed to demonstrate an exception to these limits, and the new threats, while serious, were not qualitatively different from those presented in the first motion such that the BIA abused its discretion in denying reopening.

Two Salvadoran nationals sought to reopen their removal proceedings before the Board of Immigration Appeals by filing a second motion to reopen. The petitioners presented evidence of renewed threats from the mother's ex-spouse, including threats involving a machete, which they argued constituted changed circumstances warranting reopening. The court reviewed the BIA's denial of the motion under an abuse-of-discretion standard and concluded the BIA acted properly in rejecting the petition.

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 satisfies statutory and regulatory requirements
Whether new evidence of threats constitutes a material changed circumstance not available at the prior hearing
Standard of review for BIA denial of motions to reopen

Procedural posture

The petitioners appealed the BIA's denial of their second motion to reopen removal proceedings to the Court of Appeals for the Ninth Circuit.

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