PORTILLO v. WILKINSON (2021)

United States Court of Appeals, Ninth Circuit.2021-03-09No. No. 19-72444 20-70250

Summary · law.co

Holding. The petitions for review are denied. The BIA did not abuse its discretion in denying Portillo's motion to reopen or his motion to reconsider.

Willman Portillo, a Salvadoran citizen, sought review of the Board of Immigration Appeals' decisions denying his motions to reopen immigration proceedings and to reconsider those denials. The court examined whether the BIA abused its discretion in rejecting these motions under the applicable standard of review.

The BIA properly denied Portillo's motion to reopen on multiple independent grounds. First, the motion was procedurally defective because Portillo failed to attach the required application form (Form I-589) to his motion, despite claiming a prior version existed in the record. Second, the motion was time- and number-barred, as it was his second motion filed more than eight years after the original removal order. Third, even if exceptions applied based on changed country conditions, Portillo failed to meet the required burden of proof. He asserted a fear of gang violence and cited deaths of relatives but provided no evidence establishing that gang violence—as opposed to other criminal motives—was the reason for those deaths, which is necessary to connect the harm to a protected ground for asylum.

The BIA also correctly denied Portillo's motion to reconsider because it merely restated arguments already presented without identifying any legal or factual error in the prior decision or providing new evidence about his relatives' deaths.

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

Key issues

Whether motion to reopen was procedurally defective for failure to attach required application form
Whether motion to reopen was time- and number-barred under regulatory limits
Whether changed country conditions exception applied when petitioner failed to show nexus between alleged persecution and protected ground
Whether motion to reconsider merely reiterated previously presented arguments

Procedural posture

Portillo petitioned for review of the BIA's denial of his motion to reopen immigration proceedings and his motion to reconsider that denial.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM **

Willman Portillo, a citizen of El Salvador, petitions for review of the Board of Immigration Appeals’ (“BIA”) orders denying his motion to reopen his proceedings and his motion for reconsideration of that order.

We review the BIAs denial of motions to reopen and to reconsider for abuse of discretion. Valeriano v. Gonzales, 474 F.3d 669, 672 (9th Cir. 2007). We consolidate Portillos petitions for review and deny them.

1. The BIA did not abuse its discretion in denying Portillos motion to reopen. “[T]he decision to grant or deny a motion to reopen is ‘within the discretion of the [BIA].’ ” Siong v. INS, 376 F.3d 1030, 1038 (9th Cir. 2004) (quoting 8 C.F.R. § 1003.2(a)). The BIA found that Portillos motion to reopen was procedurally defective. See 8 C.F.R. § 1003.2(c)(1) (“A motion to reopen proceedings for the purpose of submitting an application for relief must be accompanied by the appropriate application for relief and all supporting documentation.”). Portillo failed to submit a Form I-589, the appropriate application for relief he sought. Portillo claims that there was a prior I-589 in the record. But he did not attach that prior form to his motion to reopen, and the form sought asylum on different grounds than he now puts forth. See Young Sun Shin v. Mukasey, 547 F.3d 1019, 1025 (9th Cir. 2008) (concluding the BIA did not abuse its discretion by denying motion to reopen when petitioner failed to attach proper form).

The BIA also found that Portillos motion to reopen was time- and number-barred. This was Portillos second motion to reopen, and eight years had passed since the entry of a final order of removal in his case. See 8 C.F.R. § 1003.2(c)(2) (“[A] party may file only one motion to reopen ․ and that motion must be filed no later than 90 days after the date on which the final administrative decision was rendered.”).

Portillo claims that he is not barred by these limitations because he can show “changed circumstances” in his country of nationality. See Toufighi v. Mukasey, 538 F.3d 988, 994, 996 (9th Cir. 2008) (“[A] motion to reopen based on changed conditions is focused on ‘new facts’ showing changed conditions that now establish a prima facie case for asylum.”) (quoting 8 C.F.R. § 1003.2(c)(3)(ii)). In order to meet this burden, “(1) [Portillo] had to produce evidence that conditions had changed in [his home country]; (2) the evidence had to be material; (3) the evidence must not have been available and would not have been discovered or presented at the previous proceeding; and (4) he had to demonstrate that the new evidence, when considered together with the evidence presented at the original hearing, would establish prima facie eligibility for the relief sought.” Id. at 996 (internal quotation marks and citations omitted). The BIA could “deny the motion to reopen for failing to meet any of these burdens.” Id.

Portillo claims to have a well-founded fear of gang violence in El Salvador due in part to the deaths of three of his relatives, which he claims were attributable to gang violence. But the BIA found that Portillo failed to provide any evidence showing the motive for his relatives’ deaths. Fear of gang violence alone does not establish persecution on a protected ground. See Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (“An aliens desire to be free from harassment by criminals motivated by theft or random violence by gang members bears no nexus to a protected ground.”). Portillo thus failed to establish prima facie eligibility for the relief sought, and the BIAs conclusion was not “arbitrary, irrational, or contrary to law.” See Valeriano, 474 F.3d at 672. Accordingly, the BIA did not abuse its discretion in denying Portillos motion to reopen.

2. The BIA did not abuse its discretion in denying Portillos motion to reconsider. Although Portillo provided an application for relief, he still did not provide any evidence showing the motive for his relatives’ deaths and he did not allege any error of law or fact in the BIAs decision to deny his motion to reopen. See 8 C.F.R. § 1003.2(b). Rather, the BIA found that Portillos motion to reconsider “reiterate[d] the assertion he already made before the Immigration Judge and the Board.” See Matter of O-S-G-, 24 I&N Dec. 56, 57 (BIA 2006) (“[A] motion to reconsider is not a process by which a party may submit, in essence, the same brief presented on appeal․”). Accordingly, the BIA did not abuse its discretion in denying Portillos motion to reconsider.

DENIED.