Submitted: September 20, 2016
for Review of an Order of the Board of Immigration Appeals
COLLOTON, MELLOY, and SHEPHERD, Circuit Judges.
MELLOY, Circuit Judge.
unsuccessfully seeking withholding of removal, Eluid Harodi
Villatoro-Ochoa, a native and citizen of Guatemala, filed an
untimely motion to reopen his removal proceedings. To excuse
the untimeliness of his motion, Villatoro-Ochoa asserted
changed country conditions in Guatemala. The BIA concluded
that Villatoro-Ochoa failed to establish changed country
conditions and denied his motion to reopen. We affirm.
was a pastor with an evangelical Christian church in
Guatemala. He contends that gangs in the area threatened,
harassed, and extorted him because the gangs did not want him
to influence gang members to leave the gang or deter new
members from joining. Due to these threats, Villatoro-Ochoa
left Guatemala and entered the United States without
inspection in March 1998.
was issued a Notice to Appear on October 31, 2003. He
admitted the Notice's factual allegations and conceded
removability. He filed an application for withholding of
removal on April 2, 2007, based on threats and gang violence
in Guatemala. The IJ denied the application for withholding
of removal on October 15, 2009, finding that Villatoro-Ochoa
was not credible and that, even if he were credible, he did
not meet the burden for withholding of removal.
Villatoro-Ochoa appealed to the BIA, and the BIA affirmed the
IJ's denial of relief on February 14, 2012.
October 19, 2012, Villatoro-Ochoa filed a motion to reopen
his removal proceedings, well past the 90-day filing deadline
in 8 U.S.C. § 1229a(c)(7)(C)(i). The IJ dismissed the
motion for lack of jurisdiction. Villatoro-Ochoa appealed to
the BIA and filed a second, separate motion to reopen with
the BIA on January 18, 2013. On August 21, 2015, the BIA
dismissed the appeal and denied Villatoro-Ochoa's second
motion to reopen. The BIA concluded that because
Villatoro-Ochoa's motion to reopen was untimely, he was
required to show changed country conditions after the
IJ's October 15, 2009 decision. The BIA found that he
failed to establish changed country conditions.
Villatoro-Ochoa timely appealed.
review 'the BIA's denial of the motion to reopen for
abuse of discretion.'" Martinez v. Lynch,
785 F.3d 1262, 1264 (8th Cir. 2015) (quoting Sidikhouya
v. Gonzales, 407 F.3d 950, 951 (8th Cir. 2005) (per
curiam)). The BIA has broad discretion on motions to reopen,
and "[t]hese motions are 'disfavored because they
undermine the government's legitimate interest in
finality, which is heightened in removal proceedings where,
as a general matter, every delay works to the advantage of
the deportable alien who wishes merely to remain in the
United States.'" Id. at 1264-65 (quoting
Guled v. Mukasey, 515 F.3d 872, 882 (8th Cir.
2008)). The BIA abuses its discretion if it does not give a
rational explanation for its decision or ignores or distorts
evidence. Id. at 1265.
February 14, 2012, the BIA affirmed the IJ's underlying
denial of relief and ordered Villatoro-Ochoa removed to
Guatemala. He moved to reopen his removal proceedings on
January 18, 2013. Under 8 U.S.C. § 1229a(c)(7)(C)(i), a
motion to reopen must be filed within 90 days of the removal
order. Villatoro-Ochoa's motion to reopen was filed 11
months after the removal order and, thus, was untimely. The
statute provides an exception to the 90-day filing deadline
if an applicant seeks to apply for asylum or withholding of
removal and he shows that his motion "is based on
changed country conditions arising in the country of
nationality or the country to which removal has been ordered,
if such evidence is material and was not available and would
not have been discovered or presented at the previous
proceeding." 8 U.S.C. § 1229a(c)(7)(C)(ii).
a motion to reopen in order to file a new application for
relief is filed, the motion must include the new application
and supporting documents. 8 C.F.R. § 1003.2(c)(1). If
the BIA determines that the applicant has not demonstrated
changed country conditions based on previously unavailable
evidence or that the applicant failed to establish prima
facie eligibility for the relief sought, the BIA may deny the
motion to reopen. Chen v. Holder, 751 F.3d 876, 878
(8th Cir. 2014).
conclude that the BIA did not abuse its discretion in denying
Villatoro-Ochoa's motion to reopen. In his motion,
Villatoro-Ochoa claimed that there was increased violence in
Guatemala. He also claimed gangs killed several members of
his family due to their refusal to sell drugs.