Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Villatoro-Ochoa v. Lynch

United States Court of Appeals, Eighth Circuit

January 4, 2017

Eluid Harodi Villatoro-Ochoa Petitioner
v.
Loretta E. Lynch, Attorney General of the United States Respondent

          Submitted: September 20, 2016

         Petition for Review of an Order of the Board of Immigration Appeals

          Before COLLOTON, MELLOY, and SHEPHERD, Circuit Judges.

          MELLOY, Circuit Judge.

         After 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.

          I. Background

         Villatoro-Ochoa 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.

         Villatoro-Ochoa 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.

         On 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.

          II. Discussion

         "We 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.

         On 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.[1] 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).

          Where 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).

         We 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. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.