19-1510 (L) Rivera-Lopez v. Garland BIA A200 814 696

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 22nd day of April, two thousand twenty-one. 5 6 PRESENT: 7 JOSÉ A. CABRANES, 8 GERARD E. LYNCH, 9 MICHAEL H. PARK, 10 Circuit Judges. 11 _____________________________________ 12 13 LUCILA DEL CARMEN RIVERA-LOPEZ, 14 Petitioner, 15 16 v. 19-1510 (L), 17 19-4347 (Con) 18 NAC 19 MERRICK B. GARLAND, UNITED 20 STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Daniel G. Anna, Esq., Anna & 25 Anna, P.C., Media, PA. 26 27 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney 28 General; Cindy S. Ferrier, 1 Assistant Director; Joseph A. 2 O’Connell, Attorney, Office of 3 Immigration Litigation, Civil 4 Division, United States Department 5 of Justice, Washington, DC.

6 UPON DUE CONSIDERATION of this petition for review of a

7 Board of Immigration Appeals (“BIA”) decision, it is hereby

8 ORDERED, ADJUDGED, AND DECREED that the petitions are DENIED.

9 Petitioner Lucila Del Carmen Rivera-Lopez, a native and

10 citizen of El Salvador, seeks review of April 23, 2019, and

11 November 29, 2019, BIA decisions denying her motions to

12 reopen. In re Lucila Del Carmen Rivera-Lopez, No. A200 814

13 696 (B.I.A. Apr. 23, 2019 & Nov. 29, 2019). We assume the

14 parties’ familiarity with the underlying facts and procedural

15 history.

16 We review the agency’s denial of a motion to reopen for

17 abuse of discretion but review any finding regarding changed

18 country conditions for substantial evidence. See Jian Hui

19 Shao v. Mukasey,

, 168–69 (2d Cir. 2008). “An

20 abuse of discretion may be found in those circumstances where

21 the [BIA’s] decision provides no rational explanation,

22 inexplicably departs from established policies, is devoid of

23 any reasoning, or contains only summary or conclusory

24 statements; that is to say, where the [BIA] has acted in an 2 1 arbitrary or capricious manner.” Ke Zhen Zhao v. U.S. Dep’t

2 of Justice,

, 93 (2d Cir. 2001) (internal citations

3 omitted).

4 An alien seeking to reopen proceedings to apply for new

5 relief may file one motion to reopen no later than 90 days

6 after the date on which the final administrative decision was

7 rendered. 8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R.

8 § 1003.2(c)(2). Rivera-Lopez’s July 2018 and May 2019

9 motions to reopen were untimely because she filed them more

10 than 90 days after the BIA’s June 2015 decision affirming her

11 removal order.

12 However, there are exceptions to the filing deadline. A

13 showing of ineffective assistance of counsel may equitably

14 toll the filing period. Rashid v. Mukasey,

,

15 130–31 (2d Cir. 2008). Moreover, the time and number

16 limitations do not apply if reopening is sought to apply for

17 asylum and the motion is “based on changed country conditions

18 arising in the country of nationality or the country to which

19 removal has been ordered, if such evidence is material and

20 was not available and would not have been discovered or

21 presented at the previous proceeding.” 8 U.S.C.

3 1 § 1229a(c)(7)(C)(ii); see also

(c)(3)(ii).

2 The BIA did not abuse its discretion in declining to reopen

3 based on these two exceptions.

4 First, Rivera-Lopez did not file a complaint against her

5 former attorney and thus failed to comply with the procedural

6 requirements for an ineffective assistance claim set forth

7 in Matter of Lozada,

(B.I.A. 1988). See

8 Twum v. INS,

(2d Cir. 2005). “[A]n alien who

9 has failed to comply substantially with the Lozada

10 requirements in her motion to reopen before the BIA forfeits

11 her ineffective assistance of counsel claim in this

12 Court.” Jian Yun Zheng v. U.S. Dep’t of Justice,

43, 47 (2d Cir. 2005). Because this lack of compliance is

14 dispositive, we do not reach the BIA’s alternate conclusions

15 that Rivera-Lopez did not show prejudice or due diligence.

16 See INS v. Bagamasbad,

(1976) (“As a general

17 rule courts and agencies are not required to make findings on

18 issues the decision of which is unnecessary to the results

19 they reach.”).

20 Second, the BIA did not abuse its discretion in declining

21 to reopen based on changed country conditions. “In

4 1 determining whether evidence accompanying a motion to reopen

2 demonstrates a material change in country conditions that

3 would justify reopening, [the BIA] compare[s] the evidence of

4 country conditions submitted with the motion to those that

5 existed at the time of the merits hearing below.” In re S-

6 Y-G-,

(B.I.A. 2007). Rivera-Lopez

7 argued that she merited reopening because gang members had

8 been threatening her and her partner—a former police officer—

9 since 2005, and she had received threats recently. The BIA

10 reasonably concluded that this evidence, which showed a

11 continuation of conditions since before Rivera-Lopez’s

12 removal proceedings began in 2010, did not reflect a material

13 change in conditions that would warrant reopening. See

14 To the extent that Rivera-Lopez argues that conditions

15 have worsened for family members of former police officers,

16 her briefs to the BIA and this Court discuss only more recent

17 events and do not make the necessary comparison to conditions

18 before her 2014 removal order. See

.

19 Moreover, the evidence in the record does not reflect a

20 material change but rather reflects a continuation of the

21 gang violence she testified to at her 2014 hearing. Because

5 1 a showing of changed conditions is necessary to excuse the

2 untimely filing, we do not reach the BIA’s alternative

3 determination that Rivera-Lopez did not establish her prima

4 facie eligibility for asylum, withholding of removal, and

5 protection under the Convention Against Torture.

6 Rivera-Lopez’s remaining arguments fail. She did not

7 exhaust her argument that her partner’s failure to timely

8 disclose the gang’s threats against him was an exceptional

9 circumstance warranting reopening. See Lin Zhong v. U.S.

10 Dep’t of Justice,

, 117–25 (2d Cir. 2007) (holding

11 that we generally require petitioner to exhaust all issues

12 before the BIA). Her challenge to the underlying adverse

13 credibility determination is not properly before us. See

14 Kaur v. BIA,

(2d Cir. 2005) (noting that we

15 are precluded from reviewing the underlying merits of an

16 asylum claim on a motion to reopen). In sum, the BIA did not

17 abuse its discretion by denying the motions as untimely

18 because Rivera-Lopez did not satisfy the procedural

19 requirements for an ineffective assistance of counsel claim

20 or demonstrate a material change in conditions in El Salvador.

21 See 8 U.S.C. § 1229a(c)(7)(A), (C); Jian Yun Zheng,

6 1 at 47.

2 For the foregoing reasons, the petitions for review are

3 DENIED. All pending motions and applications are DENIED and

4 stays VACATED.

5 FOR THE COURT: 6 Catherine O’Hagan Wolfe, 7 Clerk of Court

7