NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________

No. 20-3328 _____________

ANA CECILIA DOMINGUEZ, Petitioner

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA _____________

On Petition for Review of a Decision of the Board of Immigration Appeals (Agency No. A094-760-527) Immigration Judge: Frederic G. Leeds ___________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) September 20, 2021 ___________

Before: CHAGARES, HARDIMAN, and MATEY, Circuit Judges.

(Filed: September 29, 2021)

___________

OPINION* ____________

* This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. CHAGARES, Circuit Judge.

Ana Cecilia Dominguez petitions for review of an order of the Board of

Immigration Appeals (“BIA”) denying her motion to reopen removal proceedings so that

she could apply for cancellation of removal. For the following reasons, we will deny the

petition.

I.

We write for the parties and so recount only the facts necessary to our decision.

Dominguez is a native and citizen of El Salvador who entered the United States in 2000

and overstayed her visa. She now lives in New Jersey with two adult daughters and an

eleven-year-old son who is a United States citizen. In 2008, the Department of

Homeland Security issued a notice to appear (“NTA”) that placed Dominguez in removal

proceedings. Though Dominguez did not realize it at the time, that NTA was defective

because it lacked a date and time for her hearing. She conceded removability and applied

for Temporary Protected Status (“TPS”), which an immigration judge denied in 2009

based on her failure to establish that she was continuously present in the United States for

the required period of time. Dominguez appealed to the BIA, which affirmed the denial

of relief.

Dominguez moved to reopen her removal proceedings on three separate occasions

between 2014 and 2018, but the BIA denied her motions each time. In her first motion to

reopen, Dominguez again sought TPS status. In her second, she claimed prior counsel

was ineffective for failing to apply for asylum based on the murder of her brother and

daughter by gang members in El Salvador. In her third motion, filed in May 2018,

2 Dominguez argued that changed conditions in El Salvador warranted reopening her

removal proceedings so that she could apply for asylum.

Dominguez filed a fourth motion to reopen in April 2020, this time to apply for

cancellation of removal. She asserted that the NTA placing her in removal proceedings

was defective pursuant to the Supreme Court’s decision in Pereira v. Sessions,

(2018), and this Court’s decision in Guadalupe v. Attorney General,

(3d Cir. 2020). Dominguez contended that she had now resided in the United States for

long enough to apply successfully for cancellation of removal, as only service of a

complete NTA stops the accrual of time counted towards a noncitizen’s period of

residency in the United States under the “stop-time” rule of 8 U.S.C. § 1229b(d)(1)(A).

According to Dominguez, this Court’s decision in Guadalupe effected a change in law

justifying her motion to reopen. The BIA denied the motion as untimely, reasoning that

the 2018 Pereira decision caused the relevant change in law. The BIA held that

Dominguez failed to show why she could not have presented similar arguments within 90

days of that decision, as her third motion to reopen was still pending when the Supreme

Court decided Pereira. The BIA also noted that Dominguez failed to submit an

application for cancellation of removal and supporting evidence, so she had not

established a prima facie case for relief. Dominguez timely petitioned for review.

II.

The BIA had jurisdiction under

, and we have jurisdiction to

review its order under

(a)(1). “We review the denial of

a motion to reopen for abuse of discretion and will not disturb the BIA’s decision unless

3 it is . . . arbitrary, irrational, or contrary to law.” Liem v. Att’y Gen.,

(3d Cir. 2019) (quotation marks omitted).1

III.

Motions to reopen removal proceedings are subject to multiple procedural

requirements and limitations. A petitioner is typically limited to one motion to reopen,

and that motion must usually be filed within ninety days of the date of entry of a final

order of removal. See 8 U.S.C. § 1229a(c)(7);

(c)(2). The motion must

also “state the new facts that will be proven at a hearing to be held if the motion is

granted” and “be supported by affidavits or other evidentiary material.” 8 U.S.C. §

1229a(c)(7)(B); see also

(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.”). The BIA does not

abuse its discretion by denying a motion to reopen if the petitioner has not established a

prima facie case for relief, which requires that the evidence reveal a “reasonable

likelihood” that the petitioner can satisfy the statutory and regulatory requirements for the

underlying relief sought. Sevoian v. Ashcroft,

, 173–74 (3d Cir. 2002).

Dominguez seeks cancellation of removal, which she may be eligible for if she “(A) has

been physically present in the United States for a continuous period of not less than 10

1 Dominguez does not appear to challenge the BIA’s decision not to reopen her removal proceedings sua sponte. Regardless, we lack jurisdiction to review that exercise of discretion under the circumstances presented here. See Alzaarir v. Att’y Gen.,

, 89 n.2. (3d Cir. 2011) (citing Calle–Vujiles v. Ashcroft,

(3d Cir. 2003)). 4 years immediately preceding the date of [her] application; (B) has been a person of good

moral character during such period; (C) has not been convicted of [certain specified

offenses]; and (D) establishes that removal would result in exceptional and extremely

unusual hardship” to her United States citizen son. 8 U.S.C. § 1229b(b)(1).

The parties primarily dispute whether Dominguez is barred from moving to reopen

her proceedings because this is now her fourth motion to reopen. While Dominguez’s

motion appears to be time- and number-barred, those limits may be subject to equitable

tolling so long as Dominguez exercised due diligence in filing her motion. See Alzaarir

v. Att’y Gen.,

(3d Cir. 2011). The parties agree that a change in law may

justify equitable tolling, but they differ on whether the relevant change of law happened

when the Supreme Court decided Pereira or when we decided Guadalupe. The

Government argues that the relevant benchmark is Pereira, as the Supreme Court

recognized in that case that a defective NTA does not trigger the stop-time rule for

cancellation of removal purposes. See

. If the Government is correct,

then Dominguez did not demonstrate due diligence because she took two years to file her

motion to reopen. Dominguez argues that the proper benchmark is Guadalupe, in which

we recognized that Pereira abrogated a prior decision where we held that a defective

NTA could be cured by a subsequent notice of hearing and thus trigger the stop-time rule

(as happened in her proceedings). See

, 165–66. If Dominguez is correct,

then her filing of a motion to reopen within ninety days of the Guadalupe decision might

demonstrate the due diligence necessary to justify equitable tolling.

5 We need not resolve this dispute. As the BIA correctly observed, Dominguez’s

motion to reopen did not include the required application for cancellation of removal or

supporting documentation. See

(c)(1). And while Dominguez argues

that she can “now explain . . . how the murder of her brother and daughter would cause

exceptional and extremely unusual hardship to her qualifying relative,” Dominguez Br.

13, she did not actually provide that explanation to either the BIA or this Court. That

falls short of the statutory requirement that a motion to reopen “state the new facts that

will be proven at a hearing to be held if the motion is granted.” 8 U.S.C. §

1229a(c)(7)(B). The failure to state these facts and provide supporting evidence also

prevents us from assessing whether there is a reasonable likelihood that Dominguez’s

application for cancellation of removal would be granted. See Sevoian, 290 F.3d at 173–

74. We do not address whether Dominguez’s removal might result in “exceptional and

extremely unusual hardship” to her son, 8 U.S.C. § 1229b(b)(1)(D), because Dominguez

has not provided an adequate factual basis to support that conclusion. Because

Dominguez has not established prima facie entitlement to relief, we conclude that the

BIA did not abuse its discretion by denying her motion to reopen.

IV.

For the foregoing reasons, we will deny the petition for review.

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