Luz Pena v. Loretta Lynch

Filing

UNPUBLISHED OPINION FILED. [16-60082 Affirmed] Judge: TMR, Judge: PRO, Judge: JWE. Mandate pull date is 07/28/2017 [16-60082]

Case: 16-60082

Document: 00514021902

Page: 1

Date Filed: 06/06/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit

No. 16-60082
Summary Calendar

FILED
June 6, 2017
Lyle W. Cayce
Clerk

LUZ AMELIA PENA,
Petitioner
v.
JEFFERSON B. SESSIONS, III, U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A096 077 432
Before REAVLEY, OWEN, and ELROD, Circuit Judges.
PER CURIAM: *

Luz Amelia Pena, a native and citizen of El Salvador, petitions for review
of a decision of the Board of Immigration Appeals (BIA) upholding the denial
of her motion to reopen removal proceedings.

Pena challenges the BIA’s

determination that she failed to show a material change in country conditions.
Pena entered the United States in 2003 without admission, parole, or
inspection, and an immigration judge (IJ) ordered her removed. When Pena

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
*

Case: 16-60082

Document: 00514021902

Page: 2

Date Filed: 06/06/2017

No. 16-60082
reentered the United States in 2013, the Department of Homeland Security
reinstated the prior removal order, but released her under an order of
supervision.

Pena moved to reopen her removal proceeding based on a

material change in country conditions under 8 U.S.C. § 1229a(c)(7)(C)(ii). She
sought to apply for asylum, withholding of removal, and protection under the
Convention Against Torture. The IJ denied the motion, and the BIA dismissed
her appeal.
We review the BIA’s decision under “a highly deferential abuse-ofdiscretion standard” and will uphold the BIA’s decision “as long as it is not
capricious, racially invidious, utterly without foundation in the evidence, or
otherwise so irrational that it is arbitrary rather than the result of any
perceptible rational approach.” Ojeda-Calderon v. Holder, 726 F.3d 669, 672
(5th Cir. 2013). “[W]e may not overturn the BIA’s factual findings unless the
evidence compels a contrary conclusion.”

Id. at 672-73; see 8 U.S.C.

§ 1252(b)(4)(B).
We have reviewed the briefs and the record. Pena fails to show that the
BIA’s determination that country conditions in El Salvador have not materially
changed constituted an abuse of discretion. See Ojeda-Calderon, 726 F.3d at
672. Accordingly, Pena’s motion to reopen was subject to the 90-day time limit
in § 1229a(c)(7)(C)(i), which expired in 2003, and we DENY the petition for
review, see Ojeda-Calderon, 726 F.3d at 672.

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