Eluid Villatoro-Ochoa v. Loretta E. Lynch

Filing

OPINION FILED - THE COURT: Steven M. Colloton, Michael J. Melloy and Bobby E. Shepherd AUTHORING JUDGE:Michael J. Melloy (PUBLISHED) [4486135] [15-3103]

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 15-3103
___________________________
Eluid Harodi Villatoro-Ochoa
lllllllllllllllllllllPetitioner
v.
Loretta E. Lynch, Attorney General of the United States
lllllllllllllllllllllRespondent
____________
Petition for Review of an Order of the
Board of Immigration Appeals
____________
Submitted: September 20, 2016
Filed: January 4, 2017
____________
Before COLLOTON, MELLOY, and SHEPHERD, Circuit Judges.
____________
MELLOY, Circuit Judge.
After unsuccessfully seeking withholding of removal, Eluid Harodi VillatoroOchoa, 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.

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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. VillatoroOchoa 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.

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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).

1

Villatoro-Ochoa does not challenge the BIA’s dismissal of his appeal from the
IJ’s denial of his October 19, 2012 motion to reopen. As such, that part of the BIA’s
decision is not at issue in this case.
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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 VillatoroOchoa’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. Villatoro-Ochoa argued that he too would
be persecuted based on his membership in his family.
In support of his motion, Villatoro-Ochoa submitted his new application for
asylum, withholding of removal, and protection under the Convention Against
Torture. He alleged that two family members were “killed over drugs” in 2004 and
2005 and that two family members were “killed over drugs” in 2010 and 2011.
Villatoro-Ochoa also submitted affidavits from his sister and sister-in-law stating that
relatives were threatened and killed by gangs for refusing to sell drugs. Finally,
Villatoro-Ochoa submitted documents describing conditions in Guatemala, including
reports of gang violence.
The BIA concluded:
The respondent’s sister-in-law’s affidavit indicates that the
threat was made in 2004. The deaths of two members of
the respondent’s wife’s family in 2010 and 2011, although
tragic, are not a material change in conditions. We have
considered all of the documents that the respondent
submitted with his motion and conclude that they are not

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sufficient to establish a material change in country
conditions in Guatemala that would warrant reopening.
We agree with the BIA’s assessment. During his 2009 hearing, VillatoroOchoa testified that gang violence was common in Guatemala and that he had been
threatened by gangs. While Villatoro-Ochoa submitted documents showing that gang
violence continued in Guatemala, those documents do not demonstrate materially
changed conditions. Further, while four of Villatoro-Ochoa’s relatives were killed
by gangs, two of those deaths happened before the 2009 hearing. Thus, evidence of
those deaths was available at the time of that hearing. Additionally, while the deaths
of two other relatives occurred after Villatoro-Ochoa’s 2009 hearing, Villatoro-Ochoa
failed to demonstrate that those deaths were the result of changed country conditions.
Rather, as shown by the affidavits Villatoro-Ochoa submitted, the deaths of his
relatives in 2010 and 2011 were the result of the same gang violence cited by
Villatoro-Ochoa in 2009.
This Court considered a similar claim of changed circumstances in Martinez
v. Lynch, 785 F.3d 1262 (8th Cir. 2015). In that case, the applicant argued that the
death of a friend after an earlier hearing established changed country conditions. Id.
at 1265. The Court explained, “Unfortunately, the type of violence suffered by Perez
was occurring at the time of Martinez’s October 2012 hearing; and Martinez offered
nothing to show that this particular death somehow reflected a change in country
conditions in Guatemala.” Id. The Court concluded that the applicant did not meet
the exception for his untimely motion to reopen because he did not demonstrate that
the death of his friend was evidence of changed conditions. Id.
Because Villatoro-Ochoa did not demonstrate that his relatives’ deaths in 2010
and 2011 reflected changed country conditions, it was not an abuse of discretion for
the BIA to deny Villatoro-Ochoa’s motion to reopen. The BIA considered all the

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record evidence in denying the motion2 and gave a rational explanation for its
decision.3
III. Conclusion
For the reasons above, we affirm the BIA’s decision on Villatoro-Ochoa’s
motion to reopen.
______________________________

2

Villatoro-Ochoa argues that the BIA violated his right to Due Process because
it failed to consider all the evidence he submitted in support of his motion to reopen.
This argument is unsupported by the record. See Hanan v. Mukasey, 519 F.3d 760,
764 (8th Cir. 2008).
3

The BIA also found that Villatoro-Ochoa did not establish prima facie
eligibility for asylum, withholding of removal, or protection under the CAT.
Villatoro-Ochoa challenges this finding on appeal. Because the above analysis
provides an alternative basis to deny Villatoro-Ochoa’s petition, we need not address
this issue.
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