         11-4909
         Espinal-Cruz v. Holder
                                                                                           BIA
                                                                           A099 668 207/208/209
                                  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 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 United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 18th day of September, two thousand thirteen.
 5
 6       PRESENT:
 7                JOSÉ A. CABRANES,
 8                RAYMOND J. LOHIER, JR.,
 9                CHRISTOPHER F. DRONEY,
10                     Circuit Judges.
11       _____________________________________
12
13       CARMEN SUYAPA ESPINAL-CRUZ,
14       JONATHAN JOSUE ESPINAL-CRUZ,
15       DARWIN EDUARDO URBINA-ESPINAL,
16                Petitioners,
17
18                           v.                                    11-4909
19                                                                 NAC
20       ERIC H. HOLDER, JR., UNITED STATES
21       ATTORNEY GENERAL,
22                Respondent.
23       _____________________________________
24
25       FOR PETITIONER:                   Michael P. DiRaimondo, DiRaimondo &
26                                         Masi, New York, NY.
27
28       FOR RESPONDENT:                   Stuart F. Delery, Acting Assistant
29                                         Attorney General; Jamie M. Dowd,
 1                             Senior Litigation Counsel; Nancy N.
 2                             Safavi, Trial Attorney, Office of
 3                             Immigration Litigation, United
 4                             States Department of Justice,
 5                             Washington, D.C.
 6
 7       UPON DUE CONSIDERATION of this petition for review of a

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

 9   ORDERED, ADJUDGED, AND DECREED that the petition for review

10   is DENIED.

11       Petitioners, natives and citizens of Honduras, seek

12   review of the October 27, 2011, decision of the BIA denying

13   their motion to reopen.    In re Carmen Suyapa Espinal-Cruz,

14   et al., Nos. A099 668 207/08/09 (B.I.A. Oct. 27, 2011).     We

15   assume the parties’ familiarity with the underlying facts

16   and procedural history in this case.

17       The BIA’s denial of Petitioners’ motion to reopen as

18   untimely was not an abuse of discretion.    See Kaur v. BIA,

19   413 F.3d 232, 233 (2d Cir. 2005) (per curiam).    An alien may

20   file one motion to reopen no later than 90 days after the

21   date on which the final administrative decision has been

22   rendered in the proceedings sought to be reopened.    8 U.S.C.

23   § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2).    There is no

24   dispute that Petitioners’ 2011 motion was untimely, as the

25   final administrative decision was issued in 2009.    See


                                     2
 1   8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2).

 2   However, the time and number limitations do not apply to a

 3   motion to reopen if it is “based on changed circumstances

 4   arising in the country of nationality or in the country to

 5   which deportation has been ordered, if such evidence is

 6   material and was not available and could not have been

 7   discovered or presented at the previous hearing.”   8 C.F.R.

 8   § 1003.2(c)(3)(ii); see also 8 U.S.C. § 1229a(c)(7)(C)(ii).

 9   Here, there is no error in the BIA’s conclusion that

10   Petitioners failed to demonstrate materially changed country

11   conditions in Honduras that would excuse the untimely filing

12   of the motion to reopen.

13       As the BIA noted, Petitioners’ motion to reopen

14   reiterated their initial asylum claim, and included evidence

15   purporting to show that conditions in Honduras have worsened

16   and gang violence has increased.   However, even if gang

17   violence has increased in Honduras, this evidence is not

18   material to Petitioners’ claim because it does not establish

19   a nexus between the feared harm and a protected ground.     See

20   8 U.S.C. §§ 1101(a)(42), 1229a(c)(7)(C)(ii); Ucelo-Gomez v.

21   Mukasey, 509 F.3d 70, 73-74 (2d Cir. 2007).

22


                                  3
 1       Petitioners also argue that their due process right was

 2   violated because the BIA failed to consider all of the

 3   evidence in the record.   However, aliens filing untimely

 4   motions to reopen have no due process right in the

 5   proceedings.   See Yuen Jin v. Mukasey, 538 F.3d 143, 156-57

 6   (2d Cir. 2008) (“We hold that an alien who has already filed

 7   one asylum application, been adjudicated removable and

 8   ordered deported, and who has nevertheless remained in the

 9   country illegally for several years, does not have a liberty

10   or property interest in a discretionary grant of asylum.”).

11   Regardless, Petitioners do not establish that the BIA failed

12   to consider record evidence, as the BIA dedicated a full

13   paragraph in its decision to discussing the evidence

14   submitted with the motion to reopen.   See Xiao Ji Chen v.

15   U.S. Dep’t of Justice, 471 F.3d 315, 336 n.17 (2d Cir. 2006)

16   (“we presume that [the agency] has taken into account all of

17   the evidence before [it], unless the record compellingly

18   suggests otherwise”).

19       For the foregoing reasons, the petition for review is

20   DENIED.   As we have completed our review, any stay of

21   removal that the Court previously granted in this petition

22   is VACATED, and any pending motion for a stay of removal in


                                   4
1   this petition is DISMISSED as moot. Any pending request for

2   oral argument in this petition is DENIED in accordance with

3   Federal Rule of Appellate Procedure 34(a)(2), and Second

4   Circuit Local Rule 34.1(b).

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




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