         13-4433
         Ramos-Carrillo v. Lynch
                                                                                       BIA
                                                                               Montante, I.J.
                                                                               A089 002 626
                                   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 23rd day of June, two thousand fifteen.
 5
 6       PRESENT:
 7                GUIDO CALABRESI,
 8                JOSÉ A. CABRANES,
 9                BARRINGTON D. PARKER,
10                     Circuit Judges.
11       _____________________________________
12
13       LORENZO RAMOS-CARRILLO, AKA JUAN
14       CARLOS HERNANDEZ-CRUZ, AKA JUAN
15       HERNANDEZ-ROJO,
16                Petitioner,
17
18                           v.                                 13-4433
19                                                              NAC
20       LORETTA E. LYNCH, UNITED STATES
21       ATTORNEY GENERAL,
22                Respondent.*
23       _____________________________________
24
25       FOR PETITIONER:                    Jose Perez, Law Offices of Jose
26                                          Perez, P.C., Syracuse, NY.


         * Pursuant to Fed. R. App. P. 43(c)(2), Attorney General Loretta
         E. Lynch is automatically substituted for former Attorney General
         Eric Holder, Jr.
 1   FOR RESPONDENT:           Stuart F. Delery, Assistant Attorney
 2                             General; Blair T. O’Connor,
 3                             Assistant Director; Edward C.
 4                             Durant, Trial Attorney, Office of
 5                             Immigration Litigation, United
 6                             States Department of Justice,
 7                             Washington, D.C.

 8       UPON DUE CONSIDERATION of this petition for review of a

 9   decision of the Board of Immigration Appeals (“BIA”), it is

10   hereby ORDERED, ADJUDGED, AND DECREED that the petition for

11   review is DENIED.

12       Lorenzo Ramos-Carrillo, a native and citizen of

13   Guatemala, seeks review of an October 24, 2013, decision of

14   the BIA affirming the April 12, 2012, decision of an

15   Immigration Judge (“IJ”) denying a timely motion to reopen.

16   In re Lorenzo Ramos-Carrillo, No. A089 002 626 (B.I.A. Oct.

17   24, 2013), aff’g No. A089 002 626 (Immig. Ct. N.Y. City Apr.

18   12, 2012).    We assume the parties’ familiarity with the

19   underlying facts and procedural history of this case.

20       We have reviewed the IJ’s decision as supplemented by

21   the BIA.     See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d

22   Cir. 2005).    We review the agency’s denial of a motion to

23   reopen for abuse of discretion, remaining mindful of the

24   Supreme Court’s admonition that such motions are

25   “‘disfavored.’”     Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.


                                     2
 1   2006) (per curiam) (quoting INS v. Doherty, 502 U.S. 314,

 2   322-23 (1992)).

 3       The agency did not abuse its discretion in denying

 4   reopening.   Ali, 448 F.3d at 517.    A motion to reopen must

 5   state the new facts to be considered at the reopened

 6   hearing, and must be supported by material, previously

 7   unavailable evidence.     8 U.S.C. § 1229a(c)(7)(B); 8 C.F.R.

 8   § 1003.23(b)(3).    Ramos-Carrillo provided no documentary

 9   evidence to support his claim that he feared persecution or

10   torture in Guatemala.     Rather, the only documents he

11   submitted with his motion were a birth certificate for one

12   of his children, the IJ’s voluntary departure order, and his

13   asylum application.     These documents are not “affidavits” or

14   “other evidentiary material” that support his persecution or

15   torture claims.    8 C.F.R. § 1003.23(b)(3) (requiring that

16   motion be filed with both application for relief and “all

17   supporting documents” and that motion must be supported by

18   “affidavits and other evidentiary material”).

19       Additionally, “[a] motion to reopen will not be granted

20   unless the Immigration Judge is satisfied that evidence

21   sought to be offered is material and was not available and

22   could not have been discovered or presented at the former


                                     3
 1   hearing.”     8 C.F.R. § 1003.23(b)(3).   Ramos-Carrillo’s

 2   asylum application relies on incidents occurring in the

 3   1980s and between 2000 and 2004.     As the agency concluded,

 4   because Ramos-Carrillo was aware of these incidents at the

 5   time of his 2011 removal hearing, they are not grounds for

 6   reopening.     See 8 C.F.R. §§ 1003.2(c)(1), 1003.23(b)(3); see

 7   also INS v. Abudu, 485 U.S. 94, 104-05 (1998) (holding that

 8   alien’s failure to submit previously unavailable material

 9   evidence is proper ground to deny motion).

10       In his brief, Ramos-Carrillo does not address the

11   agency’s determination that he failed to support his motion

12   with evidence, and that the basis for his new claims was

13   available and known to him at the time of his initial

14   hearing.     Instead, he argues that he made a prima facie case

15   for asylum.     There are at least “three independent grounds

16   on which the BIA might deny a motion to reopen—failure to

17   establish a prima face case for the relief sought, failure

18   to introduce previously unavailable, material evidence, and

19   a determination that . . . the movant would not be entitled

20   to the discretionary grant of relief which he sought.”

21   Doherty, 502 U.S. at 323.     Thus, the agency’s determination

22   that Ramos-Carrillo failed to “introduce previously


                                     4
 1   unavailable, material evidence” was, alone, a sufficient

 2   basis for the denial and we need not reach whether Ramos-

 3   Carrillo made a prima facie case.     Id.

 4       Ramos-Carrillo also argues that his asylum application

 5   was timely because he could establish changed circumstances.

 6   Ramos-Carrillo conceded removability, was granted voluntary

 7   departure, and an order of removal was automatically entered

 8   when he overstayed the departure period.    In order to pursue

 9   an asylum application, Ramos-Carrillo must first reopen

10   these proceedings.   We do not consider the timeliness of his

11   application, as the agency did not abuse its discretion in

12   denying reopening.

13       For the foregoing reasons, the petition for review is

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

15   removal that the Court previously granted in this petition

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

17   this petition is DISMISSED as moot.    Any pending request for

18   oral argument in this petition is DENIED in accordance with

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

20   Circuit Local Rule 34.1(b).

21                                 FOR THE COURT:
22                                 Catherine O’Hagan Wolfe, Clerk
23
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