              Case: 17-13125    Date Filed: 04/13/2018   Page: 1 of 7


                                                            [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 17-13125
                            Non-Argument Calendar
                          ________________________

                           Agency No. A098-979-850

YENY LISSETH GONZALEZ-RODRIGUEZ,

                                                                          Petitioner,

                                     versus

U.S. ATTORNEY GENERAL,

                                                                        Respondent.

                          ________________________

                     Petition for Review of a Decision of the
                          Board of Immigration Appeals
                           ________________________

                                 (April 13, 2018)

Before MARCUS, WILLIAM PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:

      Yeny Gonzalez-Rodriguez, a native and citizen of El Salvador who was

ordered removed in absentia in 2006, petitions for review of the order by the Board

of Immigration Appeal (“BIA”) denying her untimely second motion to reopen
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removal proceedings. In her petition, she argues that: (1) the BIA erroneously

denied her motion to reopen as untimely, because she demonstrated that since her

2006 removal order, country conditions in El Salvador had materially changed and

asylum law had evolved to the point where family-based “particular social groups”

are cognizable under the Immigration and Nationality Act (“INA”); (2) the BIA

violated her due process rights by ignoring that her motion was based on a change

in asylum law, by ignoring most of evidence she submitted regarding changed

country conditions in El Salvador, and by conducting a perfunctory analysis of the

merits of her motion; and (3) the BIA abused its discretion in denying her motion

by ignoring its own precedent found in Matter of L-E-A-, 27 I&N Dec. 40 (BIA

2017), or, in the alternative, by failing to offer a reasoned explanation as to why it

did not apply that decision. After thorough review, we deny the petition.

      We review the denial of a motion to reopen an immigration petition for

abuse of discretion. Jiang v. U.S. Att’y Gen., 568 F.3d 1252, 1256 (11th Cir.

2009).   Our “review is limited to determining whether the BIA exercised its

discretion in an arbitrary or capricious manner.” Id. The moving party bears a

heavy burden, Ali v. U.S. Att’y Gen., 443 F.3d 804, 813 (11th Cir. 2006), since

motions to reopen are disfavored, especially in removal proceedings. INS v.

Doherty, 502 U.S. 314, 323 (1992); Jiang, 568 F.3d at 1256.




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      The discretion afforded to the BIA under 8 C.F.R. § 1003.2(a) with respect

to granting and denying motions to reopen is expansive. See 8 C.F.R. § 1003.2(a)

(“The decision to grant or deny a motion to reopen or reconsider is within the

discretion of the Board . . . . The Board has discretion to deny a motion to reopen

even if the party moving has made out a prima facie case for relief.”)); see also

Gbaya v. U.S. Att’y Gen., 342 F.3d 1219, 1220 (11th Cir. 2003) (“[i]n this

particular area, the BIA’s discretion is quite broad”). We’ve held that the BIA may

deny a motion to reopen on at least three grounds: (1) failure to establish a prima

facie case; (2) failure to introduce evidence that was material and previously

unavailable; or (3) a determination that an alien is not entitled to a favorable

exercise of discretion despite statutory eligibility for relief. Al Najjar v. Ashcroft,

257 F.3d 1262, 1302 (11th Cir. 2001). Additionally, when reviewing a motion or

petition, as long as the BIA has given reasoned consideration to the motion and

made adequate findings, it need not address every piece of evidence the petitioner

presented. Tan v. U.S. Att’y Gen., 446 F.3d 1369, 1374 (11th Cir. 2006) (holding

that the IJ must “consider the issues raised and announce its decision in terms

sufficient to enable a reviewing court to perceive that it has heard and thought and

not merely reacted” (quotations omitted)).

      An alien may file a motion to reopen her removal proceedings, but must do

so within 90 days of the date of entry of a final administrative order of removal,


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subject to certain exceptions. 8 U.S.C. § 1229a(c)(7)(C)(i). As relevant here, the

INA provides for an exception to the time limitation if the motion to reopen is

“based on changed circumstances 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.” Id. § 1229a(c)(7)(C)(ii). That motion “shall state the new facts that

will be proven at a hearing to be held if the motion is granted, and shall be

supported by affidavits or other evidentiary material.” Id. § 1229a(c)(7)(B).

      The Fifth Amendment entitles petitioners in removal proceedings to due

process of law. See Frech v. U.S. Att’y Gen., 491 F.3d 1277, 1281 (11th Cir.

2007). Due process requires that aliens be given notice and an opportunity to be

heard in their removal proceedings. See Tang v. U.S. Att’y Gen., 578 F.3d 1270,

1275 (11th Cir. 2009). Importantly, however, we’ve held that an alien has no

constitutionally protected liberty interest with respect to the granting of a motion to

reopen. Scheerer v. U.S. Att’y Gen., 513 F.3d 1244, 1253 (11th Cir. 2008).

      Here, Gonzalez-Rodriguez cannot demonstrate that the BIA acted arbitrarily

or capriciously when it denied her untimely second motion to reopen, since she has

not shown that the relevant country conditions in El Salvador have materially

changed since her 2006 order of removal. 8 U.S.C. § 1229a(c)(7)(C)(ii). In her

application for relief, she said that, if she were returned to El Salvador, she feared


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that she would be harmed by the Reyes family, which has perpetrated a decades-

long, deadly feud against her own family. In support of her motion to reopen, she

submitted several news articles that reported on the rising tide of gang violence in

El Salvador. However, none of those articles dealt with the Reyes family, and,

therefore, the evidence of changed country conditions that she submitted was not

material. As a result, the BIA did not abuse its discretion in concluding that her

untimely filing of her motion to reopen could not be excused based on changed

country conditions. 8 U.S.C. § 1229a(c)(7)(C)(i)-(ii).

      As for Gonzalez-Rodriguez’s related argument -- that the BIA abused its

discretion in denying her motion because she had demonstrated changes in the law

with respect to asylum claims that might have inured to her benefit -- we disagree.

As the government correctly notes, the plain text of the “changed country

conditions” exception demonstrates that a change in the relevant law is not

sufficient to trigger that exception. See 8 U.S.C. § 1229a(c)(7)(C)(ii); see also 8

U.S.C. § 1229a(c)(7)(B) (“The motion to reopen shall state the new facts that will

be proven . . . .”). In other words, that exception applies to new facts, not law. Id.

Thus, the non-binding, sister circuit cases Gonzalez-Rodriguez identified as

representing a change in asylum law were not relevant to the sole issue in front of




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the BIA, and the BIA did not err in not specifically addressing them. 1                Tan, 446

F.3d at 1374.

       Nor did the BIA abuse its discretion by refusing to follow Matter of L-E-A-,

or by not offering a reasoned explanation as to why it would not follow that case.

Much like Gonzalez-Rodriguez’s previous argument, this argument fails because

the BIA’s holding in that case -- that members of an immediate family can

constitute a “particular social group” for asylum purposes -- was not relevant to the

factual inquiry of whether Gonzalez-Rodriguez’s untimely filing of her motion to

reopen should have been excused based on changed country conditions in El

Salvador.     See Matter of L-E-A-, 27 I&N Dec. at 40; see also 8 U.S.C. §

1229a(c)(7)(C)(ii). As a result, the BIA did not err in not explicitly addressing that

decision. Tan, 446 F.3d at 1374.

       Finally, Gonzalez-Rodriguez’s due process arguments fail. As we held in

Scheerer, an alien has no constitutionally protected interest in the granting of a

motion to reopen. 513 F.3d at 1253. Accordingly, Gonzalez-Rodriguez’s due

process arguments -- which are premised on the BIA’s procedures in ruling on her

motion to reopen -- are foreclosed by our precedent. Id.


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         Moreover, while the BIA has held that it may exercise its sua sponte authority to reopen
removal proceedings where one of its decisions “reflect[s] a fundamental change in the
principles of the law of asylum,” In re G-D-, 22 I&N Dec. 1132, 1135 (BIA 1999), Gonzalez-
Rodriguez does not challenge the BIA’s refusal to do so, and, more importantly, we would not
have jurisdiction to consider that issue even if she had raised it. Lenis v. U.S. Att’y Gen., 525
F.3d 1291, 1294 (11th Cir. 2008).
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PETITION DENIED.




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