     Case: 13-60165      Document: 00512620687         Page: 1    Date Filed: 05/06/2014




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

                                      No. 13-60165                                FILED
                                                                               May 6, 2014
                                                                             Lyle W. Cayce
GLENDA KUDZAI GOTORA,                                                             Clerk

                                                  Petitioner

v.

ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,

                                                  Respondent


                       Petition for Review of an Order of the
                          Board of Immigration Appeals
                               BIA No. A097 683 986


Before JOLLY, GARZA, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Glenda Kudzai Gotora, a native and citizen of Zimbabwe, appeals the
Board of Immigration Appeals’s denial of her third motion to reopen her
removal proceeding. For the reasons below, Gotora’s petition for review is
dismissed in part and denied in part.
                                             I.
       In December 2007, Gotora received a Notice to Appear, charging her with
being removable from the United States for overstaying her visa. On October


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                No. 13-60165

22, 2008, Gotora appeared pro se before an Immigration Judge (IJ), admitted
the allegations in the Notice to Appear, and was subsequently ordered
removed.
      On February 12, 2009, Gotora, now represented by counsel, filed her first
motion to reopen her removal proceeding for the purpose of seeking asylum,
withholding of removal, and protection under the Convention Against Torture
(CAT). In her motion, Gotora argued that she was not properly advised in her
removal proceeding of her right to seek asylum, withholding of removal, and
protection under CAT. She also submitted an affidavit stating that she and
her family were members of the Movement for Democratic Change (MDC)
party in Zimbabwe, she had attended MDC meetings while in Zimbabwe in
which members of the ruling party (ZANU-PF) broke in and “attacked us and
beat us mercilessly,” and she feared for her safety if returned. Gotora further
stated that her sister was granted withholding of removal in the United State
and that the rest of her family was hiding in other countries. The IJ denied
her motion to reopen on the grounds that Gotora was advised at her initial
master calendar hearing of her right to seek asylum, Gotora failed to submit
an application for asylum or withholding of removal with the motion, the
motion was untimely, and Gotora did not demonstrate the applicability of an
exception to the 90-day time limitation such as a material change in country
conditions.
      On December 17, 2009, Gotora filed a second motion to reopen for the
purpose of seeking asylum, withholding of removal, and protection under CAT.
This time Gotora attached a completed application for asylum and withholding
of removal. The IJ denied the motion as time and number barred. Gotora
appealed to the Board of Immigration Appeals (BIA), and the BIA dismissed
the appeal.



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      On November 28, 2012, Gotora filed her third motion to reopen with the
BIA. As in her earlier motions, Gotora sought asylum, withholding of removal,
and protection under CAT. Gotora argued that she was entitled to equitable
tolling of the time and number limitations for motions to reopen based on her
prior counsel’s ineffective assistance in preparing her first motion to reopen.
She attached a grievance she filed with the Texas bar against her prior counsel.
She also attached country reports and other materials to show a material
change in country conditions in Zimbabwe since her October 2008 merits
hearing. The BIA denied her motion as time and number barred, finding that
she did not comply with the procedural requirements for an ineffective-
assistance claim and did not demonstrate a material change in country
conditions. Gotora timely appealed the denial of her third motion to reopen.
We review the BIA’s denial of a motion to reopen for abuse of discretion and
the BIA’s factual findings for substantial evidence. See Panjwani v. Gonzales,
401 F.3d 626, 632 (5th Cir. 2005).
                                       II.
      An alien ordinarily is limited to filing one motion to reopen and must do
so within 90 days of the final administrative decision.         See 8 U.S.C. §
1229a(c)(7); 8 C.F.R. § 1003.2(c).    Gotora contends that the BIA erred in
denying equitable tolling of these time and number limitations based on her
prior counsel’s ineffective assistance. This circuit construes such an argument
as a challenge to the BIA’s decision not to reopen removal proceedings sua
sponte. See Ramos-Bonilla v. Mukasey, 543 F.3d 216, 220 (5th Cir. 2008) (“[A]
request for equitable tolling of a time- or number-barred motion to reopen on
the basis of ineffective assistance of counsel is in essence an argument that the
BIA should have exercised its discretion to reopen the proceeding sua sponte.”
(internal quotation marks and citation omitted)); see also Joseph v. Holder, 720



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F.3d 228, 231 (5th Cir. 2013). This circuit has held that it lacks jurisdiction to
review the BIA’s decision to decline to reopen proceedings sua sponte. See
Ramos-Bonilla, 543 F.3d at 219-20. We may not overturn the prior decision of
another panel of our court absent an intervening change in law, such as a
statutory amendment or a contrary or superseding decision by either the
Supreme Court or this court en banc. See Jacobs v. Nat’l Drug Intelligence
Ctr., 548 F.3d 375, 378 (5th Cir. 2008).
       Gotora asserts that the Supreme Court’s decision in Kucana v. Holder,
558 U.S. 233 (2010) is an intervening authority that provides this court with
jurisdiction to review the BIA’s decision to decline to reopen her proceeding sua
sponte. Gotora overstates Kucana’s reach. In Kucana, the Supreme Court
“express[ed] no opinion on whether federal courts may review the [BIA]’s
decision not to reopen removal proceedings sua sponte.”                   Id. at 251 n.18
(“Courts of Appeals have held that such decisions are unreviewable because
sua sponte reopening is committed to agency discretion by law.”); see also
Anaya-Aguilar v. Holder, 683 F.3d 369, 371-72 (7th Cir. 2012) (citing cases).
Cf. Pllumi v. Attorney Gen. of the U.S., 642 F.3d 155, 159-60 (3d Cir. 2011); Gor
v. Holder, 607 F.3d 180, 187-93 (6th Cir. 2010).                 Accordingly, under our
precedent, we lack jurisdiction to review Gotora’s request for equitable tolling
based on ineffective assistance of counsel. See Joseph, 720 F.3d at 231; Ramos-
Bonilla, 543 F.3d at 220; see also Mata v. Holder, No. 13-60253, 2014 WL
843578, at *1 (5th Cir. Mar. 5, 2014) (unpublished); Ibarra-Gonzalez v. Holder,
542 F. App’x 341, 341-42 (5th Cir. 2013) (unpublished). 1


       1To the extent we do have jurisdiction to review the BIA’s denial of equitable tolling,
the BIA did not err in holding that Gotora failed to show compliance with the procedural
requirements of Matter of Lozada, 19 I. & N. Dec. 637, 639 (BIA 1988), or provide an adequate
reason for not doing so. See Lara v. Trominski, 216 F.3d 487, 496-98 (5th Cir. 2000). Gotora
did not offer evidence that her prior counsel was informed of her allegations of ineffective
assistance and had a reasonable opportunity to respond before she presented her allegations


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                                             III.
       Gotora next contends that the BIA erred in finding that she failed to
demonstrate a material change in country conditions in Zimbabwe since her
October 2008 merits hearing. A motion to reopen is not subject to time and
number limitations if the request for relief “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); see also 8 C.F.R. § 1003.2(c)(3)(ii). In determining whether
evidence accompanying a motion to reopen demonstrates a material change in
country conditions, the BIA “compare[s] the evidence of country conditions
submitted with the motion to those that existed at the time of the merits
hearing below.” In re S-Y-G, 24 I. & N. Dec. 247, 253 (BIA 2007). This court
has jurisdiction to review the denial of a motion to reopen based on changed
country conditions. See Panjwani, 401 F.3d at 632.
       The evidence Gotora submitted with her motion to reopen shows that the
ruling party of Zimbabwe (ZANU-PF) historically has intimidated, kidnapped,
detained, harassed, and committed violence against members of the MDC
party. The evidence shows an escalation in politically motivated violence and
intimidation prior to Gotora’s merits hearing. A 2011 country report attached
to Gotora’s motion reported 270 confirmed deaths and thousands injured
between the March 2008 and June 2008 elections in Zimbabwe. Additionally,
a 2012 New York Times article described ZANU-PF’s 2005 campaign to forcibly
evict members of the MDC party, leaving 700,000 homeless. The evidence,
however, does not show a material change in conditions between Gotora’s



to the BIA. See, e.g., Hernandez-Ortez v. Holder, 741 F.3d 644, 648 (5th Cir. 2014); Rodriguez-
Manzano v. Holder, 666 F.3d 948, 953 (5th Cir. 2012).


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                                 No. 13-60165

October 2008 merits hearing and her November 2012 motion to reopen. A 2012
report by Amnesty International indicated that “[w]hile the rate of political
violence has slowed, reports of violence based on political views continue to
occur.” Similarly, Human Rights Watch articles attached to Gotora’s motion
expressed concern with “continuing political repression” in Zimbabwe and
reflected that elections in Zimbabwe have been marked by widespread human
rights violations “for more than a decade.” Although these reports evidence
the continuation of political repression during the relevant time period, they
do not show a material change. See, e.g., Zhang v. Holder, 487 F. App’x 949,
951-52 (5th Cir. 2012) (unpublished). Accordingly, Gotora did not meet her
burden to prove an exception to the time and number limitations for her motion
to reopen.
                                      IV.
      For the foregoing reasons, the BIA did not abuse its discretion in denying
Gotora’s motion to reopen as time and number barred.             We take this
opportunity, however, to note that the BIA has discretion to reopen
proceedings sua sponte.    Gotora has submitted documentation evidencing
persecution of members of the MDC party and a potential threat to the safety
of herself and her United States–citizen child in Zimbabwe. Gotora has never
been given an opportunity for a hearing on the merits of her asylum or
withholding of removal applications. We leave it to the BIA, as we must, to
decide whether this is an appropriate case to exercise its discretion.
      PETITION FOR REVIEW DISMISSED IN PART; DENIED IN PART.




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