     Case: 15-60258       Document: 00513501584         Page: 1     Date Filed: 05/11/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                     No. 15-60258
                                   Summary Calendar
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit

                                                                                 FILED
                                                                             May 11, 2016
PEDRO ARQUIMIDES CRUZ-FERNANDEZ,
                                                                            Lyle W. Cayce
                                                                                 Clerk
                                                  Petitioner

v.

LORETTA LYNCH, U.S. ATTORNEY GENERAL,

                                                  Respondent


                        Petition for Review of an Order of the
                           Board of Immigration Appeals
                                BIA No. A098 722 135


Before BARKSDALE, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Pedro Arquimides Cruz-Fernandez, a native and citizen of El Salvador,
petitions for review of the Board of Immigration Appeals’ (BIA) dismissal of his
appeal from the Immigration Judge’s (IJ) denial of his 2014 motion to reopen
his in absentia removal proceedings; and, its denial of his motion to remand.
He contends the BIA erred in determining: (1) he was properly provided notice
of his immigration hearing, which resulted in the in absentia removal order;


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 15-60258

(2) he had not satisfied the requirements for an ineffective-assistance-of-
counsel claim (IAC claim), as set out in Matter of Lozada, 19 I. & N. Dec. 637
(BIA 1988) overruled in part by Matter of Compean, 24 I. & N. Dec. 710 (BIA
2009); and (3) he failed to show changed conditions in El Salvador warranted
reopening removal proceedings to allow him to apply for asylum. Additionally,
he asserts the BIA abused its discretion in denying his motion to remand, in
order to allow the IJ to sua sponte reopen the matter to reconsider arguments
and evidence in the motion to reopen.
       For the following reasons, Cruz fails to show the BIA abused its
discretion in denying his motion to reopen. Such denials are reviewed “under
a highly deferential abuse-of-discretion standard”.        Barrios-Cantarero v.
Holder, 772 F.3d 1019, 1021 (5th Cir. 2014) (internal quotation marks and
citation omitted). In that regard, the BIA “abuses its discretion when it issues
a decision that is capricious, irrational, utterly without foundation in the
evidence, based on legally erroneous interpretations of statutes or regulations,
or based on unexplained departures from regulations or established policies”.
Id.
       In August 2005, the IJ ordered Cruz removed from the United States
after he failed to appear at his scheduled hearing. For his assertion he did not
receive notice of the hearing via mail, he concedes he was served personally
with a notice to appear, which satisfies the notice requirement. See 8 U.S.C.
§ 1229(a)(1).
       For his IAC claim, Cruz failed to fully comply with the Lozada
requirements. 19 I. & N. Dec. at 639. In that regard, he failed to set out the
details of his agreement with his former counsel, or show counsel was notified
of the allegations of ineffective assistance. Id.; see also Lara v. Trominski, 216
F.3d 487, 496–98 (5th Cir. 2000).



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                                 No. 15-60258

      In claiming the BIA erred in determining he had not demonstrated
changed circumstances in El Salvador warranted reopening of removal
proceedings, Cruz avers he provided evidence to show both an increase in
violence in El Salvador, and a change in the Government’s willingness and
ability to combat the violence. Nevertheless, our court has upheld the denial
of such a motion where the evidence of changed conditions showed only a
continuation of ongoing violence in petitioner’s home country. See, e.g., Ramos
v. Lynch, 622 F. App’x 432, 433 (5th Cir. 2015) (ongoing land-ownership
dispute with local politician, and general corruption and violence in Honduras,
did not amount to changed conditions); Thomas v. Holder, 396 F. App’x 60, 61
(5th Cir. 2010) (political corruption and gang violence occurring in Jamaica
since the 1960s did not represent changed conditions). Along that line, his
assertion he fears for his safety because of threats and violence experienced by
his relatives in El Salvador amounts only to a change in personal
circumstances. See Gatamba v. Holder, 485 F. App’x 690, 691 (5th Cir. 2012)
(“Changes in personal circumstances do not constitute changed country
conditions.”)
      With regard to Cruz’ challenge to the BIA’s denial of his motion to
remand, he essentially contends the BIA should have exercised its discretion
to reopen this matter sua sponte. See Wang v. Ashcroft, 260 F.3d 448, 451 (5th
Cir. 2001). But, we lack jurisdiction to review such a claim. Enriquez-Alvarado
v. Ashcroft, 371 F.3d 246, 248–50 (5th Cir. 2004). The Supreme Court’s recent
decision in Mata v. Lynch did not disturb our court’s prior precedent on this
point. 135 S. Ct. 2150, 2155 (2015) (assuming, arguendo, circuit courts lack
authority to review the BIA’s use of its discretionary power to sua sponte
reopen a case); see also Kucana v. Holder, 558 U.S. 233, 251 n.18 (2010)




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                                No. 15-60258

(“express[ing] no opinion on whether federal courts may review the [BIA’s]
decision not to reopen removal proceedings sua sponte”).
     DISMISSED IN PART and DENIED IN PART.




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