     Case: 11-60203     Document: 00511784244         Page: 1     Date Filed: 03/12/2012




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

                                                                            FILED
                                                                          March 12, 2012
                                     No. 11-60203
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

ILSIA MAGALY PEREZ-FLORIAN,

                                                  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. A073 704 678


Before SMITH, GARZA, and DeMOSS, Circuit Judges.
PER CURIAM:*
        Ilsia Magaly Perez-Florian (Perez), a native and citizen of Guatemala,
seeks review of the orders of the Board of Immigration Appeals (BIA) denying
her motion to reopen her immigration proceedings and her motion to stay
removal. She posits three issues for review. The first is whether the BIA erred
in determining that the material she presented with her motion to reopen would
not establish that the dangerous circumstances and conditions prevailing in
Guatemala when she moved to reopen in 2010 differed from those prevailing

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-60203

when an immigration judge (IJ) ordered her removed in 1998. The second is
whether the BIA erred by not treating Perez’s evidence of natural catastrophes
in Guatemala as exacerbating the danger Perez faced based on her sex. The
third is whether the BIA abused its discretion when it failed to reopen sua
sponte to consider whether women in Guatemala may constitute a particular
social group eligible for immigration relief pursuant to the remand in Perdomo
v. Holder, 611 F.3d 662, 669 (9th Cir. 2010).
      When judicial review of the denial of a motion to reopen is permitted, we
employ a “highly deferential abuse-of-discretion standard.” Altamirano-Lopez
v. Gonzales, 435 F.3d 547, 549 (5th Cir. 2006) (internal quotation marks and
citation omitted). Even if we think the BIA’s denial wrong, the ruling will stand
if “it is not capricious, racially invidious, utterly without foundation in the
evidence, or otherwise so irrational that it is arbitrary rather than the result of
any perceptible rational approach.” Zhao v. Gonzales, 404 F.3d 295, 304 (5th
Cir. 2005) (internal quotation marks and citation omitted).
      Ordinarily, a motion to reopen must be filed in the BIA “no later than
within 90 days after the date on which the final administrative decision was
rendered in the proceeding sought to be reopened.” 8 C.F.R. § 1003.2(c)(2). This
bar does not apply, however, if the motion is based on “changed circumstances
arising in the country of nationality or in the country to which deportation has
been ordered, if such evidence [of change] is material and was not available and
could not have been discovered or presented at the previous hearing” before the
IJ. § 1003.2(c)(3)(ii); see Enriquez-Gutierrez v. Holder, 612 F.3d 400, 409–10 (5th
Cir. 2010).
      A motion to reopen must state new facts to be proved at a hearing and
must “be supported by . . . evidentiary material.” § 1003.2(c)(1). The BIA, in its
gatekeeping function, concluded that, even assuming women in Guatemala could
constitute a particular social group, Perez failed to present material that would
show that contemporary circumstances in Guatemala differed from those

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                                    No. 11-60203

existing there at the time of her hearing in 1998. In explaining its denial of
Perez’s motion, the BIA mentioned only the materials attached to that motion,
although the administrative record contained also the United States State
Department country reports for Guatemala that Perez filed when she sought
immigration relief in 1997. When she moved to reopen in the BIA, however,
Perez did not direct the BIA to any of the earlier materials and instead limited
her argument to the new material presented with her motion to
reopen—material that did not present a basis for any determination about the
circumstances existing in 1998 and whether they had changed. Given the
limited argument and conclusory assertion of changed circumstances that Perez
presented to the BIA, we cannot conclude that its denial of her motion to reopen
was arbitrary, capricious, or irrational. See Zhao, 404 F.3d at 304.
         We reject Perez’s second claim also. Perez cites no legal authority for the
proposition that asylum or withholding of removal can be granted based on any
exacerbating effects of a tropical storm, flooding, landslides, a volcanic eruption,
or a sinkhole in an urban setting. An issue must be briefed to be preserved.
FED. R. APP. P. 28(a)(9). We are not required to find the legal basis for Perez’s
claim. See United States. v. Charles, 469 F.3d 402, 408 (5th Cir. 2006). Because
Perez has not presented any legal authority concerning, and thus has not
preserved, the issue whether natural disasters may be considered in determining
whether circumstances have worsened in Guatemala, we need not consider the
issue.
         Additionally, we find unavailing Perez’s contention that the BIA abused
its discretion when it chose not to reopen sua sponte. Given that the provision
for sua sponte reopening, see § 1003.2(a), vests the BIA with complete discretion
to deny untimely motions to reopen, we have “no legal standard by which to
judge the . . . ruling, and therefore . . . lack[ ] jurisdiction” to do so.
Ramos-Bonilla v. Mukasey, 543 F.3d 216, 220 (5th Cir. 2008).
         PETITION DENIED.

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