                                                                                  FILED
                                                                      United States Court of Appeals
                     UNITED STATES COURT OF APPEALS                           Tenth Circuit

                            FOR THE TENTH CIRCUIT                         September 22, 2017
                        _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
ROLANDO DURAN-QUINTANILLA,

      Petitioner,

v.                                                          No. 17-9513
                                                        (Petition for Review)
JEFFERSON B. SESSIONS, III,
United States Attorney General,

      Respondent.
                        _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before HARTZ, McKAY, and MATHESON, Circuit Judges.
                  _________________________________

      Rolando Duran-Quintanilla petitions for review from a decision by the Board

of Immigration Appeals (BIA) denying his motion to reopen. Exercising jurisdiction

pursuant to 8 U.S.C. § 1252, we deny the petition for review.

                                           I.

      Petitioner is a native and citizen of El Salvador. He has entered the United

States without authorization three times. After his second unlawful entry, he was


      *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
ordered removed. After his third unlawful entry in October 2015, the Department of

Homeland Security (DHS) issued him a notice of its intent to reinstate his prior

removal order. Petitioner then expressed a fear of torture if he was returned to

El Salvador. An asylum officer concluded that petitioner did have a reasonable fear

of torture and referred the matter to an immigration judge (IJ) in accordance with

8 C.F.R. § 1208.31(e).1

      Under § 1208.31(e), the referral to the IJ was for “withholding of removal

only.” Petitioner applied for withholding of removal under the Convention Against

Torture (CAT), and he had a hearing on his application before an IJ in June 2016.

The IJ ultimately denied relief, concluding that petitioner had failed to establish that

it was more likely than not that Salvadoran officials would instigate, consent to, or

acquiesce to his torture.2 The BIA affirmed the IJ’s decision in November 2016.

Petitioner did not seek review of that decision in this court.


      1
         If an alien has his removal order reinstated and, during the reinstatement
process, expresses a fear of returning to the country of removal, an asylum officer
interviews the alien to make an initial reasonable fear determination. See 8 C.F.R.
§ 1208.31(a)-(c). If the asylum officer determines that the alien does have a
reasonable fear of persecution or torture, the officer “issue[s] a Form I-863, Notice of
Referral to the [IJ], for full consideration of the request for withholding of removal
only.” Id. § 1208.31(e).
      2
         To prove eligibility for withholding of removal under the CAT, the applicant
must “establish that it is more likely than not that he or she would be tortured if
removed to the proposed country of removal.” 8 C.F.R. § 1208.16(c)(2). The
definition of “torture” contained in § 1208.18(a) governs this determination. Id.
§ 1208.16(c)(1). As is relevant here, that definition requires an intentional act
causing severe pain or suffering that is “inflicted by or at the instigation of or with
the consent or acquiescence of a public official or other person acting in an official
capacity.” Id. § 1208.18(a)(1).
                                            2
      In December 2016, petitioner filed a timely motion to reopen with the BIA.

He asserted that “new facts ha[d] materialized that would more than likely change the

outcome of the case.” R. at 28. The BIA disagreed and denied the motion.

Petitioner now seeks review of that decision.

                                          II.

      We review the BIA’s denial of a motion to reopen for an abuse of discretion.

Maatougui v. Holder, 738 F.3d 1230, 1239 (10th Cir. 2013). “The BIA abuses its

discretion when its decision provides no rational explanation, inexplicably departs

from established policies, is devoid of any reasoning, or contains only summary or

conclusory statements.” Id. (internal quotation marks omitted).

      The relevant regulation provides that “[a] motion to reopen proceedings shall

not be granted unless it appears to the Board that evidence sought to be offered is

material and was not available and could not have been discovered or presented at

the former hearing[.]” 8 C.F.R. § 1003.2(c)(1) (emphasis added). An alien seeking

to reopen proceedings must also show that, if his motion to reopen were granted, the

new evidence presented would likely change the result of his case. Maatougui,

738 F.3d at 1240.

      Petitioner argues that the BIA violated his due process rights by failing to

consider and discuss his new evidence. We disagree. In his motion to reopen,

petitioner did not present any new evidence to support his application for withholding

of removal under the CAT. Instead, he cited his recent discovery that he was eligible

to apply for an I-360 petition, which allows an alien to self-petition for an immigrant

                                           3
visa if he or she has suffered abuse at the hands of a spouse who is a United States

citizen. Petitioner then described his wife’s actions that provided the basis for his

I-360 petition, and alleged that he “ha[d] demonstrated prima facie eligibility for

[I-360] relief.” R. at 32. He concluded the motion to reopen by stating, “[t]his

information was not available at the time of the hearing because [he] was not aware

he was eligible to apply for an I-360 Petition until he hired undersigned Counsel to

assist him in preparing an appeal.” Id.

      The BIA determined that petitioner had not presented new, material evidence

in his motion to reopen because the ability to file an I-360 petition was available to

him at the time of his June 2016 hearing.3 Petitioner argues that the BIA erred by

failing to mention the evidence in his motion to reopen related to his wife’s abuse.

But the “new evidence” petitioner asserted that he discovered was his eligibility to

apply for I-360 relief. See id. at 30 (“Since [petitioner] filed his appeal with this

Honorable Board, the circumstances of his case have drastically changed.

Specifically, when [he] hired undersigned Counsel with respect to his appeal, [he]

discovered he was eligible to apply for an I-360 Petition, Self-Petitioning Spouse of

Abusive U.S. Citizen or Lawful Permanent Resident.”). Although petitioner

recounted in his motion the evidence of his wife’s abuse that supported his I-360

petition, the BIA was not deciding the merits of that petition so it was not required to


      3
         We note that petitioner was represented by Attorney Marlene Gonzalez at
the June 2016 hearing, and petitioner has not argued that she was ineffective in
representing him during that time.

                                            4
discuss that evidence. In addition, the facts related to his wife’s abuse were not new

as petitioner had testified about them at his June 2016 hearing. Compare R. at 30-31

(motion to reopen) with id. at 149-50, 154-55 (hearing testimony). The BIA

addressed petitioner’s purported “new evidence” and correctly concluded that his

“ability to self-petition [for I-360 relief] was available at the time of his 2016

hearing[.]” Id. at 2.

         Petitioner also argues that his case should be remanded because the BIA stated

that he was eligible to seek asylum but he was never afforded that opportunity.

Petitioner’s argument is meritless. In the BIA’s decision, it was explaining that the

availability of I-360 relief would not likely change the result in petitioner’s case

because “the scope of [petitioner’s] current proceedings is limited to a determination

of whether he is eligible for asylum, withholding, or deferral of removal. See

8 C.F.R. 1208.2(c)(3)(i).” Id. Petitioner is now attempting to use the BIA’s

inadvertent reference to asylum in the preceding sentence4 to circumvent the

applicable regulations limiting the scope of his proceeding. We reject his attempt to

do so.


         4
         Section 1208.2(c) covers two types of proceedings; in one of those, the IJ
may consider applications for asylum, but in petitioner’s type of proceeding, an IJ
may only consider applications for withholding or deferral of removal. See 8 C.F.R.
§ 1208.2(c)(3)(i) (“The scope of review in proceedings conducted pursuant to
paragraph (c)(1) of this section shall be limited to a determination of whether the
alien is eligible for asylum or withholding or deferral of removal . . . . The scope of
review in proceedings conducted pursuant to paragraph (c)(2) of this section shall be
limited to a determination of whether the alien is eligible for withholding or deferral
of removal.” (emphasis added)).

                                            5
      Because of petitioner’s status as an alien subject to a reinstated removal order,

he was in a withholding-only proceeding. See 8 C.F.R. § 1208.31(e). His proceeding

was conducted pursuant to § 1208.2(c)(2)(i),5 and the IJ was therefore limited to

determining whether he was eligible for withholding or deferral of removal. See id.

§ 1208.2(c)(3)(i). Petitioner, and his attorney at the time, recognized the limitations

on the scope of his proceeding and he only applied for withholding of removal under

the CAT. See R. at 298 (application for withholding of removal under the CAT);

id. at 197-98 (counsel confirming at hearing that petitioner was only seeking

withholding of removal under the CAT). There is no merit to petitioner’s

argument—made by his new attorney—that he is now entitled to a remand to seek

asylum relief.

                                          III.

      We see no abuse of discretion in the BIA’s decision to deny petitioner’s

motion to reopen. Accordingly, we deny the petition for review.

                                                 Entered for the Court


                                                 Monroe G. McKay
                                                 Circuit Judge




      5
       Section 1208.2(c)(2)(i) provides: “Withholding of removal applications
only. After Form I-863, Notice of Referral to [IJ], has been filed with the
Immigration Court, an [IJ] shall have exclusive jurisdiction over any application for
withholding of removal filed by: (i) An alien who is the subject of a reinstated
removal order[.]”
                                           6
