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

                            FOR THE TENTH CIRCUIT                                June 18, 2015
                        _________________________________
                                                                           Elisabeth A. Shumaker
                                                                               Clerk of Court
MIGUEL SANTOS-MENDOZA,

      Petitioner,
                                                             No. 15-9506
v.                                                       (Petition for Review)

LORETTA E. LYNCH, United States
Attorney General,

      Respondent.

                        _________________________________

                            ORDER AND JUDGMENT
                        _________________________________

Before HARTZ, TYMKOVICH, and MORITZ, Circuit Judges.
                 _________________________________

      Miguel Santos-Mendoza, a native and citizen of Mexico, petitions for review

of a Board of Immigration Appeals’ (BIA) decision affirming an Immigration Judge’s

(IJ) denial of his motion to reopen the IJ’s 1990 order directing Santos-Mendoza’s

removal to Mexico. The BIA affirmed the denial of the motion as untimely and



      
         Loretta E. Lynch is substituted for Eric H. Holder, Jr., as the respondent in
this action. See Fed. R. App. P. 43(c)(2).
       
          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 This order and judgment is not binding precedent,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. See Fed. R. App. P. 32.1; 10th Cir.
R. 32.1.
dismissed Santos-Mendoza’s appeal. Exercising jurisdiction under 8 U.S.C.

§ 1252(a)(1), we deny Santos-Mendoza’s petition for review.

      In March 1990, the Immigration and Naturalization Service (INS) instituted

removal proceedings against Santos-Mendoza alleging he entered the United States in

August 1989 without inspection. In April 1990, the IJ determined Santos-Mendoza

was removable for the reasons alleged by the INS and directed Santos-Mendoza’s

removal to Mexico. Almost immediately after his removal, Santos-Mendoza illegally

reentered the United States and he has remained here since 1990.

      In July 2013, Santos-Mendoza moved to reopen the IJ’s 1990 removal order

based on (1) his presence in the United States since 1990, (2) the citizenship and

permanent residency status of several of his children, (3) his Mexican citizen wife’s

current application for a visa through her United States citizen brother, (4) his lack of

significant criminal history, and (5) the fact that he was “in the process of filing for

adjustment of status . . . when his prior order of removal was reinstated and he was

ordered to leave the United States.” Admin. R. at 62-63. The IJ denied the motion to

reopen as untimely because it was filed more than 90 days after the 1990 removal

order. The IJ also noted that Santos-Mendoza was not eligible to adjust his status

given his illegal reentry after the 1990 removal.

      Santos-Mendoza appealed to the BIA, arguing the IJ failed to recognize that he

sought reopening to apply for withholding of removal and protection under the

Convention Against Torture (CAT) given “significant changes in Mexico” since

1990. Id. at 26-30. The BIA affirmed the IJ’s denial of the motion and dismissed the

                                            2
appeal, reasoning the motion was untimely and Santos-Mendoza failed to

demonstrate any exceptions to the time bar because Santos-Mendoza neither relied on

the CAT in his motion to reopen nor presented any evidence to either the IJ or the

BIA regarding the changed conditions.

      In this timely petition for review,1 Santos-Mendoza contends both the IJ and

the BIA “failed to take into account that [he] is raising Withholding and CAT in his

motion to reopen, and there has been a significant change in his country’s condition

that should warrant [his] case to be reopened.” Pet’r Br., at 6-9.

      We review a BIA order denying a motion to reopen for abuse of discretion.

Wei v. Mukasey, 545 F.3d 1248, 1254 (10th Cir. 2008). “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.” Maatougui v. Holder, 738 F.3d 1230, 1239 (10th Cir. 2013)

(quotations omitted). When, as here, a single member of the BIA issues a brief order

affirming the IJ’s decision, the BIA order “constitutes the final order of removal

under 8 U.S.C. § 1252(a), and thus [we] will not affirm on grounds raised in the IJ

decision unless they are relied upon by the BIA.” Sidabutar v. Gonzales, 503 F.3d

1116, 1123 (10th Cir. 2007) (internal quotation marks omitted).




      1
         Santos-Mendoza timely filed his petition for review on December 11, 2014,
but mistakenly filed it in the Ninth Circuit. The Ninth Circuit transferred the petition
to this court on January 15, 2015. Venue in this court is proper because Santos-
Mendoza’s removal proceedings concluded in Aurora, Colorado. See Admin R. at 43;
8 U.S.C. § 1252(b)(2).
                                            3
      A motion to reopen an IJ decision “must be filed within 90 days of the date of

entry of a final administrative order of removal, deportation, or exclusion, or on or

before September 30, 1996, whichever is later.” 8 C.F.R. § 1003.23(b)(1); see also 8

U.S.C. §§ 1229a(c)(7)(A), (C)(i) (providing an applicant generally may file one

motion to reopen within 90 days of the final order of removal). Because the IJ’s order

directing Santos-Mendoza’s removal to Mexico became final in April 1990, he had

until September 30, 1996, to file a timely motion. Yet Santos-Mendoza did not file

his motion to reopen until July 2013—nearly 17 years later. The BIA did not abuse

its discretion in affirming the IJ’s denial of this untimely motion.

      The BIA also properly rejected Santos-Mendoza’s argument that the IJ failed

to recognize that it could consider his untimely motion because he “expressed the

desire to seek relief under Withholding and CAT” based on “significant changes in

Mexico” since 1990. Admin. R. at 29. The 90-day limitation does not apply if the

movant seeks reopening to apply for “withholding of removal under the Convention

Against Torture . . . based on changed country conditions arising in the country of

nationality or the country to which removal has been ordered.” 8 C.F.R.

§ 1003.23(b)(4)(i); see also 8 U.S.C. § 1229a(c)(7)(C)(ii). As the BIA noted here,

Santos-Mendoza asserted several different circumstances justifying reopening his

removal order, but he did not seek withholding of removal or CAT protection based

on changed conditions in Mexico. Under these circumstances, we hold the BIA did

not abuse its discretion in concluding Santos-Mendoza failed to establish any



                                            4
exceptions to the 90-day time bar and we deny Santos-Mendoza’s petition for review.


                                         Entered for the Court


                                         Nancy L. Moritz
                                         Circuit Judge




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