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

                           FOR THE TENTH CIRCUIT                            August 3, 2016
                       _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
JOSE CHAVEZ-OCHOA, a/k/a Jose
Ochoa Chavez,

      Petitioner,

v.                                                         No. 15-9582
                                                       (Petition for Review)
LORETTA E. LYNCH, United States
Attorney General,

      Respondent.
                       _________________________________

                           ORDER AND JUDGMENT*
                       _________________________________

Before TYMKOVICH, Chief Judge, BACHARACH and MORITZ, Circuit Judges.
                 _________________________________

       Jose Chavez-Ochoa, a native and citizen of Mexico, seeks review of a Board of

Immigration Appeals’ (BIA’s) decision denying as untimely his motion to reopen

removal proceedings. Exercising jurisdiction under 8 U.S.C. § 1252, we deny the

petition.




       *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
                                     BACKGROUND

      In 1991, Chavez-Ochoa illegally entered the U.S. In 2008, the Department of

Homeland Security ordered him to appear before an Immigration Judge (IJ). At a

hearing, Chavez-Ochoa conceded removability and sought cancellation of removal or

voluntary departure. The IJ denied Chavez-Ochoa’s application and ordered him

removed to Mexico. The BIA remanded for a new hearing, however, because the IJ had

threatened to strike Chavez-Ochoa’s direct testimony if on cross-examination he refused

to answer whether he had ever claimed to be a U.S. citizen.

      Following the new hearing, the IJ denied Chavez-Ochoa’s request for cancellation

of removal or voluntary departure. On November 25, 2014, the BIA dismissed the

appeal. Chavez-Ochoa unsuccessfully sought reconsideration.

      On June 29, 2015, Chavez-Ochoa filed a motion to reopen the removal

proceedings so he could seek protection under the Convention Against Torture (CAT).

He argued that his wife had recently become a police officer in Texas and her police chief

had prohibited travel to Mexico because of a travel warning issued by the State

Department.

      The BIA found the motion untimely, as it was filed more than 90 days after the

BIA dismissed his appeal. And while there is an exception to the time limitation when

the motion is based on changed country conditions, the BIA determined that Chavez-

Ochoa had not shown “a material change in country conditions for United States federal

and local law enforcement personnel in Mexico since this matter was last before the [IJ].”

R. at 4. Further, the BIA stated that Chavez-Ochoa’s wife’s employment as a police

                                            2
officer was “a change in . . . personal circumstances, rather than a change in country

conditions.” Id.

                                       DISCUSSION
                                 I. Standards of Review

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

Infanzon v. Ashcroft, 386 F.3d 1359, 1362 (10th Cir. 2004). “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). “[M]otions to reopen immigration

cases are plainly disfavored, and [the movant] bears a heavy burden to show the BIA

abused its discretion.” Maatougui v. Holder, 738 F.3d 1230, 1239 (10th Cir. 2013)

(brackets and internal quotation marks omitted).

                                      II. Timeliness

       A motion to reopen immigration proceedings generally must be filed within 90

days of a final removal order, 8 U.S.C. § 1229a(c)(7)(C)(i), unless the motion 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,” id.

§ 1229a(c)(7)(C)(ii); see also 8 C.F.R. § 1003.2(c)(3)(ii).

       First, Chavez-Ochoa argues the BIA lacks authority to determine whether there are

changed country conditions and it “should have re-opened proceedings and remanded the

case to the [IJ].” Pet. Opening Br. at 23. He is mistaken. The BIA has jurisdiction over


                                             3
motions to reopen a case in which it has made a decision, 8 C.F.R. § 1003.2(a), and once

that jurisdiction is exercised, it is exclusive, see id. § 1003.23(b). Moreover, the

governing regulations specifically allow the BIA to determine whether the time and

numerical limitations on motions to reopen can be excused because of changed

circumstances. See id. § 1003.2(c)(3)(ii). And while the CAT regulations contemplate

that an IJ will resolve a CAT application, see id. § 1208.16(c)(4), they do not affect the

BIA’s authority to determine in the first instance whether to consider an untimely or

numerically-barred motion to reopen.

         Next, Chavez-Ochoa argues the BIA erred in determining that conditions in

Mexico had not changed from when his case “was last before the [IJ]” in 2013 and when

he moved to reopen in June 2015. Pet. Opening Br. at 21. He contends that a change in

conditions is shown by the confluence of two events: (1) his wife’s January 2015 hiring

as a police officer; and (2) the issuance of a State Department updated travel warning in

May 2015 restricting the travel of U.S. government employees in Mexico because “U.S.

citizens have been the victims of violent crimes, such as kidnapping, carjacking, and

robbery by organized criminal groups in various Mexican states,” R. at 34. We reject

Chavez-Ochoa’s argument for two reasons.

         First, Chavez-Ochoa’s wife’s recent hiring as a police officer is merely a changed

personal circumstance, which, as the BIA noted, doesn’t satisfy the requirements for

reopening removal proceedings. See Wei v. Mukasey, 545 F.3d 1248, 1255–57 (10th Cir.

2008).



                                              4
       Second, in February 2012—prior to the remanded removal proceedings—the State

Department issued a travel warning describing similar dangers in Mexico and indicating

that travel restrictions on U.S. government employees had been in place since July 2010.

Quite simply, the risks of traveling to Mexico for U.S. citizens and the travel restrictions

placed on U.S. government employees have not materially changed since Chavez-

Ochoa’s case was before the IJ.1

       Accordingly, the BIA correctly concluded that Chavez-Ochoa’s motion to reopen

was time barred.2

                                       CONCLUSION

       The petition for review is denied.
                                              Entered for the Court



                                              Nancy L. Moritz
                                              Circuit Judge




       1
        Chavez-Ochoa argues for the first time in his reply brief that changed country
conditions are not necessary for motions to reopen filed after March 1999. This
argument has been waived due to its late presentation. See United States v. Harrell,
642 F.3d 907, 918 (10th Cir. 2011).
       2
         Given the untimeliness of the motion, we need not address the BIA’s
alternate conclusion that Chavez-Ochoa failed to make a prima facie showing of CAT
eligibility.
                                              5
