     15-1904
     Martines-Castaneda v. Lynch
                                                                                       BIA
                                                                               A200 026 168
                             UNITED STATES COURT OF APPEALS
                                 FOR THE SECOND CIRCUIT

                                   SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT
FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE
(WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1        At a stated term of the United States Court of Appeals for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   15th day of December, two thousand sixteen.
 5
 6   PRESENT:
 7            ROBERT A. KATZMANN,
 8                 Chief Judge,
 9            RICHARD C. WESLEY,
10            DEBRA ANN LIVINGSTON,
11                 Circuit Judges.
12   _____________________________________
13
14   JOSE MISAEL MARTINES-CASTANEDA,
15   AKA JOSE MARTINES-CASTANEDA, AKA
16   JOSE MISAEL MARTINEZ-CASTANEDA,
17            Petitioner,
18
19                     v.                                            15-1904
20                                                                   NAC
21   LORETTA E. LYNCH, UNITED STATES
22   ATTORNEY GENERAL,
23            Respondent.
24   _____________________________________
25
26   FOR PETITIONER:                     JM Mariotti, Manuel D. Gomez &
27                                       Associates P.C., New York, New York.
28
29   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
30                                       Assistant Attorney General; Holly M.
31                                       Smith, Senior Litigation Counsel;
32                                       Maarja T. Luhtaru, Trial Attorney,
33                                       Office of Immigration Litigation,
1                                United States Department of Justice,
2                                Washington, D.C.
3
4        UPON DUE CONSIDERATION of this petition for review of a

5    Board of Immigration Appeals (“BIA”) decision, it is hereby

6    ORDERED, ADJUDGED, AND DECREED that the petition for review is

7    DENIED.

8        Petitioner Jose Misael Martines-Castaneda, a native and

9    citizen of El Salvador, seeks review of a May 14, 2015 decision

10   of the BIA denying his motion to reopen proceedings and denying

11   his motion to rescind his in absentia removal order.   In re Jose

12   Misael Martines-Castaneda, No. A200 026 168 (B.I.A. May 14,

13   2015).    We assume the parties’ familiarity with the underlying

14   facts and procedural history in this case.

15       “We review the BIA’s denial of a motion to reopen for abuse

16   of discretion.”    Kaur v. BIA, 413 F.3d 232, 233 (2d Cir. 2005).

17   An alien seeking to reopen proceedings may file one motion to

18   reopen no later than 90 days after the date on which the final

19   administrative decision was rendered in the proceeding that the

20   alien seeks to reopen.    8 U.S.C. § 1229a(c)(7)(A), (C)(i);

21   8 C.F.R. § 1003.2(c)(2).    There is no dispute that

22   Martines-Castaneda’s March 2015 motion to reopen was untimely

23   and number barred because the final administrative order of

                                     2
1    removal was issued in 2005, and the March 2015 motion was his

2    second motion.       The time and number limitations do not apply,

3    however, if the motion to reopen is filed in order to apply for

4    asylum or withholding of removal and “is based on changed

5    country conditions arising in the country of nationality or the

6    country to which removal has been ordered, if such evidence is

7    material and was not available and would not have been

8    discovered or presented at the previous proceeding.”                  8 U.S.C.

9    § 1229a(c)(7)(C)(ii); see also 8 C.F.R. § 1003.2(c)(3)(ii).

10   In reviewing whether the movant has demonstrated such a change

11   in country conditions, the BIA compares the country conditions

12   at the time of the original hearing with those at the time of

13   the motion to reopen.        See Matter of S-Y-G, 24 I. & N. Dec. 247,

14   253 (BIA 2007).       We review the BIA’s country conditions

15   findings for substantial evidence.              Jian Hui Shao v. Mukasey,

16   546 F.3d 138, 169 (2d Cir. 2008).

17         Contrary to the Government’s position, we conclude that

18   Martines-Castaneda’s          brief     on    appeal     has    sufficiently

19   challenged the BIA’s denial of reopening.               However, we find no

20   abuse of discretion in the BIA’s denial of the motion.1


     1
       The BIA also construed Martines-Castaneda’s motion to reopen as a motion to
     rescind the September 23, 2005 in absentia removal order entered against him. The
                                            3
1          The agency properly concluded that Martines-Castaneda was

2    not entitled to reopening on the basis of incidents that

3    occurred prior to his 2005 removal proceedings, notably an

4    attack on Martines-Castaneda by MS-13 gang members and the

5    murder of his brother by that gang’s members. See 8 C.F.R.

6    § 1003.2(c)(1) (requiring new, previously unavailable evidence

7    for reopening).          Martines-Castaneda’s argument that the BIA

8    should have granted reopening based on the birth of his U.S.

9    citizen child is meritless: a change in personal circumstances

10   does not excuse a late motion to reopen.                 See Wei Guang Wang

11   v. BIA, 437 F.3d 270, 273-274 (2d Cir. 2006).

12         Otherwise,      substantial       evidence      supports      the    BIA’s

13   determination that Martines-Castaneda failed to show that

14   changed conditions in El Salvador were material to his claims

15   for     asylum      or     withholding       of     removal.           8 U.S.C.

16   § 1229a(c)(7)(C)(ii); Jian Hui Shao, 546 F.3d at 169. For

17   example, Martines-Castaneda stated in an affidavit that gangs

18   in El Salvador killed one of his cousins in 2013 and kidnapped


     BIA denied the motion to rescind the in absentia removal order, and we review this
     denial for abuse of discretion. Maghradze v. Gonzales, 462 F.3d 150, 152 (2d Cir.
     2006). Like Martines-Castaneda’s motion to reopen, his motion for rescission of
     his in absentia removal order is time and number-barred. See 8 C.F.R. §
     1003.23(b)(4)(ii). Moreover, the BIA did not abuse its discretion in determining
     that Martines-Castenada had not demonstrated that the failure to appear at the
     removal proceeding was a consequence of “exceptional circumstances.” Id.
                                             4
1    another in 2014. However, the BIA did not abuse its discretion

2    in finding that Martines-Castaneda had not provided sufficient

3    evidence about the context of these events to show changed

4    country conditions material to his claims. Further, although

5    Martines-Castaneda submitted evidence showing a 57% increase

6    in homicide in El Salvador in 2014 as a result of the collapse

7    of a truce between warring gangs, the BIA did not abuse its

8    discretion   in   finding   that       evidence   of   this   kind   was

9    inadequately related to Martines-Castaneda’s own asylum and

10   withholding claims. Moreover, an alien may not predicate an

11   asylum claim on “general crime conditions”; instead, he must

12   show that those conditions implicate some protected ground.

13   Melgar de Torres v. Reno, 191 F.3d 307, 314 (2d Cir. 1999).

14   Accordingly, the BIA did not abuse its discretion in denying

15   reopening.

16       We have considered Linares-Urrutia’s remaining arguments

17   and found them without merit. For the foregoing reasons, the

18   petition for review is DENIED.

19                                 FOR THE COURT:
20                                 Catherine O=Hagan Wolfe, Clerk




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