                                                                            FILED
                            NOT FOR PUBLICATION
                                                                             MAR 17 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


MILTON ALBERTO MARTINEZ-                         No.   14-72692
AVELAR,
                                                 Agency No. A091-785-928
              Petitioner,

 v.                                              MEMORANDUM*

JEFFERSON B. SESSIONS III, Attorney
General,

              Respondent.


                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                       Argued and Submitted March 6, 2017
                              Pasadena, California

Before: REINHARDT and NGUYEN, Circuit Judges, and EZRA,** District Judge.

      1. Petitioner Milton Alberto Martinez-Avelar (“Martinez-Avelar”), a native

and citizen of El Salvador, seeks review of a 2014 order from the Board of

Immigration Appeals (“BIA”) denying his motion to reopen as untimely and

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
number-barred. Martinez-Avelar first entered the United States, without inspection,

in January 1982 when he was approximately 12 years old. At age 13, Martinez-

Avelar joined the Mara Salvatrucha (“MS-13”) gang in Los Angeles, but he has

long since renounced his ties to the gang. He was ordered removed from the United

States in absentia, and he returned to El Salvador in 1993, where he became a

successful teacher and an active member of his church community.

      He returned to the United States in 2000, after he was severely injured in a

brutal attack by MS-13 gang members in his home country. In 2012, his only

criminal conviction, for an offense allegedly committed when he was

approximately 19 years old, was vacated on statutory grounds by the Los Angeles

County Superior Court. Since returning to the United States, Martinez-Avelar has

been the primary source of support for his mother, a U.S. citizen suffering from a

number of serious medical issues. His father (from whom his mother is separated)

and two brothers are also U.S. citizens, and the family has no remaining ties to El

Salvador.

      Martinez-Avelar is now 47 years old. He returned to the U.S. from El

Salvador approximately 17 years ago. He obtained a certificate in graphic design

from Santa Monica College in 2004 and has been working as a videographer and




                                          2
graphic designer. The record is replete with letters from community and religious

organizations, which testify to the petitioner’s volunteer work and good character.

      On October 23, 2003, Martinez-Avelar was denied cancellation of removal,

for which he was statutorily ineligible, and voluntary departure, and he was

ordered removed to El Salvador. The BIA affirmed the order without opinion on

March 31, 2005. On June 5, 2012, petitioner filed a motion to reopen, which the

BIA denied as untimely filed.

      On July 14, 2014, Martinez-Avelar filed a second motion to reopen in order

to apply for asylum, withholding of removal, and deferral of removal under the

Convention Against Torture. The BIA denied his second motion as untimely and

number-barred.

      Martinez-Avelar now petitions for review of the BIA’s denial of his second

motion to reopen. Because the motion to reopen is untimely and number-barred, and

he has not provided evidence of material changed country conditions in El Salvador,

we are compelled to deny the petition for review.

      2. Martinez-Avelar failed to file his motion to reopen within ninety days of

the date the final administrative decision was rendered and, therefore, his motion

was untimely. Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010) (citing 8

C.F.R. § 1003.2(c)(2)). Furthermore, “aliens are entitled to file only one motion to


                                          3
reopen.” Young Sun Shin v. Mukasey, 547 F.3d 1019, 1025 (9th Cir. 2008).

      The time and numerical limitations, however, are subject to an exception for

“motions filed for the purpose of applying or reapplying for asylum or withholding

of deportation based on changed circumstances arising in the country of nationality

or in the country to which deportation has been ordered.” Malty v. Ashcroft, 381

F.3d 942, 945 (9th Cir. 2004) (citation and quotation marks omitted). To satisfy the

changed country conditions exception, the petitioner must:


      clear four hurdles: (1) he ha[s] to produce evidence that conditions
      ha[ve] changed in [his country of origin]; (2) the evidence ha[s] to be
      ‘material;’ (3) the evidence must not have been available and would not
      have been discovered or presented at the previous proceeding; and (4) he
      ha[s] to ‘demonstrate that the new evidence, when considered together
      with the evidence presented at the original hearing, would establish
      prima facie eligibility for the relief sought.’

Toufighi v. Mukasey, 538 F.3d 988, 996 (9th Cir. 2007) (internal citations omitted).

      A. We are required to conclude that the BIA did not abuse its discretion in

concluding that Martinez-Avelar failed to produce evidence of a significant change

in country conditions. Petitioner did not provide any evidence that gang violence

was more severe in 2014 than at the time of his first hearing in 2003. Cf. Sumolang

v. Holder, 723 F.3d 1080, 1083 (9th Cir. 2013) (finding no material change in

country conditions due to an alleged outbreak of violence in Indonesia because



                                         4
“such violence was at most no different in degree from the violence that had been

ongoing when [petitioner] left Indonesia in 1997.”).

      B. Even if we were to conclude that Martinez-Avelar’s proposed “particular

social group” is a cognizable basis for asylum,1 we would be required to hold that

the BIA also did not abuse its discretion in concluding that any changes in country

conditions were immaterial to his claim. See, e.g., Ramirez-Munoz v. Lynch, 816

F.3d 1226, 1229 (9th Cir. 2016). None of the evidence he offers demonstrates an

increase in violence with respect to individuals in this particular social group.

      Because Martinez-Avelar has failed to establish a material change in country

conditions in El Salvador, the BIA did not abuse its discretion in denying his

motion to reopen as untimely and number-barred. Notwithstanding the substantial

equities in Martinez-Avelar’s case, this court does not have the authority to refuse

to affirm the order of the BIA. The petition for review is DENIED.




1
  The BIA concluded that his proposed social group was not particularized and
socially distinct. Because we determine that Martinez-Avelar’s motion to reopen is
time- and number-barred, we express no view as to whether his proposed social
group was cognizable or as to whether he established a prima facie case for relief.
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