     Case: 15-60819       Document: 00513979276          Page: 1      Date Filed: 05/04/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                              United States Court of Appeals

                                      No. 15-60819
                                                                                       Fif h Circuit

                                                                                     FILED
                                    Summary Calendar                              May 4, 2017
                                                                                Lyle W. Cayce
RUBEN ANTONIO PENA-HERNANDEZ,                                                        Clerk


                                                    Petitioner

v.

JEFFERSON B. SESSIONS, III, U. S. ATTORNEY GENERAL,

                                                    Respondent


                        Petition for Review of an Order of the
                           Board of Immigration Appeals
                                BIA No. A200 135 332


Before BARKSDALE, HAYNES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Ruben Antonio Pena-Hernandez, a native and citizen of El Salvador,
petitions for review of the Board of Immigration Appeals’ (BIA) order denying
as   number-barred,         inter    alia,    his     motion     to    reopen      under            8
U.S.C. § 1229a(c)(7)(A).
       An immigration judge (IJ) ordered Pena removed, in absentia, in 2005
after his being charged with being unlawfully present in the United States, in


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
    Case: 15-60819     Document: 00513979276       Page: 2   Date Filed: 05/04/2017


                                   No. 15-60819

violation of 8 U.S.C. § 1182(a)(6)(A)(i). In 2013, he filed a motion to reopen his
removal proceedings, claiming he had not received notice of the 2005 removal
hearing. The motion was denied.
      Pena did not appeal. Rather, he filed a second motion to reopen, with an
emergency request to stay removal, asserting: he was likely to succeed on
claims for asylum and under the Convention Against Torture (CAT); and he
did not receive adequate notice of the 2005 removal hearing. The motion was
denied, inter alia, as number-barred, and the BIA affirmed.
      Pena does not disagree his motion to reopen is number-barred unless he
can show a material change in the country conditions of El Salvador. Pena
contends, nonetheless, the BIA abused its discretion by ruling he failed to avoid
the number-bar by his: submitting material evidence of changed country
conditions, in accordance with § 1229a(c)(7)(C)(ii); and showing he was prima
facie eligible for asylum and CAT relief. In support, he asserts “he did not have
a fear of persecution or torture in El Salvador until . . . gang members began
threatening his family in 2013 and eventually actualized those threats by
murdering his 18 year old son [in] 2014”. He also alleges his sister “has been
targeted by gangs due to her job as a police officer”, forcing her to move to a
different city in El Salvador to escape the violence.
      These facts, inter alia, he contends, establish both changed conditions in
El Salvador, as well as “(1) . . . a well-founded fear of persecution, (2) on account
of a protected ground, [(3)] by an organization that the Salvadoran government
is unable or unwilling to control”. He does not, however, present evidence of
the conditions that existed in El Salvador in 2005.
      The BIA’s order denying the motion to reopen is reviewed under a “highly
deferential abuse-of-discretion standard”. Ramos-Lopez v. Lynch, 823 F.3d
1024, 1026 (5th Cir. 2016) (internal quotation marks and citation omitted).



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                               No. 15-60819

Pena has not attempted the required meaningful comparison of the conditions
at the time he filed the instant motion with those at the time of his 2005
removal hearing. See id. As Pena fails to show the BIA abused its discretion
by denying his claim based upon his failure to show changed country
conditions, we need not reach his claims regarding eligibility for asylum or
CAT relief. See id.
      DENIED.




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