Villalobos v. Garland
| Decision Date | 18 November 2022 |
| Docket Number | 22-3358 |
| Parties | MARIA INES VILLALOBOS, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Sixth Circuit |
NOT RECOMMENDED FOR PUBLICATION
ON PETITION FOR REVIEW FROM THE UNITED STATES BOARD OF IMMIGRATION APPEALS
Before: READLER, MURPHY, and MATHIS, Circuit Judges.
Maria Ines Villalobos, a native and citizen of El Salvador petitions this court for review of an order of the Board of Immigration Appeals (BIA) affirming the denial of her motion to reopen her removal proceedings. As set forth below, we DENY Villalobos's petition for review.
Upon Villalobos's unlawful entry into the United States in April 2005, the Department of Homeland Security arrested her and then served her with a notice to appear in removal proceedings, charging her with removal as an alien present in the United States without being admitted or paroled. See 8 U.S.C. § 1182(a)(6)(A)(i). Villalobos appeared for the first removal hearing and was personally served with a notice scheduling the next hearing for January 18, 2006. When Villalobos failed to appear at the second hearing, the immigration judge (IJ) ordered her removal in absentia.
Fourteen years later, in April 2020, Villalobos filed a motion to reopen her removal proceedings and to rescind the in absentia removal order, asserting that she never received notice of the hearing, that she was unable to attend the hearing because she had an automobile accident, and that she was unaware of the hearing date because someone broke into her apartment and stole her papers. Along with her motion Villalobos submitted an application for asylum, withholding of removal, and protection under the Convention Against Torture (CAT) and an application for cancellation of removal. Villalobos also filed a motion to change venue to Louisiana, where she resided.
An IJ denied Villalobos's motions. The IJ first determined that Villalobos had failed to establish lack of notice to warrant reopening of her removal proceedings and rescission of the in absentia removal order. See 8 U.S.C. § 1229a(b)(5)(C)(ii). The IJ pointed out that Villalobos did not dispute receiving the notice to appear and hearing notices and that her appearance at the first hearing demonstrated actual notice of the removal proceedings. With respect to whether exceptional circumstances excused Villalobos's failure to appear, the IJ found that her motion was neither filed within 180 days of the in absentia removal order nor supported by corroboration to carry her burden of establishing extraordinary circumstances. See 8 U.S.C. § 1229a(b)(5)(C)(i). The IJ recognized that a party may move to reopen at any time to apply for asylum, withholding of removal, or CAT protection based on changed country conditions. See 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.23(b)(4)(i). According to the IJ, Villalobos had failed to present material evidence of changed country conditions that could not have been discovered or presented at her last hearing, and even if she had, her application failed to state a prima facie case for asylum, withholding of removal, or CAT protection. The IJ also refused to reopen Villalobos's case sua sponte based on her failure to move for reopening until 14 years had passed and her failure to present any corroborating evidence to support her claimed reasons for failing to appear. Finally, the IJ found that Villalobos had failed to show good cause for a change in venue.
Villalobos appealed the denial of her motion to reopen to the BIA. Villalobos argued that the IJ had "failed to recognize several exceptional factors" and that she had established prima facie eligibility for cancellation of removal based on her qualifying relatives and continuous residence in the United States as well as eligibility for asylum, withholding of removal, and CAT protection based on discrimination and violence against women in El Salvador. The BIA affirmed the IJ's decision without opinion.
This timely petition for review followed. Villalobos argues that the agency abused its discretion in denying her motion to reopen based on changed country conditions. Villalobos has forfeited any challenge to the agency's other grounds for denying her motion to reopen by failing to address those grounds before this court. See Gafurova, 911 F.3d at 327 n.2.
Where as here, the BIA affirms the IJ's decision without opinion, we review the IJ's decision as the final agency determination. Hassan v. Gonzales, 403 F.3d 429, 433 (6th Cir. 2005). We review the denial of a motion to reopen for an abuse of discretion. Dieng v. Barr, 947 F.3d 956, 960 (6th Cir. 2020). We will find an abuse of discretion if the denial "was made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis such as invidious discrimination against a particular race or group." Trujillo Diaz v. Sessions, 880 F.3d 244, 248 (6th Cir. 2018) (quoting Allabani v. Gonzales, 402 F.3d 668, 675 (6th Cir. 2005)). Given that motions to reopen are disfavored and that the agency has broad...
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