Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 08-1250
OTMAN ORDONEZ-GARCIA,
Petitioner,
v.
ERIC H. HOLDER, JR.,* ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE BOARD
OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Selya, and Siler,** Circuit Judges.
Martin D. Harris on brief for petitioner.
Gregory G. Katsas, Terri J. Scadron, and Manuel A. Palau,
United States Department of Justice, on brief for respondent.
February 26, 2009
*
Pursuant to Fed. R. App. P. 43(c)(2), Attorney General Eric
H. Holder, Jr., has been substituted for former Attorney General
Michael Mukasey as respondent.
**
Of the Sixth Circuit, sitting by designation.
SILER, Circuit Judge. Otman Ordonez-Garcia petitions for
review of a denial by the Board of Immigration Appeals (BIA) of his
motion to reopen his removal proceeding. He argues that the BIA
abused its discretion in denying his motion because circumstances
in Guatemala, his native country, changed since his previous
hearing. For the following reasons, we deny the petition for
review.
I.
Ordonez-Garcia illegally entered the United States in
1991. In 2004, the Department of Homeland Security issued a Notice
to Appear charging that Ordonez-Garcia was subject to removal.
In 2005, Ordonez-Garcia appeared before the Immigration
Judge (IJ) and presented evidence in support of his application for
cancellation of removal. He testified that his children, ages 10
and 13, both born in the United States, would suffer exceptional
and extremely unusual hardship if they relocated to Guatemala
because: (1) there were no special classes available in Guatemala
to help one son with a learning disability (Attention Deficit
Disorder); (2) his sons would have difficulty learning the Spanish
language; and (3) his income would be substantially reduced in
Guatemala. The IJ denied cancellation of removal because Ordonez-
Garcia failed to establish the requisite degree of hardship to his
children.
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Ordonez-Garcia appealed the IJ’s decision to the BIA.
On April 2, 2007, the BIA dismissed the appeal. It affirmed the
hardship determination made by the IJ and granted voluntary
departure until June 1, 2007. Ordonez-Garcia did not seek review.
Ordonez-Garcia failed to depart the United States as
directed. Instead, on September 25, 2007, he filed a motion to
reopen his removal proceedings, claiming that conditions in
Guatemala had worsened. He alleged that Guatemala was dangerous to
natives, as well as to United States citizens taking up residence
there. In support of his contention, he presented a 2006 Country
Report on Human Rights Practices in Guatemala (2006 Country
Report), which listed various problems that children faced in
Guatemala, i.e., homelessness, child labor, child abuse, and child
prostitution. He sought reopening to apply for further relief from
removal, including asylum, withholding of removal, cancellation of
removal, and protection under the Convention Against Torture (CAT).
The BIA denied the motion because it was not filed within
the 90-day deadline.
II.
Motions to reopen must be filed within 90 days of a final
order of removal. 8 U.S.C. § 1229a(c)(7)(C)(i). However, a motion
to reopen that is not filed within the time limit may be brought if
it seeks reopening to apply for asylum, withholding of removal, or
CAT protection and if an alien can establish “changed country
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conditions arising in the country of nationality” but only “if such
evidence is material and was not available and would not have been
discovered or presented at the previous hearing.” 8 U.S.C.
§ 1229a(c)(7)(C)(ii).
There is no dispute between the parties that the motion
was filed outside the 90-day time limit established under 8 U.S.C.
§ 1229a(c)(7)(C)(i) and 8 C.F.R. § 1003.2(c)(2). Therefore, the
BIA should have considered the untimely motion only if: (1)
conditions in Guatemala had changed since his hearing in November
2005, and (2) evidence of such conditions was not available and
could not have been presented at that time.
The evidence presented by Ordonez-Garcia does not support
application of the exception. Although the 2006 Country Report was
not available at the 2005 hearing, it does not support the
contention that circumstances in Guatemala changed significantly
since the hearing.
Furthermore, Ordonez-Garcia is ineligible for
cancellation of removal as well as other types of relief because he
failed to depart the United States by June 1, 2007, as required
under the BIA’s final order of removal. See 8 U.S.C. § 1229c(d).
PETITION FOR REVIEW DENIED.
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