Case: 21-60921 Document: 00516577538 Page: 1 Date Filed: 12/14/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
No. 21-60921
FILED
December 14, 2022
Summary Calendar
Lyle W. Cayce
Clerk
Armando Matadi,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
Agency No. A216 540 427
Before Stewart, Duncan, and Wilson, Circuit Judges.
Per Curiam:*
Armando Matadi, a native and citizen of Angola, petitions for review
of a decision of the Board of Immigration Appeals (BIA) denying his motions
to reopen his removal proceedings and to reconsider its prior decision
affirming the immigration judge’s (IJ’s) denial of asylum, withholding of
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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No. 21-60921
removal, and protection under the Convention Against Torture (CAT). He
has also filed a motion to supplement the administrative record and to
remand.
This court reviews the denial of both a motion to reopen and a motion
to reconsider “under a highly deferential abuse-of-discretion standard.”
Lowe v. Sessions, 872 F.3d 713, 715 (5th Cir. 2017) (internal quotation marks
and citation omitted). As long as the BIA’s decision “is not capricious,
racially invidious, utterly without foundation in the evidence, or otherwise so
irrational that it is arbitrary rather than the result of any perceptible rational
approach,” it will be upheld. Id. (internal quotation marks and citation
omitted).
The BIA’s factual findings are reviewed for substantial evidence and
its rulings of law are reviewed de novo. Gomez-Palacios v. Holder, 560 F.3d
354, 358 (5th Cir. 2009). The substantial evidence test “requires only that
the BIA’s decision be supported by record evidence and be substantially
reasonable.” Omagah v. Ashcroft, 288 F.3d 254, 258 (5th Cir. 2002). This
court will not reverse the BIA’s factual findings unless the evidence compels
a contrary conclusion. Gomez-Palacios, 560 F.3d at 358.
Matadi argues that the BIA erred in determining that the State
Department’s 2019 International Religious Freedom Report for Angola was
insufficient to support reopening based on changed country conditions. He
focuses on the fact that the State Department report reflects an increase in
church closures by the Angolan government as compared to 2018. As Matadi
acknowledges, however, the 2019 report also states that some of the churches
later received authorization to reopen. In any event, incremental changes in
country conditions are insufficient to warrant reopening. Nunez v. Sessions,
882 F.3d 499, 508-09 (5th Cir. 2018). As such, the BIA reasonably
determined that the religious freedom report did not show material changes
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in Angola’s country conditions that would warrant reopening of the removal
proceedings. See Omagah, 288 F.3d at 258.
Next, Matadi argues that the BIA erred in finding that the “new”
evidence of his 2019 criminal prosecution in Angola did not warrant
reopening on the basis of changed country conditions. This court has
consistently held that a change in personal circumstances does not constitute
changed country conditions. See, e.g., Martinez-Guevara v. Garland, 27 F.4th
353, 362 (5th Cir. 2022); Singh v. Lynch, 840 F.3d 220, 222-23 & n.2 (5th Cir.
2016). Here, the BIA reasonably found that reopening was not warranted
because the evidence of Matadi’s criminal prosecution in Angola represented
only a change in his personal circumstances and not a material change in
country conditions. See Omagah, 288 F.3d at 258.
Additionally, Matadi argues that the BIA erred in denying reopening
of his CAT claim based on the Attorney General’s decision in Matter of O-F-
A-S-, 28 I. & N. Dec. 35 (U.S. Att’y Gen. 2020). Although Matadi styled his
motion as seeking reopening, the motion relied solely on a change in the law;
therefore, it is properly construed as a motion for reconsideration. See
Gonzalez Hernandez v. Garland, 9 F.4th 278, 286 (5th Cir. 2021), cert. denied,
2022 WL 4651375 (U.S. Oct. 3, 2022) (No. 21-1323).
Matadi was limited to filing only one motion for reconsideration, and
he was required to do so “within 30 days of the date of entry of a final
administrative order of removal.” 8 U.S.C. § 1229a(c)(6)(A)-(B). Since he
had already filed a motion for reconsideration, his motion based on Matter of
O-F-A-S- was number barred. See § 1229a(c)(6)(A). The motion was also
apparently time barred as it was filed more than 30 days after his removal
order. See § 1229a(c)(6)(B); but see Gonzalez-Cantu v. Sessions, 866 F.3d 302,
305 (5th Cir. 2017) (discussing possibility of equitable tolling until discovery
of decision prompting the motion). In any event, Matadi has not shown that
the BIA abused its discretion in denying relief based on its conclusion that
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Matter of O-F-A-S- did not undermine the IJ’s findings supporting the denial
of CAT protection. See Lowe, 872 F.3d at 715.
Following the completion of briefing in this case, Matadi filed a
motion to supplement the record and to remand. He asserts that the
administrative record filed in this court omitted two documents filed with the
BIA: (1) a reply brief in support of one of his motions to reopen and (2) a
motion renewing his request for a stay of removal that also sought to
supplement his then-pending motions to reopen and reconsider. Matadi also
moves to remand, arguing that it is unclear whether the BIA considered an
argument that he made in his reply brief given that his reply was not included
in the administrative record filed in this court. The Government does not
oppose Matadi’s motion to supplement the record, but it does object to
remanding the case to the BIA.
The Government argues that remand should be denied because this
court lacks jurisdiction to consider Matadi’s argument regarding the BIA’s
purported failure to consider his reply brief where he did not raise it in his
opening brief before this court. The failure to raise an argument in an
opening brief generally waives the argument on appeal. See Lockett v. EPA,
319 F.3d 678, 684 n.16 (5th Cir. 2003). Nonetheless, the Government does
not offer any support for its assertion that a waived issue presents a
jurisdictional defect.
In any event, remand to the BIA is not warranted; even if Matadi’s
reply brief was somehow lost and not before the BIA, the Government’s
statement in its response regarding worsening conditions related to religious
freedom in Angola was before the BIA, and the BIA specifically
acknowledged the Government’s response to Matadi’s motions in its
November 10, 2021 decision. The BIA also explicitly referenced Matadi’s
June 18, 2020 motion to reopen and the attached “new international religious
freedom report.”
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No. 21-60921
Based on the foregoing, the motion to supplement the record on
appeal is GRANTED, the motion to remand is DENIED, and the petition
for review is DENIED.
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