Lema Nogales v. Garland

Case: 23-60150        Document: 00516886959             Page: 1      Date Filed: 09/07/2023




             United States Court of Appeals
                  for the Fifth Circuit
                                     ____________                               United States Court of Appeals
                                                                                         Fifth Circuit

                                                                                       FILED
                                      No. 23-60150
                                                                               September 7, 2023
                                    Summary Calendar
                                    ____________                                     Lyle W. Cayce
                                                                                          Clerk
   Carlos Lema Nogales,

                                                                                 Petitioner,

                                            versus

   Merrick Garland, U.S. Attorney General,

                                                                               Respondent.
                     ______________________________

                        Petition for Review of an Order of the
                            Board of Immigration Appeals
                              Agency No. A092 961 344
                     ______________________________

   Before Willett, Duncan, and Douglas, Circuit Judges.
   Per Curiam: *
         Carlos Lema Nogales, a native and citizen of Ecuador, petitions for
   review of the decision of the Board of Immigration Appeals (BIA) denying
   his motion for reconsideration and motion to reopen. He filed those motions
   seeking to challenge the earlier denial of his claim for deferral of removal
   under the Convention Against Torture (CAT). We have jurisdiction to

         _____________________
         *
             This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 23-60150      Document: 00516886959          Page: 2   Date Filed: 09/07/2023




                                    No. 23-60150


   review the BIA’s decision. See Nasrallah v. Barr, 140 S. Ct. 1683, 1690
   (2020).
          The BIA’s denial of a motion to reopen or a motion for
   reconsideration is reviewed under “a highly deferential abuse-of-discretion
   standard.” Singh v. Gonzales, 436 F.3d 484, 487 (5th Cir. 2006) (internal
   quotation marks and citation omitted). We review the BIA’s factual findings
   under the substantial evidence standard. Nunez v. Sessions, 882 F.3d 499, 505
   (5th Cir. 2018) (internal quotation marks and citation omitted). “A motion
   to reopen proceedings shall not be granted unless it appears to the Board that
   evidence sought to be offered is material and was not available and could not
   have been discovered or presented at the former hearing.”            8 C.F.R.
   § 1003.2(c)(1). To qualify as “material,” the evidence “must be likely to
   change the result of the alien’s underlying claim for relief.” Qorane v. Barr,
   919 F.3d 904, 912 (5th Cir. 2019).
          The BIA did not abuse its discretion in determining that Lema
   Nogales failed to demonstrate changed country conditions warranting
   reopening. The news articles he provided about violence in Ecuadorian
   prisons were not material to the adverse credibility finding underlying the
   prior denial of his CAT claim, as the findings of the immigration judge (IJ)
   regarding his credibility were not related to the issue of prison violence in
   Ecuador. Additionally, the BIA did not err in determining that the evidence
   failed to show a change in country conditions that independently made it
   more likely than not that Lema Nogales would be tortured in Ecuador. His
   assertion that he will be detained in an Ecuadorian prison is speculative and
   insufficient to support CAT relief. See Morales v. Sessions, 860 F.3d 812, 818
   (5th Cir. 2017); see also Matter of F-S-N-, 28 I. & N. Dec. 1, 3 (BIA 2020).
          Lema Nogales also contends that reopening was warranted because he
   provided new evidence in the form of a 1994 newspaper article that




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                                    No. 23-60150


   documented the murder of his ex-wife’s father.            Substantial evidence
   supports the BIA’s finding that he failed to show that this article was
   previously unavailable. Furthermore, the BIA did not err in finding that the
   article failed to significantly rehabilitate Lema Nogales’s credibility. Most of
   the discrepancies noted by the IJ in making the adverse credibility
   determination were unrelated to the father’s murder. Accordingly, the BIA
   did not abuse its discretion in determining that reopening was not warranted
   based on the 1994 article. See Qorane, 919 F.3d at 912; § 1003.2(c)(1).
          The BIA denied Lema Nogales’s motion for reconsideration because
   he failed to show that administrative errors in the BIA’s earlier order had any
   effect on that decision. Lema Nogales does not brief any argument here
   disputing the BIA’s determination. He has thus waived any such argument
   and has not shown that the BIA abused its discretion in denying his motion
   for reconsideration. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993)
   (recognizing that even pro se litigants must brief arguments in order to
   maintain them).
          The petition for review is DENIED.




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