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Bamaca-Cifuentes v. Attorney General United States of America

United States Court of Appeals, Third Circuit

August 29, 2017


          Submitted Pursuant to Third Circuit L.A.R. 34.1(a) February 6, 2017

         On Petition for Review of a Final Order Of the Board of Immigration Appeals (Agency Nos. A070-673-932, A097-973-615, A097-761-129) Steven A. Morley, Immigration Judge.

          Theodore J. Murphy, Esq. Murphy Law Firm Attorney for Petitioners

          Todd J. Cochran, Esq. United States Department of Justice Office of Immigration Litigation Attorneys for Respondent

          Before: McKEE, COWEN and FUENTES, Circuit Judges.


          KEE, Circuit Judge.


         Petitioners ask us to decide if the Board of Immigration Appeals abused its discretion by denying an untimely motion to reopen removal proceedings arising from a request for protection under the U.N.'s Convention Against Torture or "CAT." Their petition requires us to determine if the time bar contained in 8 C.F.R. § 1003.2(c) applies to motions to reopen based on a request for withholding of removal under the CAT. We have previously held that the time limitation does apply to these motions to reopen, but we have only done so in a non-precedential opinion that is not binding on this court. We now take the opportunity to affirm that principle in this precedential opinion. Accordingly, for the reasons that follow, we will hold that the procedural requirements in 8 C.F.R. § 1003.2(c) apply with equal force to motions to reopen removal proceedings involving protection under the CAT. We will therefore deny this petition for review.


         Misternovo Bamaca-Cifuentes and his sons, Byron Donaldo Bamaca-Bautista and Abner Abdiel Bamaca-Bautista[1] are natives and citizens of Guatemala who first entered the United States in 1990, 1998, and 2004, respectively.[2] In 1999, Misternovo filed an application for suspension of deportation or special rule cancellation of removal under the Nicaraguan Adjustment and Central American Relief Act (NACARA) that listed his sons as derivatives.[3] The United States Citizenship and Immigration Services refused to grant the NACARA application and referred the petition to an Immigration Judge for adjudication.

         In May 2008, the Department of Homeland Security initiated removal proceedings against Misternovo and his two sons. They were charged with removability as aliens who were in the United States without being admitted or paroled, under 8 U.S.C. § 1182(a)(6)(A)(i).[4] At a hearing before the Immigration Judge, Misternovo admitted the allegations contained in the Notices to Appeal, and the Immigration Judge ruled that Petitioners were therefore removable as charged.

         Later, in January 2012, Misternovo's NACARA application received a full merits hearing before an Immigration Judge.[5] The Immigration Judge denied the NACARA application, holding that Misternovo had failed to establish that he had timely registered for benefits pursuant to the American Baptist Churches v. Thornburgh settlement agreement;[6] consequently, Petitioners were ordered removed to Guatemala. Petitioners thereafter timely appealed, but the appeal was dismissed by the Board on May 29, 2013. The BIA concluded that the IJ had properly denied Misternovo's NACARA application. Petitioners did not seek review of that Board decision.

         More than two years later, on December 21, 2015, Petitioners filed a motion to reopen with the Board based on changed country conditions in Guatemala. DHS opposed the motion and the Board denied it on June 14, 2016. The Board found that Petitioners had "not demonstrated a material change in country conditions since the time they last appeared before the Immigration Judge."[7] This timely petition for review followed.


         The Board of Immigration Appeals had jurisdiction over Petitioners' motion to reopen under 8 C.F.R. §§ 1003.1(b)(3), 1003.2(a), and 1240.15. We have jurisdiction to review the Board's final orders of removal under Section 242(a)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1252(a)(1). "We review the denial of a motion to reopen for abuse of discretion and may reverse only if the denial is arbitrary, irrational, or contrary to law."[8]


         It is clear from the unambiguous text of 8 C.F.R. § 1003.2(c) that the time and number restrictions in that regulation apply to all motions to reopen removal proceedings, ...

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