Rodomiro Ochoa Ordonez, a native and citizen of Guatemala, sought to reopen his removal proceedings after a final order of removal was entered in November 2019. He filed a first motion in January 2020, but his second motion, filed with the Board of Immigration Appeals on July 2, 2021, was more than 16 months after the statutory 90-day deadline. Under 8 U.S.C. § 1229a(c)(7) and 8 C.F.R. § 1003.2(c), only one motion to reopen is permitted and must be filed within 90 days unless a specific exception applies. Ordonez argued his motion should be excused from these time and number limits based on changed country conditions in Guatemala and newly available evidence regarding hardship to his U.S.-citizen wife. The BIA denied the motion, and Ordonez petitioned the Ninth Circuit for review.
The Ninth Circuit reviewed the BIA's legal questions de novo and its factual findings for substantial evidence, applying an abuse-of-discretion standard to the denial of the motion to reopen. The court noted that a BIA abuses its discretion only when its decision is arbitrary, irrational, or contrary to law. Regarding the changed country conditions exception, the court found that substantial evidence supported the BIA's determination that conditions in Guatemala remained essentially the same over the relevant time period, citing State Department human rights reports. Consequently, the petitioner failed to show the material changes required to trigger the exception under 8 U.S.C. § 1229a(c)(7)(C)(ii). Additionally, the court addressed the claim of newly available evidence regarding hardship to the petitioner's wife. The court found the BIA correctly determined that the evidence was not newly available because the report indicated the wife's mental health challenges existed before the removal order was entered. Thus, the BIA did not abuse its discretion in denying the motion to reopen the cancellation of removal application.
The petition for review is denied, leaving the final order of removal in place. The petitioner remains subject to removal and is barred from reapplying for asylum, withholding of removal, or cancellation of removal based on the current record. The temporary administrative stay of removal is lifted, and the motion to stay removal is denied. The decision reinforces the strict application of time and number bars for motions to reopen unless a petitioner can demonstrate material changes in country conditions or truly newly available evidence.
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