Filed: Sep. 17, 2020
Latest Update: Sep. 17, 2020
Summary: 18-2430 Medina-Elliot v. Barr BIA Straus, IJ A078 998 680 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH T
Summary: 18-2430 Medina-Elliot v. Barr BIA Straus, IJ A078 998 680 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH TH..
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18-2430
Medina-Elliot v. Barr
BIA
Straus, IJ
A078 998 680
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY
ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL
APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING
TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 17th day of September, two thousand twenty.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 DENNY CHIN,
9 JOSEPH F. BIANCO,
10 Circuit Judges.
11 _____________________________________
12
13 MARCELINA TOLA MEDINA-ELLIOT,
14 Petitioner,
15
16 v. 18-2430
17 NAC
18
19 WILLIAM P. BARR, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Joshua E. Bardavid, New York, NY.
25
26 FOR RESPONDENT: Ethan P. Davis, Acting Assistant
27 Attorney General; Brianne Whelan
28 Cohen, Senior Litigation Counsel;
29 Laura M.L. Maroldy, Trial
30 Attorney, Office of Immigration
1 Litigation, United States
2 Department of Justice, Washington,
3 DC.
4
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review
8 is DENIED.
9 Petitioner Marcelina Tola Medina-Elliot, a native and
10 citizen of Peru, seeks review of an August 14, 2018,
11 decision of the BIA affirming a February 14, 2018, decision
12 of an Immigration Judge (“IJ”) denying her motion to
13 reopen. In re Marcelina Tola Medina-Elliot, No. A078 998
14 680 (B.I.A. Aug. 14, 2018), aff’g No. A078 998 680 (Immig.
15 Ct. Hartford Feb. 14, 2018). We assume the parties’
16 familiarity with the underlying facts and procedural
17 history.
18 We review both the IJ’s and the BIA’s opinions “for the
19 sake of completeness.” Wangchuck v. Dep’t of Homeland
20 Sec., 448 F.3d 524, 528 (2d Cir. 2006). We review the
21 denial of a motion to reopen for abuse of discretion and
22 the country conditions determination for substantial
23 evidence. Jian Hui Shao v. Mukasey,
546 F.3d 138, 168–69
2
1 (2d Cir. 2008).
2 The agency did not abuse its discretion in denying
3 Medina-Elliot’s motion to reopen, which was based on her
4 fear of violence against women in Peru. It is undisputed
5 that her 2018 motion to reopen was untimely because it was
6 filed more than eleven years after she was ordered removed
7 in 2006. See 8 U.S.C. § 1229a(c)(7)(C)(i) (providing 90-
8 day deadline for filing motion to reopen); 8 C.F.R.
9 § 1003.23(b)(1) (same). Although the time limitation does
10 not apply to motions to reopen to apply for asylum “based
11 on changed country conditions arising in the country of
12 nationality,” 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R.
13 § 1003.23(b)(4)(i), the agency did not err in finding that
14 Medina-Elliot failed to demonstrate such conditions.
15 “In determining whether evidence accompanying a motion
16 to reopen demonstrates a material change in country
17 conditions that would justify reopening, [the agency]
18 compare[s] the evidence of country conditions submitted
19 with the motion to those that existed at the time of the
20 merits hearing below.” In re S-Y-G-, 24 I. & N. Dec. 247,
21 253 (B.I.A. 2007). As the agency found, Medina-Elliot’s
3
1 evidence demonstrated that violence against women had been
2 a problem impacting a significant majority of Peruvian
3 women since the time of her 2006 proceedings. Her
4 assertion of a change in agency law and her prima facie
5 eligibility for relief are not bases for excusing an
6 untimely filing. See 8 U.S.C. § 1229a(c)(7)(C)(i);
7 8 C.F.R. § 1003.23(b)(1).
8 Accordingly, because Medina-Elliot did not establish a
9 material change in country conditions, the agency did not
10 abuse its discretion in denying her motion to reopen as
11 untimely. See 8 U.S.C. § 1229a(c)(7)(C). We do not reach
12 the BIA’s alternative dispositive determination that she
13 did not establish her prima facie eligibility for relief.
14 See 8 C.F.R. § 1003.23(b)(1), (3); see also INS v.
15 Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general rule
16 courts and agencies are not required to make findings on
17 issues the decision of which is unnecessary to the results
18 they reach.”).
19
20
21
4
1 For the foregoing reasons, the petition for review is
2 DENIED. All pending motions and applications are DENIED
3 and stays VACATED.
4 FOR THE COURT:
5 Catherine O’Hagan Wolfe,
6 Clerk of Court
7
5
