Filed: Jun. 23, 2015
Latest Update: Mar. 02, 2020
Summary: 13-4433 Ramos-Carrillo v. Lynch BIA Montante, I.J. A089 002 626 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 (
Summary: 13-4433 Ramos-Carrillo v. Lynch BIA Montante, I.J. A089 002 626 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 (W..
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13-4433
Ramos-Carrillo v. Lynch
BIA
Montante, I.J.
A089 002 626
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 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 United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 23rd day of June, two thousand fifteen.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 JOSÉ A. CABRANES,
9 BARRINGTON D. PARKER,
10 Circuit Judges.
11 _____________________________________
12
13 LORENZO RAMOS-CARRILLO, AKA JUAN
14 CARLOS HERNANDEZ-CRUZ, AKA JUAN
15 HERNANDEZ-ROJO,
16 Petitioner,
17
18 v. 13-4433
19 NAC
20 LORETTA E. LYNCH, UNITED STATES
21 ATTORNEY GENERAL,
22 Respondent.*
23 _____________________________________
24
25 FOR PETITIONER: Jose Perez, Law Offices of Jose
26 Perez, P.C., Syracuse, NY.
* Pursuant to Fed. R. App. P. 43(c)(2), Attorney General Loretta
E. Lynch is automatically substituted for former Attorney General
Eric Holder, Jr.
1 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
2 General; Blair T. O’Connor,
3 Assistant Director; Edward C.
4 Durant, Trial Attorney, Office of
5 Immigration Litigation, United
6 States Department of Justice,
7 Washington, D.C.
8 UPON DUE CONSIDERATION of this petition for review of a
9 decision of the Board of Immigration Appeals (“BIA”), it is
10 hereby ORDERED, ADJUDGED, AND DECREED that the petition for
11 review is DENIED.
12 Lorenzo Ramos-Carrillo, a native and citizen of
13 Guatemala, seeks review of an October 24, 2013, decision of
14 the BIA affirming the April 12, 2012, decision of an
15 Immigration Judge (“IJ”) denying a timely motion to reopen.
16 In re Lorenzo Ramos-Carrillo, No. A089 002 626 (B.I.A. Oct.
17 24, 2013), aff’g No. A089 002 626 (Immig. Ct. N.Y. City Apr.
18 12, 2012). We assume the parties’ familiarity with the
19 underlying facts and procedural history of this case.
20 We have reviewed the IJ’s decision as supplemented by
21 the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d
22 Cir. 2005). We review the agency’s denial of a motion to
23 reopen for abuse of discretion, remaining mindful of the
24 Supreme Court’s admonition that such motions are
25 “‘disfavored.’” Ali v. Gonzales,
448 F.3d 515, 517 (2d Cir.
2
1 2006) (per curiam) (quoting INS v. Doherty, 502 U.S. 314,
2 322-23 (1992)).
3 The agency did not abuse its discretion in denying
4 reopening.
Ali, 448 F.3d at 517. A motion to reopen must
5 state the new facts to be considered at the reopened
6 hearing, and must be supported by material, previously
7 unavailable evidence. 8 U.S.C. § 1229a(c)(7)(B); 8 C.F.R.
8 § 1003.23(b)(3). Ramos-Carrillo provided no documentary
9 evidence to support his claim that he feared persecution or
10 torture in Guatemala. Rather, the only documents he
11 submitted with his motion were a birth certificate for one
12 of his children, the IJ’s voluntary departure order, and his
13 asylum application. These documents are not “affidavits” or
14 “other evidentiary material” that support his persecution or
15 torture claims. 8 C.F.R. § 1003.23(b)(3) (requiring that
16 motion be filed with both application for relief and “all
17 supporting documents” and that motion must be supported by
18 “affidavits and other evidentiary material”).
19 Additionally, “[a] motion to reopen will not be granted
20 unless the Immigration Judge is satisfied that evidence
21 sought to be offered is material and was not available and
22 could not have been discovered or presented at the former
3
1 hearing.” 8 C.F.R. § 1003.23(b)(3). Ramos-Carrillo’s
2 asylum application relies on incidents occurring in the
3 1980s and between 2000 and 2004. As the agency concluded,
4 because Ramos-Carrillo was aware of these incidents at the
5 time of his 2011 removal hearing, they are not grounds for
6 reopening. See 8 C.F.R. §§ 1003.2(c)(1), 1003.23(b)(3); see
7 also INS v. Abudu, 485 U.S. 94, 104-05 (1998) (holding that
8 alien’s failure to submit previously unavailable material
9 evidence is proper ground to deny motion).
10 In his brief, Ramos-Carrillo does not address the
11 agency’s determination that he failed to support his motion
12 with evidence, and that the basis for his new claims was
13 available and known to him at the time of his initial
14 hearing. Instead, he argues that he made a prima facie case
15 for asylum. There are at least “three independent grounds
16 on which the BIA might deny a motion to reopen—failure to
17 establish a prima face case for the relief sought, failure
18 to introduce previously unavailable, material evidence, and
19 a determination that . . . the movant would not be entitled
20 to the discretionary grant of relief which he sought.”
21
Doherty, 502 U.S. at 323. Thus, the agency’s determination
22 that Ramos-Carrillo failed to “introduce previously
4
1 unavailable, material evidence” was, alone, a sufficient
2 basis for the denial and we need not reach whether Ramos-
3 Carrillo made a prima facie case. Id.
4 Ramos-Carrillo also argues that his asylum application
5 was timely because he could establish changed circumstances.
6 Ramos-Carrillo conceded removability, was granted voluntary
7 departure, and an order of removal was automatically entered
8 when he overstayed the departure period. In order to pursue
9 an asylum application, Ramos-Carrillo must first reopen
10 these proceedings. We do not consider the timeliness of his
11 application, as the agency did not abuse its discretion in
12 denying reopening.
13 For the foregoing reasons, the petition for review is
14 DENIED. As we have completed our review, any stay of
15 removal that the Court previously granted in this petition
16 is VACATED, and any pending motion for a stay of removal in
17 this petition is DISMISSED as moot. Any pending request for
18 oral argument in this petition is DENIED in accordance with
19 Federal Rule of Appellate Procedure 34(a)(2), and Second
20 Circuit Local Rule 34.1(b).
21 FOR THE COURT:
22 Catherine O’Hagan Wolfe, Clerk
23
24
5
