Not for Publication in West's Federal Reporter

             United States Court of Appeals
                         For the First Circuit

No. 08-1250

                          OTMAN ORDONEZ-GARCIA,

                                 Petitioner,

                                       v.

                ERIC H. HOLDER, JR.,* ATTORNEY GENERAL,

                                 Respondent.


            PETITION FOR REVIEW OF AN ORDER OF THE BOARD
                        OF IMMIGRATION APPEALS



                                 Before
                          Lynch, Chief Judge,
                  Selya, and Siler,** Circuit Judges.


     Martin D. Harris on brief for petitioner.
     Gregory G. Katsas, Terri J. Scadron, and Manuel A. Palau,
United States Department of Justice, on brief for respondent.


                             February 26, 2009




     *
       Pursuant to Fed. R. App. P. 43(c)(2), Attorney General Eric
H. Holder, Jr., has been substituted for former Attorney General
Michael Mukasey as respondent.
     **
          Of the Sixth Circuit, sitting by designation.
            SILER, Circuit Judge. Otman Ordonez-Garcia petitions for

review of a denial by the Board of Immigration Appeals (BIA) of his

motion to reopen his removal proceeding.     He argues that the BIA

abused its discretion in denying his motion because circumstances

in Guatemala, his native country, changed since his previous

hearing.     For the following reasons, we deny the petition for

review.

                                 I.

            Ordonez-Garcia illegally entered the United States in

1991. In 2004, the Department of Homeland Security issued a Notice

to Appear charging that Ordonez-Garcia was subject to removal.

            In 2005, Ordonez-Garcia appeared before the Immigration

Judge (IJ) and presented evidence in support of his application for

cancellation of removal.    He testified that his children, ages 10

and 13, both born in the United States, would suffer exceptional

and extremely unusual hardship if they relocated to Guatemala

because: (1) there were no special classes available in Guatemala

to help one son with a learning disability (Attention Deficit

Disorder); (2) his sons would have difficulty learning the Spanish

language; and (3) his income would be substantially reduced in

Guatemala.   The IJ denied cancellation of removal because Ordonez-

Garcia failed to establish the requisite degree of hardship to his

children.




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               Ordonez-Garcia appealed the IJ’s decision to the BIA.

On April 2, 2007, the BIA dismissed the appeal.                  It affirmed the

hardship      determination     made   by   the    IJ   and   granted   voluntary

departure until June 1, 2007.          Ordonez-Garcia did not seek review.

              Ordonez-Garcia failed to depart the United States as

directed.      Instead, on September 25, 2007, he filed a motion to

reopen   his    removal   proceedings,       claiming     that    conditions   in

Guatemala had worsened. He alleged that Guatemala was dangerous to

natives, as well as to United States citizens taking up residence

there.   In support of his contention, he presented a 2006 Country

Report   on    Human   Rights    Practices    in    Guatemala     (2006   Country

Report), which listed various problems that children faced in

Guatemala, i.e., homelessness, child labor, child abuse, and child

prostitution. He sought reopening to apply for further relief from

removal, including asylum, withholding of removal, cancellation of

removal, and protection under the Convention Against Torture (CAT).

              The BIA denied the motion because it was not filed within

the 90-day deadline.

                                       II.

              Motions to reopen must be filed within 90 days of a final

order of removal. 8 U.S.C. § 1229a(c)(7)(C)(i). However, a motion

to reopen that is not filed within the time limit may be brought if

it seeks reopening to apply for asylum, withholding of removal, or

CAT protection and if an alien can establish “changed country


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conditions arising in the country of nationality” but only “if such

evidence is material and was not available and would not have been

discovered or presented at the previous hearing.”                8 U.S.C.

§ 1229a(c)(7)(C)(ii).

           There is no dispute between the parties that the motion

was filed outside the 90-day time limit established under 8 U.S.C.

§ 1229a(c)(7)(C)(i) and 8 C.F.R. § 1003.2(c)(2).                 Therefore, the

BIA   should   have    considered    the    untimely    motion      only   if:   (1)

conditions in Guatemala had changed since his hearing in November

2005, and (2) evidence of such conditions was not available and

could not have been presented at that time.

           The evidence presented by Ordonez-Garcia does not support

application of the exception. Although the 2006 Country Report was

not   available   at    the   2005   hearing,   it     does   not    support     the

contention that circumstances in Guatemala changed significantly

since the hearing.

           Furthermore,        Ordonez-Garcia          is     ineligible         for

cancellation of removal as well as other types of relief because he

failed to depart the United States by June 1, 2007, as required

under the BIA’s final order of removal.           See 8 U.S.C. § 1229c(d).



           PETITION FOR REVIEW DENIED.




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