PS5-153                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 14-4340
                                      ___________

                           JOSE A. ROSALES-ALVARADO,
                                               Petitioner

                                             v.

              ATTORNEY GENERAL UNITED STATES OF AMERICA,
                                             Respondent
                   ____________________________________

                       On Petition for Review of an Order of the
                             Board of Immigration Appeals
                             (Agency No. A098-400-820)
                   Immigration Judge: Honorable Dorothy A. Harbeck
                      ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                     July 2, 2015

             Before: CHAGARES, JORDAN and COWEN, Circuit Judges

                               (Opinion filed: July 7, 2015)
                                      ___________

                                       OPINION*
                                      ___________

PER CURIAM



*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
      Jose Armelio Rosales-Alvarado, a native and citizen of El Salvador, entered the

United States without permission in 2004. Although he was ordered removed in absentia

soon thereafter, Rosales-Alvarado remained in the country. In January 2013, following

his arrest and conviction in Virginia for driving without a license, Rosales-Alvarado was

removed to El Salvador. Approximately four months later, Rosales-Alvarado reentered

the United States and was immediately apprehended by immigration officials. The

Government reinstated Rosales-Alvarado’s prior removal order under 8 U.S.C.

§ 1231(a)(5). During reinstatement proceedings, Rosales-Alvarado expressed a fear of

persecution and torture in El Salvador, which an asylum officer found reasonable. As a

result, Rosales-Alvarado’s case was referred to an Immigration Judge (“IJ”) for

“withholding-only” proceedings, see 8 C.F.R. § 208.31(e), wherein Rosales-Alvarado

applied for withholding of removal and protection under the Convention Against Torture

(“CAT”).

      During an administrative hearing, Rosales-Alvarado testified that in March 2004,

while in El Salvador, he witnessed five people stab an unknown individual. Although

Rosales-Alvarado did not know the formal identities of the assailants, he knew one of

them was nicknamed “El Speedy.” Rosales-Alvarado did not report the incident to

police, however, because he was fearful of retaliation. Rosales-Alvarado explained that

shortly after he witnessed the stabbing, El Speedy contacted his brother-in-law inquiring

about Rosales-Alvarado’s whereabouts. This prompted Rosales-Alvarado to hide at his

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parents’ home, and to later flee the country. Rosales-Alvarado also testified that shortly

after that incident, his brother-in-law was killed by gang members in El Salvador.

Rosales-Alvarado believes that his brother-in-law was targeted in retaliation for his

having witnessed the March 2004 stabbing. Rosales-Alvarado also testified that when he

returned home in early 2013, he learned from family members that he would not be safe

if he remained in El Salvador.

       The IJ denied relief and ordered Rosales-Alvarado removed to El Salvador,

concluding that Rosales-Alvarado was unable to demonstrate his eligibility for

withholding of removal or protection under the CAT. On March 7, 2014, the Board of

Immigration Appeals (“BIA” or “Board”) upheld the IJ’s decision regarding the denial of

CAT relief.1 On September 8, 2014, Rosales-Alvarado presented a motion to reopen to

the BIA, arguing that conditions and circumstances in El Salvador had changed since the

BIA issued the final order of removal. On October, 16 2014, the BIA denied the motion,

ruling that it was untimely and did not qualify for any exception to the filing requirement.

The Board also declined to reopen the proceedings sua sponte. Thereafter, Rosales-

Alvarado filed a petition for review in this Court attaching both the March 7, 2014 and

September 8, 2014 decisions of the BIA. The Government moved to dismiss the petition

for review, in part, for lack of jurisdiction.


1
  The BIA did not review the IJ’s decision to deny Rosales-Alvarado’s application for
withholding of removal, concluding that Rosales-Alvarado failed to raise any issues with
respect to that ruling in his brief.
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       We must first address our jurisdiction to entertain the petition for review. The

Government correctly argues that we lack jurisdiction to review the BIA’s March 7, 2014

decision. Rosales-Alvarado had thirty days to file a petition for review from that order,

which was separately appealable to this Court. See 8 U.S.C. § 1252(b)(1); Castro v.

Att’y Gen., 

, 364 (3d Cir. 2012) (citing Stone v. INS, 

, 405

(1995)). Importantly, filing a motion to reopen does not toll the 30-day period for

seeking review of the BIA’s earlier decision on the merits. See 

(citing 

). Because we did not receive Rosales-Alvarado’s

petition for review until October 31, 2014 (with a mailing date of October 28, 2014), it is

timely only with respect to the BIA’s October 16, 2014 order denying his motion to

reopen.

       We review the BIA’s decision to deny Rosales-Alvarado’s motion to reopen under

a deferential abuse of discretion standard, reversing only if the BIA’s decision was

arbitrary, irrational, or contrary to law. Sevoian v. Ashcroft, 

, 174 (3d Cir.

2002). Generally, an alien may file a motion to reopen with the BIA “no later than 90

days after the date on which the final administrative decision was rendered[.]” 8 C.F.R.

§ 1003.2(c)(2); see also 8 U.S.C. § 1229a(c)(7)(C)(i). The time requirement is waived

for motions to reopen that are “based upon changed country conditions proved by

evidence that is material and was not available and could not have been discovered or




                                             4
presented at the previous proceeding.” Pllumi v. Att’y Gen., 

, 161 (3d Cir.

2011); see also 8 U.S.C. § 1229a(c)(7)(C)(ii); accord 8 C.F.R. § 1003.2(c)(3)(ii). A

showing of changed country conditions is a prerequisite for an analysis of the full merits

of the motion to reopen. See Shardar v. Att’y Gen., 

, 312 (3d Cir. 2007).

“The burden of proof on a motion to reopen is on the alien to establish eligibility for the

requested relief.” 

(citing 8 C.F.R. § 1003.2(c)).2

         Rosales-Alvarado does not dispute that his motion to reopen was filed more than

ninety days after the Board’s final order of removal. Rather, he argued that his motion

fell within the exception to the time limit based on a claim of changed circumstances and

conditions in El Salvador. Rosales-Alvarado presented with his motion to reopen a

personal declaration and two statements from his father, who lives in El Salvador.

Rosales-Alvarado and his father explained that El Speedy is now a member of the

national government and that, around July 2014, El Speedy directed the police to issue an

arrest warrant for Rosales-Alvarado. Rosales-Alvarado’s father also claimed that after

Rosales-Alvarado was removed to El Salvador in 2013 (following his conviction in

Virginia), El Speedy and other gang members attacked and badly injured Rosales-

Alvarado. He claimed that they did so in retaliation for his having identified El Speedy

as one of the attackers in the 2004 stabbing incident.

         The BIA determined that this evidence did not support the conclusion that any


2
    This Court lacks jurisdiction to review the BIA’s decision to the extent it declined to
                                                5
alleged threat to Rosales-Alvarado’s safety in El Salvador has either changed or escalated

since the time of his hearing before the IJ. As a result, the BIA concluded that Rosales-

Alvarado failed to demonstrate materially changed circumstances or conditions in El

Salvador. The BIA further found that the evidence did not show a probability of

persecution on a protected ground or torture with government acquiescence.

       Having reviewed the record, we conclude that the Board acted within its discretion

in denying Rosales-Alvarado’s motion to reopen as untimely filed because he failed to

show changed country conditions in El Salvador sufficient to exempt him from the 90-

day deadline. As a threshold matter, we are confident that the Board fully considered

Rosales-Alvarado’s new evidence. As mentioned, Rosales-Alvarado supported his claim

of changed conditions with his general declaration as well as two statements from his

father.3 He argues in his opening brief that the Board failed to give adequate

consideration to those documents. However, the BIA’s opinion demonstrates that it

meaningfully reviewed Rosales-Alvarado’s arguments and the evidence that he

presented. Further, we have previously determined that “the BIA is not required to write

an exegesis on every contention.” Toussaint v. Att’y Gen., 

, 414 (3d Cir.

2006) (internal quotation marks and citation omitted). “In fact there is no advantage in

writing a long opinion when a short one will do as the parties do not want law review



grant relief sua sponte. 

.
3
  Rosales-Alvarado did not submit any country reports to support his claim of changed
conditions, however.
                                             6
articles, they want intelligible opinions explaining the basis for the court’s

determination.” 

determine that the Board reasonably concluded that the evidence

Rosales-Alvarado presented does not show a material change in conditions in El

Salvador. Although Rosales-Alvarado claimed in his motion to reopen that he had been

attacked by El Speedy following his return to El Salvador in 2013, he testified at his

earlier administrative hearing that he had not, in fact, been harmed during that period. It

is unclear why Rosales-Alvarado altered his story in the motion to reopen. In any event,

because this alleged attack was known to Rosales-Alvarado at the time of his

administrative hearing, the information was not previously unavailable. And, although

Rosales-Alvarado claims that El Speedy is a member of the government, he provided no

information outside of his father’s statement suggesting that is the case. Nor did Rosales-

Alvarado provide a copy of the arrest warrant that he claims El Speedy directed the

police to issue against him. Moreover, he did not explain when El Speedy became

involved in government; he may have been involved before Rosales-Alvarado’s

administrative hearing. Given that lack of information, the BIA did not abuse its

discretion in concluding that Rosales-Alvarado failed to demonstrate a material change in

conditions since his September 2013 hearing before the IJ.4



4
 Because we affirm on this basis, we need not review the Board’s additional ruling that
Rosales-Alvarado also failed to establish a prima facie case for the relief sought.
                                              7
       Accordingly, the Government’s motion to dismiss the petition for review is

granted to the extent that we lack jurisdiction and the petition will be otherwise denied.




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