Wander Pires-Paiva v. Attorney General United States ( 2020 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 20-1290
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WANDER PIRES-PAIVA,
Petitioner
v.
ATTORNEY GENERAL OF THE
UNITED STATES OF AMERICA
__________
On Petition for Review of a Decision
of the Board of Immigration Appeals
(Agency No. A074-324-937)
Immigration Judge: Ramin Rastegar
__________
Submitted Under Third Circuit L.A.R. 34.1(a)
on September 17, 2020
Before: KRAUSE, RESTREPO, and BIBAS, Circuit Judges
(Filed: September 18, 2020)
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OPINION *
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KRAUSE, Circuit Judge.
Wander Pires-Paiva appeals the Board of Immigration Appeals’s (BIA) denial of
his motion to reopen based on changed country conditions or the BIA’s sua sponte author-
ity. Because the BIA did not abuse its discretion in concluding that Pires-Paiva did not
submit evidence of changed country conditions and because Pires-Paiva has not carried his
burden of demonstrating that we may review the BIA’s refusal to reopen sua sponte, we
will deny the petition for review.
I. DISCUSSION 1
Pires-Paiva urges that the BIA committed two errors: (1) declining to reopen based
on evidence of changed country conditions; and (2) declining to reopen sua sponte. We
consider each in turn.
A. The BIA did not abuse its discretion in declining to reopen based on
changed country conditions.
We review the BIA’s denial of a motion to reopen for abuse of discretion and will
grant a petition for review on that basis only if the decision was “arbitrary, irrational, or
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
1
The BIA had jurisdiction under 8 C.F.R. §§ 1003.1(b) and 1240.15, and we exer-
cise jurisdiction under 8 U.S.C. § 1252.
2
contrary to law.” Liem v. Att’y Gen., 921 F.3d 388, 395 (3d Cir. 2019) (citation omitted).
Generally, noncitizens may file only one motion to reopen and must do so within ninety
days of the date of entry of the final order concluding the removal proceedings. 8 U.S.C.
§ 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2). But these time and number bars are
relaxed when a petitioner moves “[t]o apply or reapply for asylum or withholding of de-
portation based on changed circumstances arising in the country of nationality or in the
country to which deportation has been ordered, if such evidence is material and was not
available and could not have been discovered or presented at the previous hearing.” 8
C.F.R. § 1003.2(c)(3)(ii); see 8 U.S.C. § 1229a(c)(7)(C)(ii). At that point, “the BIA has a
heightened duty to explicitly consider any country conditions evidence submitted by an
applicant that materially bears on his claim.” Liem, 921 F.3d at 395 (internal quotation
marks and citation omitted). But relief is available only if the petitioner presents evidence
of materially changed country conditions since the time of his previous hearing. Id.; 8
C.F.R. § 1003.2(c)(3)(ii).
Here, Pires-Paiva submitted no such evidence. He directs us to evidence of Rogerio
Hamilton’s escalating aggression towards his family, but “application of 8 U.S.C.
§ 1229a(c)(7)(C)(ii) cannot be based on changed personal circumstances alone,” Khan v.
Att’y Gen., 691 F.3d 488, 498 (3d Cir. 2012) (emphasis added). There may be cases where
“changed country conditions are made relevant by a change in the petitioner’s personal
circumstances,” Chandra v. Holder, 751 F.3d 1034, 1038 (9th Cir. 2014); see also Shu Han
Liu v. Holder, 718 F.3d 706, 709 (7th Cir. 2013); Yu Yun Zhang v. Holder, 702 F.3d 878,
879–80 (6th Cir. 2012); Xue Xian Jiang v. U.S. Att’y Gen., 568 F.3d 1252, 1258 (11th Cir.
3
2009), but that is not the case here. Pires-Paiva has not demonstrated any change in the
level of corruption, the success of the Brazilian police force’s enforcement efforts, or the
security of those who testify against drug dealers in court since the time of his initial pro-
ceeding that would be made relevant by Hamilton’s actions.
Given Pires-Paiva’s showing, the BIA did not err in concluding that he did not sub-
mit evidence of changed country conditions since his previous hearing affecting the “treat-
ment of individuals by Rogerio Hamilton in Brazil.” 2 JA 2–4.
B. We lack jurisdiction to review the BIA’s refusal to reopen sua sponte.
“[O]rders by the BIA declining to exercise its discretion to reopen sua sponte are
functionally unreviewable” unless the BIA “relie[d] on an incorrect legal premise” or “lim-
ited its discretion via a policy, rule, settled course of adjudication, or by some other
method.” Sang Goo Park v. Att’y Gen., 846 F.3d 645, 651, 653 (3d Cir. 2017). Neither
exception applies here. Pires-Paiva has not flagged an incorrect legal premise, and we
perceive no such error. Nor has he pointed to any case law that allows for a reasonable
inference that the BIA has cabined its own discretion.
2
Whether framed in those terms or more broadly as a lack of evidence of changed
circumstances for those who testify against drug dealers in court, the BIA’s conclusion was
apt. Because we may resolve this claim on this ground alone, we will not wade into the
BIA’s alternative ground for denying relief—Pires-Paiva’s failure to demonstrate a prima
facie case for relief because his alleged persecution stems from a personal vendetta. See
Gonzalez-Posadas v. Att’y Gen., 781 F.3d 677, 685 (3d Cir. 2015) (“Conflicts of a personal
nature and isolated criminal acts do not constitute persecution on account of a protected
characteristic.”); En Hui Huang v. Att’y Gen., 620 F.3d 372, 389 (3d Cir. 2010) (detailing
three bases for denial of a motion to reopen, including failure to “establish[] a prima facie
case for the relief sought” (citation omitted)).
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II. CONCLUSION
For the forgoing reasons, we will deny the petition for review.
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