Roxana Orellana-Santos v. Eric Holder, Jr. , 414 F. App'x 647 ( 2011 )

Case: 10-60325 Document: 00511393296 Page: 1 Date Filed: 02/24/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 24, 2011
No. 10-60325
Summary Calendar Lyle W. Cayce
Clerk
ROXANA ELIZABETH ORELLANA-SANTOS,
Petitioner
v.
ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A200 135 216
Before WIENER, PRADO and OWEN, Circuit Judges.
PER CURIAM:*
Roxana Elizabeth Orellana-Santos (Orellana), a native and citizen of El
Salvador, petitions this court for review of an order of the Board of Immigration
Appeals (BIA), which declined to set aside the Immigration Judge’s (IJ) denial
of her motion to reopen and rescind her in absentia removal order and, also,
declined to reopen and remand to the IJ for consideration of her newly filed
application for asylum and withholding of removal. Orellana does not challenge
the denial of her motion to reopen and rescind the in absentia removal order.
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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No. 10-60325
She has thus abandoned that claim. See Soadjede v. Ashcroft, 324 F.3d 830, 833
(5th Cir. 2003).
The BIA applied the correct standard in reviewing Orellana’s motion to
remand. See Wang v. Ashcroft, 260 F.3d 448, 451-52 n.2 (5th Cir. 2001)
(observing that a motion to remand is, in essence, a motion to reopen). An alien
is not bound by the time limitation for filing a motion to reopen if her request for
asylum or withholding of removal is “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 also 8 U.S.C. § 1229a(c)(7)(C)(ii).
The evidence submitted by Orellana did not show a change in conditions
in El Salvador since the time of her in absentia removal proceeding. Rather, her
evidence showed a long history of domestic violence within her own family and
the ongoing nature of domestic violence in El Salvador, both predating her 2006
removal hearing. Moreover, any alleged change in the asylum law of the United
States does not constitute “changed circumstances arising in the country of
nationality or in the country to which deportation has been ordered” for purposes
of a motion to reopen under § 1003.2(c)(3)(ii). See Azanor v. Ashcroft, 364 F.3d
1013, 1022 (9th Cir. 2004). The BIA did not abuse its discretion in determining
that Orellana had failed to establish changed country conditions and that her
motion was, therefore, untimely. See Panjwani v. Gonzales, 401 F.3d 626,
632-33 (5th Cir. 2005).
Orellana suggests for the first time in her reply brief that an alleged
change in asylum law warranted the reopening of her case under the BIA’s
discretionary sua sponte authority. We decline to consider this claim. See
United States v. Aguirre-Villa, 460 F.3d 681, 683 n.2 (5th Cir. 2006). In any
event, this court lacks jurisdiction to review the BIA’s refusal to sua sponte
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No. 10-60325
exercise its general authority to reopen immigration proceedings. See
Ramos-Bonilla v. Mukasey, 543 F.3d 216, 219-20 (5th Cir. 2008).
Accordingly, Orellana’s petition for review is DENIED.
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