Willman Portillo v. Robert Wilkinson ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 9 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILLMAN ALEXANDER PORTILLO, No. 19-72444
AKA William Alexander Portillo, 20-70250
Petitioner, Agency No. A070-958-440
v.
MEMORANDUM*
ROBERT M. WILKINSON, Acting
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 1, 2021**
Phoenix, Arizona
Before: HAWKINS, BEA, and BUMATAY, Circuit Judges.
Willman Portillo, a citizen of El Salvador, petitions for review of the Board
of Immigration Appeals’ (“BIA”) orders denying his motion to reopen his
proceedings and his motion for reconsideration of that order.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
We review the BIA’s denial of motions to reopen and to reconsider for abuse
of discretion. Valeriano v. Gonzales, 474 F.3d 669, 672 (9th Cir. 2007). We
consolidate Portillo’s petitions for review and deny them.
1. The BIA did not abuse its discretion in denying Portillo’s motion to reopen.
“[T]he decision to grant or deny a motion to reopen is ‘within the discretion of the
[BIA].’” Siong v. INS, 376 F.3d 1030, 1038 (9th Cir. 2004) (quoting 8 C.F.R.
§ 1003.2(a)). The BIA found that Portillo’s motion to reopen was procedurally
defective. See 8 C.F.R. § 1003.2(c)(1) (“A motion to reopen proceedings for the
purpose of submitting an application for relief must be accompanied by the
appropriate application for relief and all supporting documentation.”). Portillo failed
to submit a Form I-589, the appropriate application for relief he sought. Portillo
claims that there was a prior I-589 in the record. But he did not attach that prior
form to his motion to reopen, and the form sought asylum on different grounds than
he now puts forth. See Young Sun Shin v. Mukasey, 547 F.3d 1019, 1025 (9th Cir.
2008) (concluding the BIA did not abuse its discretion by denying motion to reopen
when petitioner failed to attach proper form).
The BIA also found that Portillo’s motion to reopen was time- and number-
barred. This was Portillo’s second motion to reopen, and eight years had passed
since the entry of a final order of removal in his case. See 8 C.F.R. § 1003.2(c)(2)
(“[A] party may file only one motion to reopen . . . and that motion must be filed no
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later than 90 days after the date on which the final administrative decision was
rendered.”).
Portillo claims that he is not barred by these limitations because he can show
“changed circumstances” in his country of nationality. See Toufighi v. Mukasey, 538
F.3d 988, 994, 996 (9th Cir. 2008) (“[A] motion to reopen based on changed
conditions is focused on ‘new facts’ showing changed conditions that now establish
a prima facie case for asylum.”) (quoting 8 C.F.R. § 1003.2(c)(3)(ii)). In order to
meet this burden, “(1) [Portillo] had to produce evidence that conditions had changed
in [his home country]; (2) the evidence had to be material; (3) the evidence must not
have been available and would not have been discovered or presented at the previous
proceeding; and (4) he had to demonstrate that the new evidence, when considered
together with the evidence presented at the original hearing, would establish prima
facie eligibility for the relief sought.” Id. at 996 (internal quotation marks and
citations omitted). The BIA could “deny the motion to reopen for failing to meet
any of these burdens.” Id.Portillo claims to have a well-founded fear of gang violence in El Salvador
due in part to the deaths of three of his relatives, which he claims were attributable
to gang violence. But the BIA found that Portillo failed to provide any evidence
showing the motive for his relatives’ deaths. Fear of gang violence alone does not
establish persecution on a protected ground. See Zetino v. Holder, 622 F.3d 1007,
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1016 (9th Cir. 2010) (“An alien’s desire to be free from harassment by criminals
motivated by theft or random violence by gang members bears no nexus to a
protected ground.”). Portillo thus failed to establish prima facie eligibility for the
relief sought, and the BIA’s conclusion was not “arbitrary, irrational, or contrary to
law.” See Valeriano, 474 F.3d at 672. Accordingly, the BIA did not abuse its
discretion in denying Portillo’s motion to reopen.
2. The BIA did not abuse its discretion in denying Portillo’s motion to
reconsider. Although Portillo provided an application for relief, he still did not
provide any evidence showing the motive for his relatives’ deaths and he did not
allege any error of law or fact in the BIA’s decision to deny his motion to reopen.
See 8 C.F.R. § 1003.2(b). Rather, the BIA found that Portillo’s motion to reconsider
“reiterate[d] the assertion he already made before the Immigration Judge and the
Board.” See Matter of O-S-G-, 24 I&N Dec. 56, 57 (BIA 2006) (“[A] motion to
reconsider is not a process by which a party may submit, in essence, the same brief
presented on appeal . . . .”). Accordingly, the BIA did not abuse its discretion in
denying Portillo’s motion to reconsider.
DENIED.
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