United States Court of Appeals 

for the Fifth Circuit ____________ 

No. 23-60565 

Summary Calendar 

____________ 

Juan David Gutierrez Hoyos; Maira Alexandra Sterling 

Sanchez; Nahiara Gutierrez Sterling, 

Petitioners, 

versus

Merrick Garland, U.S. Attorney General, 

Respondent. 

______________________________ 

Petition for Review of an Order of the 

Board of Immigration Appeals 

Agency Nos. A241 727 465, 

A241 727 466, A241 727 467 

______________________________ 

Before Willett, Duncan, and Ramirez, Circuit Judges.

Per Curiam:*

Juan David Gutierrez Hoyos, Maira Alexandra Sterling Sanchez, and 

Nahiara Gutierrez Sterling are natives and citizens of Colombia. They 

petition for review of the decision of the Board of Immigration Appeals 

(BIA) upholding the denial of asylum, withholding of removal, and 

_____________________ 

*

 This opinion is not designated for publication. See 5th Cir. R. 47.5. 

United States Court of Appeals 

Fifth Circuit 

FILED 

July 23, 2024 

Lyle W. Cayce 

Clerk 

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No. 23-60565 

2 

protection under the Convention Against Torture. The BIA also denied 

their motion for remand to the immigration judge (IJ) for consideration of 

new evidence. 

We review the BIA’s decision and consider the IJ’s decision only to 

the extent it influenced the BIA. Avelar-Oliva v. Barr, 954 F.3d 757, 763 (5th 

Cir. 2020). The BIA affirmed the IJ’s denial of relief because Petitioners did 

not provide sufficient corroborating evidence or explain why they could not 

reasonably obtain it. See 8 U.S.C. § 1158(b)(1)(B)(ii); Rui Yang v. Holder, 664 

F.3d 580, 584–87 (5th Cir. 2011); Avelar-Oliva, 954 F.3d at 764. Petitioners 

do not brief any argument challenging that conclusion and have thus forfeited 

the issue here. See Rollins v. Home Depot USA, 8 F.4th 393, 397 (5th Cir. 2021) 

(“A party forfeits an argument by failing to raise it in the first instance in the 

district court . . . or by failing to adequately brief the argument on appeal.”). 

Because Petitioners forfeit any challenge to the BIA’s conclusion regarding 

corroboration, we need not and thus do not reach the government’s 

alternative argument that any such challenge was not exhausted. See 8 U.S.C. 

§ 1252(d)(1). 

We review the BIA’s denial of Petitioners’ motion for remand 

“under a highly deferential abuse-of-discretion standard.” Milat v. Holder, 

755 F.3d 354, 365 (5th Cir. 2014) (quoting Zhao v. Gonzales, 404 F.3d 295, 

303 (5th Cir. 2005)). “A motion to remand for new evidence shall not be 

granted unless it appears to the Board that evidence sought to be offered is 

material and was not available and could not have been discovered or 

presented at the former hearing.”1 Id. (cleaned up) (citing 8 C.F.R. 

_____________________ 

1

 We treat Petitioners’ motion to remand for consideration of new evidence as a 

motion to reopen, using the standard articulated in 8 C.F.R. § 1003.2(c). See Ramchandani 

v. Gonzales, 434 F.3d 337, 340 n.6 (5th Cir. 2005) (citing Matter of Coelho, 20 I. & N. Dec. 

464, 471 (BIA 1992)). 

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§ 1003.2(c)(1) and Matter of Ige, 20 I. & N. Dec. 880, 883 (BIA 1994)); see 

also Nunez v. Sessions, 882 F.3d 499, 508 (5th Cir. 2018) (per curiam); 8 

C.F.R. § 1003.2(c)(1)–(3). “Further, a party seeking [remand for 

consideration of new evidence] bears a ‘heavy burden.’” Matter of Coelho, 20 

I. & N. Dec. 464, 472 (BIA 1992) (quoting INS v. Abudu, 485 U.S. 94, 110 

(1988)). 

Petitioners argue that they are entitled to remand because they can 

offer a written declaration by Gutierrez Hoyos and a recent report on 

conditions in Columbia. Petitioners did not include this new evidence in their 

motion for remand, much less show that it was previously unavailable and 

material. Gutierrez Hoyos’s written declaration, as described by Petitioners, 

would concern events about which he had previously testified before the IJ, 

and Petitioners offer no explanation why they could not have filed the 

declaration then. See Milat, 755 F.3d at 365. Further, by merely describing 

the contents of the country report in their brief without applying that 

information to their situation, Petitioners have failed to carry their “heavy 

burden” of “[s]howing changed country conditions” by “making a 

meaningful comparison between the conditions at the time of the removal 

hearing and the conditions at the time [they moved to remand].” See Nunez, 

882 F.3d at 508; see also Suate-Orellana v. Barr, 979 F.3d 1056, 1063 (5th Cir. 

2020) (holding that the BIA did not abuse its discretion in denying a motion 

to remand when the proposed “new evidence was similar to evidence already 

considered and rejected by the IJ” and Petitioner had failed to “show[] any 

connection” between the new evidence and herself). 

Petitioners contend that their newly offered evidence could be 

considered because the rules of evidence were not strictly binding in their 

immigration proceedings. This argument is unavailing. To begin with, the IJ

did not exclude evidence sought to be admitted by Petitioners. And further, 

the relevant standard is not whether the evidence could be considered but 

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whether it warranted remand by the BIA because it was previously 

unavailable and material. Petitioners have not shown that the BIA abused its 

discretion in denying their motion for remand. 

The petition for review is DENIED. 

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