NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________

No. 21

- 1428

_____________ FRANK ANTHONY NUNEZ

- RAMIREZ , Petitioner

v. ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA

_______________ On Petition for Review from the

Board of Immigration Appeals

( Agency No. A094

- 354

- 686 ) Immigration Judge: Charles M. Honeyman

_______________ Submitted Pursuant to Third Circuit L.A.R. 34.1(a) January 25, 2022
Before: CHAGARES , Chief Judge , M c KEE , and MATEY, Circuit Judges. (Filed : March 3, 2022 )

_______________ OPINION ∗

_______________

∗ This disposition is not an opinion of the full Court and, under I.O.P. 5.7, does not constitute binding precedent.2 MATEY, Circuit Judge

. Frank Anthony Nunez

- Ramirez appeals the Board of Immigration Appeals’ (“BIA”) denial of a motion to reopen his removal proceedings . Finding no error in the BIA’s decision , we will deny Nunez

- Ramirez’s petition. I. In 1995, the United States issued Nunez

- Ramirez, a Honduras native, a visitor visa

a llowing admi ssion for six months. I n 2000, still in the United States, Nunez

- Ramirez received Temporary Protected Status (“TPS”) after Hurricane Mitch struck Honduras

. But the Government revoked that status in 2018 when Nunez

- Ramirez received a third DUI conviction. As a result, i n 2019, t he Department of Homeland Security charged Nunez

Ramirez wit h removability under 8 U.S.C. § 1 227 (a )(1)(b ). Nunez

- Ramirez conceded the charge but filed applications for withholding of removal and protection under the Convention Against Torture (“CAT”). 1
Nunez

- Ramirez argued he was eligible for withholding of removal based on his status in a particular social group comprised of “Honduran Men Who Grew Up in the United States.” (A.R. at 522

– 29.) He expressed fear of returning home because a gang had murdered his uncle, and he believed he would be targeted as well. After a hearing, an
I mmigration J udge denied Nunez

- Ramirez’s application for withholding of removal, finding he did not establish the necessary clear probability of future persecution. The IJ

1 Nunez

- Ramirez conceded ineligibility for asylum because he failed to file an application within one year of arrival in the United States. 8 U.S.C. § 1158(a)(2)(B). He now seeks to press an asylum claim, but as explained below, cannot successfully do so.3 also f ound Nunez

- Ramirez’s alleged particular social group was not legally cognizable because it lacked “discrete and definable boundaries.” (A.R. at 424 .) Finally, the IJ denied his CAT claim, finding that Nunez

- Ramirez did not prove likely torture in Honduras. The BIA affirmed the IJ’s rulings and dismissed Nunez

- Ramirez’s appeal. In 2021, Nunez

- Ramirez moved to reopen his case citing deficiencies in his hearing. He also proposed a new particular social group: “ family members of victims of gang

m urders .” (A.R. at 82

– 89.) Finally, he moved to retract his asylum concession , arguing he remained eligible for relief

. T he BIA denied the motion , concluding the asylum claim waived and, in any event, unsupported by new facts . The BIA also declined to consider his

n ew particular social group, as it was not advanced before the IJ. And the BIA rejected his due process claim, finding a failure to establish substantial prejudice. Seeing no grounds to disturb those decisions, we will deny t his petition for review. 2
II. Motions to reopen are “disfavored,” I

. N

. S

. v. Doherty , 502 U.S. 314, 323 (1992), and the movant faces the “heavy burden , ” I.N.S. v. Abudu , 485 U.S. 94, 110 (1988) , of showing that new evidence “would likely change the result in the case.” Matter of Coelho , 20 I. & N. Dec. 464, 473 (BIA 1992). The motion must “state the new facts that will be
proven . . . and [the motion] shall be supported by affidavits or other evidentiary material.” 8 U.S.C. § 1229a(c)(7)(B). And t he motion “shall not be granted” unless t he proffered evidence is “material and was not available and could not have been discovered or

2 The BIA had jurisdiction under 8 C.F.R. § 1003.2 and we have jurisdiction under 8 U.S.C. § 1252(a).4 presented at the former hearing.” 8 C.F.R. § 1003.2(c)(1). Consistent with these stan dards,

w e review the BIA’s denial of a motion to reopen for an abuse of disc retion and will not disturb that decision unless it is arbitrary, irrational, or contrary to law. Liem v. Att’y Gen. , 921 F.3d 388, 395 (3d Cir. 2019). We review l egal questions de novo and factual findings for substantial evidence. Darby v. Att’y Gen. , 1 F.4th 151, 159 (3d Cir. 2021)

. A. Due Process To show insufficient due process, Nunez

- Ramirez must establish that he was “prevented from reasonably presenting his case.” Uspango v. Ashcroft , 289 F.3d 226, 231 (3d Cir. 2002) (internal quotation marks omitted). Nunez

- Ramirez argues that his mother’s testimony required help from an interpreter to “ fully explain the situation in Honduras regarding her brother’s murder. ” (Opening Br. at 14.) He pairs this argument with expert reports purporting to show dan gerous country conditions and the importance of the family in Honduran culture. Both are insufficient. First, while Ms. Ramirez’s expanded testimony might provide some extra detail s about gang activity, the scope of gang violence in Honduras was well

- covered at the hearing. Indeed, Nunez

- Ramirez testified about his fear s and the dangers in Honduras. Second, Ms. Ramirez, even without a translator, testified that gangs may target Nunez

Ramirez , and a written statement reiterated that point. A s did a written statement by Nunez

Ramirez’s grandmother. A ll of which shows the absence of an interpreter did not prevent5 Nunez

- Ramirez from reasonably presenting his case and cannot ground a due process claim

. 3
Nor can Nunez

- Rami rez show “ a reasonable likelihood that the result would have been different

. ” United States v. Charleswell , 456 F.3d 347, 362 (3d Cir. 2006 )

. The IJ denied Nunez

- Ramirez’s application for withholding in part because his proposed particular social group lacked “discrete and definable boundaries.” (A.R. at 424 .) That dispositive finding remain s even if Ms. Ramirez testified with a translator. 4
B . Asylum An asylum application must normally be filed within one year of entering the United States, but that deadline may be ex tended if the applicant “ maintained Temporary Protected Status .

. . until a reasonable period before the filing of the asylum application. ” 8 C.F.R. § 208.4(a)(2), (5)(iv). Nunez

- Ramirez maintained his TPS for eighteen years, until it was revoked in 2018 after his third DUI conviction. Nunez

- Ramirez , through counsel, d id not make an asylum claim or assert an exception to t he one

- year limitation

. T he BIA did not abuse its discretion in declining to consider an argument that could have been made in previous proceedings. See 8 C.F.R. § 1003.2 (c)( 1 )

.

3 B.C. v. Att’y Gen. , 12 F.4th 306 (3d Cir. 2021) does not al ter that conclusion. B.C. concerned a pro se petitioner facing deportation, not a witness called by counsel. A witness who Nunez

- Rami re z’s counsel stated was “competent” to testify in English. (A.R. at 452.) And B.C. recognized th e need to show p rejudice from an alleged agency error. 12 F.4th at 318 . Nunez

- Ramirez has not , b ecause the BIA’s denial rested in part on his inadequate proposed social group

. 4 Nunez

- Ramirez p roposes a new social group , but he offers no previously unavailable evidence th at supports this changed theory on appeal.6 III. For these reasons, we will deny Nunez

- Ramirez’s petition.