NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 21-1428

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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

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Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

January 25, 2022

Before: CHAGARES, Chief Judge, McKEE, and MATEY, Circuit Judges.

(Filed: March 3, 2022)

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OPINION∗

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∗ This disposition is not an opinion of the full Court and, under I.O.P. 5.7, does not 

constitute binding precedent.
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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 

allowing admission for six months. In 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, in 2019, the Department of Homeland Security charged NunezRamirez with removability under 8 U.S.C. § 1227(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 

Immigration Judge 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. 
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also found 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 

murders.” (A.R. at 82–89.) Finally, he moved to retract his asylum concession, arguing he 

remained eligible for relief. The BIA denied the motion, concluding the asylum claim 

waived and, in any event, unsupported by new facts. The BIA also declined to consider his 

new 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 this 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 the motion “shall not be granted” unless the 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).
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presented at the former hearing.” 8 C.F.R. § 1003.2(c)(1). Consistent with these standards, 

we review the BIA’s denial of a motion to reopen for an abuse of discretion 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 legal 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 dangerous 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 details

about gang activity, the scope of gang violence in Honduras was well-covered at the 

hearing. Indeed, Nunez-Ramirez testified about his fears and the dangers in Honduras. 

Second, Ms. Ramirez, even without a translator, testified that gangs may target NunezRamirez, and a written statement reiterated that point. As did a written statement by NunezRamirez’s grandmother. All of which shows the absence of an interpreter did not prevent 
5

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

claim.

3

Nor can Nunez-Ramirez 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 remains 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 extended 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, did not 

make an asylum claim or assert an exception to the one-year limitation. The 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 alter that conclusion. B.C.

concerned a pro se petitioner facing deportation, not a witness called by counsel. A witness 

who Nunez-Ramirez’s counsel stated was “competent” to testify in English. (A.R. at 452.) 

And B.C. recognized the need to show prejudice from an alleged agency error. 12 F.4th at 

318. Nunez-Ramirez has not, because the BIA’s denial rested in part on his inadequate 

proposed social group. 4 Nunez-Ramirez proposes a new social group, but he offers no previously 

unavailable evidence that supports this changed theory on appeal.
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III.

For these reasons, we will deny Nunez-Ramirez’s petition.