22-6137

Chavez De Cruz v. Garland

BIA

A208 983 806

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY 

ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF 

APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY 

ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL 

APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY 

CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY 

COUNSEL.

1 At a stated term of the United States Court of Appeals for the Second 

2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 

Square, in the City of New York, on the 8th 3 day of May, two thousand twenty4 four. 

5 

6 PRESENT: 

7 MICHAEL H. PARK,

8 EUNICE C. LEE,

9 MARIA ARAÚJO KAHN,

10 Circuit Judges. 

11 _____________________________________ 

12 

13 EMMA ARELY CHAVEZ DE CRUZ, 

14 Petitioner, 

15 

16 v. 22-6137 

17 NAC 

18 MERRICK B. GARLAND, UNITED 

19 STATES ATTORNEY GENERAL, 

20 Respondent. 

21 _____________________________________ 
2 

1 FOR PETITIONER: Bruno J. Bembi, Hempstead, NY. 

 2 

3 FOR RESPONDENT: Brian Boynton, Principal Deputy Assistant 

4 Attorney General; Jennifer R. Khouri, Senior 

5 Litigation Counsel; Allison Frayer, Trial 

6 Attorney, Office of Immigration Litigation, 

7 United States Department of Justice, 

8 Washington, DC.

 9 

10 UPON DUE CONSIDERATION of this petition for review of a Board of 

11 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, 

12 AND DECREED that the petition for review is DENIED in part and DISMISSED

13 in remaining part. 

14 Petitioner Emma Arely Chavez de Cruz, a native and citizen of El Salvador, 

15 seeks review of a February 18, 2022 decision of the BIA denying her motion to 

16 reopen. In re Emma Arely Chavez De Cruz, No. A 208 983 806 (B.I.A. Feb. 18, 2022). 

17 We assume the parties’ familiarity with the underlying facts and procedural 

18 history. 

19 We review the BIA’s denial of a motion to reopen for abuse of discretion and 

20 its fact-finding on changed country conditions for substantial evidence. See Jian 

21 Hui Shao v. Mukasey, 546 F.3d 138, 168–69 (2d Cir. 2008). A motion to reopen 

22 ordinarily must be filed within 90 days of a final order of removal. See 8 U.S.C. 
3 

1 § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). It is undisputed that Chavez de Cruz’s 

2 motion was untimely because she filed it in March 2020, more than four months 

3 after the BIA affirmed her removal order in October 2019. 

4 The time limit does not apply, however, if the motion to reopen is “based 

5 on changed country conditions arising in the country of nationality or the country 

6 to which removal has been ordered, if such evidence is material and was not 

7 available and would not have been discovered or presented at the previous 

8 proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see also 8 C.F.R. § 1003.2(c)(3)(ii). “[A] 

9 petitioner must show changed country conditions in order to exceed the 90-day 

10 filing requirement . . . . A self-induced change in personal circumstances cannot 

11 suffice.” Wei Guang Wang v. B.I.A., 437 F.3d 270, 274 (2d Cir. 2006) (citation 

12 omitted). 

13 Here, we find no abuse of discretion. In considering evidence of changed 

14 country conditions, the BIA must “compare the evidence of country conditions 

15 submitted with the motion to those that existed at the time of the merits hearing 

16 below.” Tanusantoso v. Barr, 962 F.3d 694, 698 (2d Cir. 2020) (quotation marks 

17 omitted). The BIA has broad discretion in how it conducts this review, but it must 
4 

1 “explicitly consider any country conditions evidence submitted by an applicant 

2 that materially bears on h[er] claim.” Id. It abuses its discretion when it fails to 

3 address material evidence or “provides no rational explanation” and produces a 

4 decision “devoid of any reasoning, or contain[ing] only summary or conclusory 

5 statements.” Qin Wen Zheng v. Gonzales, 500 F.3d 143, 146 (2d Cir. 2007) 

6 (quotation marks omitted). In addition, a movant’s “ability to secure reopening 

7 depends on demonstration of prima facie eligibility for asylum, which means she 

8 must show a realistic chance that she will be able to obtain such relief,” and must 

9 carry “the heavy burden of demonstrating that the proffered new evidence would 

10 likely alter the result in her case.” Jian Hui Shao, 546 F.3d at 168 (quotation marks 

11 omitted). 

12 On this record, the BIA did not err in dismissing Chavez de Cruz’s motion 

13 for failure to show a material change in conditions in El Salvador since her hearing. 

14 To support her motion, Chavez de Cruz attached eleven news articles

15 documenting gang violence in El Salvador, only four of which were published 

16 after her initial March 2018 hearing. Because a motion to reopen requires new 

17 evidence and the changed country conditions exception to the 90-day deadline
5 

1 requires evidence of changed conditions, see 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. 

2 § 1003.2(c)(3)(ii), the BIA did not abuse its discretion in concluding that the articles 

3 that were previously available did not support reopening. The remaining articles 

4 reflected severe gang violence and a high murder rate, but substantial evidence 

5 supported the BIA’s determination that this new evidence showed a continuation 

6 of, not a meaningful increase in, gang violence. 

7 Moreover, the BIA also reasonably determined that Chavez de Cruz’s 

8 alleged changes in circumstance would not affect her eligibility for relief. She did 

9 not sufficiently explain how a generalized increase in gang violence, or 

10 additionally, her brother’s beating, and the death of her friend, affected her claim 

11 for relief—which was therefore denied in part because she failed to show a well12 founded fear of future persecution due to her membership in a particular social 

13 group. See Quituizaca v. Garland, 52 F.4th 103, 114–15 (2d Cir. 2022) (explaining

14 that gang violence is not a basis for asylum or withholding unless it is motivated 

15 by a protected trait rather than general criminal incentives); Ucelo-Gomez v. 

16 Mukasey, 509 F.3d 70, 73 (2d Cir. 2007) (“When the harm visited upon members of 

17 a group is attributable to the incentives presented to ordinary criminals rather than 
6 

1 to persecution, the scales are tipped away from considering those people a 

2 ‘particular social group’ within the meaning of the [Immigration and Nationality 

3 Act].”); Melgar de Torres v. Reno, 191 F.3d 307, 313 (2d Cir. 1999) (“act[s] of random 

4 violence” do not constitute persecution). Finally, the birth of Chavez de Cruz’s 

5 second son and his new medical needs are changes in personal circumstances, 

6 which do not satisfy the changed country conditions exception to the filing 

7 deadline. See Wei Guang Wang, 437 F.3d at 274. In sum, the BIA did not abuse 

8 its discretion in denying reopening. See Jian Hui Shao, 546 F.3d at 168–69. 

9 We otherwise dismiss the petition as we lack jurisdiction to review the BIA’s 

10 “entirely discretionary” decision not to exercise, sua sponte, its authority to reopen 

11 under 8 C.F.R. § 1003.2(a). See Li Chen v. Garland, 43 F.4th 244, 252, 253 n.7 (2d Cir. 

12 2022) (quotation marks omitted). 

13 For the foregoing reasons, the petition for review is DENIED in part and 

14 DISMISSED in remaining part. All pending motions and applications are 

15 DENIED and stays VACATED.

16 FOR THE COURT: 

17 Catherine O’Hagan Wolfe, 

18 Clerk of Court