UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ JOSE CHAVEZ-OCHOA, a/k/a Jose Ochoa Chavez, Petitioner,

v. LORETTA E. LYNCH, United States Attorney General, Respondent. No. 15-9582 (Petition for Review)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before TYMKOVICH , Chief Judge, BACHARACH and MORITZ , Circuit Judges.

________________ _________________ Jose Chavez-Ochoa, a native and citizen of Mexico, seeks review of a Board of Immigration Appeals’ (BIA’s) decision de nying as untimely his motion to reopen removal proceedings. Exercising jurisdic tion under 8 U.S.C. § 1252, we deny the petition.

* After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not ma terially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### August 3, 2016
Elisabeth A. Shumaker Clerk of Court2 B ACKGROUND In 1991, Chavez-Ochoa illega lly entered the U.S. In 2008, the Department of Homeland Security ordered him to appear before an Immigration Judge (IJ). At a hearing, Chavez-Ochoa conceded removability and sought cancella tion of removal or voluntary departure. The IJ denied Ch avez-Ochoa’s application and ordered him removed to Mexico. The BIA remanded for a new hearing, however, because the IJ had threatened to strike Chavez-Ochoa’s direct testimony if on cross-examination he refused to answer whether he had ever claimed to be a U.S. citizen. Following the new hearing, the IJ denied Chavez-Ochoa’s reque st for cancellation of removal or voluntary departure. On November 25, 2014, the BIA dismissed the appeal. Chavez-Ochoa unsuccessfu lly sought reconsideration. On June 29, 2015, Chavez-Ochoa f iled a motion to reopen the removal proceedings so he could seek protection under th e Convention Against Torture (CAT). He argued that his wife had recently become a police officer in Texas and her police chief had prohibited travel to Me xico because of a travel warning issued by the State Department. The BIA found the motion untimely, as it was filed more than 90 days after the BIA dismissed his appeal. And while there is an exception to th e time limitation when the motion is based on changed country co nditions, the BIA determined that ChavezOchoa had not shown “a material change in country conditions for United States federal and local law enforcement personnel in Mexico si nce this matter was last before the [IJ].” R. at 4. Further, the BIA stated that Ch avez-Ochoa’s wife’s employment as a police3 officer was “a change in . . . personal circum stances, rather than a change in country conditions.” Id.
D ISCUSSION I. Standards of Review We review the BIA’s denial of a mo tion to reopen for abuse of discretion. Infanzon v. Ashcroft , 386 F.3d 1359, 1362 (10th Ci r. 2004). “The BIA abuses its discretion when its decision provides no rati onal explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory
statements.” Id. (internal quotation marks omitted). “[M]otions to reopen immigration cases are plainly disfavored, and [the mova nt] bears a heavy burden to show the BIA abused its discretion.” Maatougui v. Holder , 738 F.3d 1230, 1239 (10th Cir. 2013) (brackets and internal quotation marks omitted). II. Timeliness A motion to reopen immigration proceedings generally must be filed within 90 days of a final removal order, 8 U.S.C. § 1 229a(c)(7)(C)(i), unless the motion is “based on changed country conditions arising in the country of nationality or the country to which removal has been ordered, if such evid ence is material and was not available and would not have been disc overed or presented at the previous proceeding,” id. § 1229a(c)(7)(C)(ii); see also 8 C.F.R. § 1003.2(c)(3)(ii). First, Chavez-Ochoa argues the BIA lacks authority to determine whether there are changed country conditions an d it “should have re-opened proceedings and remanded the case to the [IJ].” Pet. Opening Br. at 23. He is mistak en. The BIA has jurisdiction over4 motions to reopen a case in which it has made a decision, 8 C.F.R. § 1003.2(a), and once that jurisdiction is exer cised, it is exclusive, see id. § 1003.23(b). Moreover, the governing regulations specifically allow the BIA to determine whether the time and numerical limitations on motions to reope n can be excused because of changed circumstances. See id. § 1003.2(c)(3)(ii). And while the CAT regulations contemplate that an IJ will resolve a CAT application, see id. § 1208.16(c)(4), they do not affect the BIA’s authority to determine in the first instance whether to consider an untimely or numerically-barred motion to reopen. Next, Chavez-Ochoa argues the BIA erre d in determining that conditions in Mexico had not changed from when his case “w as last before the [IJ]” in 2013 and when he moved to reopen in June 2015. Pet. Openi ng Br. at 21. He contends that a change in conditions is shown by the confluence of two ev ents: (1) his wife’s January 2015 hiring as a police officer; and (2) the issuance of a State Department updated travel warning in May 2015 restricting the travel of U.S. gove rnment employees in Mexico because “U.S. citizens have been the victims of violent cr imes, such as kidnapping, carjacking, and robbery by organized criminal groups in variou s Mexican states,” R. at 34. We reject Chavez-Ochoa’s argument for two reasons. First, Chavez-Ochoa’s wife’s recent hiring as a police officer is merely a changed personal circumstance, which, as the BIA noted, doesn’t satisfy the requirements for reopening removal proceedings. See Wei v. Mukasey , 545 F.3d 1248, 1255–57 (10th Cir. 2008).5 Second, in February 2012—prior to th e remanded removal proceedings—the State Department issued a travel warning describi ng similar dangers in Mexico and indicating that travel restrictions on U.S. government em ployees had been in place since July 2010. Quite simply, the risks of trave ling to Mexico for U.S. citizen s and the travel restrictions placed on U.S. government employees have not materially changed since ChavezOchoa’s case was before the IJ. 1 Accordingly, the BIA correctly conclude d that Chavez-Ochoa’s motion to reopen was time barred. 2
C ONCLUSION The petition for review is denied. Entered for the Court

Nancy L. Moritz Circuit Judge

1 Chavez-Ochoa argues for the first time in his reply br ief that changed country conditions are not necessary for motions to reopen filed after March 1999. This argument has been waived due to its late presentation. See United States v. Harrell , 642 F.3d 907, 918 (10th Cir. 2011).

2 Given the untimeliness of the motion, we need not address the BIA’s alternate conclusion that Chavez-Ochoa failed to make a prima facie showing of CAT eligibility.