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 denying as untimely his motion to reopen 

removal proceedings. Exercising jurisdiction under 8 U.S.C. § 1252, we deny the 

petition. 

 *

 After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially 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 doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive 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 Court
2 

BACKGROUND

 In 1991, Chavez-Ochoa illegally 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 cancellation of removal or 

voluntary departure. The IJ denied Chavez-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 request for cancellation 

of removal or voluntary departure. On November 25, 2014, the BIA dismissed the 

appeal. Chavez-Ochoa unsuccessfully sought reconsideration. 

 On June 29, 2015, Chavez-Ochoa filed a motion to reopen the removal 

proceedings so he could seek protection under the 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 Mexico 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 the time limitation when 

the motion is based on changed country conditions, 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 since this matter was last before the [IJ].” 

R. at 4. Further, the BIA stated that Chavez-Ochoa’s wife’s employment as a police 
3 

officer was “a change in . . . personal circumstances, rather than a change in country 

conditions.” Id.

DISCUSSION

I. Standards of Review 

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

Infanzon v. Ashcroft, 386 F.3d 1359, 1362 (10th Cir. 2004). “The BIA abuses its 

discretion when its decision provides no rational 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 movant] 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. § 1229a(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 evidence is material and was not available and 

would not have been discovered 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 and it “should have re-opened proceedings and remanded the 

case to the [IJ].” Pet. Opening Br. at 23. He is mistaken. The BIA has jurisdiction over 
4 

motions to reopen a case in which it has made a decision, 8 C.F.R. § 1003.2(a), and once 

that jurisdiction is exercised, 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 reopen 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 erred in determining that conditions in 

Mexico had not changed from when his case “was last before the [IJ]” in 2013 and when 

he moved to reopen in June 2015. Pet. Opening Br. at 21. He contends that a change in 

conditions is shown by the confluence of two events: (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. government employees in Mexico because “U.S. 

citizens have been the victims of violent crimes, such as kidnapping, carjacking, and 

robbery by organized criminal groups in various 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 the remanded removal proceedings—the State 

Department issued a travel warning describing similar dangers in Mexico and indicating 

that travel restrictions on U.S. government employees had been in place since July 2010. 

Quite simply, the risks of traveling to Mexico for U.S. citizens 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 concluded that Chavez-Ochoa’s motion to reopen 

was time barred.2

CONCLUSION

 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 brief 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.