PS5-153 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 14-4340

___________ JOSE A. ROSALES-ALVARADO, Petitioner

v. ATTORNEY GENERAL UNITED STATES OF AMERICA, Respondent

___________________ _________________

On Petition for Review of an Order of the Board of Immigration Appeals

(Agency No. A098-400-820) Immigration Judge: Honorable Dorothy A. Harbeck

___________________ _________________ Submitted Pursuant to Th ird Circuit LAR 34.1(a) July 2, 2015 Before: CHAGARES, JORDAN and COWEN, Circuit Judges (Opinion filed: July 7, 2015)

___________

OPINION *

___________ PER CURIAM

* This disposition is not an op inion of the full Court and pu rsuant to I.O.P. 5.7 does not constitute binding precedent.2 Jose Armelio Rosales-Alvarado, a native and citizen of El Salvador, entered the United States without permission in 2004. Although he was ordered removed in absentia soon thereafter, Rosales-Alvara do remained in the country. In January 2013, following his arrest and conviction in Virginia for dr iving without a license, Rosales-Alvarado was removed to El Salvador. Approximately four months later, Rosales-Alvarado reentered the United States and was im mediately apprehended by i mmigration officials. The Government reinstated Rosales-Alvarado ’s prior removal order under 8 U.S.C. § 1231(a)(5). During reinstat ement proceedings, Rosales-Al varado expressed a fear of persecution and torture in El Salvador, which an asylum officer found reasonable. As a result, Rosales-Alvarado’s case was referred to an Immigration Judge (“IJ”) for “withholding-only” proceedings, see 8 C.F. R. § 208.31(e), wherein Rosales-Alvarado applied for withholding of removal and prot ection under the Convention Against Torture (“CAT”). During an administrative hearing, Rosale s-Alvarado testified that in March 2004, while in El Salvador, he witnessed five pe ople stab an unknown individual. Although Rosales-Alvarado did not know the formal identities of the assailants, he knew one of them was nicknamed “El Speedy.” Rosales- Alvarado did not report the incident to police, however, because he was fearful of re taliation. Rosales-Alvarado explained that shortly after he witnessed the stabbing, El Speedy contacted his brother-in-law inquiring about Rosales-Alvarado’s whereabouts. This prompted Rosales-Alvarado to hide at his3 parents’ home, and to later flee the country. Rosales-Alvarado also testified that shortly after that incident, his brother-in-law was killed by gang members in El Salvador. Rosales-Alvarado believes that his brother-i n-law was targeted in retaliation for his having witnessed the March 2004 stabbing. Rosales-Alvarado al so testified that when he returned home in early 2013, he learned from family members that he would not be safe if he remained in El Salvador. The IJ denied relief and ordered Rosa les-Alvarado removed to El Salvador, concluding that Rosales-Al varado was unable to demons trate his eligibility for withholding of removal or protection under th e CAT. On March 7, 2014, the Board of Immigration Appeals (“BIA” or “Board”) upheld the IJ’s decision regarding the denial of CAT relief. 1 On September 8, 2014, Rosales-Alva rado presented a motion to reopen to the BIA, arguing that conditions and circumstan ces in El Salvador had changed since the BIA issued the final order of removal. On October, 16 2014, the BIA denied the motion, ruling that it was untimely and did not qualify for any excepti on to the filing requirement. The Board also declined to reopen the proceedings sua sp onte. Thereafter, RosalesAlvarado filed a petition for review in this Court attaching both the March 7, 2014 and September 8, 2014 decisions of the BIA. The Government moved to dismiss the petition for review, in part, for lack of jurisdiction.

1 The BIA did not review the IJ’s decision to deny Rosales-Alvara do’s application for withholding of removal, concluding that Rosa les-Alvarado failed to raise any issues with respect to that ruling in his brief.4 We must first address our jurisdiction to entertain the petition for review. The Government correctly argues that we lack ju risdiction to review th e BIA’s March 7, 2014 decision. Rosales-Alvarado had thirty days to file a petition for review from that order, which was separately appealable to this Court. See 8 U.S. C. § 1252(b)(1); Castro v. Att’y Gen., 671 F.3d 356, 36 4 (3d Cir. 2012) (citing Stone v. INS, 514 U.S. 386, 405 (1995)). Importantly, filing a motion to re open does not toll th e 30-day period for seeking review of the BIA’s earlier decision on the merits. See Castro, 671 F.3d at 364 (citing Stone, 514 U.S. at 398-99). Because we did not receive Rosales-Alvarado’s petition for review until October 31, 2014 (with a mailing date of October 28, 2014), it is timely only with respect to the BIA’s Oct ober 16, 2014 order de nying his motion to
reopen. We review the BIA’s decision to deny Ro sales-Alvarado’s motion to reopen under a deferential abuse of discretion standard, reversing only if the BIA’s decision was arbitrary, irrational, or contrary to law. Sevoian v. Ashcroft, 29 0 F.3d 166, 174 (3d Cir. 2002). Generally, an alien may file a motion to reopen with the BIA “no later than 90 days after the date on which the final admi nistrative decision was rendered[.]” 8 C.F.R. § 1003.2(c)(2); see also 8 U. S.C. § 1229a(c)(7)(C)(i). The time requirement is waived for motions to reopen that are “based up on changed country conditions proved by evidence that is material and was not availa ble and could not have been discovered or5 presented at the previous proceeding.” Pllu mi v. Att’y Gen., 642 F.3d 155, 161 (3d Cir. 2011); see also 8 U.S.C. § 1229a(c)(7)(C)(ii) ; accord 8 C.F.R. § 1003.2(c)(3)(ii). A showing of changed country condi tions is a prerequisite for an analysis of the full merits of the motion to reopen. See Shardar v. Att’y Gen., 503 F.3d 308, 312 (3d Cir. 2007). “The burden of proof on a motion to reopen is on the alie n to establish eligibility for the requested relief.” Pllumi, 642 F.3d at 161 (citing 8 C.F.R. § 1003.2(c)). 2 Rosales-Alvarado does not dispute that his motion to reopen was filed more than ninety days after the Board’s final order of removal. Rather, he argued that his motion fell within the exception to th e time limit based on a claim of changed circumstances and conditions in El Salvador. Rosales-Alvara do presented with his motion to reopen a personal declaration and two st atements from his father, wh o lives in El Salvador. Rosales-Alvarado and his father explained that El Speedy is now a member of the national government and that, ar ound July 2014, El Speedy dire cted the police to issue an arrest warrant for Rosales-Alvarado. Rosales- Alvarado’s father also claimed that after Rosales-Alvarado was removed to El Salv ador in 2013 (following his conviction in Virginia), El Speedy and other gang member s attacked and badly injured RosalesAlvarado. He claimed that they did so in retaliation for his having identified El Speedy as one of the attackers in the 2004 stabbing incident. The BIA determined that this evidence did not suppor t the conclusion that any

2 This Court lacks jurisdiction to review the BIA’s decision to the ex tent it declined to6 alleged threat to Rosales-Alvarado’s safety in El Salvador has either changed or escalated since the time of his hearing before the IJ. As a result, the BIA concluded that RosalesAlvarado failed to demonstrate materially changed circumstances or conditions in El Salvador. The BIA further found that th e evidence did not sh ow a probability of persecution on a protected ground or tort ure with government acquiescence. Having reviewed the record, we conclude that the Board acted within its discretion in denying Rosales-Alvarado’s motion to reop en as untimely filed because he failed to show changed country conditions in El Salv ador sufficient to exempt him from the 90- day deadline. As a threshold matter, we are confident that the Bo ard fully considered Rosales-Alvarado’s new evidence. As menti oned, Rosales-Alvarado supported his claim of changed conditions with hi s general declaration as well as two statements from his father. 3 He argues in his opening brief that the Board failed to give adequate consideration to those documents. Howeve r, the BIA’s opinion demonstrates that it meaningfully reviewed Rosales-Alvarado ’s arguments and the evidence that he presented. Further, we have previously determ ined that “the BIA is not required to write an exegesis on every contention.” Toussain t v. Att’y Gen., 455 F.3d 409, 414 (3d Cir. 2006) (internal quotation mark s and citation omitted). “In fa ct there is no advantage in writing a long opinion when a short one will do as the parties do not want law review

grant relief sua sponte. Pllumi, 642 F.3d at 159. 3 Rosales-Alvarado did not submit any countr y reports to support his claim of changed conditions, however.7 articles, they want intelligible opinions explaining the basis for the court’s determination.” Id. We further determine that the Board re asonably concluded that the evidence Rosales-Alvarado presented does not show a material change in conditions in El Salvador. Although Rosales-Alvarado claimed in his motion to reopen that he had been attacked by El Speedy following his return to El Salvador in 2013, he testified at his earlier administrative hearing that he had not, in fact, been harmed during that period. It is unclear why Rosales-Alvarado altered his story in the motion to reopen. In any event, because this alleged attack was known to Rosales-Alvarado at the time of his administrative hearing, the information was no t previously unavailable. And, although Rosales-Alvarado claims that El Speedy is a member of th e government, he provided no information outside of his father’s statement suggesting that is the case. Nor did RosalesAlvarado provide a copy of the arrest warrant that he claims El Speedy directed the police to issue against him. Moreover, he did not explain when El Speedy became involved in government; he may have b een involved before Rosales-Alvarado’s administrative hearing. Given that lack of information, the BIA did not abuse its discretion in concluding that Rosales-Alvarado failed to demonstrate a material change in conditions since his September 2013 hearing before the IJ. 4

4 Because we affirm on this basis, we need not review the Board’s additional ruling that Rosales-Alvarado also failed to establis h a prima facie case for the relief sought.8 Accordingly, the Government’s motion to dismiss the petition for review is granted to the extent that we lack jurisd iction and the petition will be otherwise denied.