UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

_________________________________ CARLOS BARBECHO

- CAJAMORCA, Petitioner,

v. WILLIAM P. BARR, United States Attorney General, Respondent. No. 19

- 9577 (Petition for Review)

_________________________________ ORDER AND JUDGMENT *

_________________________________ Before BRISCOE , MATHESON , and CARSON , Circuit Judges.

_________________________________ Carlos Barbecho

- Cajamorca, a native and citizen of Ecuador, appealed to the
B oard of Immigration Appeals (BIA) from a decision by an i mmigration judge (IJ) denying his motion to reopen his removal proceedings . While his appeal was pending, Petitioner filed a motion to remand so that he could apply for cancellation of removal in light of Pereira v. Sessions , 138 S. Ct. 2105 (2018)

. After the BIA

* After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 3 4(f) ; 10th Cir. R. 34.1(G) . The case is therefore 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 consisten t with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1

. FILED United States Court of Appeals Tenth Circuit 

### August 14, 2020 Christopher M. Wolpert Clerk of Court2 dismissed his appeal and denied his motion to remand, he petition ed this court for review. Exercising jurisdiction under 8 U.S.C. § 1252(a) , we deny the petition

. BACKGROUND In 2007, Petitioner was apprehended while crossing the border betwe en Mexico and Arizona and was taken into custody by immigration officials. Th e Department of Homeland Security (DHS) initiated removal proceedings by serving
him with a notice to appear (NTA), alleging he was removable for illegally entering the United St ates. The NTA indicated his initial appearance before an IJ would be at a date and time “to be set.” Admin. R. at 8 1 7

. The NTA also stated that Petitioner

w as required to provide his mailing address and to “notify the Immigration Court immediately by us ing Form EOIR

- 33 whenever [he] change[d] [his] address.” Id. at 818. The NTA warned he could be ordered removed if he fail ed to attend his hearing. Petitioner signed the NTA , requested an immediate hearing, and confirmed he received notice in Spanish of the consequences for failing to appear. Upon his release from custody, DHS reminded Petitioner of his obligation to keep his address current and gave him a change

- of

- address form

. Petitioner provided an address in New Je rsey, but he and his family traveled to New York, where t he y lived for the next several years

. He did not complete a change

- of

- address form or otherwise notify DHS of his New York address. On May 30

— shortly after his release from custody

— DHS sent a Notic e of Hearing (NOH) to Petitioner at the New Jersey address, informing him that his hearing was scheduled for August 1. The NOH was not returned as undeliverable . On August 2 , DHS sent him a second NOH3 at the New Jersey address, informing him that his hea ring would be held on February 20, 2008. The second NOH also was not returned as undeliverable

. After Petitioner failed to appear at th at hearing the IJ ordered him removed in absentia

. In 2013, Petitioner was apprehended by law enforcement an d r eleased on an Immigration and Customs Enforcement (ICE) supervision order . He alleges this is when he first learned of the 2008 removal order. In 2018, a fter ICE granted several stays of removal, P etitioner filed a motion to reope n his proceedings , asserting that conditions in Ecuador had worsened for indigenous people and that he should be permitted t o file for asylum and withholding of removal. The IJ denied his motion. While his appeal to the BIA was pending, the Supreme Cou rt held that a putative NTA that failed to designate the time or place for the removal hearing did
not terminate the period of continuous physical presence in the United States for
purposes o f cancellation of removal under 8 U.S.C. § 1229b(b)(1)

. Pereira , 138 S. Ct. at 21 09

- 10

. Petitioner then filed a motion to remand, arguing that his original NTA was defective under Pereira and that, therefore, (1) the IJ lacked jurisdiction to order his removal ; and ( 2 ) he was eligible for cancellation of removal, hav ing accumulated more than ten years of continuous physical presence in the United States

. T he BIA dismissed his appeal from the IJ’s denial of his motion to
reopen and denied his motion to remand . Petitioner timely petitioned for review

.4 DISCUSSION
I. Standard of Review We review the denial of both motions to reopen and motions to remand for abuse of discretion. See Qiu v. Sessions , 870 F.3d 1200, 1202 (10th Cir. 2017) (motion to reopen); Neri

- Garcia v. Holder , 696 F.3d 1003, 1009 , 1011 (10th Cir.
2012 ) (motion to remand). “ 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.” Infanzon v. Ashcroft , 386 F.3d 1359, 1362 (10th Cir. 2004) (internal quotation marks omitted)

. In addition, “ [w] e review the BIA’s legal determinations de novo and its findings of fact under the substantial evidence standard.” Ramirez

- Coria v. Holder , 761 F.3d 1158, 1161 (10 th Cir. 2014) (internal quotation mark omitted). Finally, w hen, as here, a single BIA member issues a brief order on appeal , “we may consult the IJ’s opinion to the extent that the BIA relied upon or incorporated it

. ” Sidabutar v. Gonzales , 503 F.3d 1116 , 1123 (10th Cir. 2007) (internal quotation marks omitted).
II. Motion to Reopen Petitioner first contends he demonstrated changed conditions in Ecuador and that the BIA thus erred in upholding the denial of his motion to reopen on that basis

. 1 We disagree.

1 Petitioner does not contest the denial of his motion to reopen to the extent it was based on a lack of notice of his removal hearing.5 Generally, an alien may file one motion to reopen his removal proceedings

. 8 U.S.C. § 1229a(c)(7)(A)

. The motion must be filed within ninety days of the removal order unless the alien intends to apply for asylum and 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) ; see also 8 C.F.R. § 1003.23(b)(3)

. The motion to reopen must

“ state the new facts that will be proven at a hearing to be held if the motion is granted , and [] be supported by affidavits or other evidentiary material .” 8 U.S.C. § 1229a(c)(7)(B)

. The “new facts . . . must demonstrate that if proceedings before the IJ were reopened, with all the attendant delays, the new evidence offered would likely change the result in the case .” Maatougui v. Holder , 738 F.3d 1230, 1240 (10th Cir . 2013) (brackets and internal quotation marks omitted). E ven if the alien establishes a prima facie case for relief, the IJ still “ has discretion to deny a motion to
reopen. ” 8 C.F.R. § 1003.23(b)(3)

. M otions to reopen are “ disfavored , ” and the alien “ bears a heavy burden ” in showing an abuse of discretion. Maatougui , 738 F.3d at 1239 ( brackets and internal quotation marks omitted). Petitioner moved to reopen his proceedings based on a “rising level of aggression” in Ecuador “against individuals such as himself, who are of an indigenous race, but who have ventured out of their ‘place’ in society in order to advance their careers or positions in life .” Admin. R. at 245. In support of his motion, Petitioner provided : (1) his affidavit , which included statements his mother6 purportedly made to him regarding recent burglaries committed against indigenous families in his hometown in Ecuador; (2) affidavits from his mother

- in

- law and sister

- in

- law regarding his assault and harassment by gang members prior to his departure from Ecuador in 2007 ; and (3) documentary evidence regarding the status and treatment of indigenous people in Ecuador. In upholding the IJ’s decision, t he BIA held that Petitioner had “not established materially changed co nditions in Ecuador” since 2008, concluding his evidence reflected “incremental variations in the government[’s] and society’s attitudes to indigenous people , ” and a change in his “personal circumstances,” including his career advancement and his increased awareness of the extent and severity of the mistreatment of indigenous people. Admin. R. at 4

. Petition er concedes indigenous people in Ecuador suffered discrimination and harassment “[a]t the time of [his] removal proceedings” in 2008 and that “there ha s always been tension between indigenous people and the rest of society in Ecuador.” Pet. Opening Br. at 38. But he contends: ( 1) “he did not have the wherewithal at that time to understand that his experiences were part of the society structure of Ecuador rather than simply personal disputes” and only recently began to “comprehend the pervasive society resentment towards indigenous people in Ecuador,” id. ; and (2) the situation “ had escalated to the point of violence,” id. at 39, with indigenous people “being targeted” and law enforcement being “unhelpful,” id. at 3 8

. T he BIA correctly concluded that Petitioner ’s contention that h e has developed a greater awareness of structural and systemic issues affecting indigenous people in7 Ecuador reflects a change in his own circumstances, not a change in the country’s conditions. The same is true of his allegation that, by leaving “behind the traditional indigenous role” and seeking to advance his station in life , “ he has become precisely the type of indigenous person ” targeted in Ecuador

. Id . at 39 (emphasis added) ; see also Admin. R. at 24 9 (alleging a risk of “greater aggression . . . i n light of his
activities . . . since leaving Ecu a dor” (emphasis added))

. T hus, t he BIA did not abuse its discretion in denying the motion to reopen on this basis. See Wei v. Mukasey , 545 F.3d 1248, 1256 (10th Cir. 2008) ( explaining that while a change in personal circumstances may permit a successive asylum application, an alien may not apply for asylum on the basis of changed personal circumstances after his removal has been ordered and the ninety

- day period for moving to reopen ha s expired, unless he can show changed country conditions supporting the motion to reopen). As for his claim that conditions in Ecuador have changed because they have “escalated to the point of violence,” Pet. Opening Br. at 39, Petitioner offers only concl usory statements and a citation to nearly 100 pages of the a dministrative r ecord , without any explanation or elaboration

. W e are under no obligation to consider such undeveloped arguments or to search the record for evidence to support them

. See
Eateries , Inc. v. J.R. Simplot Co ., 346 F.3d 1225, 1232 (10th Cir. 2003) ( holding that the appellant’s “ superficial argument [was] insufficient to garner appellate review ” and that this court “ need not sift through the record to find evidence to support a party ’ s argument ” (brackets and internal quotation marks omitted) ); see also Fed

. R. App. P. 28(a)(8)(A) (providing that the argument section of the appellant’s8 brief must contain his “ contentions and the reasons for them, with citations to the authorities and parts of the record on which [he] relies .”)

. In any event, the portions of the record he cites do not demonstrate a material change in Ecuador’s conditions since Petitioner’s hearing in 2008. The affidavits from his in

- law s discuss events that occu rred before he came to the United States in
2007 . And the documentary evidence, including academic publications, addresses data and research largely pre - dating 2008 and describ es conditions in effect even before 2008

. We recognize that the existence of p ersecution in a particular country “does not prevent [an alien] from showing a change in country conditions due to a significant increase in the level of persecution.” Qiu , 870 F.3d at 1204 . But we conclude that t he BIA did not err in finding Petitioner’s evidence “insufficient to demonstrate” changed country conditions , Admin. R. at 4, and that it therefore did not abuse its discretion in denying his motion to reopen on that basis

. III. Motion to Remand Petitioner next contends the BIA erred in den ying his motion to remand to allow him to apply for cancellation of removal in light of Pereira

. 2 As we recently noted, “[t] he same legal standard applies to motions to reopen and motions to remand , ” even when, as here, the motion “is filed during the pen dency of an appeal”

2 Petitioner acknowledged in his petition for review that we have rej ected the argument he ma d e before the BIA that the defective NTA deprived the IJ of jurisdiction

. See Lopez

- Munoz v. Barr , 941 F.3d 1013 , 1017 (10th Cir. 2019) ; s ee also Martinez

- Perez v. Barr , 947 F.3d 1273, 1278 (10th Cir. 2020) ( explaining that the ru les regarding NTAs are non - jurisdictional claim

- processing rules ). He thus does not pursue that argument.9 and is “styled as a motion to remand.” Galeano

- Romero v. Barr , No. 19

- 9585,

__ F.3d __, __, 2020 WL 4458998, at *6 (10th Cir. Aug. 3 , 2020) (internal quotation marks omitted)

. To be eligible for cancellation of removal , he needed to show : (1) t en years of continuous physical presence in the United States immediately prior to the application ; (2) “ good moral character during such period ” ; (3) the absence of any convictions of certain offenses ; and (4) that a qualifying relat ive who is a United States citizen or lawful permanent resident would suffer “ exceptional and extremely unusual hardship ” if he is removed

. 8 U.S.C. § 1229b(b)(1)

. Petitioner alleged that he satisfied the moral character and criminal record requirements and that his removal would cause the requisite h ardship to his youngest child, who is a United States citizen . He also alleged that he had accumulated more than ten years of continuous physical presence because his defective 2007 NTA did not terminate his continuous physical presence

. S ee Pereira , 138 S. Ct. at 2110 (holding a putative
NTA that failed to designate the time or place for the removal hearing did not trigger the stop

- time rule under § 1229 b (d)(1)(A )). The BIA denied Petitioner’s motion to remand on three alternative grounds

. It first concluded that to the extent the motion was a motion to reopen, it was “time and number

- barred

. ” Admin. R. at 5 (citing § 1229a(c)(7))

. T he BIA also found Petitioner did not comply with “the regul atory requirements ” for motions to reopen because he failed to attach his cancellation application to the motion and the alleged

“ time

- sensitive nature” of the motion was an “insufficient” reason for waiting until10 his reply brief to submit the application

. I d. at 6 (citing 8 C.F.R. § 1003.2(c)(1) )

. Finally, the BIA held that Petitioner failed to establish a prima facie case for cancellation , concluding: (1) he could not establish ten years of continuous physical presence because the NOH “ cured” the defective NTA, thereby triggering the stop

- time rule and cutting off the period of continuous physical presence, id. (citing Matter of Mendoza

- Hernandez , 27 I

. & N

. Dec. 520, 535 (BIA 2019) ); and (2) “he did not provide a prima facie case as to how his qualifying relative would suffer the requisite level of hardship , ” i d. (citing In re Monreal

- Aguinaga , 23 I. & N. Dec. 56, 63 (BIA 2001) ). To prevail on his petition for review, Petitioner must demonstrat e that the BIA abused its discretion on each of its alternative rulings outlined above. See Galeano

- Romero , __ F.3d at __ n.11 , 2020 WL 4458998, at *6 n.11 . But , as discussed more fully below, we lack jurisdiction to review the BIA’s discretionary hardsh ip decision , so Petitioner cannot establish that the BIA abuse d its discretion in denying his motion to remand on that basis

. And because he cannot show error on that basis, we need not address the BIA’s alternative rulings. 3

“ There is no algorithm for determining when a hardship is ‘ exceptional and extremely unusual. ’ The decision regarding when hardship has reached that level is a

3 Nonetheless, we agree the BIA erred in concluding that the NOH triggered the stop

- time rule. See Banuelos

- Galviz v. Barr , 953 F.3d 1176, 1178

- 80 ( 10th Cir. 2020) (rejecting the reasoning in Mendoza

- Hernandez and holding “the stop

- time rule is triggered by one complete notice to appear rather than a combination of documents,” including a subsequent NOH).11 judgment call. ” Morales Ventura v. Ashcroft , 348 F.3d 1259, 1262 (10th Cir. 2003)

. Therefore , the BIA’s decision regarding hardship to an alien’s qualifying relative is discretionary. See id. And because under § 1252(a)(2)(B)(i) we lack “jurisdiction to review the discretionary aspects of a decision concerning cancellation of removal,”
we cannot review the BIA’s determination that there i s insufficient hardship for cancellation. Galeano

- Romero , __ F.3d at __ , 2020 WL 4458998, at *3 (internal quotation marks omitted)

. This is true not only for the BIA’s decision on appeal from an IJ’s denial of a c ancellation application , see id. , but also for its denial of a motion to reopen premised on a cancellation application, s ee Alzainati v. Holder , 568 F.3d 844, 8 48

- 49 (10th Cir. 2009) ( explaining that an alien cannot “ indire ctly obtain judicial review of a discretionary ruling that is not directly reviewable ” and holding that “[b] ecause § 1252(a)(2)(B)( i ) precludes our review of an ‘ exceptional and extremely unusual hardship ’ determination under § 1229b(b)(1)(D), it also precludes our jurisdiction to review the BIA ’ s denial of a motion to reopen because the alien still has failed to show the requisite hardship ” ). Like the petitioner in Galeano

- Romero , Petitioner here has not raised a constitutional claim or question of law in connection with the hardship issue such that we might have jurisdiction. 4 See __ F.3d at __, 2020 WL 4458998, at *3

- 6

.

4 Petitioner contends the BIA “did not review all of the evidence in the record

. ” Pet. Opening Br. at 35

. W e have “ limited jurisdiction to review the propriety of the BIA ’ s failure to consider the evidence and, in an appropriate case, can require consideration of the evidence

. ” Alzainati , 56 8 F.3d at 850 . But our jurisdiction to do so arises when “due process rights are implicated,” id. , and Petitioner made no due process argument. In any event, the BIA acknowledged12 And as in that case, we lack jurisdiction to consider Petitioner’s challenges to t he BIA’s discretionary hardship decision concerning cancellation of removal. Id

. ; see also Arambula

- Medina v. Holder , 572 F.3d 824, 827

- 28 (10th Cir. 2009) (rejecting alien’s attempts to couch challenge to BIA’s decision as a question of law or a constitutional question and concluding court lacked jurisdiction to review “the discretionary aspects of a decision concerning cancellation of removal” )

. Petitioner therefore cannot e stablish that the BIA abused its discretion in concluding he did not establish a prima facie case for cancellation and in denying his motion to remand on that basis

. CONCLUSION The petition for review is denied.

Entered for the Court

Joel M

. Carson III Circuit Judge

Petitioner provided evidence with his reply brief, and Petitioner has offer ed only a conclusory argument that the BIA ignored his evidence.