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)

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ORDER AND JUDGMENT*

_________________________________

Before BRISCOE, MATHESON, and CARSON, Circuit Judges.

_________________________________

Carlos Barbecho-Cajamorca, a native and citizen of Ecuador, appealed to the 

Board of Immigration Appeals (BIA) from a decision by an immigration 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. 34(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 This order and judgment is not binding precedent, 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 consistent 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 Court
2

dismissed his appeal and denied his motion to remand, he petitioned 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 between 

Mexico and Arizona and was taken into custody by immigration officials. The 

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 States. The NTA indicated his initial appearance before an IJ would be at 

a date and time “to be set.” Admin. R. at 817. The NTA also stated that Petitioner 

was required to provide his mailing address and to “notify the Immigration Court 

immediately by using Form EOIR-33 whenever [he] change[d] [his] address.” Id. at 

818. The NTA warned he could be ordered removed if he failed 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 Jersey, but he and his family traveled to New York, where they

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 Notice 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 NOH 
3

at the New Jersey address, informing him that his hearing would be held on

February 20, 2008. The second NOH also was not returned as undeliverable. After 

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

In 2013, Petitioner was apprehended by law enforcement and released on an 

Immigration and Customs Enforcement (ICE) supervision order. He alleges this is 

when he first learned of the 2008 removal order. In 2018, after ICE granted several 

stays of removal, Petitioner filed a motion to reopen his proceedings, asserting that

conditions in Ecuador had worsened for indigenous people and that he should be 

permitted to file for asylum and withholding of removal. The IJ denied his motion. 

While his appeal to the BIA was pending, the Supreme Court 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 of cancellation of removal under 8 U.S.C. § 1229b(b)(1). Pereira, 

138 S. Ct. at 2109-10. 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, 

having accumulated more than ten years of continuous physical presence in the 

United States. The 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 (10th Cir. 2014) (internal quotation mark omitted). Finally, when, 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). Even 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). Motions 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 mother 
6

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, the BIA held that Petitioner had “not 

established materially changed conditions 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.

Petitioner concedes indigenous people in Ecuador suffered discrimination and 

harassment “[a]t the time of [his] removal proceedings” in 2008 and that “there has 

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 38. 

The BIA correctly concluded that Petitioner’s contention that he has developed 

a greater awareness of structural and systemic issues affecting indigenous people in 
7

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 249 (alleging a risk of “greater aggression . . . in light of his 

activities . . . since leaving Ecuador” (emphasis added)). Thus, the 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 has 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 

conclusory statements and a citation to nearly 100 pages of the administrative record, 

without any explanation or elaboration. We 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’s 
8

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-laws discuss events that occurred 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 describes conditions in effect even 

before 2008. We recognize that the existence of persecution 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 the 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 denying 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 pendency of an appeal” 

2 Petitioner acknowledged in his petition for review that we have rejected the 

argument he made 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); see 

also Martinez-Perez v. Barr, 947 F.3d 1273, 1278 (10th Cir. 2020) (explaining that 

the rules 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) ten 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 relative 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 hardship 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. See 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 § 1229b(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)). The BIA also found

Petitioner did not comply with “the regulatory 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 until 
10

his reply brief to submit the application. Id. 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,” id. (citing In re Monreal-Aguinaga, 23 I. & N. Dec. 56, 

63 (BIA 2001)). 

To prevail on his petition for review, Petitioner must demonstrate 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

hardship decision, so Petitioner cannot establish that the BIA abused 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 is 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 cancellation application, see id., but also for its denial of a 

motion to reopen premised on a cancellation application, see Alzainati v. Holder, 

568 F.3d 844, 848-49 (10th Cir. 2009) (explaining that an alien cannot “indirectly 

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. We 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, 568 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 acknowledged 
12

And as in that case, we lack jurisdiction to consider Petitioner’s challenges to the 

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 establish 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 offered only a 

conclusory argument that the BIA ignored his evidence.