* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion

should not be published and is not precedent except under the limited

circumstances set forth in 5TH CIR. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-60048

Summary Calendar

VICTOR MANUEL ALVARADO-VALLARDES

Petitioner

v.

MICHAEL B MUKASEY, U S ATTORNEY GENERAL

Respondent

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A98 682 510

Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

In January 2006, Victor Manuel Alvarado-Vallardes (Alvarado), a native

and citizen of El Salvador, was ordered removed in absentia after he failed to

appear at a removal hearing and answer charges that he was an alien present

in the United States without being admitted or paroled. He filed a motion to

reopen removal proceedings in May 2007 claiming, inter alia, that he had not

understood the removal process in January 2006, and that gang-related

circumstances in El Salvador had worsened sufficiently to warrant reopening

United States Court of Appeals

Fifth Circuit

F I L E D

October 21, 2008

Charles R. Fulbruge III

Clerk
No. 08-60048

2

proceedings despite the untimeliness of his motion. In his petition for review,

Alvarado argues that the Board of Immigration Appeals (BIA) abused its

discretion by dismissing his appeal from the immigration judge’s (IJ’s) order

denying that motion. He challenges only the BIA’s holding that he had failed to

show materially changed conditions in El Salvador, and he has abandoned his

claim that his failure to attend the January 2006 hearing was justified. See

Soadjede v. Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003).

This court generally reviews only the BIA’s decision, not that of the IJ,

except to the extent that the IJ’s decision influences the BIA. See Mikhael v.

INS, 115 F.3d 299, 302 (5th Cir. 1997). We have jurisdiction to review the denial

of an untimely motion to reopen based on changed circumstances in the alien’s

home country. Panjwani v. Gonzales, 401 F.3d 626, 632 (5th Cir. 2005). The

denial of the motion is reviewed for an abuse of discretion and the factual

findings are reviewed for substantial evidence. Id. There is no abuse of

discretion where the BIA’s decision is not “capricious, racially invidious, utterly

without foundation in the evidence, or otherwise so aberrational that it is

arbitrary rather than the result of any perceptible rational approach.” GalvezVergara v. Gonzales, 484 F.3d 798, 801 (5th Cir. 2007) (internal quotations and

citation omitted). Motions to reopen deportation proceedings are not favored.

INS v. Doherty, 502 U.S. 314, 323 (1992). 

A party must ordinarily file a motion to reopen proceedings following the

issuance of an in absentia removal order no later than 180 days after the date

of the order. 8 C.F.R. § 1003.23(b)(4)(ii). The alien must also demonstrate that

the failure to appear was because of “exceptional circumstances as defined in

section 240(e)(1) of the Act.” Id. These limitations do not apply, however, to

motions to reopen based on “changed circumstances arising in the country of

nationality or in the country to which deportation has been ordered, if such

evidence is material and was not available and could not have been discovered

or presented at the previous hearing.” See 8 C.F.R. § 1003.2(c)(3)(ii).
No. 08-60048

3

Contrary to Alvarado’s assertions, the BIA’s dismissal reflects that it

considered the evidence submitted by Alvarado to show worsened conditions in

El Salvador, and found that those materials do not show material worsening of

gang-related conditions in El Salvador since January 2006. His case is thus

unlike those upon which he relies, including Gebreeyesus v. Gonzales, 482 F.3d

952, 955 (7th Cir. 2007), where the BIA was found to have rejected documents

offered in support of a motion to reopen “without any explanation.” The BIA did

not abuse its discretion in dismissing Alvarado’s appeal. See Panjwani, 401 F.3d

at 632.

AFFIRMED.