NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

EDWIN ORLANDO CALDERONFAJARDO,

Petitioner, 

 v. 

WILLIAM P. BARR, Attorney General,

Respondent.

No. 19-72874

Agency No. A077-242-580

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted September 3, 2020**

Pasadena, California

Before: SILER,*** BERZON, and LEE, Circuit Judges.

Memorandum joined by Judge LEE and Judge SILER;

Dissent by Judge BERZON

Edwin Calderon-Fajardo, a native and citizen of El Salvador, petitions for 

review of the Board of Immigration Appeals decision affirming an Immigration 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2). 

*** The Honorable Eugene E. Siler, United States Circuit Judge for the 

U.S. Court of Appeals for the Sixth Circuit, sitting by designation.

FILED

OCT 26 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

Judge’s denial of reopening. We have jurisdiction under 8 U.S.C. § 1252, and we 

deny the petition.

1. Calderon-Fajardo unlawfully entered the United States in May 1998. 

Removal proceedings commenced a month later, and he was granted the right to 

voluntarily depart by March 2000. Calderon-Fajardo, however, apparently did not 

depart and remained in the United States. In March 2018, after he was detained by 

immigration authorities, he filed a motion to reopen his removal proceedings from 

two decades ago. The motion consisted of a single paragraph without any 

accompanying documents or evidence. That motion was denied by the Immigration 

Judge and then affirmed by the Board of Immigration Appeals. 

2. We review the denial of a motion to reopen for an abuse of discretion. 

See De Martinez v. Ashcroft, 374 F.3d 759, 761 (9th Cir. 2004). Under 8 C.F.R. § 

1003.23(b)(3), a motion to reopen must be, inter alia: (i) “supported by affidavits 

and other evidentiary material”; and (ii) “accompanied by the appropriate 

application for relief and all supporting documents.” Calderon-Fajardo’s oneparagraph motion filed in March 2018 was neither supported by evidentiary material 

nor accompanied by an application for relief. The agency thus acted within its 

discretion in denying reopening because he failed to satisfy procedural requirements 

prescribed by regulation. See Romero-Ruiz v. Mukasey, 538 F.3d 1057, 1064 (9th 

Cir. 2008) (failure to “satisfy the procedural requirements” precludes relief); 
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Khourassany v. I.N.S., 208 F.3d 1096, 1099 (9th Cir. 2000) (procedural rules for 

reopening — with the limited exception of time and numerical limitations and prior 

unavailability of evidence — apply in the context of a claim under the Convention 

Against Torture).

3. Calderon-Fajardo also raises due process and equal protection 

challenges to the denial of reopening, which we review de novo. Ram v. I.N.S., 243 

F.3d 510, 516 (9th Cir. 2001). These arguments lack merit. First, the Immigration 

Court Practice Manual — consistent with 8 C.F.R. § 1003.23(b)(3) — requires that 

if a motion to reopen “is based on eligibility for relief, the motion must be 

accompanied by a copy of the application for that relief and all supporting 

documents.” Second, Calderon-Fajardo’s claim of insufficient time is unavailing

because his motion was premised on events that allegedly occurred over the 

preceding year and a half, and he has offered no indication that anything prevented 

him from preparing a compliant motion when he first became aware of the events 

giving rise to his request for relief. Third, the gap between Calderon-Fajardo’s 

voluntary departure date and the recent events described in his motion is immaterial 

because the agency’s decision was not based on the timing requirements of 8 C.F.R. 

§ 1003.23(b)(3). 

Finally, Calderon-Fajardo’s exclusion from the scope of 8 C.F.R. § 208.31

does not violate equal protection because he is not similarly situated to the two 
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groups covered by the regulation. See Hernandez-Mancilla v. Holder, 633 F.3d 

1182, 1185 (9th Cir. 2011) (in equal protection challenge, an immigration law “is 

presumed constitutional, and ‘the burden is on the one attacking the legislative 

arrangement to negative every conceivable basis which might support it.’”) (citation 

omitted). Unlike aggravated felons and illegally reentering aliens, who face 

summary proceedings, Calderon-Fajardo’s removal was ordered by an Immigration 

Judge. He therefore could (and did) avail himself of the option to seek reopening 

under 8 C.F.R. § 1003.23(b)(3). His inability to secure relief stems not from the 

absence of equal protection under 8 C.F.R. § 208.31, but rather due to his failure to 

comply with requirements for reopening under 8 C.F.R. § 1003.23(b)(3).

DENIED.
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Calderon-Fajardo v. Barr, No. 19-72874

BERZON, J., dissenting:

I respectfully dissent.

The majority is correct that Calderon-Fajardo’s initial motion to reopen was 

neither supported by evidentiary material nor accompanied by an application for 

relief, as required by regulation. But the majority ignores the fact that 

Calderon-Fajardo’s motion was initially granted. Following a change in venue, a 

different Immigration Judge (“IJ”) subsequently granted the government’s motion 

to reconsider and set a master calendar hearing to “reassess the order of the prior 

judge.”

During that hearing, the record shows, Calderon-Fajardo was prepared to file 

the missing documentation in support of his motion to reopen, which, at that point, 

was still pending. Calderon-Fajardo’s counsel explained that “we’ve actually 

prepared an application assuming we’re going to plead for that today, which I think 

is also a declaration.” Nonetheless, the IJ did not permit counsel to cure any initial 

error by accepting the filings. The IJ then denied Calderon-Fajardo’s motion to 

reopen because of the initial procedural failure.

Construing a parallel regulation governing motions to reopen before the 

Board of Immigration Appeals (“BIA”), this court held that it does not require

petitioners to submit the relevant evidentiary material and application for relief at 

FILED

OCT 26 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2

the same time as their motions to reopen. Yeghiazaryan v. Gonzales, 439 F.3d 994, 

998–99 (9th Cir. 2006) (interpreting 8 C.F.R. § 1003.2). Instead, petitioners must 

file the relevant evidence and application within the applicable statutory time 

period for filing the motion to reopen. 

The regulation at issue here requires that a motion to reopen ordinarily be 

filed “within 90 days of the day of entry of a final administrative order of 

removal.” 8 C.F.R. § 1003.23(b)(1). Under Yeghiazaryan, a motion to reopen 

could be filed on the first day of the period and the accompanying evidence and 

application on the ninetieth. But the time limitation does not apply if “the basis of 

the motion is to apply for ... withholding of removal under the Convention Against 

Torture, and is based on changed country conditions arising in ... the country to 

which removal has been ordered.” 8 C.F.R. § 1003.23(b)(4)(i). Here, 

Calderon-Fajardo’s motion to reopen was based on alleged changed country 

conditions. So Calderon-Fajardo’s motion to reopen would have been procedurally 

properly filed had the application and declaration form been accepted when they 

were proffered at the second hearing. The question whether there were in fact 

changed country conditions could have been determined based on the application 

and supporting documents filed.

Despite this sequence of events, one of the reasons that the BIA adopted and 

affirmed the IJ’s decision was that “no such application was included with th[is]
3

appeal.” This was error. Calderon-Fajardo’s attempt to file an application before 

the IJ, where it was supposed to be filed, 8 C.F.R. § 1003.23, had been rejected. 

The applicable regulation, interpreted consistently with Yeghiazaryan, allowed 

petitioner to file the application after the motion as long as no deadline was 

breached.

For these reasons, I would grant the petition, and remand with directions to 

remand to the IJ for acceptance and consideration of the completed motion to 

reopen, including for a determination whether the changed country conditions 

exception applies. I therefore respectfully dissent.