UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

ADALI NOLBERTO LOPEZ, 

 Petitioner, 

v. 

ERIC H. HOLDER, JR., United States 

Attorney General, 

 Respondent. 

No. 13-9522 

(Petition for Review)

 

ORDER AND JUDGMENT*

 

Before HARTZ, BALDOCK, and GORSUCH, Circuit Judges. 

 

 Adali Nolberto Lopez, a native and citizen of Guatemala, illegally entered the 

United States in 1993. The following year he applied for asylum. An immigration 

judge and the Board of Immigration Appeals concluded that he had not shown 

persecution on account of a statutorily protected ground and denied his application. 

The proceedings concluded in 1997. 

 

*

 After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially assist the determination of this 

appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore 

ordered 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 

September 10, 2013

Elisabeth A. Shumaker 

Clerk of Court
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 Thirteen years later, in 2010, Mr. Lopez moved to reopen the deportation 

proceedings on the basis of ineffective assistance of counsel. The BIA dismissed the 

motion as untimely and this court denied Mr. Lopez’s petition for review. Lopez v. 

Holder, 495 F. App’x 889 (10th Cir. 2012). 

 Dissatisfied but undeterred Mr. Lopez filed a second pro se motion to reopen 

his case with the BIA. The BIA concluded that Mr. Lopez’s motion was both 

untimely and “number barred” because only a single motion to reopen may be filed 

under applicable law. The Board further noted that Mr. Lopez’s new evidence is 

insufficient to support his claim for relief. It is this ruling that we are now asked to 

review. 

We may review the BIA’s denial of a motion to reopen only for an abuse of 

discretion. Infanzon v. Ashcroft, 386 F.3d 1359, 1362 (10th Cir. 2004). “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.” Id. (internal quotation marks omitted). 

In this appeal Mr. Lopez argues that the Board didn’t sufficiently consider the 

new information he provided in his motion, but he fails to address the Board’s 

primary holding that his motion was untimely and number barred. Mr. Lopez’s 

failure in his brief before us to address the Board’s primary holding requires us to 

deny his petition for review. See, e.g., Iliev v. Holder, 613 F.3d 1019, 1026 n.4 (10th 

Cir. 2010); Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 679 (10th Cir. 1998). 
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Neither, in any event, do we see how Mr. Lopez could successfully overcome the 

Board’s primary holding even if he had tried. In general, an alien may file only one 

motion to reopen, which must be filed within 90 days of the final administrative 

decision. See 8 C.F.R. § 1003.2(c)(2). Here, Mr. Lopez’s second motion was filed 

more than a decade after the Board’s 1997 decision. 

 To be sure, an exception to the time bar exists if the motion to reopen is based 

on proof of changed country conditions and “such evidence is material and was not 

available and would not have been discovered or presented at the previous 

proceeding.” Wei v. Mukasey, 545 F.3d 1248, 1254 (10th Cir. 2008) (internal 

quotation marks omitted). We have not yet decided whether changed country 

conditions are also an exception to the number bar. See id. at 1254 n.2. But even if 

the exception applies to both restrictions, Mr. Lopez has failed to explain how he 

might satisfy it. Before the Board he simply proffered a copy of his original asylum 

application with two reports about human rights in Guatemala without explaining 

what’s new or why it would not have been known earlier. In these circumstances, we 

cannot say the Board committed any abuse of discretion in applying the time or 

number bar. 

To the extent Mr. Lopez separately intimates that ineffective assistance of 

counsel supplies another exception to the time and number bar, he has not addressed 

the requirements necessary to make out such a claim nor “attempt[ed] to show how 
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he met them.” See Lopez, 495 F. App’x at 891; see also Mickeviciute v. INS, 327 

F.3d 1159, 1161 n.2 (10th Cir. 2003). 

 The petition for review is denied. 

 Entered for the Court 

 Neil M. Gorsuch 

 Circuit Judge