15-1904 

Martines-Castaneda v. Lynch 

BIA 

A200 026 168

UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED 

ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE 

PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT 

FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE 

(WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY 

OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals for 

2 the Second Circuit, held at the Thurgood Marshall United States 

3 Courthouse, 40 Foley Square, in the City of New York, on the 

15th 4 day of December, two thousand sixteen. 

5 

6 PRESENT: 

7 ROBERT A. KATZMANN, 

8 Chief Judge, 

9 RICHARD C. WESLEY, 

10 DEBRA ANN LIVINGSTON,

11 Circuit Judges. 

12 _____________________________________ 

13 

14 JOSE MISAEL MARTINES-CASTANEDA, 

15 AKA JOSE MARTINES-CASTANEDA, AKA 

16 JOSE MISAEL MARTINEZ-CASTANEDA, 

17 Petitioner, 

18 

19 v. 15-1904 

20 NAC 

21 LORETTA E. LYNCH, UNITED STATES 

22 ATTORNEY GENERAL, 

23 Respondent. 

24 _____________________________________ 

25 

26 FOR PETITIONER: JM Mariotti, Manuel D. Gomez & 

27 Associates P.C., New York, New York. 

28 

29 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy 

30 Assistant Attorney General; Holly M. 

31 Smith, Senior Litigation Counsel; 

32 Maarja T. Luhtaru, Trial Attorney, 

33 Office of Immigration Litigation, 
2

1 United States Department of Justice, 

2 Washington, D.C. 

3 

4 UPON DUE CONSIDERATION of this petition for review of a 

5 Board of Immigration Appeals (“BIA”) decision, it is hereby 

6 ORDERED, ADJUDGED, AND DECREED that the petition for review is 

7 DENIED. 

8 Petitioner Jose Misael Martines-Castaneda, a native and 

9 citizen of El Salvador, seeks review of a May 14, 2015 decision 

10 of the BIA denying his motion to reopen proceedings and denying 

11 his motion to rescind his in absentia removal order. In re Jose 

12 Misael Martines-Castaneda, No. A200 026 168 (B.I.A. May 14, 

13 2015). We assume the parties’ familiarity with the underlying 

14 facts and procedural history in this case. 

15 “We review the BIA’s denial of a motion to reopen for abuse 

16 of discretion.” Kaur v. BIA, 413 F.3d 232, 233 (2d Cir. 2005). 

17 An alien seeking to reopen proceedings may file one motion to 

18 reopen no later than 90 days after the date on which the final 

19 administrative decision was rendered in the proceeding that the 

20 alien seeks to reopen. 8 U.S.C. § 1229a(c)(7)(A), (C)(i); 

21 8 C.F.R. § 1003.2(c)(2). There is no dispute that 

22 Martines-Castaneda’s March 2015 motion to reopen was untimely 

23 and number barred because the final administrative order of 
3

1 removal was issued in 2005, and the March 2015 motion was his 

2 second motion. The time and number limitations do not apply, 

3 however, if the motion to reopen is filed in order to apply for 

4 asylum or withholding of removal and “is based on changed 

5 country conditions arising in the country of nationality or the 

6 country to which removal has been ordered, if such evidence is 

7 material and was not available and would not have been 

8 discovered or presented at the previous proceeding.” 8 U.S.C. 

9 § 1229a(c)(7)(C)(ii); see also 8 C.F.R. § 1003.2(c)(3)(ii). 

10 In reviewing whether the movant has demonstrated such a change 

11 in country conditions, the BIA compares the country conditions 

12 at the time of the original hearing with those at the time of 

13 the motion to reopen. See Matter of S-Y-G, 24 I. & N. Dec. 247, 

14 253 (BIA 2007). We review the BIA’s country conditions 

15 findings for substantial evidence. Jian Hui Shao v. Mukasey, 

16 546 F.3d 138, 169 (2d Cir. 2008). 

17 Contrary to the Government’s position, we conclude that 

18 Martines-Castaneda’s brief on appeal has sufficiently 

19 challenged the BIA’s denial of reopening. However, we find no 

abuse of discretion in the BIA’s denial of the motion.1 20 

 

1

 The BIA also construed Martines-Castaneda’s motion to reopen as a motion to 

rescind the September 23, 2005 in absentia removal order entered against him. The 
4

1 The agency properly concluded that Martines-Castaneda was 

2 not entitled to reopening on the basis of incidents that 

3 occurred prior to his 2005 removal proceedings, notably an 

4 attack on Martines-Castaneda by MS-13 gang members and the 

5 murder of his brother by that gang’s members. See 8 C.F.R. 

6 § 1003.2(c)(1) (requiring new, previously unavailable evidence 

7 for reopening). Martines-Castaneda’s argument that the BIA 

8 should have granted reopening based on the birth of his U.S. 

9 citizen child is meritless: a change in personal circumstances 

10 does not excuse a late motion to reopen. See Wei Guang Wang 

11 v. BIA, 437 F.3d 270, 273-274 (2d Cir. 2006). 

12 Otherwise, substantial evidence supports the BIA’s 

13 determination that Martines-Castaneda failed to show that 

14 changed conditions in El Salvador were material to his claims 

15 for asylum or withholding of removal. 8 U.S.C. 

16 § 1229a(c)(7)(C)(ii); Jian Hui Shao, 546 F.3d at 169. For 

17 example, Martines-Castaneda stated in an affidavit that gangs 

18 in El Salvador killed one of his cousins in 2013 and kidnapped 

 BIA denied the motion to rescind the in absentia removal order, and we review this 

denial for abuse of discretion. Maghradze v. Gonzales, 462 F.3d 150, 152 (2d Cir. 

2006). Like Martines-Castaneda’s motion to reopen, his motion for rescission of 

his in absentia removal order is time and number-barred. See 8 C.F.R. § 

1003.23(b)(4)(ii). Moreover, the BIA did not abuse its discretion in determining 

that Martines-Castenada had not demonstrated that the failure to appear at the 

removal proceeding was a consequence of “exceptional circumstances.” Id.
5

1 another in 2014. However, the BIA did not abuse its discretion 

2 in finding that Martines-Castaneda had not provided sufficient 

3 evidence about the context of these events to show changed 

4 country conditions material to his claims. Further, although

5 Martines-Castaneda submitted evidence showing a 57% increase 

6 in homicide in El Salvador in 2014 as a result of the collapse 

7 of a truce between warring gangs, the BIA did not abuse its 

8 discretion in finding that evidence of this kind was 

9 inadequately related to Martines-Castaneda’s own asylum and 

10 withholding claims. Moreover, an alien may not predicate an 

11 asylum claim on “general crime conditions”; instead, he must 

12 show that those conditions implicate some protected ground. 

13 Melgar de Torres v. Reno, 191 F.3d 307, 314 (2d Cir. 1999). 

14 Accordingly, the BIA did not abuse its discretion in denying 

15 reopening. 

16 We have considered Linares-Urrutia’s remaining arguments 

17 and found them without merit. For the foregoing reasons, the 

18 petition for review is DENIED. 

19 FOR THE COURT: 

20 Catherine O=Hagan Wolfe, Clerk