Case: 20-60624 Document: 00516223610 Page: 1 Date Filed: 03/03/2022 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED No. 20-60624 March 3, 2022 Lyle W. Cayce Clerk Sonia Maritzel Martinez-Guevara, Petitioner, versus Merrick Garland, U.S. Attorney General, Respondent. Petition for Review of an Order of the Board of Immigration Appeals No. A 094 787 317 Before Smith, Elrod, and Oldham, Circuit Judges. Jerry E. Smith, Circuit Judge: Sonia Martinez-Guevara, an alien, seeks review of an order of re- moval. She says that worsened conditions in her home country entitle her to remain in the United States. The Board of Immigration Appeals (“BIA” or “Board”) affirmed her removal. But Martinez-Guevara insists that the Board abused its discretion by neglecting evidence and misapplying the law. That leaves us two questions. First is our jurisdiction. Martinez-Guevara did not move the BIA to reconsider its ruling. We must decide whether that deprives us of jurisdiction Case: 20-60624 Document: 00516223610 Page: 2 Date Filed: 03/03/2022 No. 20-60624 on petition for review. It does not. Next are the merits. The Board did not err, so we deny the petition. I. In 2006, Martinez-Guevara swam the Rio Grande River into the wait- ing arms of federal border agents, who transported her to a processing center. But that year, more than a million noncitizens illegally entered through the southwest border—a number not surpassed until now. 1 The crush of cross- ings overwhelmed federal authorities. Lacking space to detain Martinez- Guevara, they released her with orders to appear before an immigration court in Harlingen, Texas. Yet Martinez-Guevara never showed. She escaped in- land, and the immigration court ordered her removal if she were found. Thirteen years later, Martinez-Guevara moved to reopen her removal proceedings, seeking asylum and related relief. An alien usually must file such a motion within ninety days of the removal order. See 8 U.S.C. § 1229a- (c)(7)(C)(i). But our petitioner claims an excuse: She says that conditions in El Salvador, her home country, have materially worsened since the removal order issued. If she can show that, the ninety-day time bar does not apply. Id. § 1229a(c)(7)(C)(ii). To support her motion to reopen, Martinez-Guevara contends that since the removal order, gangs in El Salvador have attacked the families of police there. That “systematic” activity, she claims, caused a material 1 See U.S. Border Patrol, Southwest Border Sectors: Total En- counters by Fiscal Year, https://www.cbp.gov/sites/default/files/assets/docu- ments/2021-Aug/US59B8~1.PDF (last visited Dec. 2, 2021); Nick Miroff, Border Arrests Have Soared to All-Time High, New CBP Data Shows, Wash. Post (Oct. 20, 2021), https://www.washingtonpost.com/national/border-arrests-record-levels-2021/2021/10/ 19/289dce64-3115-11ec-a880-a9d8c009a0b1_story.html (reporting that the 2021 fiscal year marked an all-time high of 1.66 million alien detentions on the southern border). 2 Case: 20-60624 Document: 00516223610 Page: 3 Date Filed: 03/03/2022 No. 20-60624 worsening of conditions in El Salvador. And because two of her relatives are police officers, she says she has shown that she reasonably fears future perse- cution because of her “membership in a particular social group.” Id. § …
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