United States Court of Appeals For the First Circuit No. 18-1162 GEOVANNY PINEDA, Petitioner, v. MATTHEW G. WHITAKER, ACTING ATTORNEY GENERAL, Respondent. PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS Before Howard, Chief Judge, Selya and Thompson, Circuit Judges. Kevin MacMurray, Daniel W. Chin, and MacMurray & Associates on brief for petitioner. Chad A. Readler, Acting Assistant Attorney General, Linda S. Wernery, Assistant Director, and Lindsay B. Glauner, Senior Litigation Counsel, Office of Immigration Litigation, on brief for respondent. November 19, 2018 Pursuant to Fed. R. App. P. 43(c)(2), Acting Attorney General Matthew G. Whitaker has been substituted for former Attorney General Jefferson B. Sessions, III as the respondent. SELYA, Circuit Judge. We recently wrote that "[m]otions to reopen — especially untimely motions to reopen — are disfavored in immigration cases. Consequently, an alien who seeks to reopen removal proceedings out of time ordinarily faces a steep uphill climb." Sihotang v. Sessions, 900 F.3d 46, 48 (1st Cir. 2018). This case, in which the petitioner waited roughly four and one- half years before moving to reopen his removal proceedings, bears witness to the difficulty of the ascent. Concluding, as we do, that the petitioner has not shown a sufficient reason to excuse his delay, we uphold the rejection of his motion to reopen by the Board of Immigration Appeals (BIA) and deny his petition for judicial review. The petitioner, Geovanny Pineda, is a native and citizen of El Salvador. He entered the United States illegally in 1999. In 2001, he applied for temporary protected status (TPS) and employment authorization.1 His TPS application was received (but not acted upon immediately) and his application for employment authorization was granted. On April 10, 2003, the petitioner's 1 TPS affords aliens protection from removal from the United States upon a determination by the Attorney General that the conditions in the alien's homeland prevent his or her safe return. See 8 U.S.C. § 1254a. The Attorney General designated El Salvador (the petitioner's homeland) for the TPS program in 2001 after a series of earthquakes struck the country that year. See Villanueva v. Holder, 784 F.3d 51, 53 (1st Cir. 2015) (citing Designation of El Salvador Under Temporary Protected Status Program, 66 Fed. Reg. 14,214 (Mar. 9, 2001)). - 2 - TPS application was denied. He unsuccessfully moved for reconsideration, but nonetheless remained in the United States. We fast-forward to May of 2010, at which time the Department of Homeland Security (DHS) initiated removal proceedings against the petitioner. The DHS charged that the petitioner was removable as "[a]n alien present in the United States without being admitted or paroled." 8 U.S.C. § 1182(a)(6)(A)(i). Approximately four months later, the petitioner appeared before an immigration judge (IJ) and, through counsel, conceded removability. At the same time, he indicated that he wanted to apply for withholding of removal and protection under the United Nations Convention Against Torture (CAT). The IJ ordered a ten-month continuance until June 29, 2011, so that the petitioner could prepare ...
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