Nelson Yudini Guadron v. Jefferson Sessions

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 5 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT NELSON YUDINI GUADRON, No. 16-72894 Petitioner, Agency No. A094-178-309 v. JEFFERSON B. SESSIONS III, Attorney MEMORANDUM* General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted February 14, 2018** Pasadena, California Before: McKEOWN and WARDLAW, Circuit Judges, and DONATO,*** District Judge. Nelson Yudini Guadron, a native and citizen of El Salvador, petitions for review of a decision of the Board of Immigration Appeals (Board), which denied * 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 James Donato, United States District Judge for the Northern District of California, sitting by designation. his motion to reopen his claims for withholding of removal and protection under the Convention Against Torture. We have jurisdiction under 8 U.S.C. § 1252(a), and we deny the petition. Guadron’s motion to reopen was subject to a 90-day deadline, see 8 C.F.R. § 1003.2(c)(2); Go v. Holder, 744 F.3d 604, 607–09 (9th Cir. 2014), but was not filed until almost three years after the Board’s decision. To excuse this untimeliness, Guadron seeks to rely on the exception in 8 U.S.C. § 1229a(c)(7)(C)(ii), which provides that “[t]here is no time limit on the filing of a motion to reopen” if the motion is “based on changed country conditions arising in the country of nationality or the country to which removal has been ordered, if such evidence is material and was not available and would not have been discovered or presented at the previous proceeding.” See also 8 C.F.R. § 1003.2(c)(3)(ii). The Board concluded that Guadron “has not demonstrated a change in country conditions material to his claim for relief” and that he “has not established a material change in conditions in El Salvador,” and consequently denied Guadron’s motion to reopen as “untimely.” We review this denial for abuse of discretion, and may reverse the Board’s decision only if it is “arbitrary, irrational, or contrary to law.” Go, 744 F.3d at 609 (quoting Perez v. Mukasey, 516 F.3d 770, 773 (9th Cir. 2008)). 2 We conclude that the Board did not abuse its discretion. The record indicates that the Board properly considered all pertinent factors, both favorable and unfavorable, in determining whether to grant the motion. It properly concluded within the bounds of its discretion that the newly submitted evidence showed that ongoing and substantially similar conditions of violence related to gangs had existed at the time of the applicant’s hearing. With respect to police involvement in, and the government’s awareness and condoning of, extrajudicial killing of gang members in El Salvador, the Board did not abuse its discretion in concluding that the evidence was not definitive. Finally, the Board did not abuse its discretion in finding ...

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