Misternovo Bamaca-Cifuentes v. Attorney General United States
2017 U.S. App. LEXIS 16497
| 3rd Cir. | 2017Background
- Petitioners Misternovo Bamaca-Cifuentes and his two sons are Guatemalan nationals placed in removal proceedings after denial of a NACARA benefit; the IJ denied relief and the BIA dismissed their appeal on May 29, 2013.
- More than two years later (Dec. 21, 2015) Petitioners filed a motion to reopen based on changed country conditions in Guatemala and sought withholding of removal under the Convention Against Torture (CAT).
- DHS opposed the motion; the BIA treated the filing as untimely, considered the changed-country exception, and denied reopening on June 14, 2016, finding no material change in conditions since the January 31, 2012 IJ hearing.
- Petitioners argued the BIA should have evaluated the CAT claim on the merits rather than enforcing the 8 C.F.R. § 1003.2(c) time/number bar.
- The Third Circuit reviews denial of a motion to reopen for abuse of discretion and held that the regulatory time/number limits apply to CAT-based motions to reopen and that the BIA did not abuse its discretion here.
Issues
| Issue | Petitioners' Argument | Government's Argument | Held |
|---|---|---|---|
| Whether 8 C.F.R. § 1003.2(c) time/number limits apply to motions to reopen seeking CAT withholding | The BIA should have considered CAT merits despite the time bar | The regulation’s 90‑day / one‑motion limits apply to all motions to reopen; exceptions govern late filings | The regulation applies to CAT motions to reopen; BIA correctly enforced it |
| Whether the Dec. 21, 2015 motion was timely | The motion should be considered (Petitioners emphasized merits evidence) | Motion was filed well after the 90‑day limit following the May 29, 2013 final decision | Motion was untimely; BIA reasonably treated it as such |
| Whether Petitioners met the changed‑country exception to the time bar | Submitted reports, affidavits, media and letters showing changed conditions post‑2012 | Evidence mainly documented longstanding, ongoing problems—not a material change after Jan. 31, 2012 | Petitioners failed to show material changed conditions or that evidence was previously unavailable; exception not satisfied |
| Whether BIA abused its discretion by not addressing CAT merits | BIA’s failure to analyze CAT claims was an abuse because substantive harm remained unexamined | Procedural bar prevented merits consideration; must meet exception first | No abuse of discretion; BIA properly declined to reach merits after finding procedural bar and exception unmet |
Key Cases Cited
- Contreras v. Attorney General, 665 F.3d 578 (3d Cir. 2012) (standard of review for motions to reopen)
- Shardar v. Attorney General, 503 F.3d 308 (3d Cir. 2007) (procedural requirements for motions to reopen)
- Thomas v. Attorney General, [citation="308 F. App'x 587"] (3d Cir. 2009) (applied §1003.2(c) time/number limits to CAT motion to reopen)
- Go v. Holder, 744 F.3d 604 (9th Cir. 2014) (circuit consensus that §1003.2(c) applies to CAT motions)
- Gasparian v. Holder, 700 F.3d 611 (1st Cir. 2012) (applied §1003.2(c) to CAT claims and found new evidence insufficient)