452 F. App'x 196

Noel BARRIOS, Petitioner v. ATTORNEY GENERAL OF the UNITED STATES, Respondent.

Nos. 10-3248, 10-3763, 11-1566.

United States Court of Appeals, Third Circuit.

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) Nov. 10, 2011.

Filed: Nov. 18, 2011.

*197Theodore J. Murphy, Esq., West Chester, PA, for Petitioner.

Matthew B. George, Esq., Eric H. Holder, Jr., Esq., Thomas W. Hussey, Esq., Paul F. Stone, Esq., United States Department of Justice, Washington, DC, for Respondent.

Before: SCIRICA, SMITH, and JORDAN, Circuit Judges.

OPINION

SMITH, Circuit Judge.

Noel Barrios filed three petitions seeking review of various orders rendered by the Board of Immigration Appeals (the “BIA”), which were consolidated into this action. We will deny all petitions for review.

I.

At some time between 1991 and 1992, Barrios, a citizen and national of Guatemala, illegally entered the United States. In June 1998, Barrios filed an application for asylum. On September 30, 1998, the Immigration and Naturalization Service served Barrios with a Notice to Appear (the “Notice”) in immigration court.1 At an immigration hearing held on January 19, 1999, Barrios admitted all factual allegations in the Notice and conceded removability. On June 7, 2001, following a hearing, the immigration judge (the “IJ”) denied Barrios’s applications for: asylum, withholding of removal, and protection under the Convention Against Torture. The IJ granted Barrios’s application for voluntary departure.

Barrios appealed to the BIA, which on October 25, 2002, summarily affirmed the IJ’s decision. Barrios did not petition for review of the BIA’s decision.

Barrios remained in the United States in violation of the voluntary departure order. On July 14, 2010, Barrios filed a motion to reopen his asylum petition with the BIA based on an alleged change of conditions within Guatemala. Barrios also moved to stay his removal, which the BIA denied on July 27, 2010. Barrios filed a petition for review of the BIA’s denial of his motion to stay (Case No. 10-8248) (the “First Petition”).2

On August 20, 2010, the BIA mistakenly determined that Barrios had been removed and deemed his motion to reopen -withdrawn under 8 C.F.R. § 1003.2(d). Barrios filed a petition with this Court to review this decision (Case No. 10-3763) (the “Second Petition”). On December 6, 2010, the Department of Homeland Security (“DHS”), after realizing that Barrios had not been removed, filed a motion for reconsideration, arguing that the BIA should address the merits of Barrios’s motion to reopen. On January 31, 2011, the BIA granted DHS’s motion for reconsideration, vacated its August 20, 2010 decision, and denied Barrios’s motion to reopen on the merits. Barrios filed a timely petition for review of the decision denying his motion to reopen (Case No. 11-1566) (the “Third *198Petition”). We consolidated Barrios’s three petitions into this action.3

II.4

A.

We lack jurisdiction over Barrios’s First Petition, appealing the denial of his motion to stay removal.5 We have no jurisdiction to hear any cause or claim “arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders.” 8 U.S.C. § 1252(g). The BIA’s denial of a stay of removal falls within its power to execute a removal order. See Moussa v. Jenifer, 389 F.3d 550, 554 (6th Cir.2004) (“[Djenial of a stay of deportation is a component of the decision to execute a deportation order.”); Sharif v. Ashcroft, 280 F.3d 786, 787 (7th Cir.2002) (“A request for a stay of removal arises from’ the Attorney General’s decision ... to execute a removal.”).

Barrios’s assertions to the contrary are belied by § 1252(g). Barrios purports that we are authorized to stay his removal under 28 U.S.C. § 1651 (the “All Writs Act”) pending a determination of his motion to reopen. Barrios reasons that, without such a stay, the government may have removed him from the United States, causing his motion to reopen to be withdrawn in accordance with 8 C.F.R. § 1003.2(d). This argument fails because § 1252(g) applies notwithstanding the All Writs Act. See 8 U.S.C. § 1252(g) (stating that the restrictions on jurisdiction apply “notwithstanding any other provision of law (statutory or nonstatutory), including ... [28 U.S.C. § 1651]”).6 Accordingly, we lack jurisdiction over Barrios’s First Petition.

B.

Barrios’s Second Petition, which seeks review of the BIA’s finding that his motion to reopen was withdrawn, is moot. Although the BIA initially determined that Barrios’s motion to reopen was withdrawn based on the mistaken belief that Barrios had already been removed, the BIA subsequently vacated that decision and ruled on the merits of his motion to reopen. Accordingly, the Second Petition is moot.

C.

Barrios’s Third Petition asserts that the BIA abused its discretion in denying his motion to reopen on the merits because, *199among other reasons, the BIA failed to consider evidence concerning changed conditions in Guatemala. We disagree.

Where the BIA renders its own decision and does not adopt the decision of the IJ, we review only the BIA’s decision. See Wong v. Attorney Gen., 539 F.3d 225, 230 (3d Cir.2008). We review the BIA’s decision denying a motion to reopen for abuse of discretion. INS v. Rios-Pineda, 471 U.S. 444, 449, 105 S.Ct. 2098, 85 L.Ed.2d 452 (1985). The BIA abuses its discretion if its decision “is arbitrary, irrational, or contrary to law.” Fadiga v. Attorney Gen., 488 F.3d 142, 153 (3d Cir.2007).

Here, the BIA did not abuse its discretion in finding that Barrios’s motion to reopen was untimely. Asylum applicants7 must make any motion to reopen within “90 days after the date on which the final administrative decision was rendered in the proceeding sought to be reopened.” 8 C.F.R. § 1003.2(c)(2). The BIA’s final administrative decision on Barrios’s asylum application was rendered on October 25, 2002, meaning that Barrios had until January 23, 2003 to file a motion to reopen. Barrios, however, did not file his motion to reopen until July 21, 2010. Thus, Barrios’s motion to reopen was untimely.

Barrios argues that his motion to reopen is timely because the change-in-country-circumstances exception applies. Under this exception, time limits do not apply to motions to reopen “based on changed circumstances arising in the country of nationality” where such evidence is “material and was not available and could not have been discovered or presented at the previous hearing.” 8 C.F.R. § 1003.2(c)(3)(h).

The BIA did not abuse its discretion in finding that Barrios failed to demonstrate a sufficient change in Guatemala’s circumstances. Barrios, in support of his assertion that Guatemala’s circumstances had changed, cited numerous examples of general violence and other harsh conditions in Guatemala. Such general examples are insufficient as a matter of law to support a claim of asylum. See, e.g., Al-Fara v. Gonzales, 404 F.3d 733, 740 (3d Cir.2005) (“[Gjenerally harsh conditions shared by many other persons do not amount to persecution” and “harm resulting from country-wide strife is not persecution ‘on account of an enumerated statutory factor”) (quotation marks omitted); Abdille v. Ashcroft, 242 F.3d 477, 494 (3d Cir.2001) (“[0]rdinary criminal activity does not rise to the level of persecution necessary to establish eligibility for asylum.”).8 Thus, the BIA did not abuse its *200discretion in denying Barrios’s motion to reopen on the merits.

Accordingly, we will deny Barrios’s petitions for review.

Barrios v. Attorney General of the United States
452 F. App'x 196

Case Details

Name
Barrios v. Attorney General of the United States
Decision Date
Nov 18, 2011
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452 F. App'x 196

Jurisdiction
United States

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