MARIA MAGDALENA RODRIGUEZ- DEL TORO, AKA Maria Magdalena Enriquez v. ERIC H. HOLDER, Jr., Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARIA MAGDALENA RODRIGUEZ-
DEL TORO, AKA Maria Magdalena
Enriquez,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 12-71970
Agency No. A076-611-025
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 2, 2015 **
Pasadena, California
Before: THOMAS, Chief Judge, CALLAHAN, Circuit Judge and SINGLETON,***
Senior District Judge.
FILED
JUN 04 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 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 K. Singleton, Senior District Judge for the U.S.
District Court for the District of Alaska, sitting by designation.

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Maria Rodriguez-Del Toro, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals’s (BIA) denial of her second motion
to reopen proceedings, filed more than nine years after the order of removal
became final. We have jurisdiction under 8 U.S.C. § 1252, and we deny the
petition for review.1
Petitioner’s brief fails to address the BIA’s order, provide the correct
standard of review, or cite any record evidence. “[F]ailure to comply with [Federal
Rule of Appellate Procedure] 28, by itself, is sufficient ground to justify dismissal
of an appeal.” Cmty. Commerce Bank v. O’Brien (In re O’Brien), 312 F.3d 1135,
1136 (9th Cir. 2002). See also Arpin v. Santa Clara Valley Transp. Agency, 261
F.3d 912, 919 (9th Cir. 2001) (any argument not “specifically and distinctly argued
and raised” is waived).
Even had Petitioner complied with Rule 28, her petition fails. The BIA’s
denial of a motion to reopen is reviewed for abuse of discretion and will be
reversed only if “arbitrary, irrational, or contrary to law.” Valeriano v. Gonzalez,
474 F.3d 669, 672 (9th Cir. 2007) (internal quotation marks omitted). A petitioner
is generally limited to filing one motion to reopen within ninety days of the
1 Because the parties are familiar with the facts and procedural history,
we restate them here only as necessary to explain our decision.
2

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issuance of the final administrative decision, though the time and numerical
limitations do not apply to a motion filed to allow the petitioner to apply for
asylum based on changed circumstances arising in the country of nationality. 8
C.F.R. § 1003.2(c)(2)–(3). To qualify for this exception, the petitioner bears a
“heavy burden,” INS v. Abudu, 485 U.S. 94, 110–11 (1988), of producing
previously unavailable, material evidence of changed country conditions that
establish a prima facie case of eligibility for the relief sought. Toufighi v.
Mukasey, 538 F.3d 988, 996 (9th Cir. 2007).
The BIA did not abuse its discretion in concluding that Rodriguez failed to
meet that burden. The declarations submitted to the BIA in support of Rodriguez’s
motion lacked detail establishing that she was a member of a protected social
group, see Navas v. INS, 217 F.3d 646, 654 (9th Cir. 2000) (refugee status is
established by evidence that an applicant has a well-founded fear of future
persecution on account of race, religion, nationality, membership in a particular
social group, or political opinion), or that she was “more likely than not” to be
tortured upon return to Mexico, see 8 C.F.R. § 1208.16(c)(2). In the absence of
establishing eligibility for asylum or protection under the CAT, Rodriguez does not
dispute that her second motion to reopen, filed more than nine years after the order
of removal became final, is untimely and number-barred.
3

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The petition for review is DENIED.
4

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