Unreported / Non-Citable
Background
Johanna Briseyda Vasquez Bonilla, a native and citizen of El Salvador, petitioned the Fifth Circuit for review of a July 2025 Board of Immigration Appeals (BIA) decision denying her motion to reopen. Vasquez Bonilla had been ordered removed in absentia and sought to challenge that removal order on two grounds: (1) that she lacked notice of the hearing at which the removal order was issued, and (2) that changed country conditions in El Salvador warranted reopening of her case.
The court reviewed the BIA’s decision under the highly deferential abuse-of-discretion standard.
The Court’s Holding
On the notice claim, the Fifth Circuit found that Vasquez Bonilla failed to brief any argument challenging the BIA’s determination that the motion to reopen was number barred on this issue. By failing to brief the argument, she waived it and failed to demonstrate that the BIA abused its discretion in denying reopening on that basis.
On the changed country conditions claim, the court held that: (1) it cannot consider evidence outside the administrative record; (2) Vasquez Bonilla failed to make a meaningful comparison between El Salvador’s earlier and recent country conditions that would demonstrate the requisite material change; and (3) the court lacked jurisdiction to review the BIA’s denial of sua sponte regulatory reopening because such reopening is entirely discretionary.
The petition for review was dismissed in part for lack of jurisdiction and denied in part.
Key Takeaways
- Failure to brief an argument in an appellate petition constitutes waiver of that argument.
- To establish changed country conditions as a basis for reopening, petitioner must make a meaningful comparison demonstrating material change between past and present conditions.
- Circuit courts lack jurisdiction to review BIA denials of sua sponte reopening because such reopening authority is entirely discretionary.
- Appellate review of BIA motion-to-reopen denials applies a highly deferential abuse-of-discretion standard.
Why It Matters
This decision reinforces important procedural requirements in immigration appeals. The waiver of the notice argument demonstrates that counsel must affirmatively challenge BIA determinations in appellate briefs; failing to do so results in forfeiture of review. The changed country conditions holding clarifies the evidentiary burden: bare assertions of changed circumstances are insufficient; petitioners must present comparative evidence demonstrating material shifts in country conditions.
Most significantly, the court’s reaffirmation that it lacks jurisdiction over sua sponte reopening denials limits appellate oversight of BIA discretionary reopening decisions. This means immigration petitioners cannot appeal BIA refusals to reopen on the BIA’s own motion, even if circumstances have materially changed, leaving the final say with the immigration agency itself on whether to exercise discretionary reopening authority.