[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-12640 ELEVENTH CIRCUIT
MAY 25, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
Agency Nos. A095-237-495,
A095-237-496
JOSE FERNANDO PALACIOS,
a.k.a. Fernando Palacios Montoya,
CLARIVEL OSORIO,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(May 25, 2010)
Before BLACK, BARKETT and ANDERSON, Circuit Judges.
PER CURIAM:
Petitioners, Jose Fernando Palacios and Clarivel Osorio, seek review of the
Board of Immigration Appeals’ (BIA’s) decision denying their untimely motion to
reopen. Petitioners contend they submitted evidence of changed country
conditions to excuse their late filing and also demonstrated eligibility for relief in
the form of asylum and withholding of removal under the Immigration and
Nationality Act.
We have jurisdiction to review the BIA’s denial of a motion to reopen, and
we review the denial of such motions for an abuse of discretion. See Kucana v.
Holder, 130 S. Ct. 827, 840 (2010) (confirming jurisdiction); Abdi v. U.S. Att’y
Gen., 430 F.3d 1148, 1149 (11th Cir. 2005) (setting standard of review). “Our
review is limited to determining whether there has been an exercise of
administrative discretion, and whether the matter of exercise has been arbitrary or
capricious.” Abdi, 430 F.3d at 1149 (quotations omitted).
“[T]he Attorney General has broad discretion to grant or deny such
motions.” Al Najjar v. Ashcroft, 257 F.3d 1262, 1302 (11th Cir. 2001) (quotations
omitted). It is within the discretion of the BIA to deny a motion to reopen for at
least three reasons: “(1) failure to establish a prima facie case; (2) failure to
introduce evidence that was material and previously unavailable; and (3) a
determination that despite the alien’s statutory eligibility for relief, he or she is not
entitled to a favorable exercise of discretion.” Id. at 1302.
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Motions to reopen immigration proceedings must ordinarily “be filed within
90 days of the date of entry of a final administrative order of removal.” 8 U.S.C.
§ 1229a(c)(7)(C)(i). The 90-day time limit does not apply, however, to motions
“based on changed country conditions arising in 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.” Id.
§ 1229(c)(7)(C)(ii). “An alien cannot circumvent the requirement of changed
country conditions by demonstrating only a change in her personal circumstances.”
Zhang v. U.S. Att’y Gen., 572 F.3d 1316, 1319 (11th Cir. 2009). The petitioner has
the “heavy burden” of presenting evidence which would likely change the result in
the case. Ali v. U.S. Att’y Gen., 443 F.3d 804, 813 (11th Cir. 2006).
There is no evidence the BIA abused its discretion in denying the
Petitioners’ motion to reopen. There is no dispute the Petitioners filed their motion
to reopen beyond the 90-day deadline. The evidence submitted by the Petitioners
does not demonstrate a changed country condition, as it reflects only continued
harassment that the BIA previously found did not amount to persecution on
account of a protected ground. Accordingly, the BIA’s decision was neither
arbitrary nor capricious, and we deny the petition.
PETITION DENIED.
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