[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT COURT OF APPEALS
U.S.
________________________ ELEVENTH CIRCUIT
MAY 17, 2011
No. 10-14780 JOHN LEY
Non-Argument Calendar CLERK
________________________
Agency No. A099-555-085
JORGE EDUARDO MENDIETA-ESCRUCERIA,
llllllllllllllllllllllllllllllllllllllll Petitioner,
versus
U.S. ATTORNEY GENERAL,
llllllllllllllllllllllllllllllllllllllll Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(May 17, 2011)
Before TJOFLAT, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
Jorge Eduardo Mendieta-Escruceria, a citizen of Colombia, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order, denying his motion to
reopen his removal proceedings, brought under 8 C.F.R. § 1003.2(c) and the
Immigration and Nationality Act (“INA”) § 240(c)(7), 8 U.S.C. § 1229a(c)(7). On
appeal, Mendieta-Escruceria concedes that his motion to reopen was untimely, but
argues that his motion should have been granted because he established changed
country conditions. After review, we deny the petition.
I.
“We review the [BIA’s] denial of a motion to reopen removal proceedings
for abuse of discretion.” Li v. U.S. Att’y Gen., 488 F.3d 1371, 1374 (11th Cir.
2007). Our review “is limited to determining whether the BIA exercised its
discretion in an arbitrary or capricious manner.” Zhang v. U.S. Att’y Gen., 572
F.3d 1316, 1319 (11th Cir. 2009). The BIA has discretion to deny a motion to
reopen for at least three reasons:
(1) failure to establish a prima facie case [of eligibility for asylum or
withholding of removal]; (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.
Li, 488 F.3d at 1374 (alteration in original) (quotation marks omitted).
Generally, “[a]n alien may file only one motion to reopen removal
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proceedings, and it must be filed no later than 90 days after the final
administrative decision.” Jiang v. U.S. Att’y Gen., 568 F.3d 1252, 1256 (11th Cir.
2009) (citing 8 C.F.R. § 1003.23(b)(1)). However, the time and numerical
limitations do not apply when “(1) an alien files a motion to reopen that seeks
asylum, withholding of removal, or [CAT relief]; (2) the motion is predicated on
changed country conditions; and (3) the changed conditions are material and could
not have been discovered at the time of the removal proceedings.” Id. (citing 8
C.F.R. § 1003.23(b)(4)(i)). “An alien who attempts to show that the evidence is
material bears a heavy burden and must present evidence that demonstrates that, if
the proceedings were opened, the new evidence would likely change the result in
the case.” Id.
Mendieta-Escruceria concedes that he filed his motion to reopen after the
90-day deadline, but he argues that he presented evidence of changed country
conditions that was not available at his original removal proceedings. In support
of his motion, Mendieta-Escruceria submitted affidavits from three individuals
who stated that they had been approached by members of the FARC since the time
of Mendieta-Escruceria’s removal hearing, threatened, and asked about his
whereabouts. At his removal hearing in 2007, Mendieta-Escruceria offered
affidavits establishing that FARC members were looking for him. Mendieta-
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Escruceria also testified that the FARC was looking for him and wanted to kill
him.
The evidence submitted by Mendieta-Escruceria in support of his motion to
reopen was not new. It was essentially the same evidence that he presented to the
BIA at his removal hearing. For that reason, Mendieta-Escruceria did not carry his
“heavy burden” of “present[ing] evidence that demonstrates that, if the
proceedings were opened, the new evidence would likely change the result in the
case.” Jiang, 568 F.3d at 1256–57; see also Li, 488 F.3d at 1374. Thus, the BIA
did not abuse its discretion by denying Mendieta-Escruceria’s motion.
PETITION DENIED.
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