Fernando Morales v. U.S. Attorney General

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-13148 ELEVENTH CIRCUIT
APRIL 30, 2012
Non-Argument Calendar
JOHN LEY
________________________
CLERK

Agency No. A097-640-165

FERNANDO MORALES,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the
Board of Immigration Appeals
________________________

(April 30, 2012)

Before HULL, MARCUS and BLACK, Circuit Judges.

PER CURIAM:
 Fernando Morales seeks review of the Board of Immigration Appeals’

(“BIA”) order dismissing Morales’s appeal of the Immigration Judge’s (“IJ”)

denial of his second motion to reopen his removal proceedings. After review, we

deny the petition for review.1

I. BACKGROUND

A. 2003 to 2006 Removal Proceedings Before IJ

In September 2002, Morales, a citizen of Colombia, entered the United

States as a non-immigrant visitor with authorization to remain until October 27,

2002. Morales overstayed his visa.

In September 2003, Morales filed an application for asylum, withholding of

removal and relief under the Convention Against Torture (“CAT”). Morales’s

application alleged past persecution and a well-founded fear of future persecution

by the Revolutionary Armed Forces of Colombia (“FARC”) based on his political

opinion. Specifically, Morales claimed that, because of his involvement with the

Liberal Party and his social activism, FARC members had threatened him; shot at

his car, wounding him in the leg; and then tracked him down in another town and

1
We review the denial of a motion to reopen for an abuse of discretion. Jiang v. U.S.
Att’y Gen., 568 F.3d 1252, 1256 (11th Cir. 2009). Under this standard, 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 v. U.S. Att’y Gen., 430 F.3d 1148,
1149 (11th Cir. 2005)(quotation marks omitted).

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sent him a “condolence” note threatening to kill him.

In December 2003, the Department of Homeland Security (“DHS”) issued a

Notice to Appear (“NTA”), charging Morales with removability, pursuant to the

Immigration and Nationality Act (“INA”) § 237(a)(1)(B), 8 U.S.C.

§ 1227(a)(1)(B). Morales admitted the allegations in the NTA and conceded

removability. After a 2006 merits hearing on Morales’s application for asylum,

withholding or removal and CAT relief, the IJ denied all requested relief.

B. 2007 BIA Decision

On August 24, 2007, the BIA disagreed with the IJ and concluded Morales

was entitled to asylum. The BIA determined that Morales had demonstrated past

persecution and DHS had not rebutted the presumption of future persecution. The

BIA remanded the case to the IJ to allow DHS the opportunity “to complete or

update identity, law enforcement or security investigations or examinations, and

further proceedings, if necessary, and for the entry of an order as provided in 8

C.F.R. § 1003.47(h).”2

C. 2007 Remand Proceedings Before IJ

On September 25, 2007, the immigration court sent notice of a hearing set

2
Pursuant to 8 C.F.R. § 1003.47(h), upon remand from the BIA, the IJ must “consider the
results of the identity, law enforcement, or security investigations or examinations” and “[i]f new
information is presented,” the IJ “may hold a further hearing if necessary” before entering “an
order granting or denying the immigration relief sought.” 8 C.F.R. § 1003.47(h).

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for November 14, 2007 to Morales’s attorney of record. At the November 14,

2007 hearing, Morales’s attorney attended, but Morales did not appear. Morales’s

attorney advised the IJ that he was unable to locate Morales. The IJ found that

Morales’s failure to appear constituted abandonment of his application for relief.

On the same date, the IJ denied Morales’s application for lack of prosecution and

entered an in absentia order of removal. Neither Morales nor his counsel filed a

petition for review of this final removal order.

B. First Motion to Reopen

On August 22, 2008, approximately nine months after his final removal

order was entered, Morales filed his first motion to reopen his removal

proceedings. Morales alleged he never received notice of the November 14, 2007

hearing because the court notice to him was sent to his former address and he had

since moved. Morales admitted, however, that he had not notified his attorney of

his new address and telephone number.

On June 29, 2009, the IJ denied Morales’s first motion to reopen. The IJ

explained that when an alien is represented by counsel, the alien is deemed to have

received proper notice if it is sent to his counsel of record. Morales’s attorney had

attended the November 14, 2007 hearing, demonstrating that his attorney received

notice of the hearing. Furthermore, Morales had not notified his counsel or the

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immigration court of his change of address and had not shown “due diligence in

seeking to redress the situation.” Morales did not appeal the IJ’s order.

C. Second Motion to Reopen

On May 28, 2010, Morales filed a second motion to reopen his removal

proceedings but this time Morales’s motion was based on “changed country

conditions” in Colombia. See INA § 240(c)(7)(C)(ii), 8 U.S.C.

§ 1229a(c)(7)(C)(ii). This time, Morales asserted that he had new evidence

demonstrating that he was “still a target” of the FARC and that his “enemies are

still looking for him.” Morales argued that the political situation in Colombia had

deteriorated “[d]uring the pendency of these proceedings.” Specifically, Morales

stated that President Uribe has successfully eradicated FARC leadership, and the

absence of a central command has made FARC guerrillas more violent. Moreover,

Morales claimed, President Uribe’s term was about to end, and the FARC believed

the next president “would not follow Uribe’s security policies,” which would allow

the FARC to regain supremacy. Morales contended that, to that end, the FARC

was more determined than ever to maintain its position as the most powerful

terrorist group in Colombia, to “eradicate all who oppose[ ] . . . their political

agenda” and to overthrow Colombia’s democratically elected government.

Morales submitted three affidavits that described two 2010 incidents in

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Colombia involving men who knew Morales in 2002 through the Liberal Party. In

the first incident, on January 6, 2010, two men associated with the FARC attacked

Luis Alfonso Marin Bedoya in Bogota, and demanded to know where Morales

was. When Luis told the men that Morales was in the United States, the men

accused Luis of lying, beat him, held a gun to his head, and threatened to kill him.

Later, Luis received threatening phone calls and was forced to leave the area.

During a second incident, on February 5, 2010, three men confronted Carlos

Arturo Gomez Barragan in Bogota and threatened to kill him if he did not tell them

where Morales was. After searching Barragan’s house, the men told Barragan to

tell Morales that the “FARC is looking for him, and we won’t rest until we find

him” and that Morales would “have to face the consequences, otherwise others will

pay for what he did against FARC.”

The IJ denied the second motion to reopen. The IJ acknowledged Morales’s

three affidavits indicating that the FARC “continue[d] to pursue” Morales. The IJ

determined, however, that Morales’s evidence did not “show any ‘change’ in the

country conditions of Colombia” and thus his second motion to reopen was time-

barred and number-barred.

The BIA dismissed Morales’s appeal. The BIA also noted Morales’s “three

affidavits from men in Colombia who know the respondent, two of whom were

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threatened or beaten by the FARC.” The BIA found that Morales had not

“presented sufficient facts or evidence to establish that his motion falls within the

‘changed circumstances’ exception to the time limitation for motions to reopen set

forth at 8 C.F.R. § 1003.2(c)(3)(ii).” The BIA agreed with the IJ that Morales’s

second motion to reopen was also number-barred.

II. DISCUSSION

An alien may file only one motion to reopen removal proceedings, and the

motion must “state the new facts that will be proven at a hearing to be held if the

motion is granted, and shall be supported by affidavits or other evidentiary

material.” INA § 240(c)(7)(A), (B), 8 U.S.C. § 1229a(c)(7)(A), (B). Generally,

the motion must be filed within ninety days of the BIA’s final removal order. INA

§ 240(c)(7)(C)(i), 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. §§ 1003.2(c)(2),

1003.23(b)(1),(3). However, the time and number limits do not apply if the

movant can show “changed country conditions arising in the country of nationality

or 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.” INA § 240(c)(7)(C)(ii), 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R.

§§ 1003.2(c)(2) & (3)(ii), 1003.23(b)(4)(i).

Because motions to reopen removal proceedings are disfavored, the movant

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bears a “heavy burden.” Zhang v. U.S. Att’y Gen., 572 F.3d 1316, 1319 (11th Cir.

2009). To succeed on a motion to reopen based on changed country conditions, the

movant must show that there is new evidence that was material and was not

available and could not have been discovered or presented at the removal hearing.

INA § 240(c)(7)(C)(ii); 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. §§ 1003.2(c)(1),

1003.23(b)(3); see also Abdi v. U.S. Att’y Gen., 430 F.3d 1148, 1149 (11th Cir.

2005). To be “material,” the evidence must be the kind that, if the proceedings

were reopened, “would likely change the result in the case.” Jiang v. U.S. Att’y

Gen., 568 F.3d 1252, 1256-57 (11th Cir. 2009).

Here, Morales does not dispute that this is his second motion to reopen and

that it was filed more than ninety days after his final removal order. Indeed, it was

filed in May 2010, over two and a half years after his final removal order was

entered. Thus, the only issue on appeal is whether Morales’s second motion to

reopen presented new and material evidence of changed country conditions to

overcome the time and numerical bars.

Morales failed to satisfy his heavy burden to establish changed country

conditions in Colombia. The only evidence Morales submitted was the three

8
affidavits.3 These affidavits showed that the FARC continues to threaten Morales.

The affidavits did not show that since Morales’s 2006 removal hearing the FARC

has escalated its efforts to target Liberal Party members such as Morales. Cf.

Jiang, 568 F.3d at 1258 (explaining that evidence of “recent increased

enforcement” of the one-child policy in alien’s hometown in China showed

changed country conditions). Although Morales maintained that the political

situation in Colombia was deteriorating and that the FARC had recently become

more violent, he did not submit any evidence to support this claim. In short,

Morales’s evidence showed only that he still faces the same threat he faced during

his removal hearing, which is not a “change.”

Morales complains that the BIA found in 2007 that the threat Morales faced

in 2006 constituted persecution and, therefore, his new evidence that the threat

continues established that he is prima facie eligible for asylum.4 The BIA’s

3
We are unpersuaded by Morales’s argument that the BIA’s 2007 determination that
Morales was eligible for asylum is itself evidence of changed country conditions. The BIA’s
2007 determination was based on evidence Morales submitted at or before his initial 2006
removal hearing rather than on any new evidence. Thus, the BIA’s 2007 determination does not
support his second motion to reopen.
4
Morales also argues that, because the BIA determined in 2007 that he was entitled to
asylum, the withholding of removal statute, INA § 241(b)(3)(a), 8 U.S.C. § 1231(b)(3)(a), bars
his removal to Colombia. To the extent Morales moved to reopen so he could reapply for
withholding of removal, the time and numerical limits still applied unless he could show changed
country conditions, which he did not. See INA § 240(c)(7)(C)(ii), 8 U.S.C. § 1229a(c)(7)(C)(ii)
(stating there is no time limit on a motion to reopen “if the basis of the motion is to apply for
relief under sections 1158 or 1231(b)(3) . . . and is based on changed country conditions.”); 8

9
previous decision did not relieve Morales of the requirement to show changed

country conditions in his second motion to reopen filed over two and a half years

after his final removal order. See Al Najjar v. Ashcroft, 257 F.3d 1262, 1302 (11th

Cir. 2001) (stating that the failure to establish a prima facie case and the failure to

introduce material and previously unavailable evidence are “independent grounds”

for denying a motion to reopen). Moreover, despite the BIA’s 2007 decision,

Morales’s application for relief was denied for lack of prosecution, not on the

merits. Therefore, Morales’s evidence that is merely cumulative of his original,

abandoned persecution claims would not change the result in his case.

Finally, we reject Morales’s contention that the IJ failed to consider all of

Morales’s evidence and to explain adequately his decision to deny the motion to

reopen. Neither the IJ nor the BIA is required to address each piece of evidence

individually, so long as they considered the issues raised in the motion and

announced their decisions in a way that demonstrates they “heard and thought and

not merely reacted.” Ayala v. U.S. Att’y Gen., 605 F.3d 941, 948 (11th Cir.

2010)(quotation marks omitted); Tan v. U.S. Att’y Gen., 446 F.3d 1369, 1374

(11th Cir. 2006). Here, both the IJ and the BIA acknowledged Morales’s three

C.F.R. § 1003.2(c)(2) (stating the time and numerical limits do not apply to motions to reopen
filed with the BIA “[t]o apply or reapply for asylum or withholding of removal” and based on
changed country conditions); 8 C.F.R. § 1003.23(b)(4)(i) (same as to motions to reopen filed
with the IJ).

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affidavits and concluded that this evidence did not show changed country

conditions, which was sufficient to allow for appellate review of their decisions.

For all these reasons, we cannot say that the IJ and the BIA abused their

discretion in denying Morales’s second motion to reopen.

PETITION DENIED.

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