United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT December 23, 2005
Charles R. Fulbruge III
Clerk
No. 05-60260
Summary Calendar
BLANCA NORIED GOMEZ-AREVALO,
Petitioner,
versus
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
Respondent.
Petition for Review from the
Board of Immigration Appeals
(A79 048 149)
Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Blanca Noried Gomez-Arevalo seeks review of the Board of
Immigration Appeals’ (BIA) denial of her motion to reopen based on
evidence of changed circumstances in Colombia.
Gomez-Arevalo, a native and citizen of Colombia, entered the
United States on or about 1 February 2002; she was not admitted or
paroled following an Immigration Officer’s inspection; and she was
detained by the Immigration and Naturalization Service (INS) on 3
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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February 2002 for entering the United States without inspection.
On the second day of her detention, the INS served a Notice to
Appear on her to begin removal proceedings.
Gomez-Arevalo conceded she was deportable, but requested
asylum and withholding of removal, relief under the Convention
Against Torture, and voluntary departure. These requests were
based on her allegations that: she was a pharmaceutical
representative in rural communities in Columbia; on 27 April 2001,
she was kidnaped by members of the FARC guerilla warfare group,
which demanded medicine and for her to become a part of their
group; the group threatened to kill her if she did not comply; the
day after her release, she was captured by another guerilla warfare
group that made similar threats; and upon being released, she
sought, and received, a visa from the Honduras Consulate to travel
to the United States.
On 8 April 2002, Gomez-Arevalo failed to appear at her hearing
before the Immigration Judge (IJ); following an in absentia
hearing, the IJ found her removable. On 9 October 2002, she filed
her first untimely motion to reopen based on alleged exceptional
circumstances that could excuse her absence. The IJ denied the
motion on 30 October 2002, and the BIA affirmed without opinion on
29 January 2004.
On 25 January 2005, Gomez-Arevalo filed a second untimely
motion to reopen, alleging changed country circumstances. 8 C.F.R.
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§ 1003.2(c)(2) (2005) (requiring a motion to reopen to be filed
within 90 days of the BIA’s final order). The BIA denied the
motion on 3 March 2005 because it was filed out of time and because
Gomez-Arevalo failed to demonstrate a changed country circumstance.
On 1 April 2005, less than 30 days after the BIA’s denial of
her motion to reopen, Gomez-Arevalo timely filed her petition with
this court . See 8 U.S.C. § 1252(b)(1) (2000). Because her motion
to reopen was based on changed country circumstances, we have
jurisdiction over the BIA’s denial of the untimely motion to
reopen. See Panjwani v. Gonzales, 401 F.3d 626, 632 (5th Cir.
2005) (“[W]e have appellate jurisdiction over the BIA’s denial of
an untimely motion to reopen deportation proceedings in instances
where the petitioner files such a motion ... for ‘changed
circumstances’ under 8 C.F.R. § 1003.2(c)(3)(ii)”.). Gomez-Arevalo
seeks review only of the denial of her second motion to reopen
based on alleged new evidence of changed country circumstances.
“We review the BIA’s denial of a motion to reopen proceedings
under a highly deferential abuse of discretion standard.” Manzano-
Garcia v. Gonzales, 413 F.3d 462, 469 (5th Cir. 2005). “The
standard is whether the Board has acted within the bounds of an
abundant discretion granted it by Congress.” Lara v. Trominski,
216 F.3d 487, 496 (5th Cir. 2000) (internal citation and quotation
marks omitted).
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Gomez-Arevalo’s motion to reopen because of changed
circumstances was based on alleged new evidence that: in September
2004, her sister, who lives in Colombia, received a telephone call
from someone asking to speak with Gomez-Arevalo; a few days later,
two men from the FARC group arrived at her sister’s house and asked
for Gomez-Arevalo’s location; and the next evening, the group made
a threatening telephone call to her sister’s residence, again
asking for information regarding Gomez-Arevalo.
The BIA properly denied Gomez-Arevalo’s motion to reopen as
untimely filed. 8 C.F.R. § 1003.2(c)(2) requires such a motion to
be filed within 90 days of the BIA’s final decision. Although the
BIA entered its final order in these proceedings on 29 January
2004, Gomez-Arevalo did not file her motion to reopen until 25
January 2005, 272 days after the due date. Thus, the BIA did not
abuse its discretion in finding that her failure to timely file the
motion should result in its denial. See Panjwani, 401 F.3d at 632-
33 (affirming the BIA’s denial of the petitioner’s motion to reopen
as untimely where the petitioner presented evidence insufficient to
qualify for changed country exception to deadline).
Gomez-Arevalo asserts that her motion to reopen could be filed
at any time, pursuant to the exception provided in 8 U.S.C. §
1229a(c)(6)(C)(ii) (Supp. 2005) (allowing exception to the 90-day
deadline for motions to reopen when an alien seeking asylum submits
evidence of changed country conditions that is “material and was
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not available and would not have been discovered or presented at
the previous proceeding”). Because, as discussed infra, Gomez-
Arevalo’s motion to reopen did not reflect changed country
conditions, her motion does not fit under the exception.
The BIA did not abuse its discretion in concluding that Gomez-
Arevalo failed to establish changed country circumstances. As
discussed, she alleged that two members of the FARC group went to
her sister’s house to look for her and later made a threatening
telephone call to her sister’s family. The BIA determined
correctly that such an isolated report of general threats does not
establish the requisite change in circumstance. See Eduard v.
Ashcroft, 379 F.3d 182, 188 (5th Cir. 2004) (stating that “mere
denigration, harassment, and threats” are not sufficient evidence
because “[n]either discrimination nor harassment ordinarily amounts
to persecution under the INA”).
DENIED
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