[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
------------------------------------------- ELEVENTH CIRCUIT
APR 25, 2007
No. 06-12590
THOMAS K. KAHN
Non-Argument Calendar
CLERK
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Agency No. A95-227-588
LUIS FABRICIANO RICO,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
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Petition for Review of a Decision of the
Board of Immigration Appeals
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(April 25, 2007)
Before EDMONDSON, Chief Judge, TJOFLAT and HULL, Circuit Judges.
PER CURIAM:
Petitioner-Appellant Luis Fabriciano Rico, a native and citizen of Colombia,
petitions for review of the denial of his motion to reopen his removal proceedings
by the Board of Immigration Appeals (“BIA”). No reversible error has been
shown; we deny the petition.
We review the BIA’s denial of a motion to reopen for abuse of discretion.
Gbaya v. U.S. Attorney Gen., 342 F.3d 1219, 1220 (11th Cir. 2003). “In this
particular area, the BIA’s discretion is quite broad.” Id. (internal quotation
omitted); see also Anin v. Reno, 188 F.3d 1273, 1279 (11th Cir. 1999) (explaining
the BIA has discretion to reopen proceedings “as it sees fit”); 8 C.F.R. § 1003.2(a)
(“The [BIA] has discretion to deny a motion to reopen even if the party moving
has made out a prima facie case for relief.”). Appellate review of a denial of a
motion to reopen “is limited to determining whether there has been an exercise of
administrative discretion and whether the [manner] of exercise has been arbitrary
or capricious.” Garcia-Mir v. Smith, 766 F.2d 1478, 1490 (11th Cir. 1985)
(internal quotation omitted). Motions to reopen are generally disfavored because
“every delay works to the advantage of the deportable alien who wishes merely to
remain in the United States.” INS v. Doherty, 112 S.Ct. 719, 724-25 (1992).
A party may file only one motion to reopen, which “shall 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.” 8 U.S.C. § 1229a(c)(7)(A),
(B). A motion to reopen must be filed no later than 90 days after the final
2
administrative decision. 8 C.F.R. § 1003.2(c)(2). But this time limit does not
apply if the motion to reopen is based on changed circumstances in the country of
the movant’s nationality. Id. § 1003.2(c)(3)(ii). To meet this exception, a movant
must offer material evidence that “was not available and could not have been
discovered or presented at the previous hearing.” Id.
The BIA determined that Rico’s motion to reopen was untimely and that
Rico had failed to establish that country conditions in Colombia had changed
sufficiently to warrant reopening his removal proceedings. In reaching its
decision, the BIA explained that, although Rico had submitted extensive evidence
supporting his claim that homosexuals, such as Rico, are mistreated in Colombia,
the record before the immigration judge (“IJ”) also included evidence on this
issue.1 The BIA acknowledged that the evidence submitted with Rico’s motion to
reopen was more current than the information considered by the IJ; but the BIA
concluded that this new evidence did not show that the frequency of incidents
against homosexuals had increased since the IJ had considered Rico’s case. In
addition, the BIA rejected Rico’s claim that he qualified as a “refugee sur place” --
1
In his revised asylum application, Rico asserted that he was persecuted based on his political
opinion and membership in a social group; and he alleged, among other things, that he had received
death threats for being a homosexual and was on the “black list” of paramilitary groups in Colombia
as a result of his homosexuality.
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a person who was not a refugee when he left his country of origin but became a
refugee at a later time -- because his case had received recent media attention in
Colombia.
On appeal, Rico argues that his removal proceedings should be reopened
because he has presented evidence showing that conditions for homosexuals in
Colombia were significantly more dangerous in 2006, when Rico filed his motion
to reopen, than in 2003, when the IJ denied his asylum application. Rico also
asserts that the likelihood of future persecution against him in Colombia has
increased because media reports there revealed that Rico was homosexual.2
The new evidence submitted with Rico’s motion to reopen, when compared
to the record before the IJ during Rico’s asylum hearing, does not establish a
material change in country conditions in Colombia. Much of the new evidence
reports that homosexuals in Colombia are susceptible to “social cleansing” or
“social cleaning” practices, which can include death. But evidence before the IJ --
including the 2001 State Department Country Report on Colombia’s Human
Rights Practices, a 2000 article entitled “Social Cleansing, Human Rights, and
Sexual Orientation in Colombia,” several news reports, and a 1996 article by the
2
According to Rico, he and his lawyer responded to media requests in 2006 about his case, which
resulted in Florida news coverage that mentioned Rico was homosexual and seeking asylum in the
United States. Other news outlets picked up this coverage and reported on Rico’s case in Colombia.
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International Gay and Lesbian Human Rights Commission -- discussed violence
against homosexuals in Colombia, including social cleansing. Some of these
reports presented during Rico’s initial proceeding indicated that attacks against
homosexuals were not infrequent occurrences in Colombia. Therefore, we do not
conclude that the BIA’s denial of his motion was an abuse of discretion.
To the extent that Rico argues that the BIA violated due process by not
addressing sufficiently the evidence Rico submitted with his motion to reopen, we
reject this claim as without merit. The BIA noted that Rico had submitted
evidence about the mistreatment of homosexuals in Colombia but that this new
evidence did not show changed country conditions sufficient to reopen Rico’s
case. In addition, the BIA’s decision referenced 8 C.F.R. § 1003.2(c)(3)(ii), which
requires that a motion to reopen not be granted unless the evidence offered with
the motion is material.3
Because Rico’s motion to reopen was not timely, and he did not present
evidence establishing changed conditions in Colombia, the BIA’s denial of his
motion was not arbitrary or capricious, or otherwise an abuse of discretion.
PETITION DENIED.
3
And we disagree with Rico’s assertion that the BIA violated due process by failing to address
his “refugee sur place” claim. The BIA acknowledged that Rico had made such a claim but
explained that Rico “failed to establish changed country conditions necessary to reopen
proceedings.”
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