[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
April 2, 2007
No. 06-14312 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
BIA Nos. A95-242-168 & A95-242-169
NEIFI IRINA ROJAS,
WILSON EDUARDO JIMENEZ,
VIVIANA A. JIMENEZ,
JULIAN M. JIMENEZ,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(April 2, 2007)
Before WILSON, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:
Neifi Irina Rojas, on behalf of herself, her husband Wilson Jimenez, and
their two children Viviana and Julian Jimenez (collectively “Petitioners”), petitions
this court for review of the decision by the Board of Immigration Appeals (“BIA”)
denying her motion to reopen removal proceedings. For the reasons that follow,
we affirm.
I. Background
Petitioners, natives and citizens of Colombia, entered the United States in
2000 on immigrant visas, and they all remained beyond their visas’ expiration
periods. The INS 1 issued Notices to Appear, charging Petitioners with
removability under INA § 237(a)(1)(B) and 8 U.S.C. § 1227(a)(1)(B). Rojas
applied for asylum, withholding of removal, and relief under the United Nations
Convention Against Torture (“CAT”), alleging that she and her family had been
persecuted by members of the Revolutionary Armed Forces of Colombia
(“FARC”) because of her political opinion. Following hearings conducted on
April 4, 2003, and March 31, 2004, the Immigration Judge (“IJ”) denied relief,
concluding that the asylum application was untimely and that Rojas had failed to
demonstrate that she was eligible for withholding of removal or relief under the
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In 2002, President Bush signed into law the Homeland Security Act, which created a new
Department of Homeland Security and abolished the INS, transferring its responsibilities to the new
department. See Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135. Because
this case initiated before the transfer, this opinion refers to the INS in the interest of clarity.
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CAT because she had not established past persecution or a well-founded fear of
future persecution on account of a statutorily-protected ground.
Rojas timely appealed to the BIA, which affirmed the IJ’s decision on
November 25, 2005. Rojas filed a timely motion for reconsideration, which the
BIA denied on the grounds that Rojas had failed to specify any error of law or fact
in the prior decision. On April 26, 2006, Rojas filed a motion to reopen the
proceedings, seeking to present evidence that conditions in Colombia had
deteriorated and that the FARC still considered her a target. Rojas supported her
motion with affidavits from her brother-in-law, father, and the person responsible
for maintaining her Colombia apartment. The affidavits stated that Rojas was
forced to flee Colombia due to political persecution and that her family in
Colombia had continued to receive threats against her. Rojas also attached news
articles detailing the FARC’s ongoing guerilla activities.
The BIA denied the motion to reopen, concluding that the motion was
untimely because it was not filed within 90 days of the BIA’s final determination
and that Rojas was not entitled to invoke the exception to the 90-day filing
requirement because she failed to establish that the information in the supporting
affidavits could not have been discovered or presented at the previous hearing.
Rojas now petitions this court for review.
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II. Discussion
Rojas argues that the BIA abused its discretion by denying the motion to
reopen. She asserts that the supporting news articles and affidavits, which were
dated August 2005, January 2006, and March 2006, were not available during the
2003 and 2004 hearings before the IJ. She also argues that these supporting
documents established that she had suffered past persecution, demonstrated that
she risked future persecution if she returned to Colombia, and would change the
outcome of her underlying claims for relief if considered.
We review the BIA’s denial of a motion to reopen for an abuse of discretion.
Gbaya v. U.S. Att’y Gen., 342 F.3d 1219, 1220 (11th Cir. 2003). “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) (citation and
internal quotation marks omitted).
An alien may file 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.” Id. at 1149 (citation
omitted). “A motion to reopen immigration proceedings ‘must be filed no later
than 90 days after the date on which the final administrative decision was rendered
in the proceeding sought to be reopened.’” Id. (quoting 8 C.F.R. § 1003.2(c)(2)).
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The time and numerical limitations do not apply, however, to a motion to reopen
based on changed conditions in the country of nationality if such evidence is
material and was not available and could not have been discovered or presented at
the previous hearing. 8 C.F.R. § 1003.2(c)(3)(ii). In addition, at any time, the BIA
can reopen or reconsider, on its own motion, a case in which it has rendered a
decision. 8 C.F.R. § 1003.2(a). Motions to reopen are disfavored, however,
especially in a removal proceeding “where, as a general matter, every delay works
to the advantage of the deportable alien who wishes merely to remain in the United
States.” Abdi, 430 F.3d at 1149. As such, a motion to reopen “shall not be granted
unless it appears to the Board that evidence sought to be offered is material and
was not available and could not have been discovered or presented at the former
hearing.” 8 C.F.R. § 1003.2(c)(1).
Here, although the affidavits Rojas submitted in support of her motion were
dated approximately two years after her March 2004 hearing before the IJ, the
affidavits merely rehash the general assertion that Rojas fled Colombia due to
“political persecution” and contain no new information tending to dispute the IJ’s
conclusion that Rojas failed to establish past persecution or a well-founded fear of
future persecution on account of a statutorily-protected ground such as, inter alia,
religion, membership in a particular social group, or political opinion. Likewise,
although the news articles Rojas submitted in support of her motion detail the
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FARC’s ongoing acts of violence, the articles provide nothing to connect that
violence to Rojas’s politics or her membership in a protected group. Thus, we
cannot say that the evidence Rojas submitted in support of her motion to reopen
was not available and could not have been discovered or presented at her earlier
hearing before the IJ. See 8 C.F.R. § 1003.2(c)(1). Accordingly, we conclude that
the BIA did not abuse its discretion by denying the motion to reopen.
III. Conclusion
For the foregoing reasons, we DENY Rojas’s petition and AFFIRM the BIA.
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