[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
July 3, 2007
No. 06-16672 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
BIA Nos. A95-228-974 & A95-228-975
LUZ LEDY SANDOVAL,
CARLOS ALBERTO GIRALDO,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(July 3, 2007)
Before ANDERSON, BARKETT and MARCUS, Circuit Judges.
PER CURIAM:
Lead petitioner Luz Ledy Sandoval and her husband, Carlos Alberto
Giraldo, natives and citizens of Colombia, petition this Court for review of the
order of the Board of Immigration Appeals (“BIA”) denying their untimely motion
to reopen their removal proceedings based on changed country conditions. We
review the denial of a motion to reopen for abuse of discretion. Mejia Rodriguez
v. Reno, 178 F.3d 1139, 1145 (11th Cir. 1999). After careful review, we deny the
petition for review.
The petitioners entered the United States in 2001 and, in 2002, filed for
asylum, withholding of removal, and relief under the United Nations Convention
Against Torture and Other Cruel, Inhuman, or Degrading Treatment or
Punishment, alleging that Sandoval had suffered past persecution or had a
well-founded fear of future persecution by the National Liberation Army (“ELN”)
on account of her memberships in the Liberal Party and the Convergence Party.
The immigration judge (“IJ”) denied the application in January 2005 and the BIA
adopted the IJ’s decision on May 8, 2006. Sandoval timely filed a petition for
review in this Court, which we denied. See Sandoval v. U.S. Att’y Gen., No.
06-13216 (11th Cir. Dec. 28, 2006) (unpublished) (“Sandoval I”).
While Sandoval I was pending, and more than ninety days after the BIA had
issued its final decision in the matter, on August 21, 2006, Sandoval filed a motion
to reopen the asylum proceedings, asserting that changed country circumstances
warranted reconsideration of her application. In support of the motion, Sandoval
submitted three affidavits and one police complaint, which she described as
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material and not available or discoverable during the former proceedings on her
application. The supporting affidavits described incidents that had occurred in
May 2006, during which the affiants had been approached by men claiming to be
ELN members and seeking information about Sandoval’s whereabouts. The police
complaint was filed by Sandoval’s brother and stated that he had been attacked by
some individuals in December 2005 because he would not tell them where
Sandoval was.
On November 29, 2006, the BIA denied Sandoval’s motion to reopen,
finding that it was untimely and did not demonstrate a change in country
conditions. The BIA further noted that in addition to not establishing changed
country conditions, the supporting documentation contained information about
events that had taken place in December 2005 and May 2006. This information,
the BIA concluded, could have been submitted within the applicable 90-day period
for filing a motion to reopen. Again, the IJ’s decision was issued in January 2005
and the BIA adopted that decision on May 8, 2006. This petition for review
followed.
After the BIA has affirmed an IJ’s order of removal, the alien may move to
have the BIA, in its discretion, reopen the removal proceedings for the submission
of new evidence. See 8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(1). “Motions
to reopen are disfavored, especially in a removal proceeding, where, as a general
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matter, every delay works to the advantage of the deportable alien who wishes
merely to remain in the United States.” Abdi v. U.S. Att’y Gen., 430 F.3d 1148,
1149 (11th Cir. 2005) (quotation marks omitted). A motion to reopen proceedings
shall not be granted unless it appears to the BIA that the evidence sought to be
offered is material and was not available, discoverable, or presentable at the former
hearing. See 8 C.F.R. § 1003.2(c)(1). Even if a petitioner meets this standard and
states a prima facie case for relief, the BIA retains discretion to deny the motion to
reopen. See 8 C.F.R. § 1003.2(a) (“The Board has discretion to deny a motion to
reopen even if the party moving has made out a prima facie case for relief.”).
In addition to the substantive requirements for a successful motion to
reopen, the regulations impose a time limit on the filing of such a motion and
mandate that a petitioner is limited to filing one motion to reopen. Specifically, a
party may file only one motion to reopen a deportation proceeding and that motion
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. 8 C.F.R. §
1003.2(c)(2). The time limit does not apply, however, if the motion to reopen is
based on changed country circumstances. 8 C.F.R. § 1003.2(c)(3)(ii). Moreover,
at any time, the BIA can reopen or reconsider, on its own motion, a case in which it
has rendered a decision. See 8 C.F.R. § 1003.2(a).
Here, we discern no abuse of discretion in the BIA’s denial of petitioners’
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untimely motion to reopen. The motion alleged scant evidence of changed country
circumstances that would warrant an exception to the 90-day time limit. See Abdi,
430 F.3d at 1149. Moreover, the supporting affidavits merely repeated earlier
assertions that the ELN was targeting Sandoval, a former secretary for the
communications committee of a local Liberal Party, and did not constitute material
evidence of changed circumstances in Colombia. See 8 C.F.R. § 1003.2(c)(1).
The only documentation that provided anything new, that is, anything not
previously considered in the original asylum proceedings, was the evidence
concerning Sandoval’s brother’s police complaint and affidavit, in which he stated
that he was attacked in December 2005 by some individuals because he would not
tell them Sandoval’s whereabouts. However, Sandoval provides no explanation
for why she did not inform the BIA of this new information within the 90-day time
limit for filing a motion to reopen. Accordingly, we deny the petition for review.
PETITION DENIED.
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