[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCTOBER 3, 2007
No. 06-16633 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
BIA No. A95-895-628
FELIPE RAMIREZ RODRIGUEZ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(October 3, 2007)
Before ANDERSON, DUBINA and CARNES, Circuit Judges.
PER CURIAM:
Felipe Ramirez Rodriguez, a native and citizen of Colombia, appeals the
Board of Immigration Appeals’s (BIA) denial of his motion to reopen his removal
proceedings to consider new evidence.1
Rodriguez applied for withholding of removal under the Immigration and
Nationality Act (INA) and for relief under the United Nations Convention Against
Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT).2
Rodriguez alleged in his application that he had been or would be persecuted on
account of his membership in a particular social group and on account of his
political opinion.3 Specifically, Rodriguez alleged the following. He belonged to
Colombia’s “elite, most wealthy, business owning class” and was a member of the
1
On appeal, Rodriguez attempts to argue that the BIA’s underlying denial of relief was
erroneous. However, we lack jurisdiction to review the BIA’s August 23, 2006, denial of relief,
because Rodriguez’s instant petition for review—filed on December 26, 2006—was untimely as
to that order. See 8 U.S.C. § 1252(a)(1) and (b)(1) (stating that a petitioner has 30 days from the
date of the final order of removal to file his petition for review of that order); see also Dakane v.
U.S. Att’y Gen., 371 F.3d 771, 773 n.3 (11th Cir. 2004) (holding that §1252’s 30-day deadline is
“mandatory and jurisdictional” and “is not suspended or tolled by” the filing of a motion to
reopen).
2
Rodriguez also applied for asylum under the INA. The Immigration Judge and the BIA,
however, concluded that Rodriguez’s asylum application was untimely and, therefore,
pretermitted. On appeal, Rodriguez concedes that his asylum application was untimely.
Moreover, Rodriguez did not submit any evidence concerning his untimeliness along with his
motion to reopen. Accordingly, we limit our review to Rodriguez’s requests for withholding of
removal and CAT relief.
3
The government argues on appeal that Rodriguez did not apply for CAT relief before
the IJ or BIA and, therefore, has not exhausted his administrative remedies. The record
demonstrates, however, that the IJ interpreted Rodriguez’s application as one requesting asylum,
withholding of removal, and CAT relief.
2
Liberal Party of Colombia. The Revolutionary Armed Forces of Colombia
(FARC) briefly kidnapped and tried to recruit him, in an effort to force him to
gather and provide information on other wealthy citizens. Rodriguez refused to
cooperate and ultimately fled to the United States. The FARC interpreted his
refusal as political opposition. As a result, Rodriguez and his family received daily
threatening telephone calls, and the FARC attempted to kill Rodriguez. These
events occurred between 1995 and 1997.
In 2002, Rodriguez submitted an application for removal to the former
Immigration and Naturalization Service (INS).4 The IJ denied Rodriguez’s
application, concluding that Rodriguez had not demonstrated a likelihood of future
persecution on account of a statutorily enumerated ground or a likelihood of future
torture. In August 2006, the BIA adopted and affirmed the IJ’s decision denying
Rodriguez’s removal application. The BIA also determined that Rodriguez had not
demonstrated that the FARC “[had] a current interest in [him].” Rodriguez did not
seek judicial review of the BIA’s decision affirming the IJ’s denial.
Rodriguez instead moved the BIA in October 2006 to reopen his removal
proceedings. Rodriguez argued that his removal proceedings should be reopened
because he had produced new evidence and new facts to support the allegations in
4
The INS disbanded on March 1, 2003, and its functions were transferred to the
Department of Homeland Security.
3
his application. Specifically, he said that certain close family members had fled
Colombia on account of “the same persecution” suffered by Rodriguez and had
obtained asylum in the United States on account of “the same or comparable set of
facts” alleged by Rodriguez. In conjunction with his motion to reopen the
proceedings, Rodriguez also submitted a letter from his father asserting that his
father had received threatening telephone calls in July and August 2006 from
people who identified themselves as members of the FARC, asked the whereabouts
of Rodriguez, and warned that Rodriguez would be killed for deserting Colombia.
The BIA denied Rodriguez’s motion to reopen the proceedings. According
to the BIA, Rodriguez was unable to show that the relief afforded to his family
members (their grant of asylum) was a fact that was previously unavailable or was
a fact that was material to his application for relief. Moreover, Rodriguez had not
shown that his father’s letter would have altered the outcome of the removal
proceedings.
We review the denial of a motion to reopen for an abuse of discretion. Anin
v. Reno, 188 F.3d 1273, 1276 (11th Cir. 1999). 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.” Garcia-Mir v.
Smith, 766 F.2d 1478, 1490 (11th Cir. 1985) (quotation omitted).
4
An alien may move the BIA to reopen a prior removal order based on new
evidence. See 8 C.F.R. § 1003.2(a) and (c)(1); see also 8 U.S.C.
§ 1229a(c)(7)(C)(ii); INA § 240(c)(7)(C)(ii). In his motion to reopen, the alien
“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 C.F.R. § 1003.2(c)(1). The BIA may grant the alien’s motion if the proposed
new evidence “is material and was not available and could not have been
discovered or presented at the former hearing.” Id. An alien who attempts to show
that evidence is material “bears a ‘heavy burden,’ and must ‘present[] evidence of
such a nature that the [BIA] is satisfied that if proceedings before the [IJ] were
reopened, with all attendant delays, the new evidence offered would likely change
the result in the case.’” Ali v. U.S. Att’y Gen., 443 F.3d 804, 813 (11th Cir. 2006)
(holding that the BIA did not err in putting the burden of proof to demonstrate
grounds for granting a motion to reopen on the alien).
To be eligible for withholding of removal, an alien must show that it is
“more likely than not” that his life or freedom would be threatened on account of a
protected ground if he returned to his country. Tan v. U.S. Att’y Gen., 446 F.3d
1369, 1375 (11th Cir. 2006) (citing 8 U.S.C. § 1231(b)(3)(A)).
The two protected grounds implicated in Rodriguez’s application for
removal of withholding are (1) membership in a particular social group and
5
(2) political opinion. Regarding the first protected ground, members of a particular
social group are limited to those persons who “share a common, immutable
characteristic,” or one “that the members of the group either cannot change, or
should not be required to change because it is fundamental to their individual
identities or consciences.” Matter of Acosta, 19 I & N Dec. 211, 233 (BIA 1985),
overruled on other grounds by Matter of Mogharrabi, 19 I & N Dec. 439 (BIA
1987); see also Castillo-Arias v. U.S. Att’y Gen., 446 F.3d 1190, 1196 (11th Cir.
2006), cert. denied, 127 S.Ct. 977 (2007) (holding that we will defer to the BIA’s
definition of this ground).
Regarding the second protected ground, the Supreme Court has held that the
alleged persecution must be on account of the “victim’s political opinion, not the
persecutor’s.” I.N.S. v. Elias-Zacarias, 502 U.S. 478, 482-83, 112 S.Ct. 812, 816,
117 L.Ed.2d 38 (1992). With respect to alleged persecution by guerillas based on
an alien’s political opinion, we have held that “[i]t is not enough to show that [the
alien] was or will be persecuted or tortured due to her refusal to cooperate with the
guerillas.” Sanchez v. U.S. Att’y Gen., 392 F.3d 434, 438 (11th Cir. 2004).
Rather, the alien must show that the FARC persecuted the alien while knowing that
the alien’s refusal to cooperate was because of the alien’s political beliefs, rather
than mere fear, etc. See Rivera v. U.S. Att’y Gen., 487 F.3d 815, 822 (11th Cir.
2007).
6
To be eligible for CAT relief, the alien must establish that it is more likely
than not that he would be tortured if returned to his country. 8 C.F.R.
§ 208.16(c)(2); Reyes-Sanchez v. U.S. Att’y Gen., 369 F.3d 1239, 1242 (11th Cir.
2004). The CAT defines “torture” as:
any act by which severe pain or suffering, whether physical or mental,
is intentionally inflicted on a person for such purposes as obtaining
from him or a third person information or a confession, punishing him
or her for an act he or she or a third person has committed or is
suspected of having committed, or intimidating or coercing him or her
or a third person, or for any reason based on discrimination of any
kind, when such pain or suffering is inflicted by or at the instigation of
or with the consent or acquiescence of a public official or other person
acting in an official capacity.
8 C.F.R. § 208.18(a)(1). The alien need not show, however, that the torture was on
account of a protected ground. See id.
After carefully reviewing the record, we hold that the BIA did not abuse its
discretion in denying Rodriguez’s motion to reopen. See Anin, 188 F.3d at 1276.
Rodriguez failed to demonstrate that any of the evidence offered in support of his
motion was material to his request for withholding of removal or for CAT relief.
See 8 C.F.R. § 1003.2(c)(1). Specifically, Rodriguez did not explain the specific
grounds of his family members’ applications for relief or the IJ’s or BIA’s
reasoning in granting these applications, such that this evidence sheds no light on
the instant proceedings. See Tan, 446 F.3d at 1375. Also, although Rodriguez’s
father’s letter showed that the FARC maintained a then-current interest in
7
Rodriguez, it did not show that the FARC’s interest had anything to do with a
protected ground or that any member of the Colombian government instigated or
consented to the FARC’s actions. See 8 C.F.R. § 208.18(a)(1); Tan, 446 F.3d at
1375.
Accordingly, because Rodriguez failed to provide any evidence that “would
likely change the result in the case,” the BIA did not arbitrarily or capriciously
deny the motion, but rather had no grounds on which to grant the motion. See Ali,
443 F.3d at 813; Garcia-Mir, 766 F.2d at 1490. Therefore, we deny Rodriguez’s
petition for review.
PETITION DENIED.
8