[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-15458 SEP 01, 2011
JOHN LEY
Non-Argument Calendar CLERK
________________________
Agency No. A098-730-701
ALEJANDRO MENDOZA,
llllllllllllllllllllllllllllllllllllllll Petitioner,
versus
U.S. ATTORNEY GENERAL,
llllllllllllllllllllllllllllllllllllllll Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(September 1, 2011)
Before BARKETT, MARCUS and BLACK, Circuit Judges.
PER CURIAM:
Alejandro Mendoza, through counsel, petitions for review of the Board of
Immigration Appeals’ (BIA) denial of his motion to reopen his asylum
proceedings. The BIA denied Mendoza’s motion as untimely pursuant after
concluding the evidence put forward did not establish changed country conditions.
Mendoza argues the BIA abused its discretion by failing to compare the evidence
of new conditions in Venezuela with those at the time of his removal hearing and
by relying on a prior adverse credibility finding. After review, we deny Mendoza’s
petition.1
An alien generally may file one motion to reopen proceedings within
90 days of the date of the final removal order. 8 U.S.C. § 1229a(c)(7)(C)(i). The
time and numerical limits do not apply, however, if the alien can demonstrate
"changed country conditions arising in the country of nationality or the country to
which removal has been ordered, if such evidence is material and was not
available and would not have been discovered or presented at the previous
proceeding." 8 U.S.C. § 1229a(c)(7)(C)(ii). "An alien who attempts to show that
the evidence is material bears a heavy burden and must present evidence that
1
We review the denial of a motion to reopen removal proceedings for an abuse of
discretion. Zhang v. U.S. Att'y Gen., 572 F.3d 1316, 1319 (11th Cir. 2009). Judicial review "is
limited to determining whether the BIA exercised its discretion in an arbitrary or capricious
manner." Id.
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demonstrates that, if the proceedings were opened, the new evidence would likely
change the result in the case." Jiang v. U.S. Att'y Gen., 568 F.3d 1252, 1256-57
(11th Cir. 2009).
Mendoza has failed to satisfy his heavy burden to establish changed country
conditions. Mendoza’s submissions only show continued country conditions and
do not demonstrate that country conditions based upon political persecution have
worsened. Moreover, the BIA appropriately questioned the reliability of the
submissions and concluded Mendoza failed to show why some of the information
submitted was not obtained and presented at his removal hearing. Finally,
although an adverse credibility determination does not alleviate the BIA’s duty to
consider other evidence, see Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1287 (11th
Cir. 2005), the BIA did not solely rely on the credibility determination as the basis
for its decision. The BIA also weighed the reliability of the newly submitted
evidence and concluded the submissions failed to show, if removed, Mendoza
would face a materially greater risk of harm. The BIA did not abuse its discretion
by denying Mendoza’s motion to reopen.
PETITION DENIED.
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