USCA11 Case: 21-13431 Date Filed: 08/02/2022 Page: 1 of 7
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13431
Non-Argument Calendar
____________________
EDWIN ROBERTO GIRON-VILLATORO,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A094-270-497
____________________
USCA11 Case: 21-13431 Date Filed: 08/02/2022 Page: 2 of 7
2 Opinion of the Court 21-13431
Before WILSON, ANDERSON, and EDMONDSON, Circuit
Judges.
PER CURIAM:
Edwin Giron-Villatoro (“Petitioner”), a native and citizen of
Honduras, petitions for review of the order of the Board of Immi-
gration Appeals (“BIA”) denying Petitioner’s motion to reopen his
removal proceedings. Petitioner sought reopening based on
newly-available evidence for his application for relief under the
Convention Against Torture (“CAT”). No reversible error has
been shown; we dismiss in part and deny in part the petition.
Petitioner entered the United States in 1990 as a non-immi-
grant visitor for pleasure. Petitioner later became a lawful perma-
nent resident in 2008. In 2017, Petitioner was convicted of conspir-
acy to distribute 5 kilograms of cocaine, in violation of 21 U.S.C. §
846. In the light of Petitioner’s 2017 conviction, the Department of
Homeland Security charged Petitioner as removable for having
been convicted of an aggravated felony. Petitioner conceded re-
movability.
In March 2020, Petitioner applied for deferral of removal un-
der CAT. Briefly stated, Petitioner said he feared that, if returned
to Honduras, he would be tortured by gang members with the ac-
quiescence of the Honduran government. Petitioner returned to
Honduras only one time after first arriving in the United States in
1990. During that three-day visit in 2009, Petitioner says he was
USCA11 Case: 21-13431 Date Filed: 08/02/2022 Page: 3 of 7
21-13431 Opinion of the Court 3
“harassed,” “interrogated,” and “followed” by people he later
learned were members of the MS-13 gang. Petitioner says he was
targeted by the gang members because he was from the United
States and was, thus, perceived as wealthy. Petitioner never re-
ported the 2009 incident to the Honduran police because he said
the police “work together” with the criminal organizations. Peti-
tioner also said his cousin was killed by gang members after his
cousin was deported to Honduras in 2013.
In support of his application for relief, Petitioner submitted
a declaration from a purported expert on Honduras (Dr. Vanden).
During his removal hearing, Petitioner sought to have Dr. Vanden
testify by telephone about the country conditions in Honduras. Dr.
Vanden, however, failed to answer his phone when called twice by
the Immigration Judge (“IJ”) and once by Petitioner. After attempt-
ing to reach Dr. Vanden for half an hour, the IJ directed the parties
to begin closing arguments. When Dr. Vanden later returned Pe-
titioner’s call, the IJ denied Petitioner’s request to have Dr. Vanden
testify. The IJ explained that several unsuccessful efforts had al-
ready been made to contact Dr. Vanden, that the evidence had
since closed, and that closing arguments had already begun.
The IJ denied Petitioner’s application for relief. The IJ deter-
mined that Petitioner had shown no past physical harm. The IJ also
determined that the mere prevalence of human rights violations in
Honduras was insufficient to show that Petitioner himself would
more-likely-than-not be subjected to torture if returned to Hondu-
ras. The IJ concluded further that Petitioner had failed to show that
USCA11 Case: 21-13431 Date Filed: 08/02/2022 Page: 4 of 7
4 Opinion of the Court 21-13431
such torture would be committed by or with the acquiescence of
the Honduran government.
Petitioner moved for reconsideration, arguing chiefly that
the IJ’s refusal to allow Dr. Vanden to testify constituted a due pro-
cess violation. The IJ denied reconsideration.
Petitioner appealed administratively to the BIA. In Novem-
ber 2020, the BIA affirmed the IJ’s decision. Petitioner sought no
review of the BIA’s denial of relief.
In December 2020, Petitioner moved to reopen his removal
proceedings based on newly-available evidence. Petitioner said
that -- while his administrative appeal was pending before the BIA
-- the Federal Bureau of Investigation (“FBI”) contacted Petitioner
for assistance with an ongoing drug-trafficking investigation. In his
motion, Petitioner provided no details about his involvement or
about the nature of the investigation. Petitioner’s lawyer said only
that she was not yet “authorized to provide these materials,” and
that “the availability of these materials will be addressed in reopen
proceedings.” Petitioner’s lawyer said that evidence about the FBI
investigation was material to Petitioner’s CAT claim because the
gangs in Honduras would now target Petitioner for cooperating
with the FBI. Petitioner asserted that it would be “worthwhile to
develop the issue further in a full evidentiary hearing.”
In September 2021, the BIA denied Petitioner’s motion to
reopen. The BIA concluded that no reopening was warranted be-
cause Petitioner had “failed to submit any new evidence to show
USCA11 Case: 21-13431 Date Filed: 08/02/2022 Page: 5 of 7
21-13431 Opinion of the Court 5
that the outcome of this case would likely be different if proceed-
ings were reopened.” This appeal followed.
We review the BIA’s denial of a motion to reopen for abuse
of discretion. See Jiang v. U.S. Att’y Gen., 568 F.3d 1252, 1256 (11th
Cir. 2009). “Our review is limited to determining whether the BIA
exercised its discretion in an arbitrary or capricious manner.” Id.
“Motions to reopen in removal proceedings are particularly disfa-
vored.” Id.
A motion to reopen immigration proceedings “shall state
the new facts that will be proven at a hearing to be held if the mo-
tion is granted, and shall be supported by affidavits or other eviden-
tiary material.” 8 U.S.C. § 1229a(c)(7)(B); 8 C.F.R. § 1003.2(c)(1).
The BIA “may grant a motion to reopen only if, among other
things, the ‘evidence sought to be offered is material.’” Dos Santos
v. U.S. Att’y Gen., 982 F.3d 1315, 1323 (11th Cir. 2020) (citing 8
C.F.R. § 1003.2(c)(1)). An applicant “who attempts to show that
the evidence is material bears a heavy burden and must present ev-
idence that demonstrates that, if the proceedings were opened, the
new evidence would likely change the result in the case.” Jiang,
568 F.3d at 1256-57.
The BIA abused no discretion in denying Petitioner’s mo-
tion to reopen. Contrary to Petitioner’s assertion, the BIA summa-
rized properly the “evidence” presented by Petitioner in his mo-
tion: statements by Petitioner’s lawyer that the FBI had contacted
Petitioner for information about an ongoing investigation and that
materials related to the investigation would be submitted in the
USCA11 Case: 21-13431 Date Filed: 08/02/2022 Page: 6 of 7
6 Opinion of the Court 21-13431
reopened proceedings. Although Petitioner’s motion indicated
that new potential evidence might exist, Petitioner provided no
new facts and offered no affidavits or other evidentiary material in
support of his motion. The broad assertions made by Petitioner’s
lawyer that further details about the FBI investigation would be-
come available at some unidentified future date and would be
more fully developed at an evidentiary hearing fail to satisfy the
evidentiary requirements governing motions to reopen. See 8
U.S.C. § 1229a(c)(7)(B); 8 C.F.R. § 1003.2(c)(1). Petitioner also as-
serts generally (with no supporting affidavit or other evidence) that
his cooperation with the FBI would make it more likely that he
would be targeted by Honduran gangs. Even if Petitioner’s asser-
tion might be true, that assertion constitutes no evidence demon-
strating that Petitioner more-likely-than-not would be subjected to
harm constituting torture or that such torture would be committed
by, or with the acquiescence of, the Honduran government. Peti-
tioner has thus failed to satisfy the “heavy burden” of presenting
new evidence that would likely change the outcome of his removal
proceedings. Accordingly, we deny Petitioner’s petition for review
on this issue.
Petitioner also seeks to challenge the IJ’s refusal to allow Dr.
Vanden to testify during Petitioner’s removal hearing. Petitioner,
however, never petitioned for review of the BIA’s November 2020
order affirming the IJ’s denial of CAT relief. And the petition for
review underlying this appeal -- filed in October 2021 -- was filed
long after the deadline for seeking review of the November 2020
USCA11 Case: 21-13431 Date Filed: 08/02/2022 Page: 7 of 7
21-13431 Opinion of the Court 7
decision had expired. See 8 U.S.C. § 1252(b)(1) (providing that a
petition for review of an order of removal must be filed within “30
days after the date of the final order of removal”). We thus lack
jurisdiction to consider Petitioner’s challenge to his original re-
moval proceedings; we dismiss the petition on that issue. See Da-
kane v. U.S. Att’y Gen., 399 F.3d 1269, 1272 n.3 (11th Cir. 2005)
(“[T]he statutory limit for filing a petition for review in an immi-
gration proceeding is ‘mandatory and jurisdictional,’ [and] is not
subject to equitable tolling.” (citing Stone v. I.N.S., 514 U.S. 386,
405 (1995))).
PETITION DISMISSED IN PART AND DENIED IN
PART.