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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-10658
Non-Argument Calendar
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Agency No. A079-442-966
LILLIAM DE JESUS LARIOS-GARCIA,
llllllllllllllllllllllllllllllllllllllll Petitioner,
versus
U.S. ATTORNEY GENERAL,
llllllllllllllllllllllllllllllllllllllll Respondent.
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Petition for Review of a Decision of the
Board of Immigration Appeals
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(September 25, 2012)
Before CARNES, WILSON and ANDERSON, Circuit Judges.
PER CURIAM:
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Lilliam De Jesus Larios-Garcia, a citizen of Colombia, seeks review of the
Board of Immigration Appeals’s (“BIA”) decision denying her motion to
reconsider its prior decision not to reopen her removal proceedings. The BIA
denied Larios-Garcia’s motion as both a motion to reconsider and as an untimely,
numerically-barred second motion to reopen. In denying her motion as a motion
to reconsider, the BIA found that she had not identified any error of fact or law in
its prior decision. In denying her motion as a second motion to reopen, the BIA
determined that Larios-Garcia failed to provide sufficient evidence establishing a
change in country conditions in Colombia, as needed to excuse the time and
number limitations.
Larios-Garcia raises several arguments in support of her petition. First, she
argues that the BIA abused its discretion by denying her motion, because evidence
of her family members’ murders in Colombia, several news articles describing
those murders, and the Department of State’s 2010 Human Rights Report for
Colombia, clearly demonstrate an escalation of attacks against her family,
tantamount to changed country conditions. She further asserts that she established
a fear of persecution based on her membership in a particular social group,
specifically, siblings who are being exterminated by FARC guerrillas for a debt
owed to them. Second, Larios-Garcia argues that the BIA erred by failing to
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consider whether she was eligible for humanitarian asylum, and she requests us to
remand to the BIA so that it may make that determination. For the following
reasons, we deny her petition.
I.
We review “the BIA’s denial of a motion to reconsider for abuse of
discretion.” Montano Cisneros v. U.S. Att’y Gen., 514 F.3d 1224, 1226 (11th Cir.
2008). Under the abuse-of-discretion standard, 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.” Id. (quotation
omitted).
“A motion to reconsider shall state the reasons for the motion by specifying
the errors of fact or law in the prior [BIA] decision and shall be supported by
pertinent authority.” 8 C.F.R. § 1003.2(b)(1); see also INA § 240(c)(6)(C), 8
U.S.C. § 1229a(c)(6)(C). A motion to reconsider that merely restates arguments
that the BIA previously rejected provides no reason for the BIA to change its prior
decision. Calle v. U.S. Att’y Gen., 504 F.3d 1324, 1329 (11th Cir. 2007).
“Therefore, merely reiterating arguments previously presented to the BIA does not
constitute ‘specifying . . . errors of fact or law’ as required for a successful motion
to reconsider.” Id. (quoting 8 C.F.R. §1003.2(b)(1)).
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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 there has been an
exercise of administrative discretion and whether the matter of exercise has been
arbitrary or capricious.” Id. Motions to reopen are especially disfavored in
removal proceedings, “where, as a general matter, every delay works to the
advantage of the deportable alien who wishes merely to remain in the United
States.” Ali v. U.S. Att’y Gen., 443 F.3d 804, 808 (11th Cir. 2006) (quotation
omitted).
An alien who is subject to an in absentia order of removal and wishes to
have the order rescinded may file only one motion to reopen. 8 C.F.R.
§ 1003.23(b)(4)(ii). The motion to reopen must either: (1) be filed within 180
days after the date of the order of removal and demonstrate that the failure to
appear was because of exceptional circumstances beyond the alien’s control; or
(2) be filed at any time and demonstrate that the alien did not receive notice of
removal proceedings. See id. Nevertheless, these requirements are inapplicable 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
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the previous proceeding.” INA § 240(c)(7)(C)(ii), 8 U.S.C. § 1229a(c)(7)(C)(ii);
8 C.F.R. § 1003.2(c)(3)(ii). An alien cannot circumvent the requirement to show
changed country conditions by demonstrating only a change in personal
circumstances. Zhang v. Att’y Gen., 572 F.3d 1316, 1319 (11th Cir. 2009).
Additionally, the evidence in a motion to reopen must set forth a prima facie
case for asylum or withholding removal. Li v. U.S. Att’y Gen., 488 F.3d 1371,
1374-75 (11th Cir. 2007) (observing that the BIA may deny a motion for failure to
present a prima facie case). To successfully prove eligibility for asylum, “the
applicant must establish that race, religion, nationality, membership in a particular
social group, or political opinion was or will be at least one central reason for
persecuting the applicant.” INA § 208(b)(1)(B)(I); 8 U.S.C. § 1158(b)(1)(B)(I).
Here, the BIA did not abuse its discretion by denying Larios-Garcia’s
motion, construed as a motion to reconsider its prior decision denying her motion
to reopen, because she failed to identify any specific error of fact or law in that
prior decision. 8 C.F.R. § 1003.2(b)(1); see also 8 U.S.C. § 1229a(c)(6)(C).
In addition, the BIA did not abuse its discretion by denying her motion,
construed as a motion to reopen, because she failed to establish material, changed
circumstances in country conditions that excuse the time and number-bar. INA
§ 240(c)(7)(C)(ii), 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii).
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First, the 2010 Human Rights Report for Colombia demonstrated that conditions
in the country have not gotten worse. In addition, although Larios-Garcia argues
that the recent murders of her brother and sister-in-law demonstrate escalating,
material violence by guerrillas in Colombia, and that all of her siblings’ murders
were related to a debt owed to FARC guerrillas, the record does not support those
assertions. Rather, the record indicates that although her brother and sister-in-
law’s deaths were related to payment of a debt, there is no evidence that the debt
was owed to FARC, other guerrilla forces, or any type of cartel. In addition,
Larios-Garcia failed to explain why she previously asserted that her two oldest
brothers were killed because they refused to join the guerrilla forces, but now, she
believes that they were murdered because of a debt owed to a cartel. At most,
Larios-Garcia has established only a change in personal circumstances, which is
insufficient to show a change in country conditions.
II.
We review our own subject matter jurisdiction de novo. Amaya-Artunduaga
v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006). We may not review a
final order of removal unless “the alien has exhausted all administrative remedies
available to the alien as of right.” INA § 242(d)(1), 8 U.S.C. § 1252(d)(1). Thus,
we lack jurisdiction to review claims that the petitioner failed to raise before the
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BIA, regardless of whether the BIA addressed them sua sponte.
Amaya-Artunduaga, 463 F.3d at 1250-51. In order to properly raise a claim before
the BIA, the petitioner must mention the issue in her brief and must discuss its
merits, or at least contest the basis for the IJ’s decision. See Alim v. Gonzales, 446
F.3d 1239, 1253 (11th Cir. 2006).
Within broad limits, the law entrusts the BIA to make basic asylum
decisions, and appellate courts should not make asylum decisions on their own,
absent a determination by the BIA. See I.N.S. v. Orlando Ventura, 537 U.S. 12,
16, 123 S.Ct. 353, 355, 154 L.Ed.2d 272 (2002). In Orlando Ventura, the
Supreme Court held that the Ninth Circuit erred by considering an asylum issue de
novo, rather than remanding the issue to the BIA for additional fact-finding and
explanation. Id. at 17, 123 S.Ct. at 256. In such circumstances, an appellate court
should follow the “ordinary ‘remand’ rule” and “remand to the agency for
additional investigation or explanation.” Id. at 16-18, 123 S.Ct. at 355-56 (citation
omitted). In Orlando Ventura and later cases, however, this rule has been applied
only when the BIA failed to consider an issue that was properly presented to it.
See, e.g., Calle, 504 F.3d 1329-30.
Here, even though Larios-Garcia quoted the standard for humanitarian relief
in her appeal to the BIA, she did not discuss it further. Thus, she did not exhaust
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her humanitarian-asylum claim before the BIA, and we lack jurisdiction to
consider it. Amaya-Artunduaga, 463 F.3d at 1250-51. Furthermore, because
Larios-Garcia did not sufficiently raise the issue to the BIA, the agency did not
abuse its discretion by not addressing it, and this Court need not remand the case
under the “ordinary remand rule.” See Calle, 504 F.3d at 1329.
In any event, even if Larios-Garcia did sufficiently raise her humanitarian-
asylum claim, the BIA did not abuse its discretion by not addressing it. As
discussed above, the BIA properly determined that her motion to reopen removal
proceedings was time- and number-barred, and that she did not establish changed
country conditions sufficient to excuse those limitations. As such, the time- and
number-bar prevented the BIA from addressing her humanitarian-asylum claim.
Upon review of the record and consideration of the parties’ briefs, we deny
the petition.
PETITION DENIED.
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