Mario Enrique Restrepo Namen v. U.S. Atty. Gen.

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
January 17, 2006
No. 05-14348
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

Agency No. A95-885-523

MARIO ENRIQUE RESTREPO NAMEN,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________

(January 17, 2006)

Before CARNES, PRYOR and FAY, Circuit Judges.

PER CURIAM:
 Mario Enrique Restrepo Namen, through counsel, petitions for review of the

Board of Immigration Appeals’ (“BIA’s”) order denying his motion to reconsider

and/or reopen immigration proceedings following the BIA’s affirmance of the

immigration judge’s (“IJ’s”) decision ordering removal and denying Restrepo’s

application for asylum and withholding of removal under the Immigration and

Nationality Act (“INA”), INA §§ 208, 241, 8 U.S.C. §§ 1158, 1231, and for

withholding of removal under the United Nations Convention on Torture and Other

Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”), 8 U.S.C.

§§ 1158, 1241(b)(3), 8 C.F.R. § 208.16(c). Restrepo argues on appeal that the BIA

abused its discretion in denying this motion to reconsider and/or reopen.1 For the

reasons set forth more fully below, we deny Namen’s petition.

On September 16, 2001, Restrepo, a native and citizen of Colombia, was

admitted into the United States with a student visa, pursuant to INA

§ 101(a)(15)(F), 8 U.S.C. § 1101(a)(15)(F), to attend school in Miami Beach,

Florida. On January 7, 2002, Restrepo stopped attending that school. Thus, on

1
To the extent Restrepo’s arguments can be construed as challenging the BIA’s final
order of removal against Restrepo, which issued on March 31, 2005, he failed to file a timely
petition for review from that order; thus, we lack jurisdiction to review it. See 8 U.S.C.
§ 1252(b)(1) (petition for review must be filed within 30 days of the date of the final order of
removal); see also Dakane v. U.S. Att’y Gen., 399 F.3d 1269, 1272 n.3 (11th Cir. 2005)
(explaining that the statutory deadline for filing a petition for review in an immigration
proceeding is “mandatory and jurisdictional,” and that it is not suspended or tolled by the fact
that a petitioner files a timely motion to reopen the removal proceedings).

2
October 7, 2002, the former Immigration and Naturalization Service (“INS”)2

issued a Notice to Appear, charging Restrepo with removability, pursuant to INA

§ 237(a)(1)(C)(i), 8 U.S.C. § 1227(a)(1)(C)(i), as an alien who did not comply with

the conditions of the non-immigrant status under which he was admitted.

During a hearing before the IJ, Restrepo conceded removability as charged.

He, however, filed an application for asylum and withholding of removal under the

INA, and for withholding of removal under the CAT. In this application, he

alleged that he had suffered past persecution and had a well-founded fear of future

persecution and torture on the part of “guerillas,” due to his membership in the

Conservative Political Party.

On November 5, 2003, at an evidentiary hearing on this application, at

which Restrepo was represented by counsel, Restrepo, who was the only witness,

testified that he was 25 years old at the time of the hearing, was single, and had no

children. All of his family, other than a sister who was living in the United States,

still lived in Colombia.3 As a member of the Conservative Political Party in

2
On November 25, 2002, President Bush signed into law the Homeland Security Act of
2002, Pub. L. No. 107-296, 116 Stat. 2135. This legislation created a new Department of
Homeland Security, abolished the INS, and transferred its functions to the new department.
Because this case was initiated while the INS still was in existence, we will refer to the agency
as the INS.
3
Restrepo testified that his father was murdered in 1989, and that he believed that
members of the Revolutionary Armed Forces of Colombia (“FARC”), a guerilla organization,
had been responsible. Restrepo, however, conceded that he “ d[id] not know exactly” who

3
Colombia from 1999 until he came to the United States in September 2001,

Restrepo helped Luiz Umberto Gomez-Gallo, the Senator for the Department of

Tolima, with various campaigns Gomez-Gallo was undertaking. Restrepo’s

participation lasted from 1999 until 2001, and it included two specific campaign

trips in 1999 and 2000.

In October 1999, Restrepo’s mother received a telephone call, during which

a person who identified himself as a FARC guerilla (1) asked for Restrepo, and

(2) told Restrepo’s mother to “shut her son’s mouth up[,] or, if not, there would be

grave consequences.” One month later, in November 1999, a bomb exploded in a

beauty shop that Restrepo was opening, and that was owned by Restrepo’s mother.

Although the police had not determined who set the bomb, Restrepo’s family

believed that it had been the work of FARC guerillas.

Furthermore, Restrepo testified that, in August 2001, at approximately 2:30

a.m., while Restrepo was traveling in a vehicle with a friend from Tolima,

Colombia, to Bogota, Colombia, Restrepo and his friend stopped at a checkpoint

that they learned was being operated by the members of the FARC. These

members removed Restrepo and his friend from the vehicle, placed them in another

vehicle, and drove them for approximately 20 minutes to a hut. When they reached

murdered his father.

4
this hut, the FARC members threatened to kill Restrepo and his friend if they

moved. After waiting for approximately two hours, Restrepo and his friend

realized that no-one else was around the hut. They then walked away from the hut,

towards the road, and they took a taxi to Restrepo’s grandfather’s home in Tolima.

Restrepo explained that he had come to the United States in September

2001, to escape persecution by members of the FARC, and because he feared that

he might be killed. Restrepo also testified on cross-examination that members of

the FARC had caused him mental harm. He, however, stated that he had not

attempted to relocate within Colombia because he assumed that members of the

FARC would find him in any part of Colombia.

In an oral decision, the IJ found Restrepo removable, denied his application

for relief from removal, and ordered him removed to Colombia. In denying

Restrepo relief from removal, the IJ explained that Restrepo was not eligible for

asylum because he had failed to show a causal link between his membership in,

and work with, the Conservative Party and his alleged incidents of past

persecution. The IJ discussed that, although Restrepo believed that members of the

FARC had murdered his father in 1989, this belief was unsubstantiated. The IJ

noted that, even though Restrepo believed that members of the FARC were

responsible for bombing his mother’s beauty salon, he offered no evidence

5
supporting this belief, and his testimony was “inadequate” for the IJ to draw this

connection. Similarly, the IJ explained that the fact that Restrepo was told to “keep

his mouth shut” during his detention in August 2001, did not establish this

necessary link.

The IJ also at least implied that Restrepo’s fear of future persecution was

belied by the fact that Restrepo’s family has continued living in Colombia without

problems. Additionally, the IJ noted that Restrepo had not shown that he could not

relocate within Colombia. Thus, the IJ determined that Restrepo had failed to

show that he was eligible for asylum by establishing either past persecution, or a

well-founded fear of future persecution if he returned to Colombia.4 The IJ also

determined that Restrepo could not meet the higher burden for showing eligibility

for withholding of removal. Finally, the IJ found that Restrepo was not entitled to

CAT relief because he “ha[d] not been tortured by or with the acquiescence of a

public official or a person acting in an official capacity in Colombia[.]”

4
In finding Restrepo ineligible for asylum, the IJ noted that “there is a credibility
question as to whether or not the respondent can be considered a credible witness.” However,
the government has not argued, and we do not conclude, that this statement qualified as an
adverse credibility determination that was determinative. See Yang v. U.S. Att’y Gen., 418 F.3d
1198, 1201 (11th Cir. 2005) (concluding that, although the IJ made a reference to the petitioner’s
claims as a “ridiculous fabrication,” and the IJ stated that the petitioner’s testimony was
“extremely inconsistent and [made] absolutely no sense whatsoever,” these statements did not
clearly show that the IJ disbelieved the petitioner and, thus, did not constitute an adverse
credibility determination that was dispositive on appeal).

6
 On March 31, 2005, after Restrepo appealed the IJ’s decision, the BIA

affirmed the IJ’s decision and dismissed Restrepo’s appeal. The BIA determined

that, as the IJ had found, Restrepo had failed to establish past persecution based on

his political opinion or membership in the Conservative Party. The BIA also noted

that (1) Restrepo had not claimed that he had been harmed, or that he had

attempted to relocate within Colombia, and (2) “[t]here [was] no nexus between

the party membership and the bombing of [Restrepo’s] mother’s beauty salon.”

Restrepo did not file a petition for review of this order. Instead, on April 28,

2005, he filed the instant pleading, which should be construed as a motion to

reconsider and/or reopen the proceedings. In this pleading, Restrepo asserted that

he had (1) “established that he [was] unwilling and unable to return to his native

country [of] Colombia because of actual past persecution to his family on account

of his political opinion and that he ha[d] a well-founded fear of persecution based

on his severe past persecution in his country” (2) “demonstrated that due to his

direct political opinion, his life [was] at risk at the hands of the FARC guerillas in

Colombia”; and (3) established that he could not relocate to another city in

Colombia because members of the FARC are strongly armed. In support of this

last contention, Restrepo also attached a report from the United Nations High

Commissioner for Refugees, which was dated September 2002, and which

7
indicated that relocating within Colombia may not be an alternative available to

avoid persecution. (“2002 U.N. Report”).5

On July 11, 2005, the BIA entered an order denying Restrepo’s motion to

reconsider and/or reopen. In support, the BIA explained that it was “not convinced

that [it had] misinterpreted vital facts in the case or misapplied pertinent law to the

facts.” The BIA noted that Restrepo’s membership in Conservative Party in

Colombia did not, in and of itself, warrant relief from removal to Colombia, and

that Restrepo had failed to show that he could not avoid future persecution by

relocating within Colombia. Furthermore, the BIA discussed that the 2002 U.N.

Report was not “new and material” because (1) it could have been submitted at

Restrepo’s evidentiary hearing, (2) did not directly pertain to Restrepo, and (3) and

did not show that the government would be unable to protect Restrepo throughout

the whole country.

Restrepo generally argues on appeal, without explaining, that the BIA erred

in denying his motion to reopen and/or reconsider because it did not use “its own

independent judgment.” Restrepo also implies that the BIA erred because the 2002

U.N. Report that he wished to introduce if his proceedings were reopened reflected

5
In addition to discussing the “current situation in Colombia,” the 2002 U.N. Report
specifically concluded that “[d]ecision-makers are therefore generally advised not to apply the
notion of internal relocation alternative when assessing international protection claims in relation
to Colombia.”

8
that he could not relocate within Colombia. Restrepo contends that this denial was

in error because he established in front of the IJ (1) past persecution by a group

that the government of Colombia cannot control, (2) that this persecution was on

account of his political opinion, and (3) that he had a well-founded fear of future

persecution. Finally, Restrepo generally argues that the BIA and the IJ failed to

consider “all of the relevant evidence,” and that his life will be “placed at risk” if

he is removed to Colombia.

Within 30 days of the BIA entering its final order of removal, Restrepo was

permitted to seek reconsideration on the ground that the BIA had made a legal or

factual error. See INA § 240(c)(6), 8 U.S.C. § 1229a(c)(6); 8 C.F.R.

§ 1003.2(b)(1). Moreover, within 90 days of the entry of the BIA’s final order of

removal, Restrepo could move the BIA to reopen the removal proceedings for the

submission of new evidence. See INA § 240(c)(7), 8 U.S.C. § 1229a(c)(7); 8

C.F.R. § 1003.2(c)(1). Our review of the BIA’s denial of both of these motions is

for an abuse of discretion. See Assa’ad v. U.S. Att’y Gen., 332 F.3d 1321, 1341

(11th Cir. 2003) (reconsideration); see also Dakane, 399 F.3d at 1272 n.2 (reopen).

“In this particular area, the BIA’s discretion is quite broad.” Gbaya v. U.S.

Att’y Gen., 342 F.3d 1219, 1220 (11th Cir. 2003) (reviewing denial of a motion to

reopen). “Judicial review of denials of discretionary relief incident to [removal]

9
proceedings . . . 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) (internal

quotation omitted). The Supreme Court has explained that these motions are

disfavored, especially in removal proceedings, because, as a general matter, “every

delay works to the advantage of the [removable] alien who wishes merely to

remain in the United States.” I.N.S. v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719,

724-25, 116 L.Ed.2d 823 (1992) (discussing a motion to reopen).

A proper motion for reconsideration “shall specify 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). In the instant case, Restrepo failed to identify in his motion for

reconsideration any specific legal or factual errors on the part of the BIA in

dismissing Restrepo’s appeal of the IJ’s decision. Indeed, Restrepo’s general

arguments in his motion for reconsideration were arguments that he either made, or

should have made, in his initial brief before the BIA.

As discussed above, Restrepo generally argues on appeal that the BIA failed

to use “its own independent judgment.” He, however, has failed to cite to legal

authority or support in the record for this argument. See Zafar v. U.S. Att’y Gen.,

426 F.3d 1330, 1336 (11th Cir. 2005) (rejecting constitutional challenge where

10
petitioners neither cited to legal authority, nor support in the record, for their

challenge). Furthermore, although Restrepo generally is arguing on appeal that the

BIA failed to consider “all of the relevant evidence,” he has failed to identify either

in his motion, or on appeal, what evidence he believes the BIA either ignored or

mis-construed.

To the extent Restrepo generally asserted in his motion for reconsideration

that he established that his alleged past persecution was causally connected with

his participation as a member of the Conservative Party, the BIA correctly stated in

denying this motion that evidence in the record showing that Restrepo participated

as a member of the Conservative Party did not, by itself, establish that his alleged

persecution was causally linked with this participation. See Al Najjar v. Ashcroft,

257 F.3d 1262, 1287 (11th Cir. 2001) (asylum applicant must present “specific,

detailed facts showing a good reason to fear that he will be singled out for

persecution on account of [a protected ground]”) (emphasis in original). Indeed,

even if Restrepo had established that he could not relocate within Colombia, he

could not establish eligibility for either asylum or withholding of removal without

showing a causal connection with a protected ground. See Sepulveda v. U.S. Att’y

Gen., 401 F.3d 1226, 1232 n.7 (11th Cir. 2005) (affirming the IJ’s denial of asylum

despite evidence in the relevant country reports that guerillas exercised an

11
influence throughout Colombia because the petitioner had failed to establish that

she would be singled out for persecution on account of a protected ground). Thus,

Restrepo did not specify, or even generally identify, any “errors of fact or law” in

the BIA’s prior decision dismissing Restrepo’s appeal from the IJ’s decision. See

8 C.F.R. § 1003.2(b)(1).

Finally, to the extent Restrepo was moving to reopen the proceedings, the

regulations provide that such a motion “shall not be granted unless it appears to the

[BIA] that evidence sought to be offered is material and was not available and

could not have been discovered or presented at the former hearing.” See 8 C.F.R.

§ 1003.2(c)(1). Restrepo failed to cite to evidence in his motion that he could not

have presented during his counseled evidentiary hearing. Assuming that the 2002

U.N. Report that Restrepo attached to his motion was material, this evidence was

in existence in November 2003, when the IJ conducted Restrepo’s evidentiary

hearing.6 Moreover, as the applicant, Restrepo carried the burden during this

evidentiary hearing of proving his eligibility for relief from removal. See 8 C.F.R.

§ 208.13(a) (asylum); 8 C.F.R. § 208.16(b), (c)(2) (withholding of removal under

6
In comparison, we recently determined in Balogun v. U.S. Att’y Gen., 425 F.3d 1356
(11th Cir. 2005), that a petitioner presented new evidence that was not available at his former
hearing by producing proof that, six days after the BIA issued its final order of removal, the
State of Alabama had granted him an unconditional pardon for convictions that had rendered
him inadmissible. See id. at 1362. Nevertheless, we denied his petition for review because,
under the applicable statute, the issue of whether he had been pardoned was not material to
whether he was inadmissible. See id. at 1362-63.

12
the INA and withholding of removal under the CAT). Thus, Restrepo failed to

show that this evidence was “not available and could not have been discovered or

presented” at the time of his asylum hearing. See 8 C.F.R. § 1003.2(c)(1).

Accordingly, we conclude that the BIA did not abuse its discretion in

denying Restrepo’s motion, either to the extent he was seeking reconsideration or

reopening of the removal proceedings. We, therefore, deny Restrepo’s petition for

review.

PETITION DENIED.

13