Clara Ines Sanchez-Ayala v. U.S. Attorney General , 214 F. App'x 944 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
January 22, 2007
No. 06-13657 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
BIA Nos.
A95-264-423 & A95-264-424
CLARA INES SANCHEZ-AYALA,
JAMES CASTRO,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(January 22, 2007)
Before WILSON, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:
Clara Ines Sanchez-Ayala and her husband, James Castro, petition this court
for review of the Board of Immigration Appeals’s (“BIA”) decision denying their
motion to reopen the BIA’s affirmance of the Immigration Judge’s (“IJ”) order of
removal. Sanchez-Ayala also argues that she established her prima facie eligibility
for relief from removal. Because we conclude that we lack jurisdiction to review
the merits of the asylum and withholding claims, we dismiss the petition in part.
Because the BIA did not abuse its discretion in denying Sanchez-Ayala’s motion to
reopen, we deny the petition as to the motion to reopen.
I. Background
Sanchez-Ayala and her husband James Castro, Colombian citizens, were
admitted to the United States on non-immigrant visas and remained beyond the
expiration period. The INS issued notices to appear, charging them with
removability. Sanchez-Ayala submitted an application for asylum on behalf of
herself and Castro, stating that she sought asylum because she feared persecution
from Revolutionary Armed Forces of Colombia (“FARC”) based on her political
opinion and membership in the Liberal Party. She further alleged that FARC twice
had sent search parties to find her and that relocation was not an option. She later
supplemented her application with an article showing that her supervisor had been
killed by an unidentified party.
At the removal hearing, Sanchez-Ayala conceded removability and both she
and her husband testified to the threats and persecution they allegedly suffered, as a
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result of Sanchez-Ayala’s work with the Social Advance Foundation and her
participation in the Liberal Party, and Castro’s work with the National Advanced
Movement. Sanchez-Ayala testified to threatening phone calls she had received
and warnings to leave the area. Castro testified to similar threats, although he
admitted that he had not told his wife about the threats because he did not want to
frighten her.
The government submitted the 2001 State Department Country Reports
acknowledging FARC’s presence throughout the country and its frequent attacks
on civilians, teachers, and female political leaders. The IJ concluded that it was
unlikely Sanchez-Ayala would have continued her work after receiving threats and
that it was unbelievable that Castro would have found the threats serious enough to
force him to leave the country and yet not tell his wife about them. Accordingly,
the IJ found the testimonies lacked credibility, and that the two were not entitled to
relief from removal. Sanchez-Ayala appealed to the BIA, and on February 7,
2006, the BIA dismissed the appeal.
On May 2, 2006, Sanchez-Ayala filed a motion to reopen arguing that she
recently received previously unavailable documents from Colombia proving she
and Castro would be killed if they returned to Colombia. She attached the
following evidence: (1) a April 15, 2006, letter from a friend stating that Colombia
remained unstable and it was not safe for them to return because of possible
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persecution, (2) a March 18, 2006, letter from a psychologist who treated Sanchez-
Ayala for post-traumatic stress, stating that Sanchez-Ayala should avoid returning
to Colombia, (3) a March 16, 2006, letter from Sanchez-Ayala’s cousin stating that
groups had attacked farmers and invaded a town named Cordoba, (4) a September
2002 certificate detailing Sanchez-Ayala’s work with human rights of indigenous
communities, and Castro’s work to educate people in religious programs, and (5) a
letter from the Liberal Party certifying Sanchez-Ayala’s and Castro’s party
membership and advising them to stay out of Colombia because party members
were in danger.
The BIA denied Sanchez-Ayala’s motion stating that the evidence she
submitted was not likely to change the result in her case because the letters dated
March 16 and 18 and April 15 did not present any new facts that were material to
Sanchez-Ayala’s application for relief, and the party letter, which was available at
the time of the hearing, did not discuss specific threats. Sanchez-Ayala now
petitions this court for review.
II. The Petition for Review
1. Jurisdiction
We review subject matter jurisdiction de novo. Ortega v. Att’y Gen., 416
F.3d 1348, 1350 (11th Cir. 2005). A petition for judicial review of a BIA order
must be filed no later than 30 days after the date of the final order of removal. 8
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U.S.C. § 1252(b)(1). Time limits for judicial review are mandatory and
jurisdictional and are not tolled by the filing of a motion to reopen. Dakane v. U.S.
Atty. Gen., 399 F.3d 1269, 1272 n. 3 (11th Cir. 2005) (citation omitted).
Sanchez-Ayala’s arguments that she was credible and entitled to relief from
removal are barred by her failure to file a timely petition for review of those
claims. The BIA dismissed her appeal on February 7, 2006, but Sanchez-Ayala did
not petition this court for review until June 30, 2006. Thus, this petition for review
was untimely as to her claims for relief from removal. 8 U.S.C. § 1252(b)(1).
Moreover, Sanchez-Ayala’s motion to reopen did not toll the time limit for her to
file a petition for review of those claims. Dakane, 399 F.3d at 1272 n. 3.
Therefore, our review is limited to the June 5, 2006, order denying the motion to
reopen.
2. Motion to Reopen
Sanchez-Ayala asks this court to take judicial notice of a 2005 State
Department Country Report on Colombia attached to her brief. She asserts that the
party letter and Country Report provide evidence of her prima facie eligibility for
relief and require that her claims be reopened.
We review the BIA’s denial of a motion to reopen for abuse of discretion.
Mejia Rodriguez v. Reno, 178 F.3d 1139, 1145 (11th Cir. 1999). Motions to
reopen are disfavored in removal proceedings because “as a general matter, every
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delay works to the advantage of the deportable alien who wishes merely to remain
in the United States.” INS v. Doherty, 502 U.S. 314, 323, 112, S.Ct. 719, 116
L.Ed.2d 823 (1992). An applicant seeking to reopen proceedings bears a heavy
burden. Al Najjar v. Ashcroft, 257 F.3d 1262, 1302-03 (11th Cir. 2001).
The regulations provide that a motion to reopen “shall not be granted unless
it appears to the Board that evidence sought to be offered is material and was not
available and could not have been discovered or presented at the former hearing. 8
C.F.R. § 1003.2(c). The BIA may deny a motion to reopen if: (1) the movant did
not establish a prima facie case for the underlying substantive relief; (2) the
movant did not introduce previously unavailable material evidence; and (3) the
movant, despite being eligible, is not entitled to the discretionary grant of relief.
Al Najjar, 257 F.3d at 1302.
The BIA did not abuse its discretion in denying Sanchez-Ayala’s motion to
reopen. As an initial matter, we cannot consider the 2005 Country Report because
it was not previously considered by the BIA. See Ruiz v. U.S. Att’y Gen., 440
F.3d 1247, 1255 (11th Cir. 2006) (quotations and citation omitted). Moreover, in
her appellate brief, Sanchez-Ayala only refers to the party letter as evidence in
support of her motion to reopen. Thus, she has abandoned all arguments related to
the other evidence she presented in her motion to reopen. Sepulveda v. U.S. Att’y
Gen, 401 F.3d 1226, 1228 n.2 (11th Cir. 2005).
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The letter, however, was dated before the removal hearing and did not
present any new information that was unavailable at the time of the hearing. The
record contained a copy of the Country Reports indicating FARC’s country-wide
activities. Moreover, the letter only made references to general threats to members
of the Liberal Party and was not specific to Sanchez-Ayala or Castro. Al Najjar,
257 F.3d at 1302.
Finally, even if the letter was considered, it would not compel a conclusion
that the IJ erred because it would have no impact on the IJ’s adverse credibility
determination with respect to the denial of relief from removal. Therefore,
Sanchez-Ayala could not establish her prima facie eligibility for relief, and the BIA
did not abuse its discretion in denying the motion to reopen.
III. Conclusion
Based on the foregoing, we conclude that we lack jurisdiction to review the
merits of the asylum and withholding claims, and DISMISS the petition in part.
Because the BIA did not abuse its discretion in denying Sanchez-Ayala’s motion to
reopen, we DENY the petition as to the motion to reopen.
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