Nelson Puentes-Oviedo v. U.S. Attorney General , 213 F. App'x 906 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
January 12, 2007
No. 06-12801 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
BIA No. A79-476-643
NELSON PUENTES-OVIEDO,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(January 12, 2007)
Before DUBINA, CARNES and KRAVITCH, Circuit Judges.
PER CURIAM:
Nelson Puentes-Oviedo (“Oviedo”) petitions this court to review the BIA’s
denial of his motion to re-open the BIA’s denial of his motion to reconsider its
affirmance of the Immigration Judge’s (“IJ”) order of removal and denial of
asylum relief. Upon review, we deny the petition.
Oviedo, a native and citizen of Colombia, entered the United States in March
2003 without valid entry documents, and the Department of Homeland Security
(“DHS”) issued a notice to appear charging him with removability under INA
§ 212(a)(7)(A)(i)(I); 8 U.S.C. § 1182(a)(7)(A)(i)(I). Oviedo applied for asylum
and withholding of removal, as well as relief under the United Nations Convention
Against Torture (“CAT”), alleging that he had been persecuted by FARC members
due to his political opinion. On May 7, 2004, the IJ denied relief and ordered
Oviedo removed, finding that Oviedo’s testimony was not credible. Oviedo
appealed to the BIA, but did not challenge the adverse credibility finding. The
BIA affirmed on August 23, 2005.
On September 23, 2005, Oviedo filed a motion for reconsideration, which
the BIA denied on November 1, 2005. On December 15, 2005, Oviedo filed a
motion to re-open the BIA’s denial of the motion to reconsider, arguing that
conditions in Colombia had deteriorated and that he had new evidence. In support
of his motion, he submitted a newspaper article commenting on FARC’s
assassination of three minors, and letters from his mother, brother, son, and
attorney. The letters were dated September and November 2005 and referenced the
persecution Oviedo suffered and FARC’s continued search for him. The BIA
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denied the motion to re-open, finding that it was untimely, and that there was no
new evidence indicating changed circumstances to excuse an untimely motion.
Furthermore, the BIA noted that the motion did not challenge the credibility
determination, and without credible testimony, Oviedo had not established his
eligibility for relief from removal. Oviedo then filed the instant petition.
Oviedo argues that the BIA abused its discretion because the new evidence
was not available to the IJ before the removal hearings and would be likely to
change the outcome of his case because it confirms FARC’s violent tendencies and
“boasts” his credibility.
We review the denial of a motion to re-open for abuse of discretion. Dakane
v. U.S. Att’y Gen., 399 F.3d 1269, 1272 n.2 (11th Cir. 2005); Lonyem v. U.S.
Att’y Gen., 352 F.3d 1338, 1340 (11th Cir. 2003). Our review is deferential. Al
Najjar v. Ashcroft, 257 F.3d 1262, 1302 (11th Cir. 2001). Motions to re-open are
disfavored in removal proceedings. INS v. Doherty, 502 U.S. 314, 323, 112 S.Ct.
719, 116 L.Ed.2d 823 (1992) (explaining that such motions are disfavored because
“as a general matter, every delay works to the advantage of the deportable alien
who wishes merely to remain in the United States”).
A motion to re-open must be filed within 90 days after the date on which the
final administrative decision was rendered in the proceeding sought to be re-
opened. 8 C.F.R. § 1003.23(b)(1). This court has held that “[s]tatutes of
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limitations are not simply technicalities.” Mejia Rodriguez v. Reno, 178 F.3d
1139, 1145 (11th Cir. 1999) (citation omitted).
An applicant seeking to re-open proceedings bears a “heavy burden.” Al
Najjar v. Ashcroft, 257 F.3d 1262, 1302-03 (11th Cir. 2001). A motion to re-open
“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). “At a minimum, there are
at least three independent grounds upon which the Board may deny a motion to
reopen: 1) failure to establish a prima facie case; 2) failure to introduce evidence
that was material and previously unavailable; and 3) a determination that despite
the alien’s statutory eligibility for relief, he or she is not entitled to a favorable
exercise of discretion.”1 Al Najjar, 257 F.3d at 1302 (citing Doherty, 502 U.S. at
323).
Here, it appears that Oviedo sought to re-open the denial of the motion for
reconsideration as well as the BIA’s affirmance of the IJ’s order of removal.
1. Motion for Reconsideration
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As this court has explained, “the provision is framed negatively, by directing the Board
not to re-open unless certain showings are made. It does not affirmatively require the [BIA] to re-
open the proceedings under any particular condition. Thus, the regulations may be construed to
provide the [BIA] with discretion in determining under what circumstances the proceedings should
be re-opened.” Al Najjar, 257 F.3d at 1301.
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Oviedo’s motion to re-open was timely as to the BIA’s denial of the motion
for reconsideration. Nevertheless, the BIA did not abuse its discretion by denying
the motion. The letters referred to alleged threats and persecution that occurred
before the removal hearing, and the fact that Oviedo did not obtain the letters until
after the hearing does not make them “unavailable” earlier. Furthermore, as the
BIA noted, nothing in Oviedo’s motion impacts the IJ’s adverse credibility
determination, and, therefore, re-opening the appeal was unlikely to change the
outcome.
2. Order of Removal
With respect to the order of removal, the motion to re-open was untimely, as
it was filed more than 90 days after the decision issued. To justify re-opening,
Oviedo must show changed circumstances; he has failed to meet this burden. The
only evidence Oviedo submitted was his own statement that conditions have
worsened. The country reports submitted in support of the asylum application
acknowledge that FARC often engages in violent actions against citizens, and this
court has noted that Colombian citizens face danger and violence at the hands of
FARC. Castillo-Arias v. U.S. Att’y Gen., 446 F.3d 1190, 1198 (11th Cir. 2006).
Thus, Oviedo has not shown changed conditions, and the BIA did not abuse its
discretion.
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Because Oviedo has not shown that the BIA abused its discretion in denying
the motion to re-open, we DENY the petition.
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