Piedad Teresa Arias v. U.S. Attorney General ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
Sept. 30, 2009
No. 09-11358
THOMAS K. KAHN
Non-Argument Calendar
CLERK
________________________
Agency No. A098-378-853
PIEDAD TERESA ARIAS,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(September 30, 2009)
Before TJOFLAT, EDMONDSON and KRAVITCH, Circuit Judges.
PER CURIAM:
Piedad Teresa Arias, a citizen of Venezuela and native of Columbia,
petitions this court for review of the Board of Immigration Appeals’ (BIA)
decision denying her motion to reopen removal proceedings. Arias also asks us to
consider a newly raised procedural due process claim.
I. BACKGROUND
Arias entered the United States in 2000 and remained in the country beyond
the expiration of her non-immigrant visa. In 2004, after receiving a Notice to
Appear from the Department of Homeland Security charging her as removable to
Venezuela, Arias applied for (1) asylum, (2) withholding of removal, and (3) relief
under the Convention Against Torture (CAT). The Immigration Judge (IJ) denied
her application, concluding (1) that her asylum application was time-barred and
that she could return to Columbia, a safe third-country alternative; (2) that she had
failed to establish a clear probability of future persecution in Venezuela; and (3)
that she had failed to establish that she would likely be tortured by, or with the
acquiescence of, the Venezuelan government. The BIA issued a final decision
affirming the IJ’s order of removal on May 30, 2008.
Following an unsuccessful motion to reconsider, Arias filed a motion to
reopen her removal proceedings on the basis of worsening country conditions on
November 5, 2008. The BIA found the evidence presented with the motion
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insufficient to show materially changed circumstances in Venezuela and denied
Arias’s motion as untimely. This petition for review followed.
II. STANDARD OF REVIEW
“We review the BIA’s denial of a motion to reopen for an abuse of
discretion. Our review is limited to determining whether there has been an
exercise of administrative discretion and whether the [manner] of exercise has been
arbitrary or capricious.” Abdi v. U.S. Att’y Gen., 430 F.3d 1148, 1149 (11th Cir.
2005) (citations and quotation marks omitted).
We review questions concerning our subject matter jurisdiction de novo.
Ortega v. U.S. Att’y Gen., 416 F.3d 1348, 1350 (11th Cir. 2005).
III. DISCUSSION
A. Motion to Reopen
Motions to reopen immigration proceedings must ordinarily “be filed within
90 days of the date of entry of a final administrative order of removal.” 8 U.S.C.
§ 1229a(c)(7)(C)(i) (2006). That time limit does not apply, however, to motions
“based on changed country conditions arising in 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 the previous proceeding.” Id.
§ 1229(c)(7)(C)(ii); accord 8 C.F.R. § 1003.2(c)(3)(ii).
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Although Arias filed her motion to reopen more than five months after the
BIA’s final decision, she argued that changed circumstances excused her from the
90-day filing requirement because “conditions in Venezuela since [her] hearing
ha[d] incrementally worsened day to day.” In support of the motion, Arias
presented a series of news articles and new statements from her mother, two
brothers, and an “ex ambassador for Venezuela.” The articles detailed events and
general conditions in Venezuela without reference to Arias or her specific fears of
persecution. The statements described alleged persecution suffered by Arias’s
family in Colombia, repeated her allegations of past persecution in Venezuela, and
urged the BIA to allow her to remain in the United States. As the BIA concluded,
this new evidence was insufficient to establish that conditions in Venezuela had
materially changed since the time of her hearing. The BIA therefore did not abuse
its discretion in denying Arias’s motion to reopen as untimely.
Moreover, the BIA acts within its discretion by denying a motion to reopen
if the movant has “fail[ed] to introduce evidence that was material and previously
unavailable.” Al Najjar v. Ashcroft, 257 F.3d 1262, 1302 (11th Cir. 2001). Even if
Arias’s newly proffered evidence had established changed country conditions, it
was neither material nor previously unavailable. In other words, she did not satisfy
her “heavy burden” to “present[] evidence . . . that if proceedings before the [IJ]
were reopened, with all attendant delays, the new evidence offered would likely
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change the result in the case.” Ali v. U.S. Att’y Gen., 443 F.3d 804, 813 (11th Cir.
2006) (alterations in original) (quoting In re Coelho, 20 I. & N. Dec. 464, 473
(BIA 1992)).
B. Procedural Due Process
Arias also argues that she “did not receive due process in the underlying
proceedings because she did not receive adequate representation.” As a
preliminary matter, we must determine whether we have subject matter jurisdiction
over this new claim. We may only consider claims raised in a petition for review if
the petitioner has first exhausted her administrative remedies. 8 U.S.C. § 1252(d);
Sundar v. INS, 328 F.3d 1320, 1323 (11th Cir. 2003) (“[W]e lack jurisdiction to
consider claims that have not been raised before the BIA.”).
Although “[s]ome courts have indicated in dicta that . . . some due process
claims do not require exhaustion, because the BIA does not have the power to
adjudicate those claims,” Sundar, 328 F.3d at 1325, we have recognized that
“procedural due process claims, as well as procedural errors argued in due process
terms, must be raised before the BIA,” Amaya-Artunduaga v. U.S. Att’y Gen., 463
F.3d 1247, 1251 (11th Cir. 2006). In this case, the BIA had the authority to
adjudicate Arias’s ineffective assistance claim. See, e.g., In re Compean, 25 I. &
N. Dec. 1 (BIA 2009). Consequently, she failed to exhaust her administrative
remedies, and we lack jurisdiction to consider the claim.
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IV. CONCLUSION
The BIA did not abuse its discretion by denying Arias’s motion to reopen as
untimely, and we do not have jurisdiction to consider a procedural due process
claim that has not been raised before the BIA. We therefore deny Arias’s petition
with respect to her motion to reopen and dismiss for want of jurisdiction with
respect to her due process claim.
PETITION DENIED IN PART AND DISMISSED IN PART.
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