Arelis Esther Galarraga De Aguilar v. U.S. Atty. ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-11775 ELEVENTH CIRCUIT
DECEMBER 2, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
Agency Nos. A098-677-708,
A098-677-709
ARELIS ESTHER GALARRAGA DE AGUILAR,
CARLOS ALBERTO AGUILAR GALARRAGA,
CARLOS EDUARDO AGUILAR GALARRAGA,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(December 2, 2009)
Before BLACK, CARNES and MARCUS, Circuit Judges.
PER CURIAM:
Arelis Esther Galarraga de Aguilar, a native and citizen of Venezuela,
petitions for review of the Board of Immigration Appeals’ (BIA) denial of her
motion to reopen her removal proceedings. She acknowledges she filed her motion
to reopen more than 90 days after her removal order became final.1 Nevertheless,
she argues she was exempt from the 90-day filing deadline because she presented
sufficient material evidence of changed country conditions. After review, we deny
Galarraga’s petition for review.2
The 90 day time limit “do[es] not apply when (1) an alien files a motion to
reopen that seeks asylum, withholding of removal, or [CAT] relief . . . ; (2) the
motion is predicated on changed country conditions; and (3) the changed
conditions are material and could not have been discovered at the time of the
removal proceedings.” Jiang v. U.S. Att’y Gen., 568 F.3d 1252, 1256 (11th Cir.
2009) (citing 8 C.F.R. § 1003.23(b)(4)(i)). “An alien who attempts to show that
the evidence [of changed country conditions] is material bears a heavy burden and
must present evidence that demonstrates that, if the proceedings were opened, the
1
An alien who is subject to a final order of removal and wishes to reopen the
proceedings must file the motion to reopen within 90 days of the date on which the removal
order became final. 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2).
2
We review the BIA’s denial of a motion to reopen removal proceedings for abuse of
discretion. Jiang v. U.S. Att’y Gen., 568 F.3d 1252, 1256 (11th Cir. 2009). This review is
limited to determining whether the BIA exercised its discretion in an arbitrary or capricious
manner. Id. Motions to reopen are disfavored, especially in removal proceedings. Id.
2
new evidence would likely change the result in the case.” Id. at 1256-57.
In support of her motion to reopen, Galarraga submitted affidavits
describing several incidents in which members of the Bolivarian Circles allegedly
told Galarraga’s relatives they intend to kill her or try her for treason if she returns
to Venezuela. These incidents are consistent with her allegations in the original
asylum proceedings that she had received death threats, but they do not indicate an
intensification of the Bolivarian Circles’ efforts to persecute and threaten either
Galarraga individually or President Hugo Chavez’s opponents generally.
Galarraga has presented no other record evidence of new policies or of
intensification of existing policies.3 Thus, she has failed to show the BIA erred in
concluding she had not demonstrated changed country conditions.
Galarraga also asserts she should not be required to prove the new evidence
would likely change the result in the case. Jiang foreclosed this argument, and
Galarraga does not offer any alternative argument she met the required burden.
See Jiang, 568 F.3d at 1256-57. Accordingly, she has failed to demonstrate the
BIA erred in concluding she could not meet her burden of proof of materiality.
PETITION DENIED.
3
Galarraga also discusses reports in her brief that are not in the record and were never
mentioned to the BIA. Her argument with respect to those reports is not properly before this
Court. See De Sandoval v. U.S. Att’y Gen., 440 F.3d 1276, 1278 n.1 (11th Cir. 2006) (stating an
argument based on documents not contained in the record is not properly before this Court); see
also 8 U.S.C. § 1252(b)(4)(A).
3