Isabel Cristina Monyota-Mercado v. U.S. Attorney General , 521 F. App'x 876 ( 2013 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-14733
Non-Argument Calendar
________________________
Agency No. A099-551-227
ISABEL CRISTINA MONTOYA-MERCADO,
ANTONIO SOTO-MONTOYA,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(June 10, 2013)
Before HULL, MARTIN and JORDAN, Circuit Judges.
PER CURIAM:
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Isabel Cristina Montoya-Mercado and her son, Antonio Soto-Montoya (the
Montoyas), Colombian nationals, petition for review of the decision of the Board
of Immigration Appeals (BIA), which denied their second motion to reopen their
deportation proceedings. In their motion, the Montoyas asked that the BIA reopen
their proceedings to consider new evidence of the changed circumstances in
Colombia. Specifically, they offered evidence that Montoya-Mercado’s relative
was exposed by the Colombian press as having informed against the Cali Cartel, a
Colombian drug organization. Because their family member is a known informant,
the Montoyas fear they will be harmed by the Cali Cartel if they are forced to
return to Colombia.
The BIA denied the motion to reopen, concluding that the motion was
“untimely and number-barred” because the motion was filed “well beyond” the
ninety-day deadline following the date of its final decision on the Montoyas’
original application for relief, see 8 U.S.C. § 1229a(c)(7)(C)(i) (2012), and because
“only one [motion to reopen] may be filed,” see 8 U.S.C. § 1229a(c)(7)(A) (2012).
Alternatively, the BIA denied the motion to reopen on the grounds that the new
evidence was not “material” because family members of an informant are not a
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“particular social group” protected by our asylum laws. 1 After careful
consideration, we affirm the BIA’s decision on this second ground.
I.
The Immigration and Nationality Act (INA) provides that an alien may only
file one motion to reopen, and must do so within ninety days of the final order of
removal. 2 8 U.S.C. §§ 1229a(c)(7)(A), (c)(7)(C)(i). The Montoyas’ motion to
reopen was based on an exception to the ninety-day rule that allows for
consideration of an otherwise untimely motion when the petitioner demonstrates
“changed country conditions arising in the country of nationality or the country to
which removal has been ordered, if such evidence is material” and could not have
been produced at the removal proceeding. Id. § 1229a(c)(7)(C)(i)–(ii).
When the BIA concludes that a petitioner has not introduced material
evidence in connection with a motion to reopen, we review that decision for abuse
of discretion. I.N.S. v. Abudu, 485 U.S. 94, 104–05, 108 S. Ct. 904, 912 (1988).
However, when the BIA’s decision is based on a legal determination, our review is
de novo. Castillo-Arias v. U.S. Att’y Gen., 446 F.3d 1190, 1195 (11th Cir. 2006).
1
The BIA also concluded that the Montoyas failed to make a prima facie case of a well-founded
fear of persecution, because they did not show that the cartels were aware of their familial ties to
the informant. We agree that the Montoyas are not members of a “particular social group,” so
we need not address this conclusion.
2
We have recently decided that the ninety-day deadline for an alien to file a motion to reopen is
a non-jurisdictional claim processing rule, which is subject to equitable tolling. Avila-Santoyo v.
U.S. Att’y Gen., ___ F.3d ___, No. 11-14941, 2013 WL 1499419, at *7 (11th Cir. Apr. 12, 2013)
(en banc).
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A petitioner filing a motion to reopen must present evidence “that demonstrates
that, if the proceedings were opened, the new evidence would likely change the
result in the case.” Jiang v. U.S. Att’y Gen., 568 F.3d 1252, 1256–57 (11th Cir.
2009).
For the Montoyas to be eligible for asylum, they must first show that they
are refugees within the meaning of 8 U.S.C. § 1101(a)(42)(A) (2012). See 8
U.S.C. § 1158(b)(1)(A) (2012) (“[T]he Attorney General may grant asylum to an
alien . . . if the Attorney General determines that such alien is a refugee within the
meaning of section 1101(a)(42)(A) of [Title 8].”). In relevant part, a “refugee” is:
any person who is outside any country of such person’s nationality or,
in the case of a person having no nationality, is outside any country in
which such person last habitually resided, and who is unable or
unwilling to return to, and is unable or unwilling to avail himself or
herself of the protection of, that country because of persecution or a
well-founded fear of persecution on account of race, religion,
nationality, membership in a particular social group, or political
opinion . . . .
8 U.S.C. § 1101(a)(42)(A) (emphasis added).
In their motion to reopen, the Montoyas offered: 1) a translation of a
Colombian radio broadcast and news articles describing their relative’s cooperation
with law enforcement against the Cali Cartel; 2) new asylum applications detailing
the threat posed by the Cali Cartel following the news of their relative’s
cooperation with law enforcement; 3) an affidavit from Montoya-Mercado
explaining that the U.S. Drug Enforcement Agency (DEA) moved her relative and
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his immediate and extended family from Colombia to the United States because of
the threat from the Cali Cartel, but that the DEA did not move the Montoyas to the
United States because they were already living here; 4) a declaration from their
relative, describing the same; and 5) a declaration from Montoya-Mercado’s sister,
also describing the same and highlighting the grave danger that the Montoyas
would face in Colombia.
This is evidence which could lend credence to a finding that circumstances
in Colombia have changed following the public announcement of their relative’s
cooperation against the Cali Cartel, and that this change would endanger the
Montoyas upon their return to Colombia. However, our precedent requires the
conclusion that “noncriminal informants who work against the Cali cartel” are not
members of a particular social group for the purposes of our asylum laws.
Castillo-Arias, 446 F.3d at 1196–99. This means that the Montoyas cannot show
that this new evidence “would likely change the result” of their case because they
are not refugees within the meaning of the INA, so they are not eligible for asylum.
Jiang, 568 F.3d at 1256–57. In Castillo-Arias, we concluded that informants
against the Cali Cartel are not members of a particular social group because “[t]he
risk of persecution alone does not create a particular social group within the
meaning of the INA, as virtually the entire population of Colombia is a potential
subject of persecution by the cartel.” Castillo-Arias, 446 F.3d at 1198. Even when
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the identity of an informant working against a Colombian cartel is made public, as
is the case here with the Montoyas’ family member, we still consider that the
informant is not a member of such a group because persecution alone cannot be the
defining attribute of a particular social group. Id. Because we have held that
informants against the Cali Cartel are not members of a particular social group, we
conclude that their family are not members of a particular social group either. See
id. at 1199.3
For these reasons, the evidence offered by the Montoyas would not likely
change the result in their case, and the BIA did not err in denying the motion to
reopen. See Jiang, 568 F.3d at 1256–57. The Montoyas’ petition is DENIED.
3
We have previously said that we are “dismayed” by this outcome, and “regret that Congress has
not deemed it appropriate to craft some legislative relief for these individuals” “who risk their
lives and the safety of their families to assist our nation’s allies in the ‘war on drugs.’” Castillo-
Arias, 446 F.3d at 1199.
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