Gamaliel Rodriguez-Parra v. U.S. Attorney General ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MARCH 14, 2007
No. 06-13954 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
BIA Nos. A96-085-205 & A96-085-206
GAMALIEL RODRIGUEZ-PARRA,
NANCY MORENO VILLARRAGA,
MANUEL JOSE RODRIGUEZ MORENO,
DENI ESPERANZA RODRIGUEZ-PARRA,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(March 14, 2007)
Before TJOFLAT, HULL and WILSON, Circuit Judges.
PER CURIAM:
Gamaliel Rodriguez-Parra (“Rodriguez-Parra”), his wife, Nancy Moreno
Villarraga (“Nancy”), their son, Manuel Jose Rodriguez Moreno (“Manuel Jose”),
and Rodriguez-Parra’s sister, Deni Rodriguez-Parra (“Deni”) seek review of the
BIA’s order denying their motion to reopen their removal proceedings. On appeal,
petitioners argue that the BIA erred by considering their new evidence as
cumulative and by failing to find that they were prima facie eligible for relief from
removal.
BACKGROUND
On May 6, 1999, Rodriguez-Parra, Nancy, and Manuel Jose, all natives and
citizens of Colombia, were admitted to the United States as nonimmigrant visitors,
who were not to remain in the country beyond November 5, 1999. On January 20,
2001, Deni, also a native and citizen of Colombia, was admitted to the United
States as a nonimmigrant visitor, who was not to remain in the country beyond
January 19, 2002.
On September 6, 2002, Rodriguez-Parra, on behalf of himself, his wife and
his son, filed an application seeking asylum and withholding of removal based
upon his political opinion under the Immigration and Nationality Act (“INA”), and
for relief under the United Nations Convention Against Torture and Other Cruel,
Inhuman, or Degrading Treatment or Punishment (“CAT”). He reported that his
family had been active in the Liberal Party in Colombia and had participated in the
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mayoral campaign for San Juan. He also reported that he was an independent
merchant, his father owned a large farm close to their town, and his brother, also
named Manuel, worked for the Administrative Department of Security (“DAS”)
with the Colombian government. He stated that, in June of 1998, members of the
Revolutionary Armed Forces of Colombia (“FARC”) threatened him and his
family and told them to pay the FARC money to support its “revolutionary cause.”
He reported that, in September of 1998, two members of the FARC came to his
store and threatened him. He also stated that, in March of 1999, members of the
FARC began calling his house and store, threatening his family’s lives. On
October 22, 2002, the Department of Homeland Security issued them notices to
appear, stating that they were deportable.
At a removal hearing, the IJ held that the petitioners were not eligible for
asylum because they failed to apply for asylum within one year of arriving in the
United States and had not shown any exceptional circumstances excusing their late
filing. Thus, petitioners’ claims were limited to withholding of removal and
protection under CAT.
Rodriguez-Parra testified that his brother, Manuel, also was in the United
States and seeking asylum. Rodriguez-Parra stated that he was seeking relief from
removal on the basis that Manuel worked for the DAS and was persecuted by the
FARC. The IJ continued the hearing so that the petitioners could attempt to have
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Manuel testify.
At the next hearing, Manuel testified that he was seeking political asylum
and had worked with the Colombia Security Department, serving “dignitaries, high
functionaries of the government, like magistrates, [j]udges, [and] politicians.” He
also testified that he had seized arms and uniforms from the FARC and became
known nationally for his work. He explained that he was afraid for his family,
because when one works for the government, the FARC also threatens that
person’s siblings. Rodriguez-Parra testified that he was a member of the Liberal
Party in Colombia, and that there was nowhere in Colombia where he would be
safe. He also reported that his entire family was together on the family ranch when
the FARC came and ordered them to pay money.
The IJ issued an order denying withholding of removal under the INA and
relief under the CAT. In his decision, he stated that the petitioners had not
established that they had been subjected to past persecution on account of their
political opinion. Rather, he found that any persecution that had occurred was
based on the family’s refusal to pay the FARC extortion money, and there was no
evidence that the extortion demands were based on the family’s political activities.
He further noted that being the family member of a former Colombian security
officer could not afford the petitioners relief. Thus, the IJ found that the petitioners
had not established that they were eligible for withholding of removal under the
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INA. He also found that they were not entitled for relief under CAT because, to
the extent that they feared being tortured, such torture would not be committed by
the Colombian government.
The BIA adopted and affirmed the IJ’s decision. The BIA stated that the
petitioners had not filed their asylum applications within one year of their arrival
into the United States, and because there were no extraordinary circumstances
justifying the delay, they were not eligible for asylum. The BIA also stated that the
petitioners’ were ineligible for withholding of removal and CAT relief. The BIA
found that the FARC had targeted the petitioners, not “to overcome a belief held or
imputed” to them, but “because they appeared to have the financial means to pay
the money to FARC,” and, thus, they were not targeted on account of a protected
ground.
The petitioners filed a motion to reopen their removal proceedings with the
BIA. The motion included seven sworn statements, which the petitioners asserted
contained relevant testimony regarding the dangers that they would face if they
were returned to Colombia. The petitioners argued that these statements were not
available at the time of their removal hearing and referred to events that occurred
two years after their hearing.
The BIA denied the petitioners’ motion to reopen their removal proceedings,
noting that the new statements and affidavits were not sufficient to cure the late
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filing of the asylum applications. The BIA also found that the evidence did not
“demonstrate prima facie eligibility for a grant of withholding of removal or relief
under the CAT in that [the evidence] is essentially cumulative” of the evidence that
was presented to the IJ at the removal hearing. The BIA also noted that the
evidence did not establish that it was more likely than not that the petitioners
would be persecuted on account of a protected ground or tortured if they were
returned to Colombia.
STANDARD OF REVIEW
We review the BIA’s denial of a motion to reopen for an abuse of discretion.
See Mejia Rodriguez v. Reno, 178 F.3d 1139, 1145 (11th Cir. 1999).
DISCUSSION
An alien seeking withholding of removal under INA must show that his life
or freedom would be threatened on account of his race, religion, nationality,
membership in a particular social group, or political opinion. Mendoza v. U.S.
Att’y Gen., 327 F.3d 1283, 1287 (11th Cir. 2003). An alien can meet this burden
by showing either (1) “past persecution in his country based on a protected
ground,” or (2) “a future threat to his life or freedom on a protected ground in his
country.” Id.A motion to reopen shall state “new facts” that would be proven at a new
hearing, but “shall not be granted unless it appears to the Board that evidence
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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)(1). “[T]here
are at least three independent grounds upon which the [BIA] 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.” Al Najjar v. U.S. Att’y Gen., 257 F.3d 1262, 1302 (11th
Cir. 2001).
Here, the BIA did not abuse its discretion by denying the petitioners’ motion
to reopen. The new evidence did not establish that they were prima facie eligible
for relief from removal, and the evidence was essentially cumulative of the
evidence that was presented before the IJ. See Al Najjar, 257 F.3d at 1302.
The fact that the events recounted in the sworn statements occurred after the
petitioners’ removal hearing does not mean that the submitted evidence cannot be
deemed cumulative of the evidence that was presented at the petitioners’ removal
hearing. Four of the seven sworn statements submitted by the petitioners merely
state that the FARC is still looking for Rodriguez-Parra and his family. Two of the
statements state that the FARC is looking for Rodriguez-Parra because of the debt
that he owes the FARC. Only one sworn statement mentions that Rodriguez-Parra
had to leave Columbia because of his membership with the Liberal Party, and it
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appears that the contents of this statement could have been presented at the initial
removal hearing. This evidence is essentially cumulative of the evidence presented
before the IJ at the removal hearing. The petitioners had already submitted
evidence to the IJ that Rodriguez-Parra was a member of the Liberal Party, that his
family had been threatened by the FARC, and that they owed the FARC a “debt,”
which was tantamount to extortion money. We have made clear that refusing to
pay extortion money to the FARC does not make one eligible for relief from
removal and does not constitute a political opinion. See Sanchez v. U.S. Att’y Gen.,
392 F.3d 434, 438 (11th Cir. 2004) (per curiam) (stating that the petitioner’s
refusal to pay the FARC 20 million pesos in extortion money did not establish the
petitioner’s “actual or imputed political opinion, much less any nexus between [the
petitioner’s] political opinion and the FARC’s alleged persecution”).
Accordingly, we find that the BIA did not abuse its discretion in finding that
the new evidence was essentially cumulative of the evidence presented before the
IJ and did not establish that the petitioners were prima facie eligible for relief from
withholding of removal or relief under CAT. Therefore, we deny the petition for
review.
PETITION DENIED.
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