Camilo Alberto Rodriguez v. U.S. Attorney General ( 2013 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-10878
Non-Argument Calendar
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Agency No. A097-934-612
CAMILO ALBERTO RODRIGUEZ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
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Petition for Review of a Decision of the
Board of Immigration Appeals
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(December 30, 2013)
Before HULL, MARCUS, and FAY, Circuit Judges.
PER CURIAM:
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Camilo Alberto Rodriguez, a native and citizen of Colombia, petitions for
review of the Board of Immigration Appeals (“BIA”) order denying his second
motion to reopen his asylum proceedings. We deny his petition.
I. BACKGROUND
In 2004, Rodriguez filed an application for asylum, withholding of removal,
and relief pursuant to the Convention Against Torture (“CAT”), alleging he would
be subject to persecution if he returned to Colombia. While working on behalf of
the Colombian government on the construction of a natural-gas pipeline, he
asserted he had refused to comply with demands from the National Liberation
Party (“ELN”) to hire its members and supporters to work on the pipeline. As a
result of his defiance, Rodriguez claimed ELN members sought to kidnap and
murder him. The Immigration Judge (“IJ”) denied Rodriguez’s application, found
he was statutorily ineligible for asylum, and determined he had not demonstrated
he would be persecuted in Colombia. Rodriguez appealed the IJ’s decision to the
BIA, which affirmed the decision in 2006.
In 2007, Rodriguez filed a motion with the BIA to reopen removal
proceedings and argued ineffective assistance of counsel. The BIA denied that
motion as untimely and noted Rodriguez had failed to demonstrate prejudice
resulting from his former representation. In October 2012, Rodriguez filed a
second motion to reopen his removal proceedings and argued changed country
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conditions. He also requested the BIA to exercise its sua sponte authority to
reopen his removal proceedings, based on his former counsel’s deficient
performance. The BIA denied the second motion to reopen as time-barred and
number-barred and determined Rodriguez had not shown materially changed
country conditions in Colombia. Rodriguez petitions for review of the denial of
his second motion to reopen. 1
II. DISCUSSION
We review the denial of a motion to reopen for abuse of discretion. Jiang v.
U.S. Att’y Gen., 568 F.3d 1252, 1256 (11th Cir. 2009). Our review is limited to
determining whether the BIA exercised its discretion in an arbitrary or capricious
manner. Id. Generally, a party may file only one motion to reopen removal
proceedings. INA § 240(c)(7)(A); 8 U.S.C. § 1229a(c)(7)(A). A motion to reopen
must be filed “within 90 days of the date of entry of a final administrative order of
removal,” subject to certain exceptions. INA § 240(c)(7)(C)(i); 8 U.S.C.
§ 1229a(c)(7)(C)(i).
An exception to the time and number limits applies if the motion to reopen is
for the purpose of reapplying for relief “based on changed circumstances arising in
the country of nationality or in the country to which deportation has been ordered,
1
On appeal, Rodriguez does not challenge the BIA’s refusal to reopen removal proceedings sua
sponte, thus abandoning that claim. See Cole v. U.S. Att’y Gen., 712 F.3d 517, 530 (11th Cir.),
cert. denied, No. 12-1435, 2013 WL 2647775 (U.S. Oct. 7, 2013).
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if such evidence is material and was not available and could not have been
discovered or presented at the previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii). We
have recognized the BIA may deny a motion to reopen on three grounds: (1) failure
to establish a prima facie case; (2) failure to introduce evidence that was material
and previously unavailable; or (3) a determination that an alien is not entitled to a
favorable exercise of discretion despite statutory eligibility for relief. Najjar v.
Ashcroft, 257 F.3d 1262, 1302 (11th Cir. 2001).
Rodriguez contends conditions in Colombia are worse now than in 2005,
when he originally was ordered removed, demonstrated by newspaper articles
describing ELN’s recent kidnappings of oil workers in Colombia. But the
materials Rodriguez submitted with his original application for asylum contained
reports of similar incidents. The 2003 U.S. Department of State’s Country Report
for Colombia showed ELN had kidnapped thousands of civilians, despite the
group’s decline in numerical strength. The Country Report further noted ELN
guerrillas, as well as members of the Revolutionary Armed Forces of Colombia,
had increased the number of attacks on Colombia’s oil infrastructure by 140
percent. Consequently, it appears ELN’s current focus on disrupting the energy
industry in Colombia is the same as it was during Rodriguez’s initial removal
proceedings in 2005.
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Moreover, Rodriguez has presented no evidence showing ELN has targeted
individuals who previously had worked in the energy industry. Rather, the
evidence shows ELN guerrillas have targeted individuals who currently work on
natural gas or oil pipelines. Therefore, Rodriguez has failed to demonstrate
conditions for former workers in the energy sector have materially worsened. See
INA § 240(c)(7)(A), (C); 8 U.S.C. § 1229a(c)(7)(A), (C); 8 C.F.R. §
1003.2(c)(3)(ii).
Because Rodriguez failed to establish changed country conditions in
Colombia sufficient to excuse the filing of his untimely and number-barred motion
to reopen, he is not entitled to relief. Accordingly, the BIA did not abuse its
discretion in denying his second motion to reopen.
PETITION DENIED.
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