Heslert Jose Castillo Castillo v. U.S. Atty. Gen.

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-10260 ELEVENTH CIRCUIT
APRIL 21, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
Agency No. A98-710-698
HESLERT JOSE CASTILLO-CASTILLO,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
No. 08-14324
Non-Argument Calendar
________________________
Agency No. A98-710-698
HESLERT JOSE CASTILLO-CASTILLO,
YISMAR MARIA MORALES-MENESES,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petitions for Review of a Decision of the
Board of Immigration Appeals
_________________________
(April 21, 2009)
Before MARCUS, WILSON and ANDERSON, Circuit Judges.
PER CURIAM:
Heslert Jose Castillo-Castillo (“Castillo”), a native and citizen of Venezuela,
petitions for review of the Board of Immigration Appeals’s (BIA) dismissal of his
appeal from the Immigration Judge’s (IJ) denial of withholding of removal, as well
as for review of the BIA’s denial of his motion to reopen. He argues that he
proved a well-founded fear of persecution based on his status as a former journalist
who signed the referendum to recall President Hugo Chavez. He further argues
that the U.S. State Department’s 2007 Country Report proves changed conditions
in Venezuela.
I.
Castillo filed an application for asylum in January 2005 on the basis of
political opinion. He had been a journalist since 1991, in the course of which he
stated that he “informed the public about the true totalitarian character of
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[President Chavez], as well as about his Communistic ideas.” Because of the
political and social conditions, repression, censorship of the press, and threats to
freedom of expression and human rights, Castillo said that he was extremely afraid
to return to Venezuela. He stated that his work as a journalist made him fear that
he would be tortured or that there would be threats against his life or his family.
Castillo submitted a number of documents in support of his asylum
application, including the State Department’s 2003, 2004, and 2005 Country
Reports on Venezuela. Castillo also testified about the conditions in Venezuela,
including statements about the Maisanta database, a government database which
lists information on everyone who voted against President Chavez in the recall
referendum. He testified that people in Maisanta cannot obtain passports and
identification cards from the Venezuelan Embassy, and that his sister was fired in
part because of appearing in Mainsanta. His testimony indicates that, at the time of
the IJ’s original decision, the government was already using Maisanta to restrict its
opponents’ access to government employment and services.
The IJ denied all of Castillo’s claims for relief. He first found that the
application was pretermitted as untimely. Castillo last entered the United States in
June 2001 and did not file his asylum application until 2005. In the alternative, the
IJ found that Castillo had not sufficiently demonstrated a well-founded fear of
persecution on any of the statutory enumerated grounds. Castillo timely appealed.
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The BIA dismissed the appeal.
Castillo moved the BIA to reopen his proceedings, stating that the 2007
Country Report, which was unavailable at the time of his removal proceedings or
appeal, indicated changed circumstances in Venezuela that would support both an
exception to the one-year filing deadline and his claim of a well-founded fear of
persecution. Specifically, the 2007 report states that people in Maisanta are
sometimes ineligible for government jobs and services. The BIA denied the
motion, finding that the information in the report was the same as or cumulative of
the previously submitted evidence.
II.
We require a petitioner’s brief to set forth his “contentions and the reasons
for them, with citations to the authorities and parts of the record on which the
[petitioner] relies.” F ED. R. A PP. P. 28(a)(9)(A). When a petitioner fails to offer
argument before us on an issue, or makes only passing references to the issue, the
brief is insufficient to raise a claim and the issue is abandoned. See Sepulveda v.
U.S. Attorney Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005) (per curiam). Issues
raised for the first time in the petitioner’s reply brief are also abandoned. See Al
Najjar v. Ashcroft, 257 F.3d 1262, 1283 n.12 (11th Cir. 2001).
Castillo’s brief only argues against the IJ’s alternative finding that his
asylum claim, which was pretermitted as untimely, would nevertheless have failed
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on the merits. He does not argue that he met his burden of proving his withholding
of removal claim. He does not mention withholding of removal or its standard
until his reply brief. Accordingly, he has abandoned any such argument.
III.
We review the BIA’s denial of a motion to reopen for abuse of discretion.
Scheerer v. U.S. Attorney Gen., 513 F.3d 1244, 1252 (11th Cir. 2008), cert. denied,
129 S. Ct. 146 (2008). This review is limited to determining whether the BIA
exercised its discretion in an arbitrary or capricious manner. Garcia-Mir v. Smith,
766 F.2d 1478, 1490 (11th Cir. 1985) (per curiam). The BIA abuses its discretion
when its decision “provides no rational explanation, inexplicably departs from
established policies, is devoid of any reasoning, or contains only summary or
conclusory statements.” Mickeviciute v. INS, 327 F.3d 1159, 1162 (10th Cir.
2003).
A motion to reopen “shall state the new facts that will be proven at a [new]
hearing,” but “shall not be granted unless it appears to the [BIA] that evidence
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). Motions
to reopen are disfavored, especially in removal proceedings. INS v. Doherty, 502
U.S. 314, 323, 112 S. Ct. 719, 724 (1992). The moving party “bears a heavy
burden, and must present evidence of such a nature that the BIA is satisfied that if
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proceedings before the IJ were reopened, with all attendant delays, the new
evidence offered would likely change the result in the case.” Ali v. U.S. Attorney
Gen., 443 F.3d 804, 813 (11th Cir. 2006) (per curiam) (internal quotation marks
and alterations omitted).
Castillo’s argument relies primarily on two statements in the 2007 Country
Report regarding the Chavez government’s use of the Maisanta database to identify
the government’s opponents, discriminate against those opponents who hold
government jobs, and render its opponents ineligible for government employment
and services. However, Castillo already offered testimony at his 2006 asylum
hearing as to the existence of Maisanta, the termination of his sister’s government
job due to her opposition to Chavez, and his belief that he would not be able to
obtain a Venezuelan passport or identification card due to his own opposition to
Chavez. Therefore, the BIA did not abuse its discretion in concluding that the
2007 report provided no new, material information as to a change in country
conditions since the time the IJ entered the order of removal.
CONCLUSION
For the foregoing reasons, we dismiss Castillo’s petition for review of the
removal order, and deny his petition for review of the denial of his motion to
reopen.
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PETITION DISMISSED (No. 08-10260). PETITION DENIED (No.
08-14324).
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