Carlos Eduardo Cabrera-Noriega v. U.S. Attorney General

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
FILED
No. 11-11288 U.S. COURT OF APPEALS
Non-Argument Calendar ELEVENTH CIRCUIT
________________________ DECEMBER 28, 2011
JOHN LEY
Agency No. A078-616-508 CLERK
CARLOS EDUARDO CABRERA-NORIEGA,
MARIA JOSE BOTERO DE CABRERA,
JUAN ESTEBAN CABRERA-BOTERO,
ANA SOL BOTERO,
NATALIA REMOLINA-BOTERO,
llllllllllllllllllllllllllllllllllllllll Petitioners,
versus
U.S. ATTORNEY GENERAL,
llllllllllllllllllllllllllllllllllllllll Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(December 28, 2011)
Before MARCUS, MARTIN, and FAY, Circuit Judges.
PER CURIAM:
Carlos Cabrera-Noriega, a native and citizen of Colombia, petitions for
review of the Board of Immigration Appeals’s (“BIA”) denial of his motion to
reopen his removal proceedings under Immigration and Nationality Act
§ 240(c)(7)(i), (ii), 8 U.S.C. § 1229a(c)(7)(i), (ii). He argues that the BIA abused
its discretion in denying his motion, which he does not dispute is untimely,
because he showed that the conditions in Colombia had changed. For the reasons
set forth below, we deny Cabrera-Noriega’s petition for review.
I.
In 1999, Cabrera-Noriega served as a liaison between the National
Liberation Army (“ELN”) and the family of an ELN kidnaping victim, Alistair
Taylor. Cabrera-Noriega and the ELN met 11 times, and the ELN ultimately
demanded a $2 million ransom, but Taylor’s family could only pay $600,000.
Upset that Cabrera-Noriega could not secure $2 million from Taylor’s family, the
ELN kidnaped him and subjected him to psychological abuse. He was released
and ordered to meet with the ELN with the $2 million in ransom. Cabrera-Noriega
did not attend the meeting, and the ELN began calling him at home and work. The
ELN informed him that he was a military target. In September 2000,
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Cabrera-Noriega left Colombia and entered the United States.
Cabrera-Noriega applied for asylum, withholding of removal, and
Convention Against Torture (“CAT”) relief based on his political opinion. The
Immigration Judge denied this application and ordered him removed on September
9, 2008. The BIA dismissed Cabrera-Noriega’s appeal on April 23, 2009.
Cabrera-Noriega filed a petition for review, which we denied.
Cabrera-Noriega v. U.S. Att’y Gen., 369 F.App’x 5, 7 (11th Cir. 2010). We held
that Cabrera-Noriega had not established a nexus between the persecution he
alleged and his political opinion. Id. at 10. The evidence showed that the ELN
harmed Cabrera-Noriega because he failed to obtain a $2 million ransom payment,
not because of his political beliefs. Id. at 11. Next, we held that Cabrera-Noriega
had not established a well-founded fear of future persecution as there was no
evidence that he would be persecuted because of his political opinions. Id.
Finally, we explained that in addition to the lack of evidence connecting any
possible harm to his political opinions, there was no evidence that the ELN
continued to look for Cabrera-Noriega. Id.
On July 1, 2010, Cabrera-Noriega filed a motion to reopen, arguing that he
could meet the changed country conditions exception to the filing requirements.
He asserted that the ELN had recently grown stronger. Commander Pablito, the
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leader in the ELN who had designated him as a military target, had been captured
by the Colombian government, but later escaped. Upon his escape, Pablito vowed
to eliminate the ELN’s enemies. Based on these developments, Cabrera-Noriega
argued that Pablito was still looking to kill him and now had more resources
available to carry out the killing. According to articles Cabrera-Noriega submitted
with his motion to reopen, Carlos Marin Guarin, also known as Pablito, had been
arrested. However, Pablito later escaped from custody with the help of ELN
rebels. One article stated that the ELN had been declining gradually since 1999.
It called the ELN “an almost-forgotten force” compared to the Revolutionary
Armed Forces of Colombia, but also stated that Pablito’s escape would likely give
the ELN renewed energy. Cabrera-Noriega also submitted affidavits from his
brother and from a friend. Both individuals believed that Cabrera-Noriega would
be killed if he returned to Colombia. Additionally, Cabrera-Noriega’s brother
stated that, since Pablito’s escape, the ELN had contacted him looking for
Cabrera-Noriega.
The BIA denied Cabrera-Noriega’s motion to reopen, finding that it was
untimely and that Cabrera-Noriega had not shown changed country conditions to
excuse the untimeliness. He had failed to show that the ELN was becoming more
dangerous, as one of the articles he submitted stated that the ELN was gradually
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declining. Next, the BIA found that Cabrera-Noriega had not shown that Pablito’s
escape increased the likelihood of Cabrera-Noriega being killed. The BIA did not
believe that Cabrera-Noriega was in any more danger than he had been before
Pablito was captured and escaped. However, even if Cabrera-Noriega was in more
danger, this Court had already determined on review that he had not shown a
nexus between any harm and a protected ground. The articles and affidavits
attached to the motion to reopen also did not show a connection between any harm
and a protected ground. Finally, Cabrera-Noriega had not shown that he would
likely face torture by or with the acquiescence of government officials.
II.
We review the BIA’s denial of a motion to reopen under “a very deferential
abuse of discretion standard.” Al Najjar v. Ashcroft, 257 F.3d 1262, 1302 (11th
Cir. 2001). Factual findings are reviewed for substantial evidence, which requires
“reasonable, substantial, and probative evidence.” Id. at 1283-84 (quotation
omitted).
An alien subject to a final order of removal must file a motion to reopen
within 90 days of the removal order being rendered. 8 C.F.R. § 1003.2(c)(2). The
time limit does not apply if the motion to reopen is based on changed country
conditions, “if such evidence is material and was not available and could not have
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been discovered or presented at the previous hearing.” Id. § 1003.2(c)(3)(ii). The
BIA may deny a motion to reopen for at least three reasons: (1) the petitioner did
not establish a prima facie case; (2) the petitioner did not introduce material and
previously unavailable evidence; and (3) the BIA may determine “that despite the
alien’s statutory eligibility for relief, he or she is not entitled to a favorable
exercise of discretion.” Al Najjar, 257 F.3d at 1302. To establish a prima facie
case of eligibility for asylum, the petitioner must show past persecution due to a
statutorily protected factor or a well-founded fear of future persecution due to a
statutorily protected factor. 8 C.F.R. § 208.13(b). To establish a prima facie case
of eligibility for withholding of removal, the petitioner must “show that his life or
freedom would be threatened on account of” a statutorily protected factor.
Delgado v. U.S. Att’y Gen., 487 F.3d 855, 860-61 (11th Cir. 2007) (citation
omitted). Protected factors include “race, religion, nationality, membership in a
particular social group, or political opinion.” 8 C.F.R. § 208.13(b).
The BIA did not abuse its discretion in denying Cabrera-Noriega’s motion
to reopen because he failed to establish a prima facie case of eligibility for asylum
or withholding of removal.1 See Al Najjar, 257 F.3d at 1302. First, the BIA’s
1
Cabrera-Noriega has abandoned any argument regarding CAT relief because he failed to
make more than a passing reference to such relief in his brief. See Sepulveda v. U.S. Att’y Gen.,
401 F.3d 1226, 1228 n.2 (11th Cir. 2005) (explaining that a petitioner abandons an issue where
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finding that Cabrera-Noriega had not shown that the ELN was becoming more
dangerous was supported by substantial evidence. See id. at 1283.
Cabrera-Noriega’s own supporting evidence stated that, although it was possible
that Pablito’s escape would re-energize the ELN, the organization had been
gradually declining since 1999, the year in which Cabrera-Noriega acted as a
liaison between the ELN and Taylor’s family.
Next, even if Cabrera-Noriega had shown changed country conditions, he
has not shown that they are material. See 8 C.F.R. § 1003.2(c)(2)(ii). Both
asylum and withholding of removal claims require the petitioner to show that any
harm would occur on account of a statutorily protected factor, which is
Cabrera-Noriega’s political opinion in this case. See Delgado, 487 F.3d at 860-61;
8 C.F.R. § 208.13(b). The articles and affidavits that he attached to his motion
merely established that Pablito had escaped from custody, the ELN might be
gradually declining or might be re-energized by Pablito’s escape, and the ELN had
contacted Cabrera-Noriega’s brother to try to find him. Even assuming arguendo
that this evidence was sufficient to show the persecution and harm elements of an
asylum or withholding of removal claim, it did not establish that Pablito would
seek to harm Cabrera-Noriega based on his political opinion. Moreover,
he only makes a passing reference to it in his brief).
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Cabrera-Noriega concedes on appeal that the ELN seeks to harm him because he
made Pablito look bad when he did not comply with the order to obtain the ransom
money. Therefore, the BIA did not abuse its discretion in denying the motion to
reopen because Cabrera-Noriega failed to establish changed country conditions or
that any harm he suffered or would suffer in the future was based on his political
opinion. See Al Najjar, 257 F.3d at 1302.
For the foregoing reasons, we deny Cabrera-Noriega’s petition for review.
PETITION FOR REVIEW DENIED.
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