Augusto Ramirez-Moreno v. U.S. Attorney General

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-13928
Non-Argument Calendar
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Agency No. A096-098-284
AUGUSTO RAMIREZ-MORENO,
MARTHA OLIVA SALAZAR-JIMENEZ,
STEPHANY RAMIREZ-SALAZAR,
NATHALIE RAMIREZ-SALAZAR,
Petitioners,
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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(July 30, 2013)
Before TJOFLAT, PRYOR, and JORDAN, Circuit Judges.
PER CURIAM:
Augusto Ramirez-Moreno, his wife, and their two children (collectively,
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“petitioners”), all natives and citizens of Colombia, seek review of the Board of
Immigration Appeals’ denial of their second motion to reopen their removal
proceedings. The BIA denied the motion, which was untimely and number-barred,
because the petitioners failed to show changed country conditions to qualify for an
exception to the time and number limits applicable to motions to reopen. After
reviewing the record and considering the parties’ arguments, we deny the petition.
I.
The petitioners came to the United States in 2002 and, claiming persecution
on the basis of political opinion, applied for asylum, withholding of removal, and
relief under the United Nations Convention Against Torture (CAT). They argued
that the National Liberation Army (ELN) had targeted them because they were
closely associated with Mr. Ramirez-Moreno’s sister, who had opposed the ELN’s
efforts to recruit students from a school at which she taught. The petitioners
asserted that, after Mr. Ramirez-Moreno’s sister moved to the United States to
escape ELN persecution, members of that group twice threatened to kill them if
Mr. Ramirez-Moreno did not provide his sister’s contact information and money
he had earned while working in Mexico.
Despite finding Mr. Ramirez-Moreno’s testimony credible, the immigration
judge denied the application for relief because the petitioners failed to show any
nexus between the threats of harm they had suffered and a protected ground. The IJ
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found that the ELN’s interest in the petitioners stemmed from the group’s desire
for information about Mr. Ramirez-Moreno’s sister and for money, not from the
petitioners’ political opinion. The petitioners therefore had not been persecuted as
required to be eligible for the relief they sought. The BIA agreed with the IJ and
dismissed the petitioners’ appeal in 2004.
In 2010, the petitioners filed their first motion to reopen, which was based
on changed country conditions. The BIA determined that the motion was untimely
and that the petitioners had failed to show the changed country conditions required
to excuse its lateness. Specifically, the BIA concluded that the petitioners had not
submitted objective evidence that conditions in Colombia were materially different
than they were when the IJ considered their application. The BIA also noted that
even the subjective evidence the petitioners submitted—statements from relatives
who had been menaced by unidentified people looking for Mr. Ramirez-Moreno—
failed to show a nexus between the feared harm and the petitioners’ political
opinion.
The petitioners filed a second motion to reopen—the one that is the subject
of this appeal—in 2011. As it did with the petitioners’ first motion, the BIA
determined that their second motion was untimely and that they had not shown
materially changed conditions in Colombia. The BIA also concluded that the
petitioners’ motion was number-barred and that, although the petitioners’ relatives
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attested that they still received threats directed at Mr. Ramirez-Moreno and could
now identify those making the threats as ELN members, there remained no nexus
between the feared harm and a statutory basis for relief. Finding that the petitioners
had failed to establish an exception to the time and number limits on motions to
reopen, the BIA denied their second motion. 1
II.
We review the denial of a motion to reopen removal proceedings for abuse
of discretion, determining only whether the BIA exercised its discretion in an
arbitrary or capricious manner. See Jiang v. U.S. Att’y Gen., 568 F.3d 1252, 1256
(11th Cir. 2009). A party is generally limited to filing one motion to reopen, and
that motion must be filed within ninety days of the BIA’s final order. See 8 U.S.C.
1229a(c)(7). Cf. Ruiz-Turcios v. U.S. Att’y Gen., ___ F.3d ___, 2013 WL 2262470,
at *1 (11th Cir. May 24, 2013) (noting that time limits on motions to reopen are
subject to equitable tolling because they are non-jurisdictional and suggesting that
the same is true of number limits). But the ninety-day deadline does not apply to
motions based on evidence of “changed circumstances arising in the country of
nationality or in the country to which deportation has been ordered, if such
1
The BIA also found the petitioners ineligible for CAT relief because the threats against them
were not made by a public official; the petitioners have waived any challenge to that finding by
failing to argue the issue to us. See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th
Cir. 2005). The BIA opted not to use its sua sponte power to reopen, and we lack subject matter
jurisdiction to review that decision. See Lenis v. U.S. Att’y Gen., 525 F.3d 1291, 1294 (11th Cir.
2008).
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evidence is material and was not available and could not have been discovered or
presented at the previous hearing.” See 8 U.S.C. 1229a(c)(7)(C)(ii). Unlike a
change in country conditions, a change in personal circumstances cannot authorize
untimely motions to reopen. See Jiang, 568 F.3d at 1258.
III.
The petitioners argue that they have established an exception to the time and
number limits on motions to reopen because they submitted evidence to the BIA
that was unavailable at the time of the IJ’s decision. Although we agree with the
petitioners that the events described by their relatives occurred after the IJ’s initial
denial of relief—and that their family members’ recitations of those events is
therefore new evidence—we do not agree that the evidence shows changed country
conditions in Colombia as a whole. At most the evidence shows that, as the
petitioners describe it, their “enemies are still looking for” them, and are doing so
with an increased intensity.
The fact that the ELN has stepped up its surveillance efforts regarding the
petitioners is certainly a change in their personal circumstances, but it does not rise
to the level of changed country conditions. And despite citing to the U.S.
Department of State’s country report on Colombia in their brief, the petitioners did
not present that report—or any other objective evidence—to the BIA in support of
their assertion that conditions in their home country had materially changed.
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Because changed personal circumstances alone cannot excuse a late motion to
reopen, see Jiang, 568 F.3d at 1258, the BIA did not abuse its discretion when it
concluded that no exception to the filing deadline applied to the petitioners’
motion.2 The untimely and number-barred motion was therefore properly denied.
PETITION DENIED.
2
The petitioners also argue that the BIA erred in “discredit[ing]” their “documents and
credibility,” but the record demonstrates that the BIA expressed no opinion at all about the
credibility of the petitioners’ evidence or their testimony. The only credibility finding ever made
in this case came from the IJ at the petitioners’ initial hearing in 2003, and that finding was in the
petitioners’ favor. As a result, we consider this argument to be without merit.
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