Case: 12-10658            Date Filed: 09/25/2012   Page: 1 of 8

                                                                          [DO NOT PUBLISH]



                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                            No. 12-10658
                                        Non-Argument Calendar
                                      ________________________

                                           Agency No. A079-442-966




LILLIAM DE JESUS LARIOS-GARCIA,

llllllllllllllllllllllllllllllllllllllll                                              Petitioner,
                                                    versus

U.S. ATTORNEY GENERAL,

llllllllllllllllllllllllllllllllllllllll                                              Respondent.

                                     ________________________

                               Petition for Review of a Decision of the
                                    Board of Immigration Appeals
                                    ________________________

                                             (September 25, 2012)

Before CARNES, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:
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      Lilliam De Jesus Larios-Garcia, a citizen of Colombia, seeks review of the

Board of Immigration Appeals’s (“BIA”) decision denying her motion to

reconsider its prior decision not to reopen her removal proceedings. The BIA

denied Larios-Garcia’s motion as both a motion to reconsider and as an untimely,

numerically-barred second motion to reopen. In denying her motion as a motion

to reconsider, the BIA found that she had not identified any error of fact or law in

its prior decision. In denying her motion as a second motion to reopen, the BIA

determined that Larios-Garcia failed to provide sufficient evidence establishing a

change in country conditions in Colombia, as needed to excuse the time and

number limitations.

      Larios-Garcia raises several arguments in support of her petition. First, she

argues that the BIA abused its discretion by denying her motion, because evidence

of her family members’ murders in Colombia, several news articles describing

those murders, and the Department of State’s 2010 Human Rights Report for

Colombia, clearly demonstrate an escalation of attacks against her family,

tantamount to changed country conditions. She further asserts that she established

a fear of persecution based on her membership in a particular social group,

specifically, siblings who are being exterminated by FARC guerrillas for a debt

owed to them. Second, Larios-Garcia argues that the BIA erred by failing to

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consider whether she was eligible for humanitarian asylum, and she requests us to

remand to the BIA so that it may make that determination. For the following

reasons, we deny her petition.

                                           I.

      We review “the BIA’s denial of a motion to reconsider for abuse of

discretion.” Montano Cisneros v. U.S. Att’y Gen., 

, 1226 (11th Cir.

2008). Under the abuse-of-discretion standard, our review “is limited to

determining whether there has been an exercise of administrative discretion and

whether the matter of exercise has been arbitrary or capricious.” Id. (quotation

omitted).

      “A motion to reconsider shall state the reasons for the motion by specifying

the errors of fact or law in the prior [BIA] decision and shall be supported by

pertinent authority.” 8 C.F.R. § 1003.2(b)(1); see also INA § 240(c)(6)(C), 8

U.S.C. § 1229a(c)(6)(C). A motion to reconsider that merely restates arguments

that the BIA previously rejected provides no reason for the BIA to change its prior

decision. Calle v. U.S. Att’y Gen., 

, 1329 (11th Cir. 2007).

“Therefore, merely reiterating arguments previously presented to the BIA does not

constitute ‘specifying . . . errors of fact or law’ as required for a successful motion

to reconsider.” Id. (quoting 8 C.F.R. §1003.2(b)(1)).

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      We review the denial of a motion to reopen removal proceedings for an

abuse of discretion. Zhang v. U.S. Att’y Gen., 

, 1319 (11th Cir.

2009). Judicial review “is limited to determining whether there has been an

exercise of administrative discretion and whether the matter of exercise has been

arbitrary or capricious.” Id. Motions to reopen are especially disfavored in

removal proceedings, “where, as a general matter, every delay works to the

advantage of the deportable alien who wishes merely to remain in the United

States.” Ali v. U.S. Att’y Gen., 

, 808 (11th Cir. 2006) (quotation

omitted).

      An alien who is subject to an in absentia order of removal and wishes to

have the order rescinded may file only one motion to reopen. 8 C.F.R.

§ 1003.23(b)(4)(ii). The motion to reopen must either: (1) be filed within 180

days after the date of the order of removal and demonstrate that the failure to

appear was because of exceptional circumstances beyond the alien’s control; or

(2) be filed at any time and demonstrate that the alien did not receive notice of

removal proceedings. See id. Nevertheless, these requirements are inapplicable if

the alien can demonstrate “changed country conditions arising in the country of

nationality or the country to which removal has been ordered, if such evidence is

material and was not available and would not have been discovered or presented at

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the previous proceeding.” INA § 240(c)(7)(C)(ii), 8 U.S.C. § 1229a(c)(7)(C)(ii);

8 C.F.R. § 1003.2(c)(3)(ii). An alien cannot circumvent the requirement to show

changed country conditions by demonstrating only a change in personal

circumstances. Zhang v. Att’y Gen., 

, 1319 (11th Cir. 2009).

      Additionally, the evidence in a motion to reopen must set forth a prima facie

case for asylum or withholding removal. Li v. U.S. Att’y Gen., 

,

1374-75 (11th Cir. 2007) (observing that the BIA may deny a motion for failure to

present a prima facie case). To successfully prove eligibility for asylum, “the

applicant must establish that race, religion, nationality, membership in a particular

social group, or political opinion was or will be at least one central reason for

persecuting the applicant.” INA § 208(b)(1)(B)(I); 8 U.S.C. § 1158(b)(1)(B)(I).

      Here, the BIA did not abuse its discretion by denying Larios-Garcia’s

motion, construed as a motion to reconsider its prior decision denying her motion

to reopen, because she failed to identify any specific error of fact or law in that

prior decision. 8 C.F.R. § 1003.2(b)(1); see also 8 U.S.C. § 1229a(c)(6)(C).

      In addition, the BIA did not abuse its discretion by denying her motion,

construed as a motion to reopen, because she failed to establish material, changed

circumstances in country conditions that excuse the time and number-bar. INA

§ 240(c)(7)(C)(ii), 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii).

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First, the 2010 Human Rights Report for Colombia demonstrated that conditions

in the country have not gotten worse. In addition, although Larios-Garcia argues

that the recent murders of her brother and sister-in-law demonstrate escalating,

material violence by guerrillas in Colombia, and that all of her siblings’ murders

were related to a debt owed to FARC guerrillas, the record does not support those

assertions. Rather, the record indicates that although her brother and sister-in-

law’s deaths were related to payment of a debt, there is no evidence that the debt

was owed to FARC, other guerrilla forces, or any type of cartel. In addition,

Larios-Garcia failed to explain why she previously asserted that her two oldest

brothers were killed because they refused to join the guerrilla forces, but now, she

believes that they were murdered because of a debt owed to a cartel. At most,

Larios-Garcia has established only a change in personal circumstances, which is

insufficient to show a change in country conditions.

                                          II.

      We review our own subject matter jurisdiction de novo. Amaya-Artunduaga

v. U.S. Att’y Gen., 

, 1250 (11th Cir. 2006). We may not review a

final order of removal unless “the alien has exhausted all administrative remedies

available to the alien as of right.” INA § 242(d)(1), 8 U.S.C. § 1252(d)(1). Thus,

we lack jurisdiction to review claims that the petitioner failed to raise before the

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BIA, regardless of whether the BIA addressed them sua sponte.

Amaya-Artunduaga, 463 F.3d at 1250-51. In order to properly raise a claim before

the BIA, the petitioner must mention the issue in her brief and must discuss its

merits, or at least contest the basis for the IJ’s decision. See Alim v. Gonzales, 

, 1253 (11th Cir. 2006).

      Within broad limits, the law entrusts the BIA to make basic asylum

decisions, and appellate courts should not make asylum decisions on their own,

absent a determination by the BIA. See I.N.S. v. Orlando Ventura, 

,

16, 

, 355, 

 (2002). In Orlando Ventura, the

Supreme Court held that the Ninth Circuit erred by considering an asylum issue de

novo, rather than remanding the issue to the BIA for additional fact-finding and

explanation. Id. at 17, 123 S.Ct. at 256. In such circumstances, an appellate court

should follow the “ordinary ‘remand’ rule” and “remand to the agency for

additional investigation or explanation.” Id. at 16-18, 123 S.Ct. at 355-56 (citation

omitted). In Orlando Ventura and later cases, however, this rule has been applied

only when the BIA failed to consider an issue that was properly presented to it.

See, e.g., Calle, 504 F.3d 1329-30.

      Here, even though Larios-Garcia quoted the standard for humanitarian relief

in her appeal to the BIA, she did not discuss it further. Thus, she did not exhaust

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her humanitarian-asylum claim before the BIA, and we lack jurisdiction to

consider it. Amaya-Artunduaga, 463 F.3d at 1250-51. Furthermore, because

Larios-Garcia did not sufficiently raise the issue to the BIA, the agency did not

abuse its discretion by not addressing it, and this Court need not remand the case

under the “ordinary remand rule.” See Calle, 504 F.3d at 1329.

      In any event, even if Larios-Garcia did sufficiently raise her humanitarian-

asylum claim, the BIA did not abuse its discretion by not addressing it. As

discussed above, the BIA properly determined that her motion to reopen removal

proceedings was time- and number-barred, and that she did not establish changed

country conditions sufficient to excuse those limitations. As such, the time- and

number-bar prevented the BIA from addressing her humanitarian-asylum claim.

      Upon review of the record and consideration of the parties’ briefs, we deny

the petition.

      PETITION DENIED.




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