Case: 12-13928   Date Filed: 07/30/2013   Page: 1 of 6


                                                          [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 12-13928
                         Non-Argument Calendar
                       ________________________

                         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.

                      ___________________________

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

                               (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., 

, 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 ___, 

,

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., 

, 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., 

, 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 

.

                                          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 

, 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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