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                                                           [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 14-13006
                          Non-Argument Calendar
                        ________________________

                          Agency No. A098-979-850

YENY LISSETH GONZALEZ-RODRIGUEZ,

                                                                        Petitioner,

                                   versus

U.S. ATTORNEY GENERAL,

                                                                      Respondent.

                        ________________________

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

                               (March 11, 2015)

Before HULL, MARCUS and ROSENBAUM, Circuit Judges.

PER CURIAM:

     Yeny Lisseth Gonzalez-Rodriguez seeks review of the Board of Immigration

Appeals’s (“BIA”) summary affirmance of the Immigration Judge’s (“IJ”) denial

of her untimely motion to reopen removal proceedings based on changed country
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conditions and the immigration court’s sua sponte authority, under 8 C.F.R. §

1003.2(a), (c). Gonzalez-Rodriguez argues that: (1) the IJ abused his discretion in

holding that she failed to make a prima facie showing of a material change in

conditions in El Salvador to support reopening of removal proceedings so that she

could seek asylum and withholding of removal under the Immigration and

Nationality Act (“INA”), and protection under the United Nations Convention

Against Torture (“CAT”); and (2) the BIA erred in summarily affirming the IJ’s

refusal to sua sponte reopen proceedings due to exceptional circumstances. After

careful review, we deny the petition in part, and dismiss it in part.

      We generally review the denial of a motion to reopen for abuse of discretion.

Jiang v. U.S. Att’y Gen., 

, 1256 (11th Cir. 2009). Our review is

limited to determining whether the BIA exercised its discretion in an arbitrary or

capricious manner. 

de novo whether we have subject matter

jurisdiction to consider a petition for review. Ruiz v. Gonzales, 

, 765

(11th Cir. 2007). When the BIA issues a summary affirmance of the IJ’s opinion

under 8 C.F.R. § 1003.1(e)(4), we review the IJ’s opinion, not the BIA’s decision.

Mendoza v. U.S. Att’y Gen., 

, 1284 n.1 (11th Cir. 2003). Therefore,

we review the IJ’s decision “as if it were the Board’s.” Alim v. Gonzalez, 

, 1254 (11th Cir. 2006) (quotations omitted).




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      First, we are unpersuaded by Gonzalez-Rodriguez’s claim that the IJ abused

his discretion in holding that she failed to make a prima facie showing of a material

change in conditions. Motions to reopen in removal proceedings are disfavored.

. We have held that, at a minimum, the BIA may deny a

motion to reopen on the following three grounds: (1) failure to establish a prima

facie case; (2) failure to introduce evidence that was material and previously

unavailable; and (3) a determination that an alien is not entitled to a favorable

exercise of discretion despite statutory eligibility for relief. Al Najjar v. Ashcroft,

, 1302 (11th Cir. 2001).

      An alien may file one motion to reopen removal proceedings, which must

state the new facts to be proved at a hearing held if the motion is granted, and must

be supported by affidavits or other evidentiary material.                 8 U.S.C. §

1229a(c)(7)(A)-(B); 8 C.F.R. § 1003.2(c)(1)-(2); Ali v. U.S. Att’y Gen., 

, 808 (11th Cir. 2006). The motion must be filed within 90 days of the date of

entry of the final order of removal. 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. §

1003.2(c)(2); Zhang v. U.S. Att’y Gen., 

, 1319 (11th Cir. 2009).

Even so, time and numerical time limitations do not apply “when (1) an alien filed

a motion to reopen that seeks asylum, withholding of removal, or relief under

[CAT]; (2) the motion is predicated on changed country conditions; and (3) the

changed conditions are material and could not have been discovered at the time of


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removal proceedings.”       

; see also 8 U.S.C. §

1229a(c)(7)(C)(ii). The petitioner has a “heavy burden” and must demonstrate

“that, if the proceedings were opened, the new evidence would likely change the

result of the case.” 

-57.

      To establish eligibility for asylum, a petitioner must demonstrate either past

persecution, or a well-founded fear of future persecution, based on a statutorily

listed factor. Ruiz v. U.S. Att’y Gen., 

, 1257 (11th Cir. 2006). If

the petitioner demonstrates past persecution, there is a rebuttable presumption that

he has a well-founded fear of future persecution. 

petitioner cannot

demonstrate past persecution, he must demonstrate that he has a well-founded fear

of future persecution that is both subjectively genuine and objectively reasonable.

a well-founded fear of future persecution, the alien must present

“specific, detailed facts showing a good reason to fear that he or she will be singled

out for persecution.” Sepulveda v. U.S. Att’y Gen., 

, 1231 (11th Cir.

2005) (quotation omitted) (emphasis omitted).

      The burden of proof for withholding of removal is “more likely than not,”

which is more stringent than the standard for asylum relief. 

(quotation

omitted). Thus, if a petitioner fails to establish a claim of asylum on the merits, he

often necessarily fails to establish a claim for withholding of removal. 

-

33. As a result, if the IJ made findings in support of denying an asylum claim, he


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need not make specific findings with respect to a withholding of removal claim.

Amaya-Artunduaga v. U.S. Att’y Gen., 

, 1249 n.3 (11th Cir. 2006).

      To establish a CAT claim, the alien must establish that he “more likely than

not . . . would be tortured if removed to the proposed country of removal.” Al

(quotation omitted). The torture must be “inflicted by or

at the instigation of or with the consent or acquiescence of a public official or other

person acting in an official capacity.” 

A government

official acquiesces in torture where the official is aware of the torture before it

occurs “and thereafter breach[es] his or her legal responsibility to intervene to

prevent such activity.” Reyes-Sanchez v. U.S. Att’y Gen., 

, 1242

(11th Cir. 2004) (quotation omitted).         Evidence that the police provided a

petitioner with some protection does not support a finding that the government

acquiesced in torture to qualify him for CAT relief. Rodriguez Morales v. U.S.

Att’y Gen., 

, 891 (11th Cir. 2007).

      In this case, the IJ did not abuse his discretion in denying Gonzalez-

Rodriguez’s motion to reopen removal proceedings because Gonzalez-Rodriguez

failed to make a prima facie showing of a material change in conditions in El

Salvador. As the record shows, Gonzalez-Rodriguez failed to submit evidence

concerning changed country conditions that was material and previously

unavailable, she submitted evidence that actually tended to show that murders in El


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Salvador were declining, and she failed to establish that her own life was

threatened on account of a protected class. Nor did the IJ abuse his discretion in

failing to make a specific finding on whether Gonzalez-Rodriguez qualified as a

member of a “particular social group,” since the finding was not necessary to the

result it reached in denying her motion to reopen -- and especially since the threat

she received occurred before her original removal proceeding.            See INS v.

Bagamasbad, 

, 25 (1976) (holding that as a general rule “courts and

agencies are not required to make findings on issues the decision of which is

unnecessary to the results they reach”).       Even so, evidence that Gonzalez-

Rodriguez’s family was targeted by another family and that she faced a risk of

persecution by that family did not establish her membership in a “particular social

group” for purposes of granting her asylum. See Rodriguez v. U.S. Att’y Gen.,

, 1310 (2013) (quotation omitted) (holding that an alien did not

qualify as a member of a particular social group based on threats to his family from

a drug-trafficking organization that wanted the family’s land for growing drugs,

because “risk of persecution alone does not create a particular social group”).

      Moreover, because Gonzalez-Rodriguez failed to meet the standard for

asylum, and because the standard for establishing eligibility for withholding of

removal is even higher than the standard for asylum, the IJ did not abuse his

discretion in failing to consider Gonzalez-Rodriguez’s claim for withholding of


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removal. 

; see also 

n.3. Nor did the IJ abuse his discretion in finding that Gonzalez-Rodriguez

was not eligible for CAT relief -- among other things, the evidence she submitted

in her application tended to show that the Salvadorian government had laws in

place to protect its citizens and was attempting to reduce gang violence.

      We are also unconvinced by Gonzalez-Rodriguez’s argument that the BIA

erred in summarily affirming the IJ’s refusal to sua sponte reopen removal

proceedings. We lack jurisdiction to review the BIA’s denial of a motion to reopen

based on its sua sponte authority because 8 C.F.R. § 1003.2(a) provides no

meaningful standard against which to judge the BIA’s exercise of its discretion.

Lenis v. U.S. Att’y Gen., 

, 1292-94 (11th Cir. 2008). Under the

prior precedent rule, we are bound to follow prior binding precedent unless and

until we overrule it sitting en banc, or until the United States Supreme Court

overrules the decision. United States v. Vega-Castillo, 

, 1236 (11th

Cir. 2008).

      Because neither this Court sitting en banc nor the Supreme Court has

overruled Lenis, we are bound to follow Lenis. Accordingly, we lack jurisdiction

to review the BIA’s order summarily affirming the IJ’s refusal to reopen Gonzalez-

Rodriguez’s removal proceedings. Moreover, although Lenis indicated that we

may have jurisdiction over constitutional claims raised by a petitioner, Gonzalez-


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Rodriguez failed to make a meritorious constitutional claim that would warrant our

consideration.      Therefore, we lack jurisdiction to review the BIA’s order

summarily affirming the IJ’s refusal to sua sponte reopen Gonzalez-Rodriguez’s

removal proceedings, and dismiss Gonzalez-Rodriguez’s petition as to this issue.

      PETITION DENIED IN PART, DISMISSED IN PART.




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