Gamaliel Rodriguez-Parra v. U.S. Attorney General, (11th Cir. 2007)

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[D O NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FILED

F O R THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

MARCH 14, 2007

THOMAS K. KAHN

N o . 06-13954

CLERK

N o n - A r g u m e n t Calendar

B IA Nos. A96-085-205 & A96-085-206

G A M A L IE L RODRIGUEZ-PARRA,

NANCY MORENO VILLARRAGA,

MANUEL JOSE RODRIGUEZ MORENO,

DENI ESPERANZA RODRIGUEZ-PARRA,

Petitioners,

versus

U.S. ATTORNEY GENERAL,

Respondent.

P etitio n for Review of a Decision of the

B o ard of Immigration Appeals

(M a rch 14, 2007)

B efo re TJOFLAT, HULL and WILSON, Circuit Judges.

P E R CURIAM:

G am aliel Rodriguez-Parra ("Rodriguez-Parra"), his wife, Nancy Moreno V illa rr ag a ("Nancy"), their son, Manuel Jose Rodriguez Moreno ("Manuel Jose"), an d Rodriguez-Parra's sister, Deni Rodriguez-Parra ("Deni") seek review of the B IA 's order denying their motion to reopen their removal proceedings. On appeal, p e titio n e rs argue that the BIA erred by considering their new evidence as c u m u la tiv e and by failing to find that they were prima facie eligible for relief from r e m o v a l.

BACKGROUND O n May 6, 1999, Rodriguez-Parra, Nancy, and Manuel Jose, all natives and citizen s of Colombia, were admitted to the United States as nonimmigrant visitors, w h o were not to remain in the country beyond November 5, 1999. On January 20, 2 0 0 1 , Deni, also a native and citizen of Colombia, was admitted to the United S tates as a nonimmigrant visitor, who was not to remain in the country beyond Jan u ary 19, 2002.

On September 6, 2002, Rodriguez-Parra, on behalf of himself, his wife and h is son, filed an application seeking asylum and withholding of removal based u p o n his political opinion under the Immigration and Nationality Act ("INA"), and fo r relief under the United Nations Convention Against Torture and Other Cruel, In h u m an , or Degrading Treatment or Punishment ("CAT"). He reported that his fam ily had been active in the Liberal Party in Colombia and had participated in the m ayo ral campaign for San Juan. He also reported that he was an independent m erch an t, his father owned a large farm close to their town, and his brother, also n a m e d Manuel, worked for the Administrative Department of Security ("DAS") w ith the Colombian government. He stated that, in June of 1998, members of the R ev o lu tio n ary Armed Forces of Colombia ("FARC") threatened him and his f am ily and told them to pay the FARC money to support its "revolutionary cause." He reported that, in September of 1998, two members of the FARC came to his sto re and threatened him. He also stated that, in March of 1999, members of the F A R C began calling his house and store, threatening his family's lives. On O cto b er 22, 2002, the Department of Homeland Security issued them notices to ap p ear, stating that they were deportable.

At a removal hearing, the IJ held that the petitioners were not eligible for asylu m because they failed to apply for asylum within one year of arriving in the U n ited States and had not shown any exceptional circumstances excusing their late filin g . Thus, petitioners' claims were limited to withholding of removal and p ro tectio n under CAT.

Rodriguez-Parra testified that his brother, Manuel, also was in the United S tates and seeking asylum. Rodriguez-Parra stated that he was seeking relief from rem o v al on the basis that Manuel worked for the DAS and was persecuted by the F A R C . The IJ continued the hearing so that the petitioners could attempt to have M an u el testify.

At the next hearing, Manuel testified that he was seeking political asylum an d had worked with the Colombia Security Department, serving "dignitaries, high fu n ctio n aries of the government, like magistrates, [j]udges, [and] politicians." He also testified that he had seized arms and uniforms from the FARC and became k n o w n nationally for his work. He explained that he was afraid for his family, b e c au s e when one works for the government, the FARC also threatens that p e r so n 's siblings. Rodriguez-Parra testified that he was a member of the Liberal P arty in Colombia, and that there was nowhere in Colombia where he would be s af e. He also reported that his entire family was together on the family ranch when th e FARC came and ordered them to pay money.

The IJ issued an order denying withholding of removal under the INA and relief under the CAT. In his decision, he stated that the petitioners had not estab lish ed that they had been subjected to past persecution on account of their p o litic al opinion. Rather, he found that any persecution that had occurred was b ased on the family's refusal to pay the FARC extortion money, and there was no ev id en ce that the extortion demands were based on the family's political activities.

He further noted that being the family member of a former Colombian security o f f ic er could not afford the petitioners relief. Thus, the IJ found that the petitioners h ad not established that they were eligible for withholding of removal under the IN A . He also found that they were not entitled for relief under CAT because, to th e extent that they feared being tortured, such torture would not be committed by th e Colombian government.

The BIA adopted and affirmed the IJ's decision. The BIA stated that the p e titio n e rs had not filed their asylum applications within one year of their arrival in to the United States, and because there were no extraordinary circumstances ju stifyin g the delay, they were not eligible for asylum. The BIA also stated that the p e titio n e rs ' were ineligible for withholding of removal and CAT relief. The BIA fo u n d that the FARC had targeted the petitioners, not "to overcome a belief held or im p u te d " to them, but "because they appeared to have the financial means to pay th e money to FARC," and, thus, they were not targeted on account of a protected g ro u n d .

The petitioners filed a motion to reopen their removal proceedings with the B I A . The motion included seven sworn statements, which the petitioners asserted c o n ta in e d relevant testimony regarding the dangers that they would face if they w ere returned to Colombia. The petitioners argued that these statements were not a v a ila b le at the time of their removal hearing and referred to events that occurred tw o years after their hearing.

The BIA denied the petitioners' motion to reopen their removal proceedings, n o tin g that the new statements and affidavits were not sufficient to cure the late filin g of the asylum applications. The BIA also found that the evidence did not "d e m o n s tr ate prima facie eligibility for a grant of withholding of removal or relief u n d e r the CAT in that [the evidence] is essentially cumulative" of the evidence that w as presented to the IJ at the removal hearing. The BIA also noted that the e v id e n c e did not establish that it was more likely than not that the petitioners w o u ld be persecuted on account of a protected ground or tortured if they were retu rn ed to Colombia.

STANDARD OF REVIEW W e review the BIA's denial of a motion to reopen for an abuse of discretion.

S ee Mejia Rodriguez v. Reno, 178 F.3d 1139, 1145 (11th Cir. 1999).

DISCUSSION A n alien seeking withholding of removal under INA must show that his life o r freedom would be threatened on account of his race, religion, nationality, m em b ersh ip in a particular social group, or political opinion. Mendoza v. U.S.

A tt'y Gen., 327 F.3d 1283, 1287 (11th Cir. 2003). An alien can meet this burden b y showing either (1) "past persecution in his country based on a protected g ro u n d ," or (2) "a future threat to his life or freedom on a protected ground in his c o u n tr y." Id.

A motion to reopen shall state "new facts" that would be proven at a new h e a rin g , but "shall not be granted unless it appears to the Board that evidence s o u g h t to be offered is material and was not available and could not have been d is co v e re d or presented at the former hearing." 8 C.F.R. § 1003.2(c)(1). "[T]here are at least three independent grounds upon which the [BIA] may deny a motion to r eo p e n : (1) failure to establish a prima facie case; (2) failure to introduce evidence th at was material and previously unavailable; and (3) a determination that despite th e alien's statutory eligibility for relief, he or she is not entitled to a favorable e x e rc is e of discretion." Al Najjar v. U.S. Att'y Gen., 257 F.3d 1262, 1302 (11th C ir. 2001).

Here, the BIA did not abuse its discretion by denying the petitioners' motion to reopen. The new evidence did not establish that they were prima facie eligible fo r relief from removal, and the evidence was essentially cumulative of the ev id en ce that was presented before the IJ. See Al Najjar, 257 F.3d at 1302.

The fact that the events recounted in the sworn statements occurred after the p etitio n ers' removal hearing does not mean that the submitted evidence cannot be d e e m e d cumulative of the evidence that was presented at the petitioners' removal h earin g . Four of the seven sworn statements submitted by the petitioners merely state that the FARC is still looking for Rodriguez-Parra and his family. Two of the statem en ts state that the FARC is looking for Rodriguez-Parra because of the debt th a t he owes the FARC. Only one sworn statement mentions that Rodriguez-Parra h ad to leave Columbia because of his membership with the Liberal Party, and it a p p e a r s that the contents of this statement could have been presented at the initial r em o v a l hearing. This evidence is essentially cumulative of the evidence presented b e f o r e the IJ at the removal hearing. The petitioners had already submitted ev id en ce to the IJ that Rodriguez-Parra was a member of the Liberal Party, that his fam ily had been threatened by the FARC, and that they owed the FARC a "debt," w h ich was tantamount to extortion money. We have made clear that refusing to p ay extortion money to the FARC does not make one eligible for relief from rem o v al and does not constitute a political opinion. See Sanchez v. U.S. Att'y Gen., 3 9 2 F.3d 434, 438 (11th Cir. 2004) (per curiam) (stating that the petitioner's refu sal to pay the FARC 20 million pesos in extortion money did not establish the p etitio n er's "actual or imputed political opinion, much less any nexus between [the p etitio n er's] political opinion and the FARC's alleged persecution").

Accordingly, we find that the BIA did not abuse its discretion in finding that th e new evidence was essentially cumulative of the evidence presented before the I J and did not establish that the petitioners were prima facie eligible for relief from w ith h o ld in g of removal or relief under CAT. Therefore, we deny the petition for r e v ie w .

PETITION DENIED.

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