                                                                   [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                              FOR THE ELEVENTH CIRCUIT           FILED
                               ________________________ U.S. COURT OF APPEALS
                                                                   ELEVENTH CIRCUIT
                                                                     MARCH 14, 2011
                                      No. 10-11788                     JOHN LEY
                                  Non-Argument Calendar                  CLERK
                                ________________________

                                  Agency No. A042-281-032


NEVARDO DEJESUS RODRIGUEZ-CHAVARRIA,

lllllllllllllllllllll                                                        Petitioner,

                                            versus

U.S. ATTORNEY GENERAL,

lllllllllllllllllllll                                                      Respondent.

                                ________________________

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

                                      (March 14, 2011)

Before EDMONDSON, PRYOR and MARTIN, Circuit Judges.

PER CURIAM:
       Nevardo Dejesus Rodriguez-Chavarria petitions for review the Board of

Immigration Appeals’ order affirming the decision of the Immigration Judge. The

IJ’s decision denied Rodriguez-Chavarria’s motion to terminate his reopened

removal proceedings. After careful review, we deny the petition.

                                                    I.

       Rodriguez-Chavarria, a native and citizen of Colombia, was admitted into

the United States as a lawful permanent resident on September 23, 1990. On May

13, 2003, Rodriguez-Chavarria was convicted of aggravated assault with a deadly

weapon, in violation of Fla. Stat. § 784.021. Based on that conviction, the

Department of Homeland Security issued a notice to appear in May 2003, charging

Rodriguez-Chavarria with removability under Section 237(a)(2)(C) of the

Immigration and Nationality Act.1 At his removal hearing on June 19, 2003,

Rodriguez-Chavarria conceded that he was removable under the INA. On July 10,




       1
           That section of the INA provides that:

       Any alien who at any time after admission is convicted under any law of
       purchasing, selling, offering for sale, exchanging, using, owning, possessing, or
       carrying, or of attempting or conspiring to purchase, sell, offer for sale, exchange,
       use, own, possess, or carry, any weapon, part, or accessory which is a firearm or
       destructive device (as defined in section 921(a) of Title 18) in violation of any law
       is deportable.

8 U.S.C. § 1227(a)(2)(C).

                                                    2
2003, he filed an application for cancellation of removal. The IJ granted that

application, after a hearing, on July 23, 2003.

      On October 24, 2008, DHS filed a motion to reopen removal proceedings

and to vacate the IJ’s cancellation of removal order. In support of its motion, DHS

submitted a judgment of conviction from New Jersey showing that Rodriguez-

Chavarria was arrested in 1995 and convicted in 1998 for possession of cocaine.

DHS stated that: “[o]n or about July 23, 2003, [it] ran a background check and

[Rodriguez-Chavarria’s] cocaine possession conviction did not appear.” DHS

asserted that “[t]he existence of the 1995 cocaine arrest and subsequent 1998

conviction is material, and was not available for discussion back in July, 2003.”

The IJ granted DHS’s motion to reopen on November 17, 2008.

      On February 3, 2009, Rodriguez-Chavarria filed a motion to terminate his

reopened removal proceedings, arguing that DHS’s motion to reopen should not

have been granted because his 1998 cocaine conviction was discoverable at the

time of his original removal proceedings. Afer a hearing, the IJ denied Rodriguez-

Chavarria’s motion and ordered that he be removed to Colombia. In explaining

his decision, the IJ stated that it was Rodriguez-Chavarria’s burden to disclose his

prior conviction and establish that he was statutorily eligible for cancellation of




                                          3
removal.2 The IJ observed that Rodriguez-Chavarria could not “sit back and

blame the DHS for its failure to discover his conviction and thus avoid his

individual responsibility to disclose the conviction record.” The IJ also pointed

out that Rodriguez-Chavarria was asked at his original removal proceedings about

his arrest history, and he did not disclose his 1995 arrest for cocaine possession.3

Nor did he disclose the arrest on his application for cancellation of removal. The

IJ stated that: “[t]he existence of the 1995 cocaine arrest and subsequent 1998

conviction was material and was not available for discussion back in July of

2003.”

       Rodriguez-Chavarria appealed the IJ’s decision to the BIA, which affirmed

the IJ’s decision without opinion. He now petitions for review of that decision.

                                               II.

       We review a decision to reopen removal proceedings for an abuse of

discretion. INS v. Doherty, 502 U.S. 314, 323, 112 S. Ct. 719, 724–25 (1992); Ali

v. U.S. Att’y Gen., 443 F.3d 804, 808 (11th Cir. 2006). When the BIA adopts the



       2
           An alien who seeks cancellation of removal bears the burden of establishing his
eligibility. See 8 C.F.R. § 1240.8(d).
       3
         At his July 2003 hearing, the government asked Rodriguez-Chavarria about his arrests
in New Jersey. Rodriguez-Chavarria testified that he had been arrested “for drinking in the
park.” After disclosing that arrest, the government asked: “any other arrests?” Rodriguez-
Chavarria responded: “that I remember? No.”

                                                4
IJ’s decision without opinion, we review only the decision of the IJ. Silva v. U.S.

Att’y Gen., 448 F.3d 1229, 1235 (11th Cir. 2006). We review questions of law de

novo. Assa’ad v. U.S. Att’y Gen., 332 F.3d 1321, 1326 (11th Cir. 2003).

      The Code of Federal Regulations provides that an IJ may reopen

proceedings “upon his or her own motion at any time.” 8 C.F.R. § 1003.23(b)(1).

However, if a motion to reopen is filed by either party, the regulations provide:

“[a] motion to reopen will not be granted unless the [IJ] is satisfied that evidence

sought to be offered is material and was not available and could not have been

discovered or presented at the former hearing.” 8 C.F.R. § 1003.23(b)(3). To be

“material,” the offered evidence must be the kind that, if the proceedings were

reopened, would likely change the result in the case. See Ali v. U.S. Att’y Gen.,

443 F.3d 804, 813 (11th Cir. 2006). Evidence that was available and could have

been presented at a former hearing is not considered “new.” Verano-Velasco v.

U.S. Att’y Gen., 456 F.3d 1372, 1377 (11th Cir. 2006); see also Zhang v. U.S.

Att’y Gen., 572 F.3d 1316, 1319 (11th Cir. 2009) (explaining that because

motions to reopen are disfavored, the moving party bears a “heavy burden”).

      Rodriguez-Chavarria contends that the IJ improperly granted DHS’s motion

to reopen because the evidence offered—his 1995 arrest and subsequent

conviction in 1998 for cocaine possession—was not “new” evidence. Because

                                          5
both occurred before his original removal proceeding in July 2003, he argues that

evidence was available and could have been discovered before the proceeding.

      It is undisputed that Rodriguez-Chavarria’s New Jersey cocaine possession

arrest and conviction is “material” evidence. Had it been before the IJ in July

2003, the IJ could not have granted his application for cancellation of removal.

The issue in this case is whether it was evidence that “was not available and [that]

could not have been discovered or presented,” 8 C.F.R. § 1003.23(b)(3), at his

July 2003 removal proceeding.

      We reject Rodriguez-Chavarria’s argument that his arrest and conviction

could have been discovered before his removal proceeding solely because they

occurred first in time. The record shows that DHS performed a background check

before Rodriguez-Chavarria’s removal proceeding and that the arrest and

conviction did not appear on the report. The record also shows that Rodriguez-

Chavarria did not disclose his arrest or conviction on his application for

cancellation of removal. To satisfy § 1003.23(b)(3), DHS did not have to prove to

a metaphysical certainty that no amount of searching would have revealed

Rodriguez-Chavarria’s arrest and conviction. DHS exercised reasonable diligence

to determine Rodriguez-Chavarria’s eligibility for cancellation of removal by

running a background check. Had Rodriguez-Chavarria disclosed his prior arrest

                                          6
and conviction on his application for cancellation of removal—as he was required

to do—his ineligibility would have been apparent. Under the circumstances of

this case, we find that Rodriguez-Chavarria’s arrest and conviction was evidence

that “could not have been discovered.” Accordingly, we conclude that DHS’s

motion to reopen was properly granted and therefore deny Rodriguez-Chavarria’s

petition.

      PETITION DENIED.




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