                                                               [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT                      FILED
                           ________________________          U.S. COURT OF APPEALS
                                                               ELEVENTH CIRCUIT
                                                                   January 12, 2007
                                 No. 06-12801                    THOMAS K. KAHN
                             Non-Argument Calendar                   CLERK
                           ________________________

                               BIA No. A79-476-643

NELSON PUENTES-OVIEDO,


                                                                          Petitioner,

                                       versus

U.S. ATTORNEY GENERAL,

                                                                        Respondent.
                           ________________________

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

                                (January 12, 2007)

Before DUBINA, CARNES and KRAVITCH, Circuit Judges.

PER CURIAM:

      Nelson Puentes-Oviedo (“Oviedo”) petitions this court to review the BIA’s

denial of his motion to re-open the BIA’s denial of his motion to reconsider its
affirmance of the Immigration Judge’s (“IJ”) order of removal and denial of

asylum relief. Upon review, we deny the petition.

      Oviedo, a native and citizen of Colombia, entered the United States in March

2003 without valid entry documents, and the Department of Homeland Security

(“DHS”) issued a notice to appear charging him with removability under INA

§ 212(a)(7)(A)(i)(I); 8 U.S.C. § 1182(a)(7)(A)(i)(I). Oviedo applied for asylum

and withholding of removal, as well as relief under the United Nations Convention

Against Torture (“CAT”), alleging that he had been persecuted by FARC members

due to his political opinion. On May 7, 2004, the IJ denied relief and ordered

Oviedo removed, finding that Oviedo’s testimony was not credible. Oviedo

appealed to the BIA, but did not challenge the adverse credibility finding. The

BIA affirmed on August 23, 2005.

      On September 23, 2005, Oviedo filed a motion for reconsideration, which

the BIA denied on November 1, 2005. On December 15, 2005, Oviedo filed a

motion to re-open the BIA’s denial of the motion to reconsider, arguing that

conditions in Colombia had deteriorated and that he had new evidence. In support

of his motion, he submitted a newspaper article commenting on FARC’s

assassination of three minors, and letters from his mother, brother, son, and

attorney. The letters were dated September and November 2005 and referenced the

persecution Oviedo suffered and FARC’s continued search for him. The BIA
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denied the motion to re-open, finding that it was untimely, and that there was no

new evidence indicating changed circumstances to excuse an untimely motion.

Furthermore, the BIA noted that the motion did not challenge the credibility

determination, and without credible testimony, Oviedo had not established his

eligibility for relief from removal. Oviedo then filed the instant petition.

      Oviedo argues that the BIA abused its discretion because the new evidence

was not available to the IJ before the removal hearings and would be likely to

change the outcome of his case because it confirms FARC’s violent tendencies and

“boasts” his credibility.

      We review the denial of a motion to re-open for abuse of discretion. Dakane

v. U.S. Att’y Gen., 399 F.3d 1269, 1272 n.2 (11th Cir. 2005); Lonyem v. U.S.

Att’y Gen., 352 F.3d 1338, 1340 (11th Cir. 2003). Our review is deferential. Al

Najjar v. Ashcroft, 257 F.3d 1262, 1302 (11th Cir. 2001). Motions to re-open are

disfavored in removal proceedings. INS v. Doherty, 502 U.S. 314, 323, 112 S.Ct.

719, 116 L.Ed.2d 823 (1992) (explaining that such motions are disfavored because

“as a general matter, every delay works to the advantage of the deportable alien

who wishes merely to remain in the United States”).

      A motion to re-open must be filed within 90 days after the date on which the

final administrative decision was rendered in the proceeding sought to be re-

opened. 8 C.F.R. § 1003.23(b)(1). This court has held that “[s]tatutes of
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limitations are not simply technicalities.” Mejia Rodriguez v. Reno, 178 F.3d

1139, 1145 (11th Cir. 1999) (citation omitted).

        An applicant seeking to re-open proceedings bears a “heavy burden.” Al

Najjar v. Ashcroft, 257 F.3d 1262, 1302-03 (11th Cir. 2001). A motion to re-open

“shall not be granted unless it appears to the Board 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. § 1003.2(c). “At a minimum, there are

at least three independent grounds upon which the Board may deny a motion to

reopen: 1) failure to establish a prima facie case; 2) failure to introduce evidence

that was material and previously unavailable; and 3) a determination that despite

the alien’s statutory eligibility for relief, he or she is not entitled to a favorable

exercise of discretion.”1 Al Najjar, 257 F.3d at 1302 (citing Doherty, 502 U.S. at

323).

        Here, it appears that Oviedo sought to re-open the denial of the motion for

reconsideration as well as the BIA’s affirmance of the IJ’s order of removal.

        1. Motion for Reconsideration




        1
          As this court has explained, “the provision is framed negatively, by directing the Board
not to re-open unless certain showings are made. It does not affirmatively require the [BIA] to re-
open the proceedings under any particular condition. Thus, the regulations may be construed to
provide the [BIA] with discretion in determining under what circumstances the proceedings should
be re-opened.” Al Najjar, 257 F.3d at 1301.
                                                 4
      Oviedo’s motion to re-open was timely as to the BIA’s denial of the motion

for reconsideration. Nevertheless, the BIA did not abuse its discretion by denying

the motion. The letters referred to alleged threats and persecution that occurred

before the removal hearing, and the fact that Oviedo did not obtain the letters until

after the hearing does not make them “unavailable” earlier. Furthermore, as the

BIA noted, nothing in Oviedo’s motion impacts the IJ’s adverse credibility

determination, and, therefore, re-opening the appeal was unlikely to change the

outcome.

      2. Order of Removal

      With respect to the order of removal, the motion to re-open was untimely, as

it was filed more than 90 days after the decision issued. To justify re-opening,

Oviedo must show changed circumstances; he has failed to meet this burden. The

only evidence Oviedo submitted was his own statement that conditions have

worsened. The country reports submitted in support of the asylum application

acknowledge that FARC often engages in violent actions against citizens, and this

court has noted that Colombian citizens face danger and violence at the hands of

FARC. Castillo-Arias v. U.S. Att’y Gen., 446 F.3d 1190, 1198 (11th Cir. 2006).

Thus, Oviedo has not shown changed conditions, and the BIA did not abuse its

discretion.



                                          5
      Because Oviedo has not shown that the BIA abused its discretion in denying

the motion to re-open, we DENY the petition.




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