                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT                     FILED
                      ________________________          U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                             November 6, 2006
                            No. 06-11043                     THOMAS K. KAHN
                        Non-Argument Calendar                    CLERK
                      ________________________

                          BIA No. A29-596-519

MIGUEL ANGEL CORDOVA-BRAMON,


                                                                    Petitioner,

                                  versus

U.S. ATTORNEY GENERAL,

                                                                  Respondent.



                      ________________________

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

                           (November 6, 2006)

Before TJOFLAT, BARKETT and WILSON, Circuit Judges.

PER CURIAM:
       Miguel Angel Cordova-Bramon, proceeding pro se, petitions for review of a

Board of Immigration Appeals (“BIA”) decision denying his motion to reopen

removal proceedings pursuant to 8 C.F.R. § 1003.2(c). Cordova-Bramon argues

that his untimely motion to reopen comes within an exception to the timely filing

requirement based on changed circumstances within his native country of Peru.

Upon review of the record, and upon consideration of the briefs of the parties, we

find no reversible error.

                                STANDARD OF REVIEW

       We review the BIA’s denial of a motion to reopen for abuse of discretion.

Gbaya v. U.S. Att’y Gen., 342 F.3d 1219, 1220 (11th Cir. 2003)(per curiam). “In

this particular area, the BIA’s discretion is quite broad.” Id. (internal quotation

marks omitted). Our review of a denial of a motion to reopen in removal

proceedings is limited to determining “whether there has been an exercise of

administrative discretion and whether the matter of exercise has been arbitrary or

capricious.” Garcia-Mir v. Smith, 766 F.2d 1478, 1490 (11th Cir. 1985)(per

curiam)(internal quotation marks omitted).

                                     BACKGROUND

       In January 2002, the Immigration and Naturalization Service (“INS”)1

       1
         On November 25, 2002, President Bush signed into law the Homeland Security Act of 2002
(HSA), Pub. L. No. 107-296, 116 Stat. 2125. The HSA created a new Department of Homeland
Security (DHS), abolished the INS, and transferred its functions to the new department. However,
                                                2
served Cordova-Bramon, a native and citizen of Peru, with a notice to appear,

charging him with removability under the Immigration and Nationality Act

(“INA”) § 212(a)(6)(C)(i), 8 U.S.C. § 1182(a)(6)(C)(i), for seeking to procure

entry into the United States through fraud, and under INA § 212(a)(7)(A)(i)(I), 8

U.S.C. § 1182(a)(7)(A)(i)(I), for attempting to enter the United States without

possession of a valid immigrant visa or other entry document. In a credible fear

interview with INS, Cordova-Bramon indicated that he feared returning to Peru.

Cordova-Bramon stated that he was the manager of Mangos Restaurant and, in

April 2000, members of the Destroyers, a gang involved in criminal activities, held

him at gunpoint and robbed the restaurant. Cordova-Bramon stated that the

members of the Destroyers later threatened him because he had assisted the police

in capturing one of the perpetrators and gave a statement to the police.

       Cordova-Bramon filed for asylum, withholding of removal, and relief

pursuant to the United Nations Convention on Torture and Other Cruel, Inhuman,

or Degrading Treatment or Punishment (“CAT relief”). To be eligible for asylum,

an applicant must show that he is unable or unwilling to return to his home country

because of persecution or a well-founded fear of persecution on account of race,

religion, nationality, membership in a particular social group, or political opinion.



because this case was initiated while the INS was still in existence, this opinion refers to the agency
as the INS rather than the DHS.
                                                 3
8 U.S.C. § 1101(a)(42). Cordovo-Bramon stated that he had testified against the

leader of the Destroyers, and that the Destroyers had threatened him because of his

testimony. He alleged persecution on account of membership in a particular social

group, which was based on the threats he received by the Destroyers after he

testified against and helped prosecute one of its leaders

      At his asylum hearing in August 2003, Cordova-Bramon testified that

members of the Destroyers had been looking for him and their attorney threatened

him after he had testified against one of its leaders. Cordova-Bramon also testified

that the police would not protect him. He also clarified that he sought asylum

based on membership in a particular social group, which was a witness to a crime

who was not afforded police protection.

      The Immigration Judge (“IJ”) denied Cordova-Bramon relief in the form of

asylum and withholding of removal. The IJ expressed concerns as to whether

persons who testified against a member of the Destroyers consisted of a social

group within the meaning of § 1101(a)(42). Furthermore, the IJ found that

Cordova-Bramon had not established that he objectively suffered past persecution

or had a well-founded fear of future persecution on account of any statutory

ground. The IJ also found that Cordova-Bramon failed to submit any evidence that

the authorities in Peru were unable or willing to protect him and failed to establish

that others similarly situated to him had been harmed. The IJ also denied Cordova-
                                           4
Bramon asylum as a matter of discretion, because he had previously tried to enter

the United States using a fraudulent document. Cordova-Bramon appealed the IJ’s

decision to the BIA and argued that the IJ erred in finding that he was not eligible

for the relief sought. On October 14, 2004, the BIA affirmed the IJ’s decision

without opinion. Cordova-Bramon did not appeal the BIA’s decision. On

November 15, 2004, Cordova-Bramon filed a motion to reconsider, which the BIA

denied on December 30, 2004. Cordova-Bramon did not appeal this decision.

      On September 15, 2005, Cordova-Bramon filed a motion to reopen his

removal proceedings in order to reapply for asylum. Cordova-Bramon conceded

that his motion to reopen was untimely; however, he argued that it came within the

exception to the timely filing requirement because of changed circumstances

within Peru. The BIA denied Cordova-Bramon’s motion to reopen finding that he

had failed to show how conditions had materially changed in Peru. Cordova-

Bramon filed the instant appeal.

                                   DISCUSSION

      “[A]n alien may file only one motion to reopen removal proceedings . . . and

that motion must be filed no later than 90 days after the date on which the final

administrative decision was rendered in the proceeding sought to be reopened.” 8

C.F.R. § 1003.2(c)(2). An exception to the timely filing requirement exists if, inter

alia, the alien is reapplying for asylum and withholding of removal “based on
                                          5
changed circumstances arising in the country of nationality or in the country to

which deportation has been ordered, if such evidence is material and was not

available and could not have been discovered or presented at the previous hearing.”

Id. at § 1003.2(c)(3)(ii).

         In this case, the BIA did not abuse its discretion in denying Cordova-

Bramon’s motion to reopen, because he did not show changed circumstances in

Peru so as to come within the exception to the timely filing requirement. The

evidence he submitted did not show how circumstances had changed in Peru;

rather, the evidence showed that members of the Destroyers had continued to look

for him because of his testimony against one of its leaders. This is the same claim

he presented in his original asylum application, and the same claim on which the IJ

ruled.

         While the evidence submitted in his motion to reopen consists of alleged

threats against him directed towards his parents, coworkers, neighbors, and friends

by the Destroyers, Cordova-Bramon failed to show how these incidents constitute a

material change in the conditions within Peru. The evidence indicates that the

threats to Cordova-Bramon’s parents had actually decreased since 2000, and that

the authorities were willing to provide assistance to his parents. Cordova-Bramon

submitted no evidence that the authorities were unwilling or unable to protect him.

See Marzariegos v. U.S. Att’y Gen., 241 F.3d 1320, 1327 (11th Cir. 2001). In
                                            6
essence, the evidence Cordova-Bramon submitted demonstrated ongoing threats by

the Destroyers because of his testimony, not how circumstances have changed

within Peru since the IJ rendered the original decision denying his claim.

      Furthermore, much of the evidence submitted by Cordova-Bramon was

available during his initial removal hearing. His parents and neighbors indicated

that they have received threats from the Destroyers on a continual basis since 2000.

Former co-workers at Mango’s Restaurant stated that since 2000 unidentified

individuals had inquired about Cordova-Bramon’s whereabouts. This evidence

was both available during his removal hearing in 2003 and does not constitute a

change in circumstances pursuant to 8 C.F.R. § 1003.2(c)(3)(ii).

      Since Cordova-Bramon’s motion to reopen was not timely, and he did not

present evidence establishing changed conditions in Peru, the BIA’s action in

dismissing Cordova-Bramon’s motion to reopen was not arbitrary, or capricious or

otherwise an abuse of discretion. See Gracia-Mir, 766 F.2d at 1490. Accordingly,

we deny the petition.

      PETITION DENIED.




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