          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                                   FILED
                                                                January 14, 2009
                                No. 07-60372
                              Summary Calendar                Charles R. Fulbruge III
                                                                      Clerk

DONALD ANTONIO FERNANDEZ-BUCARDO

                                            Petitioner

v.

MICHAEL B MUKASEY, U S ATTORNEY GENERAL

                                            Respondent


                     Petition for Review of an Order of the
                        Board of Immigration Appeals
                             BIA No. A70 407 375


Before SMITH, STEWART and SOUTHWICK, Circuit Judges.
PER CURIAM:*
      Donald Fernandez-Bucardo (Fernandez), a native and citizen of
Nicaragua, has filed a petition for review of the Board of Immigration Appeals’
(BIA) denial of his motion to reopen removal proceedings. The BIA found that
he had failed to establish changed country conditions that materially affected his
original asylum application. Fernandez specifically argues that he was denied
a full and fair hearing because the BIA did not review the entire record of his
previous asylum hearing and that the presentation of his sworn declaration was

      *
      Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
                                  No. 07-60372

prima facie evidence that he had established a well-founded fear of future
persecution based on changed country conditions.
      Generally, a party may file only one motion to reopen removal proceedings;
however, an exception applies where the motion to reopen is based upon
“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.” 8 C.F.R. §§ 1003.2(c)(2) & 1003.2(c)(3)(ii) (2006). The motion shall
state the new facts to be proven and must be accompanied by supporting
affidavits or other evidentiary material. 8 C.F.R. § 1003.2(c)(1). Motions to
reopen deportation proceedings are not favored, and the moving party bears a
heavy burden. Altamirano-Lopez v. Gonzales, 435 F.3d 547, 549-50 (5th Cir.
2006). Fernandez has not met this burden.
      Fernandez attached to his motion to reopen a sworn declaration asserting
that during his 1990 asylum hearing, he testified before the immigration judge
(IJ) that because his father was a former member of the Somoza regime’s
National Guard, his family was subjected to persecution by the Sandinistas.
Fernandez recalled that the IJ denied the application because his descriptions
of the incidents did not rise to the level of past persecution and because he could
not establish a well-founded fear of future persecution as the Sandinistas had
been removed from power in 1990. Fernandez also attached to his motion to
reopen an Associated Press article asserting that former Sandinista president,
Daniel Ortega, had been re-elected president in 2006. Fernandez did not provide
the BIA with a transcript of the 1990 proceeding before the IJ, nor did he provide
any evidence in the form of testimony, articles, or State Department reports on
the present conditions in Nicaragua.
      To prove a well-founded fear of persecution, Fernandez must show that a
reasonable person in the same circumstances would fear persecution if removed.
Mikhael v. I.N.S., 115 F.3d 299, 304 (5th Cir. 1997). Thus, Fernandez’s assertion

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of a subjective fear of persecution must also be objectively reasonable. Zhao v.
Gonzales, 404 F.3d 295, 307 (5th Cir. 2005). In order to establish the objective
reasonableness of a fear of persecution, Fernandez must show that (1) he
possesses either a belief or characteristic that a persecutor seeks to overcome by
some sort of punishment; (2) the persecutor is aware or could become aware that
he possesses these beliefs or characteristics; (3) the persecutor is capable of and
has the means to inflict punishment; and (4) the persecutor has the inclination
to inflict punishment. Id.
      Fernandez’s assertion that he was denied access to a full and fair hearing
without due process of law is without merit. Proof of a denial of due process
rights in a deportation hearing requires a showing of substantial prejudice.
Anwar v. I.N.S., 116 F.3d 140, 144 (5th Cir. 1997).        Fernandez     does not
demonstrate the requisite prejudice and merely offers unsubstantiated
allegations without providing any evidence to establish that the BIA either
prevented him from presenting evidence or refused to consider all of the evidence
before it. Because he failed to provide the BIA with a transcript of his testimony
before the IJ, Fernandez cannot now argue that the BIA did not consider evidence
of this testimony. In addition, this court cannot weigh evidence not previously
brought before the BIA. Rivera-Cruz v. I.N.S., 948 F.2d 962, 967 (5th Cir. 1991).
      A review of the available evidence reveals that the BIA did not abuse its
discretion in finding that Fernandez had not provided sufficient evidence of
changed country conditions to support a finding of a well-founded fear of future
persecution. See Zhao, 404 F.3d at 303-11.        The evidence before the BIA
established only that Fernandez alleged to have provided the IJ with details of
past acts of persecution by the Sandinistas and that former president Ortega had
been re-elected in 2006. Fernandez did not provide an actual transcript of the
original hearing, nor did he provide evidence that Ortega was presently
sanctioning political violence by the former Sandinistas.            Accordingly,
Fernandez’s petition for review is DENIED.

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