                                                        [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT           FILED
                     ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                                                          JANUARY 19, 2012
                            No. 11-12307
                        Non-Argument Calendar                JOHN LEY
                                                              CLERK
                      ________________________

                        Agency No. A086-652-673




YAMNA JASMAR VIVAS GUERRERO,

                                                                  Petitioner,


                                  versus


U.S. ATTORNEY GENERAL,

                                                                Respondent.

                      ________________________

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

                            (January 19, 2012)

Before CARNES, HULL and WILSON, Circuit Judges.
PER CURIAM:

       Yamna Jasmar Vivas Guerrero (“Vivas”), a native and citizen of Venezuela,

seeks review of the denial of her motion to reopen her asylum application. After

review, we deny the petition.1

                              I. BACKGROUND FACTS

A.     Asylum Application

       On January 25, 2005, Vivas entered the United States on a visitor’s visa

with authorization to remain until December 30, 2005. Vivas overstayed her visa.

The Department of Homeland Security issued a Notice to Appear, charging Vivas

with removability, pursuant to the Immigration and Nationality Act (“INA”)

§ 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B).

       In March 2007, Vivas filed an application for asylum, withholding of

removal and relief under the United Nations Convention Against Torture (“CAT”).

Vivas’s application alleged past persecution and fear of future persecution based

on Vivas’s membership in a particular social group. Vivas claimed that while she

lived in Venezuela in 2003 she was threatened by unknown assailants because she

       1
         We review the denial of a motion to reopen for abuse of discretion. Jiang v. U.S. Att’y
Gen., 568 F.3d 1252, 1256 (11th Cir. 2009). “Our review is limited to determining whether there
has been an exercise of administrative discretion and whether the matter of exercise has been
arbitrary or capricious.” Ali v. U.S. Att’y Gen., 443 F.3d 804, 808 (11th Cir. 2006). Where, as
here, the BIA’s decision adopted the IJ’s reasoning, we review both decisions. See Jiang, 568
F.3d at 1256.

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worked for a U.S. petroleum company. In October 2003, two armed men

kidnapped Vivas, took all of her belongings, including her money, jewelry,

clothing, car and identification and credit cards, and then threw her from a bridge.

The men repeatedly told Vivas they had kidnapped her because she worked for a

“gringo” company and that if she did not leave the company, they would “do the

same thing” to her family and kill them.

      After an August 17, 2009 merits hearing, the Immigration Judge (“IJ”)

denied all requested relief because, among other things, Vivas had not shown

persecution on account of one of the five protected grounds. On October 8, 2009,

the Board of Immigration Appeals (“BIA”) dismissed Vivas’s appeal for lack of

jurisdiction because the appeal was untimely.

B.    Motion to Reopen

      More than a year later, on October 15, 2010, Vivas filed a motion to reopen

based on new evidence in support of her asylum application. Vivas attached

documentation, including an affidavit and police report, indicating that on July 19,

2010, Joenny Vivas, Vivas’s sister in Venezuela, was attacked by two armed men

who had mistaken Joenny for Vivas. Vivas’s motion to reopen argued that this

evidence showed there was a reasonable possibility of future persecution based on

her political opinion. According to Joenny’s affidavit, the men called her

                                           3
“Yamna,” and told her she had to go with them. Joenny told the men she was

Yamna’s sister and to check her identification. When she finally convinced the

men she was not Vivas, the men left.

      In a November 10, 2010 order, the IJ denied Vivas’s motion to reopen

because Vivas’s new evidence was not likely to change the outcome of her case.

The IJ explained that even if he accepted all of the new evidence as true, it was not

material because it did not show the men’s motive for targeting Vivas. The IJ

noted its prior finding that Vivas did not have a well-founded fear of future

persecution because, inasmuch as the persecution was motivated by her

employment with a U.S. company in 2003, Vivas had resigned from the company,

the company had left Venezuela and Vivas had traveled back to Venezuela

multiple times since 2005. The IJ determined that Vivas’s new evidence

undermined her original explanation of the motive for the 2003 attack and that it

was illogical that seven years later the same masked men would look for her again

to demand that she resign from a company that was no longer in Venezuela. The

IJ also found that Vivas’s new evidence did not indicate any government

involvement to demonstrate her eligibility for CAT relief.

      The BIA dismissed Vivas’s appeal. The BIA agreed with the IJ’s

conclusion that the evidence was not material because it did not indicate that the

                                          4
masked men targeted Vivas based on an enumerated ground. The BIA agreed that

the new evidence undermined Vivas’s original explanation for the threats and

attack and that “it does not logically follow that approximately 7 years after the

respondent’s resignation from her position at an American company the same

masked men would go looking for her to again demand that she resign from the

company.” The BIA also noted that the IJ’s original denial of asylum indicated

that there was “much crime in Venezuela,” that Vivas was robbed during the

October 2003 attack and that “it was not clear to the Court that one of the

enumerated grounds was a central reason for the attack, as required, rather than a

criminal motive.”

                                 II. DISCUSSION

      An alien generally must file a motion to reopen removal proceedings within

ninety days of the BIA’s final removal order. Immigration and Nationality Act

(“INA”) § 240(c)(7)(C), 8 U.S.C. § 1229a(c)(7)(C); 8 C.F.R. § 1003.23(b)(1).

However, the ninety-day limitation does not apply if the motion seeks asylum,

withholding of removal, or CAT relief based on changed country conditions and

the evidence of changed conditions is material and “was not available and would

not have been discovered or presented at the previous proceeding.” INA §

240(c)(7)(C)(ii), 8 U.S.C. 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.23(b)(4)(i). An

                                          5
alien moving to reopen bears a “heavy burden” with respect to materiality in that

she must show “that, if the proceedings were opened, the new evidence would

likely change the result in the case.” Jiang v. U.S. Att’y Gen., 568 F.3d 1252,

1256-57 (11th Cir. 2009); Ali v. U.S. Att’y Gen., 443 F.3d 804, 813 (11th Cir.

2007). Thus, the BIA may deny a motion to reopen if the new evidence does not

establish prima facie asylum eligibility. Al Najjar v. Ashcroft, 257 F.3d 1262,

1302 (11th Cir. 2001).

       To establish prima facie eligibility for asylum, the applicant must show past

persecution or a fear of future persecution on account of one of the five protected

grounds. INA § 101(a)(42), 8 U.S.C. § 1101(a)(42)(A); Sepulveda v. U.S. Att’y

Gen., 401 F.3d 1226, 1230-31 (11th Cir. 2005). Under the REAL ID Act of 2005,

the asylum applicant must show that one of the protected grounds “was or will be

at least one central reason” for the persecution. INA § 208(b)(1)(B)(i), 8 U.S.C. §

1158(b)(1)(B)(i).2 Evidence of acts of private violence or criminal activity do not

demonstrate persecution on account of a protected ground. Ruiz v. U.S. Att’y

Gen., 440 F.3d 1247, 1258 (11th Cir. 2006).

       We conclude that the IJ and the BIA did not act arbitrarily or capriciously in


       2
        Because Vivas’s 2007 application was filed after May 11, 2005, the REAL ID Act
provisions apply to her case. See Pub. L. No.1-9-13, § 101(h)(2), 119 Stat. 302, 305-06. Vivas’s
claim that the IJ and the BIA misapplied the “one central reason” standard lacks merit.

                                               6
denying Vivas’s motion to reopen. Vivas’s motion was filed on October 15, 2010,

almost one year after the BIA’s October 8, 2009 final order. Thus, Vivas’s motion

was untimely unless she presented material evidence of changed country

conditions.

      The IJ and the BIA reviewed Vivas’s new evidence and determined that it

did not satisfy the applicable standard for materiality. The IJ and the BIA

concluded that the new evidence was not material because it did not demonstrate a

motive for the masked men’s interest in Vivas, much less one that implicated a

statutorily protected ground. The IJ and the BIA also noted that the new evidence

undermined Vivas’s original explanation for their interest—her employment with

a U.S. petroleum company—given that Vivas resigned from her job seven years

before the attack on her sister. Thus, if anything, Vivas’s new evidence suggested

their motive may have been criminal, which cannot satisfy the nexus requirement

for asylum eligibility. Under the circumstances, we cannot say the IJ and the BIA

abused their discretion when they concluded that Vivas’s new evidence would not

change the result in her case.

      PETITION DENIED.




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