                                                                      [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS
                                                                             FILED
                                   FOR THE ELEVENTH CIRCUIT COURT OF APPEALS
                                                            U.S.
                                    ________________________ ELEVENTH CIRCUIT
                                                                          MAY 17, 2011
                                            No. 10-14780                   JOHN LEY
                                        Non-Argument Calendar                CLERK
                                      ________________________

                                           Agency No. A099-555-085


JORGE EDUARDO MENDIETA-ESCRUCERIA,

llllllllllllllllllllllllllllllllllllllll                                          Petitioner,

                                                    versus

U.S. ATTORNEY GENERAL,

llllllllllllllllllllllllllllllllllllllll                                       Respondent.

                                     ________________________

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

                                               (May 17, 2011)

Before TJOFLAT, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:
      Jorge Eduardo Mendieta-Escruceria, a citizen of Colombia, petitions for

review of the Board of Immigration Appeals’ (“BIA”) order, denying his motion to

reopen his removal proceedings, brought under 8 C.F.R. § 1003.2(c) and the

Immigration and Nationality Act (“INA”) § 240(c)(7), 8 U.S.C. § 1229a(c)(7). On

appeal, Mendieta-Escruceria concedes that his motion to reopen was untimely, but

argues that his motion should have been granted because he established changed

country conditions. After review, we deny the petition.

                                           I.

      “We review the [BIA’s] denial of a motion to reopen removal proceedings

for abuse of discretion.” Li v. U.S. Att’y Gen., 488 F.3d 1371, 1374 (11th Cir.

2007). Our review “is limited to determining whether the BIA exercised its

discretion in an arbitrary or capricious manner.” Zhang v. U.S. Att’y Gen., 572

F.3d 1316, 1319 (11th Cir. 2009). The BIA has discretion to deny a motion to

reopen for at least three reasons:

      (1) failure to establish a prima facie case [of eligibility for asylum or
      withholding of removal]; (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.

Li, 488 F.3d at 1374 (alteration in original) (quotation marks omitted).

      Generally, “[a]n alien may file only one motion to reopen removal

                                           2
proceedings, and it must be filed no later than 90 days after the final

administrative decision.” Jiang v. U.S. Att’y Gen., 568 F.3d 1252, 1256 (11th Cir.

2009) (citing 8 C.F.R. § 1003.23(b)(1)). However, the time and numerical

limitations do not apply when “(1) an alien files a motion to reopen that seeks

asylum, withholding of removal, or [CAT relief]; (2) the motion is predicated on

changed country conditions; and (3) the changed conditions are material and could

not have been discovered at the time of the removal proceedings.” Id. (citing 8

C.F.R. § 1003.23(b)(4)(i)). “An alien who attempts to show that the evidence is

material bears a heavy burden and must present evidence that demonstrates that, if

the proceedings were opened, the new evidence would likely change the result in

the case.” Id.

      Mendieta-Escruceria concedes that he filed his motion to reopen after the

90-day deadline, but he argues that he presented evidence of changed country

conditions that was not available at his original removal proceedings. In support

of his motion, Mendieta-Escruceria submitted affidavits from three individuals

who stated that they had been approached by members of the FARC since the time

of Mendieta-Escruceria’s removal hearing, threatened, and asked about his

whereabouts. At his removal hearing in 2007, Mendieta-Escruceria offered

affidavits establishing that FARC members were looking for him. Mendieta-

                                          3
Escruceria also testified that the FARC was looking for him and wanted to kill

him.

       The evidence submitted by Mendieta-Escruceria in support of his motion to

reopen was not new. It was essentially the same evidence that he presented to the

BIA at his removal hearing. For that reason, Mendieta-Escruceria did not carry his

“heavy burden” of “present[ing] evidence that demonstrates that, if the

proceedings were opened, the new evidence would likely change the result in the

case.” Jiang, 568 F.3d at 1256–57; see also Li, 488 F.3d at 1374. Thus, the BIA

did not abuse its discretion by denying Mendieta-Escruceria’s motion.

       PETITION DENIED.




                                         4
