                                                                       [DO NOT PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                             ________________________             FILED
                                                         U.S. COURT OF APPEALS
                                Nos. 10-13362 & 11-11248   ELEVENTH CIRCUIT
                               ________________________    SEPTEMBER 19, 2011
                                                                JOHN LEY
                                                                 CLERK
                                 Agency No. A099-555-193


ADOLFO JOSE FERNANDEZ GUTIERREZ,
MARIANA CAROLINA MOLERO-NEGRETTE,

                                                                  lllllllllllllllllllllPetitioners,

                                            versus

U.S. ATTORNEY GENERAL,

                                                      lllllllllllllllllllllRespondent.
                               ________________________

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

                                   (September 19, 2011)

Before HULL and FAY, Circuit Judges, and VINSON,* District Judge.

PER CURIAM:


       *
         Honorable C. Roger Vinson, United States District Judge for the Northern District of
Florida, sitting by designation.
       In these consolidated petitions, Adolfo Jose Fernandez Gutierrez and his

wife, Mariana Carolina Molero-Negrette, petition for review of (1) the Board of

Immigration Appeals’ (“BIA”) denial of their motion to reopen asylum

proceedings and (2) the BIA’s subsequent denial of their motion for

reconsideration.1 See 8 U.S.C. § 1229a(c)(6), (7); 8 C.F.R. § 1003.2. Although

conceding that the motion to reopen was untimely, Gutierrez argues that the BIA

abused its discretion because he submitted previously unavailable evidence

showing a material change in country conditions. Gutierrez further argues that the

BIA abused its discretion by refusing to address all of the arguments in the motion

for reconsideration. After review, we deny the petitions.2

                             I. FACTUAL BACKGROUND

A. Removal Proceedings

       Gutierrez and Molero-Negrette, both natives and citizens of Venezuela,

entered the United States in 2005 on non-immigrant B-2 visas. They subsequently



       1
        Molero-Negrette did not file an independent asylum application; her claim is derivative
to her husband’s. 8 U.S.C. § 1158(b)(3)(A).
       2
         We review for abuse of discretion the BIA’s denial of a motion to reopen. Scheerer v.
U.S. Att’y Gen., 513 F.3d 1244, 1252 (11th Cir. 2008). We likewise review for abuse of
discretion the BIA’s denial of a motion for reconsideration. Assa’ad v. U.S. Att’y Gen., 332 F.3d
1321, 1341 (11th Cir. 2003). Our review is limited to whether the BIA exercised its discretion in
an arbitrary and capricious manner. Abdi v. U.S. Att’y Gen., 430 F.3d 1148, 1149 (11th Cir.
2005).

                                               2
applied for asylum based on past and possible future persecution for their political

beliefs. According to their application, Gutierrez and Molero-Negrette are

members of the Primero Justicia (“First Justice”) political party, which actively

opposes the regime of Venezuelan President Hugo Chavez. As a result of their

political opinion and activism, Gutierrez and Molero-Negrette have suffered

threats, harassment, and violence at the hands of Chavez supporters—specifically

members of groups such as the Bolivarian Circles and United Socialist Party of

Venezuela. Following a removal hearing in which Gutierrez and Molero-Negrette

testified and conceded removal, the Immigration Judge (“IJ”) denied their asylum

application on the basis of an adverse credibility determination. The BIA affirmed

on May 29, 2009. A petition for review was filed, and this Court affirmed the

denial of Gutierrez and Molero-Negrette’s asylum application. See Gutierrez v.

U.S. Att’y Gen., 369 F. App’x 74 (11th Cir. 2010).

B. The Motion to Reopen

      On February 1, 2010, Gutierrez and Molero-Negrette moved the BIA to

reopen their removal proceedings. The motion was supported by various

materials, including news articles describing recent violence against the

Venezuelan political opposition and several signed and witnessed affidavits

describing recent instances of particularized threats and harassment directed

                                         3
toward Gutierrez’s family that remained in Venezuela. For example, two

affidavits averred that Molero-Negrette’s cousin’s husband was kidnapped by anti-

opposition forces looking for Gutierrez. Another affidavit described an incident in

which Molero-Negrette’s father was shot in the arm while disrupting the attempted

kidnapping of Molero-Negrette’s sister, who had been mistaken for Molero-

Negrette. The other affidavits further describe an ongoing pattern of threats and

intimidation from anti-opposition forces searching for Gutierriez and Molero-

Negrette.

      Gutierrez conceded that the motion to reopen was untimely and filed more

than ninety days after the final administrative order of removal. See 8 U.S.C.

§ 1229a(c)(7)(C)(i). Nevertheless, Gutierrez argued that the affidavits and

supporting materials established “changed country conditions” in Venezuela

sufficient to circumvent the time limit on a motion to reopen. See id.

§ 1229a(c)(7)(C)(ii). After describing the new evidence submitted with the

motion to reopen, the BIA found that the evidence “fail[ed] to demonstrate that

[Gutierrez] now faces a materially greater risk of harm if he returns to Venezuela

than at the time of his hearing in 2005.”3 The BIA therefore found that Gutierrez

had failed to identify any changed country condition and that the motion to reopen


      3
          The BIA’s reference to 2005 is erroneous. The removal hearing occurred in 2008.

                                               4
was untimely. Gutierrez and Molero-Negrette timely petitioned for review of the

denial of the motion to reopen.

C. The Motion for Reconsideration

      Shortly after petitioning this Court for review of the BIA’s denial of the

motion to reopen, Gutierrez and Molero-Negrette also moved for reconsideration

before the BIA. In the motion for reconsideration, Gutierrez and Molero-Negrette

iterated their argument that they had established changed country conditions in

Venezuela and asserted that the BIA had misconstrued much of their evidence.

      In February 2011, the BIA denied the motion for reconsideration. The BIA

stated:

      [Gutierrez and Molero-Negrette] allege that all of the evidence presented
      in support of reopening did not pertain to events prior to the hearing
      below, but this assertion is not inconsistent with the language of the
      Board’s decision. The Board in denying reopening indicated some
      declarations described events prior to the respondents’ departure from
      Venezuela and considered other evidence presented. We do not find the
      evidence was mischaracterized in our June 24, 2010, decision [denying
      the motion to reopen].”

Gutierrez and Molero-Negrette timely petitioned for review of the BIA’s denial of

the motion for reconsideration.

                                  II. DISCUSSION

A. The BIA’s Denial of the Motion to Reopen


                                         5
      An alien may file one motion to reopen in removal proceedings before the

BIA. 8 U.S.C. § 1229a(c)(7)(A); 8 C.F.R. § 1003.2(a), (c). A motion to reopen

“shall state the new facts that will be proven at a hearing to be held if the motion is

granted, and shall be supported by affidavits or other evidentiary material.”

8 U.S.C. § 1229a(c)(7)(B). Further, “[a] motion to reopen shall be filed within 90

days of the date of entry of a final administrative order of removal.” 8 U.S.C.

§ 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). This 90-day requirement is

“mandatory and jurisdictional, and, therefore, it is not subject to equitable tolling.”

Abdi v. U.S. Att’y Gen., 430 F.3d 1148, 1150 (11th Cir. 2005). Nevertheless, the

90-day limitation does not apply if the motion to reopen establishes “changed

country conditions arising in the country of nationality or the country to which

removal has been ordered.” 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R.

§ 1003.2(c)(3)(ii). To establish changed country conditions, the motion to reopen

must be based on material evidence that was not available and could not have been

discovered or presented at the previous hearing. 8 U.S.C. § 1229a(c)(7)(C)(ii); 8

C.F.R. § 1003.2(c)(3)(ii).

      In this case, the BIA determined that Gutierrez and Molero-Negrette failed

to show that the conditions in Venezuela had changed since the removal hearing.

In the motion to reopen, Gutierrez essentially concedes the point:

                                           6
             [Gutierrez and Molero-Negrette] have attached for review[]
             new affidavits from real witnesses to the persecution
             [Gutierrez and Molero-Negrette] continue to suffer at the
             hands of the Venezuelan government. These affidavits
             attest to the fact that due to [Gutierrez’s] past political
             activities against President Chavez, he is still a hunted
             man. The affidavits reflect that government agents
             continue to seek out [Gutierrez] for questioning,
             harassment and persecution because of his political
             ideology and past political activities.

Motion to Reopen Asylum Case, Nos. A 099-555-193, A 099-555-194 (Feb. 2010)

(emphasis added). Stated differently, the evidence showed new iterations of

threats and harassment of similar kind and magnitude suffered before the removal

hearing. We agree with the BIA that the motion to reopen is not based on changed

conditions in Venezuela, but merely an attempt to relitigate Gutierrez’s original

claim—albeit with newer evidence.

      Additionally, we reject, as belied by the record, Gutierrez’s arguments that

the BIA failed to consider all of the evidence and failed to consider the evidence

pertaining to Molero-Negrette. The BIA need not “address specifically each claim

the petitioner made or each piece of evidence the petitioner presented, but [the

BIA] must consider the issues raised and announce [its] decision in terms

sufficient to enable a reviewing court to perceive that [the BIA has] heard and

thought and not merely reacted.” Ayala v. U.S. Att’y Gen., 605 F.3d 941, 948



                                         7
(11th Cir. 2010) (alteration and quotation omitted). The BIA’s order reviews

much of the evidence submitted with the motion to reopen, including the

declaration that Molero-Negrette’s sister was kidnapped because she was mistaken

for Molero-Negrette. Although the BIA did not specifically address each affidavit

and newspaper article submitted, the BIA’s order shows that the BIA considered

all of the evidence attending the motion to reopen. Under these circumstances, the

BIA did not abuse its discretion by refusing to consider all of the evidence

presented in the motion to reopen.

B. The BIA’s Denial of the Motion for Reconsideration

      A properly presented motion for reconsideration “shall state the reasons for

the motion by specifying errors of fact or law in the prior [BIA] decision and shall

be supported by pertinent authority.” 8 C.F.R. § 1003.2(b)(1). However, “a

motion that merely republishes the reasons that had failed to convince the tribunal

in the first place gives the tribunal no reason to change its mind.” Calle v. U.S.

Att’y Gen., 504 F.3d 1324, 1329 (11th Cir. 2007) (alterations and quotation marks

omitted).

      In the motion for reconsideration, Gutierrez and Molero-Negrette merely

iterated their argument that they had shown that the conditions in Venezuela had

worsened, and they asserted that the BIA erred in concluding that some of the

                                          8
evidence described events that occurred prior to the removal hearing. But, as the

BIA noted in denying the motion for reconsideration, the fact that some of the

evidence was not new was not inconsistent with the BIA’s conclusion that all of

the evidence failed to show a material change in the conditions in Venezuela.

Given our conclusion that the BIA did not abuse its discretion by denying the

motion to reopen, we likewise conclude that the BIA did not abuse its discretion

by denying the motion to reconsider.

      PETITIONS DENIED.




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