                                                                [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________           FILED
                                                   U.S. COURT OF APPEALS
                                No. 09-14872         ELEVENTH CIRCUIT
                                                        MARCH 31, 2010
                            Non-Argument Calendar
                                                          JOHN LEY
                          ________________________
                                                           CLERK

                  Agency Nos. A096-096-763, A096-096-764

MARIELA SOLAQUE-PRIETO,
RAUL ROJAS-CHARRY,
NATALY ROJAS-SOLAQUE,

                                                                        Petitioners,

                                     versus

U.S. ATTORNEY GENERAL,

                                                                       Respondent.


                          ________________________

                     Petition for Review of a Decision of the
                          Board of Immigration Appeals
                          _________________________
                                 (March 31, 2010)

Before TJOFLAT, WILSON and KRAVITCH, Circuit Judges.

PER CURIAM:

     Mariela Solaque-Prieto (“Prieto”) petitions this court to review the order of
the Board of Immigration Appeals (“BIA”) denying her motion to reopen its earlier

deportation ruling. We deny the petition.

         Prieto, a native and citizen of Colombia, received a notice to appear,

charging her with removability under 8 U.S.C. § 1227(a)(1)(B). She requested

asylum, withholding of removal, and relief under the United Nations Convention

Against Torture (“CAT”) on the ground that she was persecuted by the

Revolutionary Armed Forces of Colombia (“FARC”).

         Following a hearing, the Immigration Judge (“IJ”) denied relief, finding

Prieto lacked credibility and that she failed to establish past persecution on account

of her political beliefs or a well-founded fear of future persecution. Prieto

appealed to the BIA, which dismissed the appeal on May 30, 2008. This court

subsequently denied Prieto’s petition for review in an opinion dated February 5,

2009. Solaque-Prieto v. United States Att’y Gen., 310 Fed. Appx. 326 (11th Cir.

2009).

         Thereafter, on February 26, 2009, Prieto filed a motion to reopen

proceedings with the BIA. She also sought to stay her removal. According to

Prieto, she faced an increased danger if she returned to Colombia. She submitted

affidavits to support her claims of danger from FARC.

         The BIA denied the motion to reopen as untimely and found that there was

no change in the country conditions to excuse the untimely motion. Prieto now
                                             2
petitions this court for review, arguing that the BIA misunderstood or ignored the

evidence indicating an alleged increase in the intensity with which the FARC

anticipates her return to Colombia.

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

Abdi v. United States Att’y Gen., 430 F.3d 1148, 1149 (11th Cir. 2005). Our

review in this regard “is limited to determining whether there has been an exercise

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

or capricious.” Id. (quotation and citations omitted). Further, we have held that

the BIA’s discretion to reopen “is so wide that even if the party moving has made

out a prima facie case for relief, the BIA can deny a motion to reopen a deportation

order.” Anin v. Reno, 188 F.3d 1273, 1279 (11th Cir. 1999) (quotation and citation

omitted); see also 8 C.F.R. § 1003.2(a).

      “Motions to reopen are disfavored, especially in a removal proceeding,

where, as a general matter, every delay works to the advantage of the deportable

alien who wishes merely to remain in the United States.” Abdi, 430 F.3d at 1149

(quotation and citation omitted). A motion to reopen proceedings shall not be

granted unless it appears to the BIA that evidence sought to be offered is material

and was not available and could not have been discovered or presented at the

former hearing. Id. An alien who seeks to reopen proceedings bears a heavy

burden and must present evidence that satisfies the BIA that, if the proceedings
                                           3
were reopened, the new evidence would likely change the result in the case. Ali v.

United States Att’y Gen., 443 F.3d 804, 813 (11th Cir. 2006).

      A motion to reopen must be filed no later than 90 days after the final

administrative decision that is the subject of the motion. See 8 C.F.R.

§ 1003.2(c)(2). This deadline does not apply, however, if the motion to reopen is

based on changed country conditions. See 8 C.F.R. § 1003.2(c)(3)(ii).

      Here, Prieto does not dispute that her motion to reopen was filed more than

90 days after the BIA’s deportation ruling. She instead seeks to avail herself of the

limited exception to the deadline set forth in § 1003.2(c)(3)(ii). Although Prieto

did not base her motion on any purported changed country conditions, the BIA

nonetheless sua sponte considered whether the “new evidence” offered by Prieto

was sufficient to excuse the untimely motion and found that it was not.

Specifically, the BIA found the affidavits offered by Prieto in her motion merely

showed that FARC was continuing the intimidation and harassment tactics that

existed at the time of Prieto’s initial asylum hearing.

      We agree. The new statements Prieto submitted do not tend to show any

changed country condition that would excuse the untimely motion. Moreover, the

affidavits do not establish an increase in FARC’s intimidation tactics or harassment

that did not exist at the time of Prieto’s removal hearing. On this record, Prieto has

not demonstrated that the BIA acted arbitrarily or capriciously in ruling that she
                                           4
failed to produce evidence of changed country conditions sufficient to satisfy the

limited exception to the 90-day deadline for the filing of a motion to reopen.

      PETITION DENIED.




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