FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

MARCH 14, 2007

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 06-13954

Non-Argument Calendar

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BIA Nos. A96-085-205 & A96-085-206

GAMALIEL RODRIGUEZ-PARRA, 

NANCY MORENO VILLARRAGA, 

MANUEL JOSE RODRIGUEZ MORENO, 

DENI ESPERANZA RODRIGUEZ-PARRA, 

Petitioners, 

versus 

U.S. ATTORNEY GENERAL, 

Respondent. 

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

_________________________

(March 14, 2007)

Before TJOFLAT, HULL and WILSON, Circuit Judges.

PER CURIAM:
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Gamaliel Rodriguez-Parra (“Rodriguez-Parra”), his wife, Nancy Moreno

Villarraga (“Nancy”), their son, Manuel Jose Rodriguez Moreno (“Manuel Jose”),

and Rodriguez-Parra’s sister, Deni Rodriguez-Parra (“Deni”) seek review of the

BIA’s order denying their motion to reopen their removal proceedings. On appeal,

petitioners argue that the BIA erred by considering their new evidence as

cumulative and by failing to find that they were prima facie eligible for relief from

removal. 

BACKGROUND

On May 6, 1999, Rodriguez-Parra, Nancy, and Manuel Jose, all natives and

citizens of Colombia, were admitted to the United States as nonimmigrant visitors,

who were not to remain in the country beyond November 5, 1999. On January 20,

2001, Deni, also a native and citizen of Colombia, was admitted to the United

States as a nonimmigrant visitor, who was not to remain in the country beyond

January 19, 2002. 

On September 6, 2002, Rodriguez-Parra, on behalf of himself, his wife and

his son, filed an application seeking asylum and withholding of removal based

upon his political opinion under the Immigration and Nationality Act (“INA”), and

for relief under the United Nations Convention Against Torture and Other Cruel,

Inhuman, or Degrading Treatment or Punishment (“CAT”). He reported that his

family had been active in the Liberal Party in Colombia and had participated in the
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mayoral campaign for San Juan. He also reported that he was an independent

merchant, his father owned a large farm close to their town, and his brother, also

named Manuel, worked for the Administrative Department of Security (“DAS”)

with the Colombian government. He stated that, in June of 1998, members of the

Revolutionary Armed Forces of Colombia (“FARC”) threatened him and his

family and told them to pay the FARC money to support its “revolutionary cause.” 

He reported that, in September of 1998, two members of the FARC came to his

store and threatened him. He also stated that, in March of 1999, members of the

FARC began calling his house and store, threatening his family’s lives. On

October 22, 2002, the Department of Homeland Security issued them notices to

appear, stating that they were deportable. 

At a removal hearing, the IJ held that the petitioners were not eligible for

asylum because they failed to apply for asylum within one year of arriving in the

United States and had not shown any exceptional circumstances excusing their late

filing. Thus, petitioners’ claims were limited to withholding of removal and

protection under CAT. 

Rodriguez-Parra testified that his brother, Manuel, also was in the United

States and seeking asylum. Rodriguez-Parra stated that he was seeking relief from

removal on the basis that Manuel worked for the DAS and was persecuted by the

FARC. The IJ continued the hearing so that the petitioners could attempt to have
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Manuel testify. 

At the next hearing, Manuel testified that he was seeking political asylum

and had worked with the Colombia Security Department, serving “dignitaries, high

functionaries of the government, like magistrates, [j]udges, [and] politicians.” He

also testified that he had seized arms and uniforms from the FARC and became

known nationally for his work. He explained that he was afraid for his family,

because when one works for the government, the FARC also threatens that

person’s siblings. Rodriguez-Parra testified that he was a member of the Liberal

Party in Colombia, and that there was nowhere in Colombia where he would be

safe. He also reported that his entire family was together on the family ranch when

the FARC came and ordered them to pay money. 

The IJ issued an order denying withholding of removal under the INA and

relief under the CAT. In his decision, he stated that the petitioners had not

established that they had been subjected to past persecution on account of their

political opinion. Rather, he found that any persecution that had occurred was

based on the family’s refusal to pay the FARC extortion money, and there was no

evidence that the extortion demands were based on the family’s political activities. 

He further noted that being the family member of a former Colombian security

officer could not afford the petitioners relief. Thus, the IJ found that the petitioners

had not established that they were eligible for withholding of removal under the
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INA. He also found that they were not entitled for relief under CAT because, to

the extent that they feared being tortured, such torture would not be committed by

the Colombian government. 

The BIA adopted and affirmed the IJ’s decision. The BIA stated that the

petitioners had not filed their asylum applications within one year of their arrival

into the United States, and because there were no extraordinary circumstances

justifying the delay, they were not eligible for asylum. The BIA also stated that the

petitioners’ were ineligible for withholding of removal and CAT relief. The BIA

found that the FARC had targeted the petitioners, not “to overcome a belief held or

imputed” to them, but “because they appeared to have the financial means to pay

the money to FARC,” and, thus, they were not targeted on account of a protected

ground. 

The petitioners filed a motion to reopen their removal proceedings with the

BIA. The motion included seven sworn statements, which the petitioners asserted

contained relevant testimony regarding the dangers that they would face if they

were returned to Colombia. The petitioners argued that these statements were not

available at the time of their removal hearing and referred to events that occurred

two years after their hearing. 

The BIA denied the petitioners’ motion to reopen their removal proceedings,

noting that the new statements and affidavits were not sufficient to cure the late
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filing of the asylum applications. The BIA also found that the evidence did not

“demonstrate prima facie eligibility for a grant of withholding of removal or relief

under the CAT in that [the evidence] is essentially cumulative” of the evidence that

was presented to the IJ at the removal hearing. The BIA also noted that the

evidence did not establish that it was more likely than not that the petitioners

would be persecuted on account of a protected ground or tortured if they were

returned to Colombia. 

STANDARD OF REVIEW

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

See Mejia Rodriguez v. Reno, 178 F.3d 1139, 1145 (11th Cir. 1999). 

DISCUSSION

An alien seeking withholding of removal under INA must show that his life

or freedom would be threatened on account of his race, religion, nationality,

membership in a particular social group, or political opinion. Mendoza v. U.S.

Att’y Gen., 327 F.3d 1283, 1287 (11th Cir. 2003). An alien can meet this burden

by showing either (1) “past persecution in his country based on a protected

ground,” or (2) “a future threat to his life or freedom on a protected ground in his

country.” Id. 

A motion to reopen shall state “new facts” that would be proven at a new

hearing, but “shall not be granted unless it appears to the Board that evidence
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sought to be offered is material and was not available and could not have been

discovered or presented at the former hearing.” 8 C.F.R. § 1003.2(c)(1). “[T]here

are at least three independent grounds upon which the [BIA] may deny a motion to

reopen: (1) failure to establish a prima facie case; (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.” Al Najjar v. U.S. Att’y Gen., 257 F.3d 1262, 1302 (11th

Cir. 2001). 

Here, the BIA did not abuse its discretion by denying the petitioners’ motion

to reopen. The new evidence did not establish that they were prima facie eligible

for relief from removal, and the evidence was essentially cumulative of the

evidence that was presented before the IJ. See Al Najjar, 257 F.3d at 1302. 

The fact that the events recounted in the sworn statements occurred after the

petitioners’ removal hearing does not mean that the submitted evidence cannot be

deemed cumulative of the evidence that was presented at the petitioners’ removal

hearing. Four of the seven sworn statements submitted by the petitioners merely

state that the FARC is still looking for Rodriguez-Parra and his family. Two of the

statements state that the FARC is looking for Rodriguez-Parra because of the debt

that he owes the FARC. Only one sworn statement mentions that Rodriguez-Parra

had to leave Columbia because of his membership with the Liberal Party, and it
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appears that the contents of this statement could have been presented at the initial

removal hearing. This evidence is essentially cumulative of the evidence presented

before the IJ at the removal hearing. The petitioners had already submitted

evidence to the IJ that Rodriguez-Parra was a member of the Liberal Party, that his

family had been threatened by the FARC, and that they owed the FARC a “debt,”

which was tantamount to extortion money. We have made clear that refusing to

pay extortion money to the FARC does not make one eligible for relief from

removal and does not constitute a political opinion. See Sanchez v. U.S. Att’y Gen.,

392 F.3d 434, 438 (11th Cir. 2004) (per curiam) (stating that the petitioner’s

refusal to pay the FARC 20 million pesos in extortion money did not establish the

petitioner’s “actual or imputed political opinion, much less any nexus between [the

petitioner’s] political opinion and the FARC’s alleged persecution”). 

Accordingly, we find that the BIA did not abuse its discretion in finding that

the new evidence was essentially cumulative of the evidence presented before the

IJ and did not establish that the petitioners were prima facie eligible for relief from

withholding of removal or relief under CAT. Therefore, we deny the petition for

review. 

PETITION DENIED.