FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

DECEMBER 28, 2011

JOHN LEY

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

 FOR THE ELEVENTH CIRCUIT

 ________________________

 No. 11-11288 

Non-Argument Calendar

 ________________________

 Agency No. A078-616-508

CARLOS EDUARDO CABRERA-NORIEGA,

MARIA JOSE BOTERO DE CABRERA, 

JUAN ESTEBAN CABRERA-BOTERO,

ANA SOL BOTERO, 

NATALIA REMOLINA-BOTERO, 

llllllllllllllllllllllllllllllllllllllll Petitioners,

 versus

U.S. ATTORNEY GENERAL,

llllllllllllllllllllllllllllllllllllllll Respondent.

________________________

 Petition for Review of a Decision of the

 Board of Immigration Appeals

 ________________________

(December 28, 2011)
Before MARCUS, MARTIN, and FAY, Circuit Judges.

PER CURIAM:

Carlos Cabrera-Noriega, a native and citizen of Colombia, petitions for

review of the Board of Immigration Appeals’s (“BIA”) denial of his motion to

reopen his removal proceedings under Immigration and Nationality Act

§ 240(c)(7)(i), (ii), 8 U.S.C. § 1229a(c)(7)(i), (ii). He argues that the BIA abused

its discretion in denying his motion, which he does not dispute is untimely,

because he showed that the conditions in Colombia had changed. For the reasons

set forth below, we deny Cabrera-Noriega’s petition for review.

I.

In 1999, Cabrera-Noriega served as a liaison between the National

Liberation Army (“ELN”) and the family of an ELN kidnaping victim, Alistair

Taylor. Cabrera-Noriega and the ELN met 11 times, and the ELN ultimately

demanded a $2 million ransom, but Taylor’s family could only pay $600,000. 

Upset that Cabrera-Noriega could not secure $2 million from Taylor’s family, the

ELN kidnaped him and subjected him to psychological abuse. He was released

and ordered to meet with the ELN with the $2 million in ransom. Cabrera-Noriega

did not attend the meeting, and the ELN began calling him at home and work. The

ELN informed him that he was a military target. In September 2000,

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Cabrera-Noriega left Colombia and entered the United States.

Cabrera-Noriega applied for asylum, withholding of removal, and

Convention Against Torture (“CAT”) relief based on his political opinion. The

Immigration Judge denied this application and ordered him removed on September

9, 2008. The BIA dismissed Cabrera-Noriega’s appeal on April 23, 2009. 

Cabrera-Noriega filed a petition for review, which we denied. 

Cabrera-Noriega v. U.S. Att’y Gen., 369 F.App’x 5, 7 (11th Cir. 2010). We held

that Cabrera-Noriega had not established a nexus between the persecution he

alleged and his political opinion. Id. at 10. The evidence showed that the ELN

harmed Cabrera-Noriega because he failed to obtain a $2 million ransom payment,

not because of his political beliefs. Id. at 11. Next, we held that Cabrera-Noriega

had not established a well-founded fear of future persecution as there was no

evidence that he would be persecuted because of his political opinions. Id.

Finally, we explained that in addition to the lack of evidence connecting any

possible harm to his political opinions, there was no evidence that the ELN

continued to look for Cabrera-Noriega. Id.

On July 1, 2010, Cabrera-Noriega filed a motion to reopen, arguing that he

could meet the changed country conditions exception to the filing requirements. 

He asserted that the ELN had recently grown stronger. Commander Pablito, the

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leader in the ELN who had designated him as a military target, had been captured

by the Colombian government, but later escaped. Upon his escape, Pablito vowed

to eliminate the ELN’s enemies. Based on these developments, Cabrera-Noriega

argued that Pablito was still looking to kill him and now had more resources

available to carry out the killing. According to articles Cabrera-Noriega submitted

with his motion to reopen, Carlos Marin Guarin, also known as Pablito, had been

arrested. However, Pablito later escaped from custody with the help of ELN

rebels. One article stated that the ELN had been declining gradually since 1999. 

It called the ELN “an almost-forgotten force” compared to the Revolutionary

Armed Forces of Colombia, but also stated that Pablito’s escape would likely give

the ELN renewed energy. Cabrera-Noriega also submitted affidavits from his

brother and from a friend. Both individuals believed that Cabrera-Noriega would

be killed if he returned to Colombia. Additionally, Cabrera-Noriega’s brother

stated that, since Pablito’s escape, the ELN had contacted him looking for

Cabrera-Noriega.

The BIA denied Cabrera-Noriega’s motion to reopen, finding that it was

untimely and that Cabrera-Noriega had not shown changed country conditions to

excuse the untimeliness. He had failed to show that the ELN was becoming more

dangerous, as one of the articles he submitted stated that the ELN was gradually

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declining. Next, the BIA found that Cabrera-Noriega had not shown that Pablito’s

escape increased the likelihood of Cabrera-Noriega being killed. The BIA did not

believe that Cabrera-Noriega was in any more danger than he had been before

Pablito was captured and escaped. However, even if Cabrera-Noriega was in more

danger, this Court had already determined on review that he had not shown a

nexus between any harm and a protected ground. The articles and affidavits

attached to the motion to reopen also did not show a connection between any harm

and a protected ground. Finally, Cabrera-Noriega had not shown that he would

likely face torture by or with the acquiescence of government officials.

II.

We review the BIA’s denial of a motion to reopen under “a very deferential

abuse of discretion standard.” Al Najjar v. Ashcroft, 257 F.3d 1262, 1302 (11th

Cir. 2001). Factual findings are reviewed for substantial evidence, which requires

“reasonable, substantial, and probative evidence.” Id. at 1283-84 (quotation

omitted).

An alien subject to a final order of removal must file a motion to reopen

within 90 days of the removal order being rendered. 8 C.F.R. § 1003.2(c)(2). The

time limit does not apply if the motion to reopen is based on changed country

conditions, “if such evidence is material and was not available and could not have

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been discovered or presented at the previous hearing.” Id. § 1003.2(c)(3)(ii). The

BIA may deny a motion to reopen for at least three reasons: (1) the petitioner did

not establish a prima facie case; (2) the petitioner did not introduce material and

previously unavailable evidence; and (3) the BIA may determine “that despite the

alien’s statutory eligibility for relief, he or she is not entitled to a favorable

exercise of discretion.” Al Najjar, 257 F.3d at 1302. To establish a prima facie

case of eligibility for asylum, the petitioner must show past persecution due to a

statutorily protected factor or a well-founded fear of future persecution due to a

statutorily protected factor. 8 C.F.R. § 208.13(b). To establish a prima facie case

of eligibility for withholding of removal, the petitioner must “show that his life or

freedom would be threatened on account of” a statutorily protected factor.

Delgado v. U.S. Att’y Gen., 487 F.3d 855, 860-61 (11th Cir. 2007) (citation

omitted). Protected factors include “race, religion, nationality, membership in a

particular social group, or political opinion.” 8 C.F.R. § 208.13(b).

The BIA did not abuse its discretion in denying Cabrera-Noriega’s motion

to reopen because he failed to establish a prima facie case of eligibility for asylum

or withholding of removal. See Al Najjar, 257 F.3d at 1302. First, the BIA’s 1

 Cabrera-Noriega has abandoned any argument regarding CAT relief because he failed to 1

make more than a passing reference to such relief in his brief. See Sepulveda v. U.S. Att’y Gen.,

401 F.3d 1226, 1228 n.2 (11th Cir. 2005) (explaining that a petitioner abandons an issue where

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finding that Cabrera-Noriega had not shown that the ELN was becoming more

dangerous was supported by substantial evidence. See id. at 1283. 

Cabrera-Noriega’s own supporting evidence stated that, although it was possible

that Pablito’s escape would re-energize the ELN, the organization had been

gradually declining since 1999, the year in which Cabrera-Noriega acted as a

liaison between the ELN and Taylor’s family.

Next, even if Cabrera-Noriega had shown changed country conditions, he

has not shown that they are material. See 8 C.F.R. § 1003.2(c)(2)(ii). Both

asylum and withholding of removal claims require the petitioner to show that any

harm would occur on account of a statutorily protected factor, which is

Cabrera-Noriega’s political opinion in this case. See Delgado, 487 F.3d at 860-61;

8 C.F.R. § 208.13(b). The articles and affidavits that he attached to his motion

merely established that Pablito had escaped from custody, the ELN might be

gradually declining or might be re-energized by Pablito’s escape, and the ELN had

contacted Cabrera-Noriega’s brother to try to find him. Even assuming arguendo

that this evidence was sufficient to show the persecution and harm elements of an

asylum or withholding of removal claim, it did not establish that Pablito would

seek to harm Cabrera-Noriega based on his political opinion. Moreover,

he only makes a passing reference to it in his brief).

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Cabrera-Noriega concedes on appeal that the ELN seeks to harm him because he

made Pablito look bad when he did not comply with the order to obtain the ransom

money. Therefore, the BIA did not abuse its discretion in denying the motion to

reopen because Cabrera-Noriega failed to establish changed country conditions or

that any harm he suffered or would suffer in the future was based on his political

opinion. See Al Najjar, 257 F.3d at 1302.

For the foregoing reasons, we deny Cabrera-Noriega’s petition for review.

PETITION FOR REVIEW DENIED.

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