FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

FEBRUARY 13, 2007

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 06-12674

Non-Argument Calendar

________________________

BIA Nos. A95-545-000 & A95-545-001

DAVID LOMBANA, 

ELIZABETH OCHOA BELTRAN, 

DAVID SEBASTIAN LOMBANA OCHOA, 

TERESA ALEJANDRA LOMBANA OCHOA, 

ANDREA ELIZABETH LOMBANA, 

Petitioners, 

versus 

U.S. ATTORNEY GENERAL, 

Respondent. 

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

_________________________

(February 13, 2007)

Before TJOFLAT, BLACK and HULL, Circuit Judges.

PER CURIAM:
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Petitioners David Lombana (Lombana), Elizabeth Ochoa Beltran, David

Sebastian Lombana Ochoa, Teresa Alejandra Lombana Ochoa, and Andrea

Elizabeth Lombana are natives and citizens of Colombia. Petitioners, through

counsel, petition this Court for review of the Board of Immigration Appeals’

(BIA’s) April 6, 2006 order denying their second motion to reopen their removal

proceedings and the BIA’s July 13, 2005 order affirming the Immigration Judge’s

(IJ’s) order of removal. Upon review, we dismiss the petition in part and deny the

petition in part. 

On May 6, 2002, Petitioners filed an application for asylum, withholding of

removal, and relief under the Convention Against Torture, alleging persecution on

account of Lombana’s nationality, religion, membership in a particular social

group, and political opinion. On February 27, 2004, the IJ denied Petitioners’

application. On July 13, 2005, the BIA adopted and affirmed the IJ’s decision. 

Petitioners did not seek review of the BIA’s order affirming the IJ’s order of

removal. 

Instead, on August 10, 2005, Petitioners filed with the BIA a motion to

reconsider on the ground that sufficient evidence existed of persecution based on

political opinion. The BIA denied the motion on September 27, 2005. Petitioners

then moved the BIA to reopen their removal proceedings on October 8, 2005,

alleging new information that Lombana was still being pursued. On November 21,
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2005, the BIA denied Petitioners’ motion. On February 6, 2006, Petitioners filed

a motion requesting that the BIA remand the case to the IJ to allow Lombana to

introduce new evidence that Lombana would be killed if returned to Colombia. 

The BIA interpreted the motion as a second motion to reopen and denied it as timeand number-barred on April 6, 2006. On May 8, 2006, Petitioners filed the instant

petition for review. 

As an initial matter, the Attorney General maintains this Court lacks

jurisdiction to review the BIA’s July 13, 2005 order affirming the IJ’s order of

removal because Petitioners failed to file a timely petition for review of this order. 

We review our subject-matter jurisdiction de novo. Brooks v. Ashcroft, 283 F.3d

1268, 1272 (11th Cir. 2002). While we generally have jurisdiction to review final

orders of removal, the petition for review must be filed within 30 days of the date

of the final order of removal. 8 U.S.C. § 1252(a)(1), (b)(1). Neither a motion to

reconsider nor a motion to reopen filed with the BIA suspends the finality of the

underlying BIA order or tolls the review period. See id; Stone v. INS, 115 S. Ct.

1537, 1549 (1995). This time limit is mandatory and jurisdictional. Dakane v.

U.S. Att’y Gen., 399 F.3d 1269, 1272 n.3 (11th Cir. 2005).

In the instant case, Lombana’s final order of removal was issued on July 13,

2005, when the BIA adopted and affirmed the IJ’s decision. The instant petition

for review was filed on May 8, 2006, more than 30 days after the date of the final
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order of removal. Accordingly, we dismiss the petition as to the BIA’s July 13,

2005 order for lack of jurisdiction. We have jurisdiction to review the petition for

review only as to the BIA’s April 6, 2006 order denying Petitioners’ second

motion to reopen. 

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

Mejia Rodriguez v. Reno, 178 F.3d 1139, 1145 (11th Cir. 1999). After the BIA has

affirmed an IJ’s order of removal, the alien may move to have the BIA, in its

discretion, reopen the removal proceedings for the submission of new evidence. 

See 8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(1). A motion to reopen shall not

be granted unless it appears to the BIA that the evidence 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). Nonetheless, “the Board has

discretion to deny a motion to reopen even if the party moving has made out a

prima facie case for relief.” 8 C.F.R. § 1003.2(a). “[A] party may file only one

motion to reopen deportation or exclusion proceedings . . . and that motion must be

filed no later than 90 days after the date on which the final administrative decision

was rendered in the proceeding sought to be reopened . . . .” 8 C.F.R.

§ 1003.2(c)(2). The time and numerical limitations do not apply, however, to a

motion to reopen based on changed county conditions if such evidence is material

and was not available and could not have been discovered or presented at the
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previous hearing. 8 C.F.R. § 1003.2(c)(3)(ii). In addition, at any time, the BIA

can reopen or reconsider, on its own motion, a case in which it has rendered a

decision. 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 v. U.S. Att’y Gen., 430 F.3d 1148, 1149 (11th Cir. 2005) (quotation

marks omitted).

In their second motion to reopen, Petitioners requested the case be sent back

to the IJ so new evidence could be introduced that Lombana would be killed if he

returned to Colombia. Petitioners attached an affidavit from Lombana’s sister

attesting Lombana had received threats from the FARC that caused him and his

family to flee Colombia and Lombana’s life would be in danger if he returned to

Colombia.

The BIA did not abuse its discretion in denying Petitioners’ second motion

to reopen as time- and number-barred under 8 C.F.R. § 1003.2(c)(2). Petitioners

had already filed one motion to reopen and their second motion to reopen was filed

on February 6, 2006, well beyond the 90-day jurisdictional time limit. In their

second motion to reopen, Petitioners did not argue the applicability of the changed

circumstances exception to the time and numerical limitations. Further, even if we

construed Petitioners’ request to remand to introduce new evidence as an assertion
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of changed circumstances, Petitioners did not present any evidence of changed

circumstances. The affidavit from Lombana’s sister merely repeats Lombana’s

previous assertions before the IJ and does not constitute new material evidence of

changed circumstances that was unavailable and could not have been discovered at

a previous hearing. Accordingly, we deny the petition as to this issue and dismiss

the rest of the petition.

PETITION DISMISSED IN PART AND DENIED IN PART.