[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-11040

Non-Argument Calendar

____________________

DANIEL FERNANDEZ, 

Petitioner,

versus

U.S. ATTORNEY GENERAL, 

Respondent.

____________________

Petition for Review of a Decision of the

Board of Immigration Appeals

Agency No. A074-692-058

____________________

USCA11 Case: 21-11040 Date Filed: 01/03/2022 Page: 1 of 6
2 Opinion of the Court 21-11040

Before JILL PRYOR, BRANCH, and BLACK, Circuit Judges.

PER CURIAM:

Daniel Fernandez, a native and citizen of Cuba, seeks review 

of the order of the Board of Immigration Appeals (BIA) denying his 

second motion to reopen his removal order based on materially 

changed country conditions. Fernandez contends the BIA erred in 

finding he failed to provide evidence of a material change in circumstances in Cuba, and instead presented evidence of a change in 

personal circumstances. After review,1 we deny the petition. 

An alien generally may file one motion to reopen proceedings within 90 days of the date of an order of removal and must 

state the new facts that will be proven at a hearing to be held if the 

motion is granted and be supported by affidavits or other evidentiary material. 8 U.S.C. § 1229a(c)(7)(A)–(C)(i). However, there is 

no time limit on the filing of a motion to reopen to apply for asylum or withholding of removal based on “changed country conditions arising in the country of nationality or the country to which 

removal has been ordered, if such evidence is material and was not 

available and would not have been discovered or presented at the 

1 We review the denial of a motion to reopen an immigration proceeding for 

an abuse of discretion, under which we will only determine whether the BIA 

exercised its discretion arbitrarily or capriciously. Jiang v. U.S. Att’y Gen., 568 

F.3d 1252, 1256 (11th Cir. 2009). 

USCA11 Case: 21-11040 Date Filed: 01/03/2022 Page: 2 of 6
21-11040 Opinion of the Court 3

previous proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii). While an alien 

is generally limited to filing only one motion to reopen removal 

proceedings, the numerical limitation does not apply to a motion 

to reopen to apply or reapply for asylum or withholding of deportation based on changed circumstances arising in the country of nationality or in the country to which deportation has been ordered, 

if such evidence is material and was not available and could not 

have been discovered or presented at the previous hearing. 8 

C.F.R. § 1003.2(c)(2), (c)(3)(ii).

The BIA did not abuse its discretion in denying Fernandez’s 

second motion to reopen. First, the BIA correctly concluded Fernandez’s second motion to reopen his removal proceedings was 

time and number barred. Fernandez filed the second motion to 

reopen approximately 15 years after his final order of removal, well 

beyond the 90-day limit, and had previously filed a motion to reopen his removal proceedings in 2010. 8 U.S.C. § 1229a(c)(7); 8 

C.F.R. § 1003.2(c)(2). 

Moreover, the BIA did not err in concluding Fernandez 

failed to establish a material change in circumstances in Cuba. Specifically, Fernandez failed to provide evidence of the country conditions in Cuba at the time of his merits hearing in 2005, or at any 

point in the intervening 15 years, to demonstrate a material change 

in circumstances. See Matter of S-Y-G-, 24 I. & N. Dec. 247, 253 

(BIA 2007) (“In determining whether evidence accompanying a 

motion to reopen demonstrates a material change in country conditions that would justify reopening, [the BIA] compare[s] the 

USCA11 Case: 21-11040 Date Filed: 01/03/2022 Page: 3 of 6
4 Opinion of the Court 21-11040

evidence of country conditions submitted with the motion to those 

that existed at the time of the merits hearing below.”) While Fernandez in his second motion to reopen provided the State Department’s 2018 Human Rights Report for Cuba, which detailed repression of political dissidents, the report did not indicate whether repression had increased in severity or was constant in comparison 

to any previous period. Id. at 257 (“A new report or a new law is 

not evidence of changed conditions without convincing evidence 

the prior version of the law was different, or was differently enforced, in some relevant and material way.”). Thus, the BIA did not 

abuse its discretion in requiring Fernandez to provide evidence of 

a change in circumstances in Cuba between the date of Fernandez’s 

merits hearing and motion to reopen, as it followed its own precedent in Matter of S-Y-G-. See Ferreira v. U.S. Att’y Gen., 714 F.3d 

1240, 1243 (11th Cir. 2013) (“The BIA abuses its discretion when it 

misapplies the law in reaching its decision” or when it fails to follow 

“its own precedents without providing a reasoned explanation for 

doing so.”). 

While Fernandez contends the Decree Law and related 

news articles demonstrated a material change in circumstances and 

the BIA mischaracterized the Decree Law as having been passed in 

1976, the translation of the law appeared to indicate it had been 

implemented in 1976. Even if the Decree Law is understood to 

have been passed in 2012, the text of the law does not indicate 

whether the provision stating that a Cuban national who leaves the 

country for two or more years is considered to have emigrated was 

USCA11 Case: 21-11040 Date Filed: 01/03/2022 Page: 4 of 6
21-11040 Opinion of the Court 5

a change from the original 1976 law or a subsequent version of the

law. See Matter of S-Y-G-, 24 I. & N. Dec. at 257. Moreover, the 

related news articles did not specify that the treatment of Cuban 

deportees from the United States had changed since 2012. Thus, 

Fernandez failed to provide evidence of a change in country conditions that showed more than a continuation or incremental change 

in country conditions. Id. (“Change that is incremental or incidental does not meet the regulatory requirements for late motions 

[to reopen]”.).

Additionally, Fernandez’s involvement in supporting Cuban 

political dissidents in the United States constituted a change in personal circumstances, rather than a material change in circumstances in Cuba. See Chen v. U.S. Att’y Gen., 565 F.3d 805, 809–10 

(11th Cir. 2009) (stating an alien cannot circumvent the requirement of changed country conditions by demonstrating only a 

change in his personal circumstances). We held the petitioner’s 

birth of her two children constituted a change in circumstances in 

China, rather than primarily a change in personal circumstances, 

when she provided evidence of an increased local enforcement of 

China’s one-child policy through increased forced sterilization. 

Zhang v. U.S. Att’y Gen., 572 F.3d 1316, 1320 (11th Cir. 2009). By 

contrast, we held a petitioner, who had testified against a Jamaican 

gang kingpin that had been in power since at least the 1990s, only 

demonstrated a change in personal circumstances “because he testified, not because Jamaica became more hostile to informants 

USCA11 Case: 21-11040 Date Filed: 01/03/2022 Page: 5 of 6
6 Opinion of the Court 21-11040

between 2009 and 2019.” Blake v. U.S. Att’y Gen., 945 F.3d 1175, 

1179 (11th Cir. 2019).

Like Blake, Fernandez’s involvement in Jose Queipo’s organization helping Cuban dissidents fleeing to the United States 

was a change in personal circumstances because he was at risk for 

supporting Cuban political dissidents, not because Cuba became 

more hostile to supporters of political dissidents. Id. And unlike 

Zhang, Fernandez did not provide evidence of an accompanying 

change in Cuba’s repressive practices against political dissidents 

and their supporters. Zhang, 572 F.3d at 1320. Fernandez’s involvement in supporting Cuban political dissidents did not represent a material change in circumstances in Cuba but a change in 

personal circumstances. Chen, 565 F.3d at 809-10. Accordingly, 

the BIA did not abuse its discretion in denying Fernandez’s second 

motion to reopen.

PETITION DENIED.

USCA11 Case: 21-11040 Date Filed: 01/03/2022 Page: 6 of 6