FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 MAY 25, 2010

JOHN LEY

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 09-12640

Non-Argument Calendar

________________________

Agency Nos. A095-237-495,

A095-237-496

JOSE FERNANDO PALACIOS,

a.k.a. Fernando Palacios Montoya,

CLARIVEL OSORIO,

Petitioners,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

_________________________

(May 25, 2010)

Before BLACK, BARKETT and ANDERSON, Circuit Judges.

PER CURIAM:
Petitioners, Jose Fernando Palacios and Clarivel Osorio, seek review of the

Board of Immigration Appeals’ (BIA’s) decision denying their untimely motion to

reopen. Petitioners contend they submitted evidence of changed country

conditions to excuse their late filing and also demonstrated eligibility for relief in

the form of asylum and withholding of removal under the Immigration and

Nationality Act. 

We have jurisdiction to review the BIA’s denial of a motion to reopen, and

we review the denial of such motions for an abuse of discretion. See Kucana v.

Holder, 130 S. Ct. 827, 840 (2010) (confirming jurisdiction); Abdi v. U.S. Att’y

Gen., 430 F.3d 1148, 1149 (11th Cir. 2005) (setting standard of review). “Our

review is limited to determining whether there has been an exercise of

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

capricious.” Abdi, 430 F.3d at 1149 (quotations omitted).

“[T]he Attorney General has broad discretion to grant or deny such

motions.” Al Najjar v. Ashcroft, 257 F.3d 1262, 1302 (11th Cir. 2001) (quotations

omitted). It is within the discretion of the BIA to deny a motion to reopen for at

least three reasons: “(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.” Id. at 1302.

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Motions to reopen immigration proceedings must ordinarily “be filed within

90 days of the date of entry of a final administrative order of removal.” 8 U.S.C.

§ 1229a(c)(7)(C)(i). The 90-day time limit does not apply, however, to motions

“based on changed country conditions arising in 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 previous proceeding.” Id.

§ 1229(c)(7)(C)(ii). “An alien cannot circumvent the requirement of changed

country conditions by demonstrating only a change in her personal circumstances.”

Zhang v. U.S. Att’y Gen., 572 F.3d 1316, 1319 (11th Cir. 2009). The petitioner has

the “heavy burden” of presenting evidence which would likely change the result in

the case. Ali v. U.S. Att’y Gen., 443 F.3d 804, 813 (11th Cir. 2006).

There is no evidence the BIA abused its discretion in denying the

Petitioners’ motion to reopen. There is no dispute the Petitioners filed their motion

to reopen beyond the 90-day deadline. The evidence submitted by the Petitioners

does not demonstrate a changed country condition, as it reflects only continued

harassment that the BIA previously found did not amount to persecution on

account of a protected ground. Accordingly, the BIA’s decision was neither

arbitrary nor capricious, and we deny the petition.

PETITION DENIED.

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