FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

Sept. 30, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 09-11358

Non-Argument Calendar

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Agency No. A098-378-853

PIEDAD TERESA ARIAS,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

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Petition for Review of a Decision of the

Board of Immigration Appeals

_________________________

(September 30, 2009)

Before TJOFLAT, EDMONDSON and KRAVITCH, Circuit Judges.

PER CURIAM:
Piedad Teresa Arias, a citizen of Venezuela and native of Columbia,

petitions this court for review of the Board of Immigration Appeals’ (BIA)

decision denying her motion to reopen removal proceedings. Arias also asks us to

consider a newly raised procedural due process claim.

I. BACKGROUND

Arias entered the United States in 2000 and remained in the country beyond

the expiration of her non-immigrant visa. In 2004, after receiving a Notice to

Appear from the Department of Homeland Security charging her as removable to

Venezuela, Arias applied for (1) asylum, (2) withholding of removal, and (3) relief

under the Convention Against Torture (CAT). The Immigration Judge (IJ) denied

her application, concluding (1) that her asylum application was time-barred and

that she could return to Columbia, a safe third-country alternative; (2) that she had

failed to establish a clear probability of future persecution in Venezuela; and (3)

that she had failed to establish that she would likely be tortured by, or with the

acquiescence of, the Venezuelan government. The BIA issued a final decision

affirming the IJ’s order of removal on May 30, 2008.

Following an unsuccessful motion to reconsider, Arias filed a motion to

reopen her removal proceedings on the basis of worsening country conditions on

November 5, 2008. The BIA found the evidence presented with the motion

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insufficient to show materially changed circumstances in Venezuela and denied

Arias’s motion as untimely. This petition for review followed.

II. STANDARD OF REVIEW

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

discretion. Our review is limited to determining whether there has been an

exercise of administrative discretion and whether the [manner] of exercise has been

arbitrary or capricious.” Abdi v. U.S. Att’y Gen., 430 F.3d 1148, 1149 (11th Cir.

2005) (citations and quotation marks omitted).

We review questions concerning our subject matter jurisdiction de novo.

Ortega v. U.S. Att’y Gen., 416 F.3d 1348, 1350 (11th Cir. 2005).

III. DISCUSSION

A. Motion to Reopen

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) (2006). That 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); accord 8 C.F.R. § 1003.2(c)(3)(ii).

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Although Arias filed her motion to reopen more than five months after the

BIA’s final decision, she argued that changed circumstances excused her from the

90-day filing requirement because “conditions in Venezuela since [her] hearing

ha[d] incrementally worsened day to day.” In support of the motion, Arias

presented a series of news articles and new statements from her mother, two

brothers, and an “ex ambassador for Venezuela.” The articles detailed events and

general conditions in Venezuela without reference to Arias or her specific fears of

persecution. The statements described alleged persecution suffered by Arias’s

family in Colombia, repeated her allegations of past persecution in Venezuela, and

urged the BIA to allow her to remain in the United States. As the BIA concluded,

this new evidence was insufficient to establish that conditions in Venezuela had

materially changed since the time of her hearing. The BIA therefore did not abuse

its discretion in denying Arias’s motion to reopen as untimely.

Moreover, the BIA acts within its discretion by denying a motion to reopen

if the movant has “fail[ed] to introduce evidence that was material and previously

unavailable.” Al Najjar v. Ashcroft, 257 F.3d 1262, 1302 (11th Cir. 2001). Even if

Arias’s newly proffered evidence had established changed country conditions, it

was neither material nor previously unavailable. In other words, she did not satisfy

her “heavy burden” to “present[] evidence . . . that if proceedings before the [IJ]

were reopened, with all attendant delays, the new evidence offered would likely

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change the result in the case.” Ali v. U.S. Att’y Gen., 443 F.3d 804, 813 (11th Cir.

2006) (alterations in original) (quoting In re Coelho, 20 I. & N. Dec. 464, 473

(BIA 1992)).

B. Procedural Due Process

Arias also argues that she “did not receive due process in the underlying

proceedings because she did not receive adequate representation.” As a

preliminary matter, we must determine whether we have subject matter jurisdiction

over this new claim. We may only consider claims raised in a petition for review if

the petitioner has first exhausted her administrative remedies. 8 U.S.C. § 1252(d);

Sundar v. INS, 328 F.3d 1320, 1323 (11th Cir. 2003) (“[W]e lack jurisdiction to

consider claims that have not been raised before the BIA.”).

Although “[s]ome courts have indicated in dicta that . . . some due process

claims do not require exhaustion, because the BIA does not have the power to

adjudicate those claims,” Sundar, 328 F.3d at 1325, we have recognized that

“procedural due process claims, as well as procedural errors argued in due process

terms, must be raised before the BIA,” Amaya-Artunduaga v. U.S. Att’y Gen., 463

F.3d 1247, 1251 (11th Cir. 2006). In this case, the BIA had the authority to

adjudicate Arias’s ineffective assistance claim. See, e.g., In re Compean, 25 I. &

N. Dec. 1 (BIA 2009). Consequently, she failed to exhaust her administrative

remedies, and we lack jurisdiction to consider the claim.

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IV. CONCLUSION

The BIA did not abuse its discretion by denying Arias’s motion to reopen as

untimely, and we do not have jurisdiction to consider a procedural due process

claim that has not been raised before the BIA. We therefore deny Arias’s petition

with respect to her motion to reopen and dismiss for want of jurisdiction with

respect to her due process claim.

PETITION DENIED IN PART AND DISMISSED IN PART.

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