FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

AUGUST 1, 2007

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 06-16170

Non-Argument Calendar

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BIA Nos. A79-101-924 & A79-101-925

LUIS ANTONIO MENDOZA-AVELLA, 

ZULMAN ANDREA MENDOZA-TORRES, 

Petitioners, 

versus 

U.S. ATTORNEY GENERAL, 

Respondent. 

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

_________________________

 (August 1, 2007)

Before ANDERSON, BIRCH and BARKETT, Circuit Judges.

PER CURIAM:
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Luis Mendoza-Avella (“Luis”) and Zulman Mendoza-Torres (“Zulman”)

(collectively, “the Mendozas”) petition for review of the Board of Immigration

Appeals (“BIA”)’s order denying their motion to reopen its previous order, which

adopted and affirmed the Immigration Judge’s (“IJ’s”) final removal order. They

argue that the BIA abused its discretion in concluding that the new evidence did

not alter the adverse credibility determination that the IJ made in denying their

applications for withholding of removal. They contend that the new evidence

directly addresses their credibility and should not have been dismissed without

analysis or discussion about the evidence’s materiality. We AFFIRM.

I. BACKGROUND

Luis and his daughter, Zulman, both natives of Colombia, entered the United

States without valid entry documents in March 2001. Accordingly, the Department

of Homeland Security served the Mendozas with Notices to Appear (NTAs),

charging them with inadmissibility under INA § 212(a)(7)(A)(i)(I), 8 U.S.C. §

1182(a)(7)(A)(i)(I). At a hearing before the IJ, the petitioners admitted the factual

allegations contained in the NTAs and conceded removability. The Mendozas

filed timely applications for asylum and withholding of removal, claiming

persecution because of their Pentecostal-Christian religion. They also sought relief

under the United Nations Convention Against Torture and Other Cruel, Inhuman,

or Degrading Treatment or Punishment (“CAT”). In their applications, the
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Mendozas alleged that two members of the Revolutionary Armed Forces of

Colombia (“FARC”) had approached and threatened them, stating that if they did

not stop preaching religion and speaking against the FARC, they would be

assassinated. A few months later, the Mendozas alleged, the same two men had

approached them and had threatened them with death. 

At the removal hearing before the IJ, Luis testified that he had been ordained

as a preacher of the gospel for the United Pentecostal Church in 1964. He testified

that the FARC had first approached him and his daughter in December of 2000,

when two members threatened them with death if they continued to preach the

gospel. After this initial contact, the FARC had continued to harass the Mendozas

by vandalizing their church, breaking into houses, flattening tires, making

telephone calls, beating children, and pushing women. In February 2001, Luis

testified, the same two FARC members had approached him, his daughter Zulman,

and three relatives of his wife in a park, and, putting guns to his and his daughter’s

stomachs, had told them that it would be the last warning because their family was

on the list to be assassinated. He also testified that: (1) his other daughter, Sandra,

who also was active in the church, was persecuted by the FARC, and had received

asylum in the United States; (2) his wife still lived in Colombia, but, when the

threats against Sandra began in July of 1999, she quit going to church and began

moving to different parts of the country; and (3) he and Zulman, had decided to
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seek asylum in the United States when they learned, en route to a conference in

Costa Rica, that there would be a stopover in Miami. Zulman corroborated her

father’s accounts of the encounters with the FARC members. 

The IJ denied the Mendozas’ applications. After noting that the Mendozas

had failed to submit evidence regarding Sandra’s grant of asylum, the IJ found that

their testimony was not credible, based on a number of inconsistencies between

their testimonies and between their applications and testimony. The Mendozas

appealed to the BIA, which adopted and affirmed the IJ’s decision, finding that,

while some of the inconsistencies noted by the IJ were immaterial, the failure of

the Mendozas to mention in their asylum applications that they were threatened at

gunpoint was a material inconsistency sufficient to support the IJ’s adverse

credibility determination. The BIA also found that, even if the Mendozas had been

found credible, they had failed to establish that the threats of harm that they had

received amounted to past persecution. In rejecting their claim that they would

face persecution upon return to Colombia, the BIA noted that Luis’s wife had

continued to live in Colombia, and that the fear of general violence in Colombia is

not a proper basis for a grant of asylum. 

The Mendozas did not file a petition for review of the BIA’s decision,

instead filing a motion to reopen based on previously unavailable evidence. The

motion included three sworn affidavits. In the first affidavit, Miguel Antonio
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Jimenez Contreras, who is Luis’s “political uncle,” stated that: (1) in January 2006,

he saw a series of pamphlets printed by the FARC bearing a picture of Luis, among

others, and the caption “those against our ideas are eliminated;” and (2) in March

of 2006, two men dressed in military uniforms approached his car outside of his

house, asked if he had any information about Luis, and, when he answered no,

threatened him with a gun and threatened to kill him if he did not have an answer

the next time that they asked. AR at 14. In the second affidavit, Gilma Torres de

Jimenez, a member of the Mendozas’ church, stated that: (1) the Mendozas were

forced to leave the country due to constant threats by the FARC; (2) in January

2006, she was thrown to the ground by an unknown man, who stated they were

looking for “the Zulma [sic] and the snitch of her dad,” and that Jimenez was to tell

the Mendozas that the perpetrators were expecting “to give them lead;” and (3) the

Mendozas’ lives still were in danger because they were considered traitors. Id. at

20. In the final affidavit, Yulieth Alexandra Torres Lara, a friend of the Mendozas,

stated that: (1) she had witnessed the many threats against the Mendozas; (2) in

December 2005, three men had come to her house, inquired as to the Mendozas’

whereabouts, and had threatened her; and (3) in February 2006 she had received a

phone call by a member of the FARC, who stated that the FARC would kill the

Mendozas. Citing a case from the Ninth Circuit, Mejia v. Ashcroft, 298 F 3d. 873
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(9th Cir. 2002), the Mendozas argued that the statements established prima facie

eligibility for relief, requiring the BIA to address the new evidence.

The BIA denied the Mendozas’ motion to reopen, finding that they had not

raised any error in the BIA’s previous decision, and that their “underlying religious

persecution claim ha[d] not changed in any material respect.” Id. at 2. The BIA

noted that this was not a case where a prior, meritless claim and adverse credibility

finding were overcome by subsequent events, concluding that “the proffered

additional evidence would not meaningfully affect the findings regarding their

failure to demonstrate eligibility” for relief. Id. n.1.

II. DISCUSSION

On appeal, the Mendozas argue that the BIA abused its discretion in

concluding that the new evidence submitted with their motion to reopen did not

alter the adverse credibility determination. They argue that the affidavits directly

address their credibility and should not have been dismissed without any analysis

or discussion about the evidence’s materiality. The Mendozas cite Mejia for the

proposition that the BIA was required “to engage in [] substantial analysis” of their

claim. Appellant Br. at 15 (citing 298 F 3d. 873). 

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

See Al Najjar v. Ashcroft, 257 F.3d 1262, 1302 (11th Cir. 2001) (citations omitted)

(“[W]e employ a very deferential abuse of discretion standard in reviewing the
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BIA’s decision on a motion to reopen.”). The Supreme Court has analogized the

burden on an applicant seeking to reopen immigration proceedings to that imposed

on a criminal defendant seeking a new trial “on the basis of newly discovered

evidence, as to which courts have uniformly held that the moving party bears a

heavy burden.” INS v. Abudu, 485 U.S. 94, 110, 108 S. Ct. 904, 914 (1988)

(citation omitted). “The implication of this analogy . . . and the fact that the

regulations ‘plainly disfavor’ motions to reopen all support the BIA’s imposition

of a ‘heavy burden.’” Al Najjar, 257 F.3d at 1302 (citation omitted). We have

adopted the requirement that a movant must “present[ ] evidence of such a nature

that the [BIA] is satisfied that if proceedings before the [IJ] were reopened, with all

attendant delays, the new evidence offered would likely change the result in the

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

internal quotations omitted). 

“At a minimum, there are at least three independent grounds upon which the

BIA may deny a motion to reopen: 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.” Al Najjar, 257 F.3d at 1302 (citation

omitted). Under 8 C.F.R. § 1003.2(c)(1), “[a] motion to reopen proceedings shall

not be granted unless it appears to the Board that evidence sought to be offered is
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material and was not available and could not have been discovered or presented at

the former hearing.” In explaining 8 C.F.R. § 1003.2(c)(1), we have stated that: 

[t]he provision is framed negatively, by directing the Board not to

reopen unless certain showings are made. It does not affirmatively

require the Board to reopen the proceedings under any particular

condition. Thus, the regulations may be construed to provide the

Board with discretion in determining under what circumstances

proceedings should be reopened.

Al Najjar, 257 F.3d at 1301 (alterations, citations, and internal quotations omitted). 

Moreover, as the Fifth Circuit has persuasively held, in any decision the BIA “has

no duty to write an exegesis on every contention. What is required is merely that it

consider the issues raised, and announce its decision in terms sufficient to enable a

reviewing court to perceive that it has heard and thought and not merely reacted.” 

Osuchukwu v. INS, 744 F.2d 1136, 1142-1143 (5th Cir. 1984).

Upon review of the record, and upon consideration of the briefs of the

parties, we cannot say that the BIA abused its discretion in denying the Mendozas’

motion to reopen. The Mendozas did not challenge the BIA’s findings of adverse

credibility and ineligibility for removal relief, instead filing a motion to reopen on

the basis of previously unavailable evidence. While some of the evidence may

have been previously unavailable–because it documented alleged threats occurring

after the removal proceedings–the BIA properly found that it was not evidence

sufficient to alter materially the BIA’s initial determination of eligibility. 
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According to their testimony, the Mendozas already had been threatened directly

and indirectly multiple times, one of which was at gunpoint. The incidents

described in the affidavits represent a continuation of, and do not differ

substantially from, the earlier threats, which the BIA determined did not rise to the

level of persecution. Therefore, the Mendozas have not satisfied their heavy

burden in demonstrating that the affidavits likely would change the outcome of

their case, see Ali, 443 F.3d at 813, in part because the evidence does not

sufficiently address the IJ’s adverse credibility determination, as affirmed by the

BIA. Moreover, and contrary to the Mendozas’ assertion, the BIA considered the

subsequently discovered evidence and explicitly found that it did not change the

Mendozas’ religious persecution claim in any material respect. Accordingly, the

BIA did not abuse its discretion in denying the Mendozas’ motion to reopen.

III. CONCLUSION

Because the new evidence submitted did not materially differ from

previously submitted evidence and did not demonstrate the Mendozas’ eligibility

for relief, the BIA did not abuse its discretion in denying their motion to reopen. 

Accordingly, we deny the petition for review. 

DENIED.